PROTALIX BIOTHERAPEUTICS, INC. AS ISSUER AND EACH OF THE GUARANTORS PARTY HERETO 7.50% SENIOR SECURED CONVERTIBLE NOTES DUE 2024 INDENTURE DATED AS OF AUGUST 24, 2021 THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. AS TRUSTEE WILMINGTON SAVINGS FUND...
Exhibit 4.2
Execution Version
PROTALIX BIOTHERAPEUTICS, INC.
AS ISSUER
AND EACH OF THE GUARANTORS PARTY HERETO
7.50% SENIOR SECURED CONVERTIBLE NOTES DUE 2024
DATED AS OF AUGUST 24, 2021
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
AS TRUSTEE
WILMINGTON SAVINGS FUND SOCIETY, FSB
AS COLLATERAL AGENT
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INDENTURE, dated as of August 24, 2021, among Protalix Biotherapeutics, Inc., a Delaware corporation (“Company”), the Guarantors (as defined below) party hereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), registrar, paying agent and conversion agent, and Wilmington Savings Fund Society, FSB (“WSFS”), as the collateral agent (the “Collateral Agent”).
WHEREAS, the Company has duly authorized the creation of an issue of twenty-eight million seven hundred fifty thousand dollars ($28,750,000) aggregate principal amount of the Company’s 7.50% Senior Secured Convertible Notes due 2024; and
WHEREAS, the Company and each of the Guarantors has duly authorized the execution and delivery of this Indenture.
NOW, THEREFORE, each party agrees as follows for the benefit of each of the other parties hereto and for the equal and ratable benefit of the Holders (as defined below) of the Company’s 7.50% Senior Secured Convertible Notes due 2024:
“Acquired Debt” means, with respect to any specified Person:
“Affiliate” of any specified Person means any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, the following entities shall not be deemed to be Affiliates of the Company: (i) Pfizer Inc. by virtue solely of its exclusive license and supply agreement with the Company as in existence on the Issue Date; (ii) Chiesi Farmaceutici S.p.A. by virtue solely of its exclusive license and supply agreements with the Company as in existence on the Issue Date; (iii) any entity by virtue solely of having no more than two overlapping directors with the board of directors of the Company; and (iv) any entity by virtue solely of entering into a license, collaboration agreement, strategic alliance or similar arrangement with the Company providing for the licensing of Intellectual Property or the development or commercialization of Intellectual Property.
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“Aggregate Share Cap” means 9,106,774 shares of Common Stock; provided, however, that the Aggregate Share Cap will be subject to proportionate adjustment for stock dividends, stock splits or stock combinations with respect to the Common Stock.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transfer or transaction and as in effect from time to time.
“Asset Sale” means:
(1)the sale, lease, conveyance or other disposition of any assets or rights (whether in a single transaction or a series of related transactions), provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Article 5; and
(2)the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any of the Company’s Subsidiaries (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Company or one of its Restricted Subsidiaries).
Notwithstanding anything to the contrary in the preceding paragraph, none of the following items will be deemed to be an Asset Sale:
(1)any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $0.5 million;
(2)a transfer of assets (including, without limitation, Equity Interests) constituting Collateral between or among the Company and the Guarantors;
(3)a transfer of assets that are not Collateral between or among the Company and its Restricted Subsidiaries;
(4)an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;
(5)any sale or other disposition of damaged, worn-out or obsolete assets or assets otherwise unsuitable or no longer required for use in the ordinary course of the business of the Company and its Restricted Subsidiaries (including the abandonment or other disposition of property that is, in the reasonable judgment of the Company, no longer profitable, economically practicable to maintain or useful in the conduct of the business of the Company and its Restricted Subsidiaries, taken as whole);
(6)a Restricted Payment that does not violate Section 4.11, or a Permitted Investment;
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(7)the sale, lease, sublease, license, sublicense, consignment, conveyance or other disposition of products, services, inventory and other assets in the ordinary course of business, including leases with respect to facilities that are temporarily not in use or pending their disposition (for the avoidance of doubt, licenses, sublicenses and other dispositions of rights in patents, trademarks, copyrights, know-how or other intellectual property shall be deemed not be in the ordinary course);
(8)a disposition of leasehold improvements or leased assets in connection with the termination of any operating lease;
(9)(x) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; or (y) the sale or other disposition of Hedging Obligations or other financial instruments in the ordinary course of business;
(10)any foreclosure or any similar action with respect to the property or other assets of the Company or any Restricted Subsidiary;
(11)the sublease or assignment to third parties of leased facilities in the ordinary course of business;
(12)a Casualty or Condemnation Event whose proceeds are subject to application pursuant to Section 4.14;
(13)the creation of or realization on a Lien to the extent that the granting of such Lien was not in violation of Section 4.16;
(14)any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims;
(15)the sale or other disposition of cash or Cash Equivalents;
(16)(i) any non-exclusive, incidental license, collaboration agreement, strategic alliance or similar arrangement providing for the licensing of Intellectual Property or the development or commercialization of Intellectual Property (other than Intellectual Property Licenses, Co-Promotion Arrangements and, for the avoidance of doubt, arrangements that are exclusive with respect to a geographic territory or indication) that, at the time such non-exclusive or incidental license, collaboration agreement, strategic alliance or similar arrangement is entered into, in the judgment of the Company, does not materially and adversely affect the business or condition (financial or otherwise) of the Company and any of its Restricted Subsidiaries, taken as a whole, and (ii) any Intellectual Property Licenses or Co-Promotion Arrangements, so long as any aggregate cash proceeds from such Intellectual Property Licenses and Co-Promotion Arrangements are applied pursuant to Section 4.14; and
(17)to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, as amended, or any successor provision, or any similar provision of any foreign
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country, any exchange of like property (excluding any boot thereon and excluding any Intellectual Property Sale, Intellectual Property License or Co-Promotion Agreement) for use in a Permitted Business, provided that (i) the aggregate Fair Market Value of the property or assets (including cash and Cash Equivalents) received by the Company and its Restricted Subsidiaries in such exchange is at least equal to the aggregate Fair Market Value of the property or assets disposed of by the Company or such Restricted Subsidiaries in such exchange and (ii) the net cash proceeds received by the Company and its Restricted Subsidiaries in such exchange are treated as Net Proceeds of an Asset Sale pursuant to Section 4.14.
Notwithstanding anything to the contrary in the preceding paragraph, the Company may voluntarily treat any transaction otherwise exempt from the definition of “Asset Sale” pursuant to clauses (1) through (17) above as an “Asset Sale” by designating such transaction as an Asset Sale for purposes of this Indenture in an Officers’ Certificate delivered to the Trustee.
“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with U.S. GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Attributable Debt represented thereby will be the amount of liability in respect thereof determined in accordance with the definition of “Capital Lease Obligation.”
“Authorized Share Amendment Effective Date” means the date, if at all, that (a) the Company has amended its Amended and Restated Articles of Incorporation to increase the number of authorized shares of Common Stock to an amount that is sufficient, after taking account of all shares of Common Stock reserved or necessary to satisfy the Company’s obligations (other than pursuant to this Indenture and the Notes) to issue shares of Common Stock, to settle the conversion of all then-outstanding Notes (assuming Physical Settlement) at the Conversion Rate then applicable, after giving effect to the maximum number of Additional Shares that may then be added to the Conversion Rate; and (b) the Company has reserved such amount of shares of Common Stock for future issuance pursuant to this Indenture and the Notes.
“Bankruptcy Law” means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar U.S. federal, state or non-U.S. law for the relief of debtors.
“Beneficial Owner” has the meaning assigned to such term in Rules 13d-3 and 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person or group, such person or group will be deemed to have beneficial ownership of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time. The terms “Beneficially Own” and “Beneficially Owned” have a corresponding meaning.
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“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it.
“Board Resolution” means a copy of one or more resolutions 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 any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York, Wilmington, Delaware or the place of payment is authorized or required by law or executive order to close or be closed.
“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with U.S. GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease on or prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.
“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.
“Capped Combination Settlement” means Combination Settlement with a Cash Amount for each VWAP Trading Day of the relevant Observation Period equal to the Capped Combination Settlement Cash Amount on such VWAP Trading Day.
“Capped Combination Settlement Cash Amount” means, on any VWAP Trading Day during the relevant Observation Period, the greater of (x) $1,000 and (y) an amount equal to:
where,
DCV=the Daily Conversion Value on such VWAP Trading Day;
DC=the Daily Share Cap on such VWAP Trading Day; and
VWAP=the Daily VWAP on such VWAP Trading Day.
“Capped Combination Settlement Release Date” means the first date, if at all, when the Authorized Share Amendment Effective Date has occurred and the NYSE American Stockholder Approval has been obtained.
“Cash Equivalents” means:
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“Cash Settlement” means (a) with respect to the Conversion Settlement Method applicable to any conversion of Notes, that the Company shall have elected, in accordance with Section 10.02(a), to settle its Conversion Obligation solely in cash in accordance with Section 10.02(a)(iii)(A) and (b) with respect to the Make-Whole Settlement Method applicable to the Make-Whole Premium due upon any conversion of Notes, that the Company shall have elected (or been deemed to have elected), in accordance with Section 10.03(a), to settle its Make-Whole Obligation solely in cash in accordance with Section 10.03(a)(iii)(A).
“Casualty or Condemnation Event” means any taking under power of eminent domain or similar proceeding and any insured loss, in each case, relating to property or other assets that constituted Collateral owned by the Company or a Guarantor.
“Change in Control” means an event that will be deemed to have occurred at the time, after the first date of original issuance for the Notes, any of the following occurs:
(a)any “person” or “group” within the meaning of Section 13(d) of the Exchange Act is or becomes the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing 50% or more of the total voting power of the Company’s Common Equity;
(b)the consummation of (x) any recapitalization, reclassification or change of the Common Stock (other than 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; (y) 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 (z) 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 the Company’s Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries; provided, however, that a transaction described in clause (y) above pursuant to which the Persons that “beneficially owned” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, the Company’s Common Equity
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immediately prior to such transaction “beneficially own” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, the Common Equity representing at least a majority of the total voting power of all outstanding classes of the Common Equity of the surviving or transferee person (or its parent) and such holders’ respective proportional voting power immediately after such transaction vis-à-vis each other with respect to the securities they receive in such transaction will be in substantially the same respective proportions as their respective voting power vis-à-vis each other immediately prior to such transaction will not constitute a “Change in Control”; or
(c)the holders of the Company’s Common Equity approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture);
provided, however, that, notwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred if at least 90% of the consideration paid for the Common Stock in a transaction or transactions described under clause (b) of this definition of “Change in Control” above (excluding cash payments for any fractional shares and cash payments made pursuant to dissenters’ appraisal rights) consists of Publicly Traded Securities, or securities that will be Publicly Traded Securities immediately following such transaction, and as a result thereof, such consideration becomes the Reference Property for the Notes. If any transaction in which the Common Stock is replaced by the securities of another entity occurs, following completion of any related Make-Whole Adjustment Period (or, in the case of a transaction that would have been a Change in Control but for the proviso immediately following clause (c) of the definition thereof, following the effective date of such transaction) references to the Company in this definition shall instead be references to such other entity.
“Close of Business” means 5:00 p.m., New York City time.
“Co-Promotion Arrangement” means any agreement or arrangement related primarily to the marketing, promoting, distributing, detailing, or commercial selling of, or customer service with respect to, any product (including the Products).
“Collateral” means all property subject or purported to be subject, from time to time, to a Lien under any of the Security Documents.
“Collateral Agent” means Wilmington Savings Fund, FSB, acting in the capacity of collateral agent, until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means such successor.
“Combination Settlement” means (a) with respect to the Conversion Settlement Method applicable to any conversion of Notes, that the Company shall have elected (or been deemed to have elected), in accordance with Section 10.02(a), to settle its Conversion Obligation in a combination of cash and shares of Common Stock (and cash in lieu of any fractional shares) in accordance with Section 10.02(a)(iii)(C) and (b) with respect to the Make-Whole Settlement Method applicable to the Make-Whole Premium due upon any conversion of Notes, that the Company shall have elected, in accordance
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with Section 10.03(a), to settle its Make-Whole Obligation in a combination of cash and shares of Common Stock (and cash in lieu of any fractional shares) in accordance with Section 10.03(a)(iii)(C).
“Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
“Common Stock” means the common stock of the Company, par value $0.001 per share, at the date of this Indenture, subject to Section 10.08.
“Company” means the party named as such in the first paragraph of this Indenture until a successor or assignee replaces it pursuant to the applicable provisions hereof and, thereafter, means the successor or assignee.
“Company Order” means a written request or order signed in the name of the Company by any Officer.
“Consolidated Cash Balances” means, at any time, (a) the aggregate amount of cash and Cash Equivalents, in each case, held or owned by (either directly or indirectly), credited to the account of, or that would otherwise be required to be reflected as an asset on the balance sheet of, the Company and its Restricted Subsidiaries less (b) the sum of (i) any restricted cash or Cash Equivalents to pay bona fide licensing obligations, severance taxes, payroll, payroll taxes, other taxes, employee wage and benefit payments and trust and fiduciary obligations or other obligations of the Company or any Restricted Subsidiary to third parties and for which either (x) the Company or such Restricted Subsidiary has issued checks or has initiated wires or ACH transfers (but which amounts have not, as of such time, been subtracted from the balance in the relevant account of the Company or such Restricted Subsidiary) or (y) reasonably anticipates in good faith that it will issue checks or initiate wires or ACH transfers within ten (10) days thereafter, (ii) other amounts permitted to be paid by the Company or any Restricted Subsidiary in accordance with this Indenture and the other Security Documents for which the Company or such Restricted Subsidiary has issued checks or has initiated wires or ACH transfers (but which amounts have not, as of such time, been subtracted from the balance in the relevant account of the Company or such Restricted Subsidiary), (iii) while and to the extent refundable, any cash or Cash Equivalents held by the Company or any Restricted Subsidiary constituting purchase price deposits pursuant to a binding and enforceable purchase and sale agreement with a third party containing customary provisions regarding the payment and refunding of such deposits, and (iv) any cash or Cash Equivalents held by the Company or any Restricted Subsidiary in good faith to fund any customary deposit in the nature of xxxxxxx money with respect to, or the purchase price of, any future acquisition permitted under this Indenture.
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“Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:
(1)provision for taxes based on income or profits of such Person and its Restricted Subsidiaries and all franchise taxes for such period, to the extent that such amounts were deducted in computing such Consolidated Net Income; plus
(2)the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus
(3)depreciation, amortization (including amortization of intangibles, deferred financing fees, debt incurrence costs, commissions, fees and expenses, but excluding amortization of prepaid cash expenses that were paid in a prior period), depletion and other non-cash expenses or charges (including any write-offs of debt issuance or deferred financing costs or fees and impairment charges and the impact on depreciation and amortization of purchase accounting, but excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses or charges were deducted in computing such Consolidated Net Income; plus
(4)the amount of net loss resulting from the payment of any premiums, fees or similar amounts that are required to be paid under the terms of the instrument(s) governing any Indebtedness upon the repayment, prepayment or other extinguishment of such Indebtedness in accordance with the terms of such Indebtedness; plus
(5)(i) unusual or nonrecurring charges, expenses or other items and (ii) charges, expenses or other items in connection with any restructuring, acquisition (including integration costs), disposition, equity issuance or debt incurrence, in all cases whether or not consummated and to the extent deducted in computing such Consolidated Net Income (for the avoidance of doubt, for purposes of this clause (5), charges, expenses or other items shall be deemed to be “unusual” or “non-recurring” if similar charges, expenses or other items have not been incurred in the current fiscal year or the preceding two fiscal and are not reasonably likely to recur within any of the next two fiscal years); plus
(6)any impairment charges or asset write-offs, in each case pursuant to U.S. GAAP, and the amortization of intangibles arising pursuant to U.S. GAAP; minus
(7)non-cash items increasing such Consolidated Net Income for such period (other than the accrual of revenue in the ordinary course of business or any other such non-cash item to the extent that it represents a reduction in an accrual of or reserve for cash charges or expenses in any future period), in each case, on a consolidated basis and determined in accordance with U.S. GAAP.
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“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (loss) from continuing operations of such Person and its Restricted Subsidiaries for such period, on a consolidated basis determined in accordance with U.S. GAAP and without any reduction in respect of preferred stock dividends; provided that:
(1)all extraordinary gains and losses and all gains and losses realized in connection with any asset disposition or the disposition of securities or the early extinguishment of Indebtedness or Hedging Obligations, together with any related provision for taxes on any such gain, will be excluded;
(2)the net income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person (and the net loss of any such Person shall be included only to the extent that such loss is funded in cash by the specified Person or a Restricted Subsidiary thereof);
(3)solely for the purpose of determining the amount available for Restricted Payments under Section 4.11(a), the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its net income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such Person shall be increased by the amount of dividends or other distributions paid in cash (or to the extent converted to cash) by any such Restricted Subsidiary to such Person, to the extent not already included therein;
(4)the cumulative effect of a change in accounting principles, together with any related provision for taxes, will be excluded;
(5)notwithstanding anything to the contrary in clause (2) above, the net income of any Unrestricted Subsidiary will be excluded except for the amount of dividends or other distributions paid in cash by the Unrestricted Subsidiary to such Person or one of its Restricted Subsidiaries;
(6)any non-cash costs or expenses resulting from stock option plans, employee benefit plans, compensation charges or post-employment benefit plans, or grants or awards of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights will be excluded;
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(7)any gain or loss for such period from currency translation gains or losses or net gains or losses related to currency re-measurements of Indebtedness will be excluded;
(8)any unrealized net after-tax income (loss) from Hedging Obligations or cash management obligations and the application of Accounting Standards Codification Topic 815 “Derivatives and Hedging” or from other derivative instruments in the ordinary course will be excluded;
(9)any nonrecurring charges relating to any premium or penalty paid, write off of deferred finance costs or other charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity will be excluded; and
(10)earn outs, contingent consideration or deferred purchase obligations in connection with the acquisition of a Permitted Business or assets used in a Permitted Business will be excluded.
“Conversion Make-Whole Share Price” means, with respect to any conversion, the greater of (a) 130% of the Conversion Price in effect on the applicable Conversion Date, and (b) the average of the Daily VWAPs during the Observation Period for the relevant Conversion Date.
“Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of such time.
“Conversion Settlement Date” means, for any conversion of Notes and the Conversion Settlement Method applicable to such conversion, the date on which the Company is required to settle its Conversion Obligation pursuant to Section 10.02(a)(iii).
“Corporate Trust Office” means the corporate trust office of the Trustee at which the trust created by this Indenture will be administered, which office, as of the Issue Date, is located at The Bank of New York Mellon Trust Company, N.A., 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000, Attention: Corporate Trust, and may later be located at such other address as the Trustee, upon delivering notice to the Holders, the Paying Agent, the Conversion Agent, the Registrar, the Collateral Agent and the Company, designates.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Daily Cash Amount” means 5.0% of the applicable Cash Amount.
“Daily Conversion Value” means, for each of the 20 consecutive VWAP Trading Days during an Observation Period, 5.0% of the product of (a) the Conversion Rate on such VWAP Trading Day and (b) the Daily VWAP for such VWAP Trading Day.
“Daily Settlement Amount” means, for any VWAP Trading Day during the relevant Observation Period, (a) an amount of cash equal to the lesser of (i) the Daily
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Cash Amount and (ii) the Daily Conversion Value for such VWAP Trading Day; and (b) if the Daily Conversion Value for such VWAP Trading Day exceeds the Daily Cash Amount, a number of shares of Common Stock equal to (i) the difference between such Daily Conversion Value and the Daily Cash Amount, divided by (ii) the Daily VWAP for such VWAP Trading Day.
“Daily Share Cap” means an amount, rounded down to the nearest 1/10,000th of a share, equal to:
where,
AC=the Aggregate Share Cap; and
N=the aggregate principal amount of Notes issued on the Issue Date.
“Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PLX <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading on the principal trading market for the Common Stock to the scheduled close of trading of the primary trading session on such VWAP Trading Day (or if such volume-weighted average price is not available, the market value of one share of Common Stock on such VWAP Trading Day, as the Company reasonably determines in good faith using a volume-weighted average method). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Definitive Notes” means Notes that are in registered definitive non-global form.
“Depositary” means DTC; provided, that the Company may at any time, upon delivering notice to the Holders, the Company, the Trustee, the Registrar, the Paying Agent and the Conversion Agent, appoint a successor Depositary.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the earlier of (x) the date that is 91 days after the date on which the Notes mature and (y) the date that is 91 days after the date no Notes remain outstanding; provided, that only the portion of the Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof
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prior to such date will be deemed to be Disqualified Stock; provided, further, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Company or its Restricted Subsidiaries or by any such plan to such employees, such Capital Stock will not constitute Disqualified Stock solely because it may be required to be repurchased by the Company in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability. Notwithstanding anything to the contrary in the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a Fundamental Change or an Asset Sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.11. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company or any and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory repurchase or redemption provisions of, such Disqualified Stock exclusive of accrued dividends (other than the accretion, accumulation or payment-in-kind of dividends).
“DTC” means The Depository Trust Company.
“Effective Date” shall have the meaning specified in Section 10.04(c), except that, as used in Section 10.05 and Section 10.06, “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.
“Effectively Discharged” (or “Effective Discharge”) means, with respect to the Existing Convertible Notes, that (i) the Company shall have irrevocably deposited with the Existing Convertible Notes Trustee, for the benefit of the holders of the Existing Convertible Notes, cash in an amount equal to the sum of all remaining interest and principal payments due on the Existing Convertible Notes (together with all consideration due in respect of each conversion of Existing Convertible Notes that has not been fully settled as of the time of such deposit) and shall have irrevocably directed the Existing Convertible Notes Trustee to make such payments to the holders of the Existing Convertible Notes as the same becomes due in accordance with the Existing Convertible Notes Indenture (provided, however, that such deposit may be subject to arrangements whereby any cash amounts not necessary to pay amounts due on the Existing Convertible Notes as they become due may be returned to the Company after none of the Existing Convertible Notes remain outstanding); and (ii) the Company shall have paid all other amounts due under the Existing Convertible Notes Indenture (provided, however, that the existence of an obligation to compensate and indemnify the Existing Convertible Notes Trustee or the Collateral Agent, in each case, in the ordinary course pursuant to the Existing Convertible Notes Indenture will not cause the Existing Convertible Notes to be deemed not to be Effectively Discharged).
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“Equity Interests” means Capital Stock; provided, however, that “Equity Interests” does not include any debt security that is convertible into, or exchangeable for, (a) Capital Stock or (b) Capital Stock and/or cash based on the value of such Capital Stock.
“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.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Notes” means the $28,750,000 aggregate principal amount of Global Notes issued on the Issue Date and identified on the Issue Date by an unrestricted CUSIP number and not bearing a Restricted Notes Legend.
“Excluded Assets” has the meaning assigned to such term in the U.S. Security Agreement.
“Excluded Real Property” means any real property owned by the Company or a Guarantor with a Fair Market Value of less than $1.0 million; provided, however, that if, after the Issue Date, the Company or any Guarantor grants a mortgage or deed of trust (or equivalent instrument representing a security interest) in favor of another lender or holder of Indebtedness on any Excluded Real Property, such real property shall cease to be Excluded Real Property for so long as such mortgage or deed of trust remains in place and the Company or any Guarantor, as applicable, shall grant a mortgage or deed of trust over such real property in favor of the Collateral Agent or the Israeli Security Trustee, as applicable, as if such property is subject to Section 4.19 and shall be subject to the requirements of Section 14.01.
“Existing Convertible Notes” means the Company’s 7.50% Convertible Senior Notes due 2021 outstanding on the Issue Date, after giving effect to the issuance of the Notes.
“Existing Convertible Notes Event of Default” means an “Event of Default” as defined in Section 6.01(a) of and occurring under, the Existing Convertible Notes Indenture, after giving effect to any applicable grace or cure periods described therein.
“Existing Convertible Notes Indenture” means that certain indenture, dated as of December 7, 2016, among the Company, the guarantors party thereto, the Existing Convertible Notes Trustee and the Collateral Agent, governing the Existing Convertible Notes, as amended, modified and/or supplemented from time to time.
“Existing Convertible Notes Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee for the Existing Convertible Notes under the Existing Convertible Notes Indenture, until a successor replaces it pursuant to the applicable
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provisions of the Existing Convertible Notes Indenture and, thereafter, means such successor trustee of the Existing Convertible Notes.
“Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries in existence on the Issue Date as listed on Schedule I hereto, until such amounts are repaid including, without limitation, the Existing Convertible Notes and related note guarantees with respect thereto.
“Fair Market Value” means the value that would be paid by a willing buyer or licensor to an unaffiliated willing seller or licensee in a transaction not involving distress or necessity of either party, determined in good faith by (unless otherwise provided in this Indenture) the Board of Directors.
“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than (i) ordinary working capital borrowings and (ii) Indebtedness incurred under any revolving credit facility for ordinary working capital purposes unless such Indebtedness has been permanently repaid and has not been replaced) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated after giving pro forma effect, in the good-faith judgment of the Chief Financial Officer of the Company as set forth in a certificate with supporting calculations delivered to the Trustee, to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1)acquisitions of business entities or property and assets constituting a division or line of business that have been made by the specified Person or any of its Restricted Subsidiaries, including through Investments, mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries, during the reference period or subsequent to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect, in the good-faith judgment of the Chief Financial Officer of the Company, as if they had occurred on the first day of the reference period, in accordance with Regulation S-X promulgated under the Exchange Act;
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(2)the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with U.S. GAAP, and operations or businesses (and ownership interests therein) disposed of on or prior to the Calculation Date, will be excluded;
(3)the Fixed Charges attributable to discontinued operations, as determined in accordance with U.S. GAAP, and operations or businesses (and ownership interests therein) disposed of on or prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;
(4)any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such reference period;
(5)any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such reference period;
(6)if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as of the Calculation Date that exceeds 12 months);
(7)if any Indebtedness is incurred under a revolving credit facility and is being given pro forma effect in such calculation, the interest on such Indebtedness shall be calculated based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition; and
(8)any interest expense attributable to the Existing Convertible Notes will be excluded for any reference period ending on or after the date the Existing Convertible Notes have been Effectively Discharged.
“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:
(1)the consolidated interest expense of such Person and its Restricted Subsidiaries for such period (with all interest on the Notes to be deemed to be paid in cash), whether paid or accrued, including, without limitation, amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts, yield and other fees and charges (including interest) incurred in respect of letter of credit or bankers’ acceptance financings, and giving the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates, but excluding the amortization or write-off of debt issuance costs; provided that consolidated interest expense shall be calculated without giving effect to (i) the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease consolidated interest
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expense for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of any Indebtedness and (ii) any original issue discount on the Notes issued on the Issue Date; plus
(2)the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock of the Company or preferred stock of any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or any of its Restricted Subsidiaries, and (b) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with U.S. GAAP.
“Foreign Subsidiary” means, with respect to any Person, (a) a Subsidiary of such Person that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia or (b) any direct or indirect Subsidiary of such Person that is treated as a disregarded entity for United States federal income tax purposes if substantially all of its assets consist of Equity Interests of one or more direct or indirect Subsidiaries of such Person described in clause (a) of this definition.
“Form of Notice of Conversion” means the form of “Conversion Notice” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
“Free Trade Date” means the date that is one year after the relevant Last Original Issue Date; provided, however, that the Free Trade Date for the Exchange Notes will be the Issue Date. The Free Trade Date with respect to any shares of Common Stock issued upon conversion of any Notes or otherwise in respect of any Notes shall be the same as the Free Trade Date of such Notes.
“Freely Tradable” means, with respect to any Notes or any shares of the Common Stock issuable upon conversion of the Notes, that such Notes or such shares of Common Stock, as the case may be, (i) are eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise by a Person that is not an “affiliate” (as defined in Rule 144) of the Company and that has not been an “affiliate” (as defined in Rule 144) of the Company during the immediately preceding three-month period without any volume or manner of sale restrictions under the Securities Act and, (ii) on and after the Free Trade Date, (A) in the case of the Notes, do not bear the Restricted Notes Legend and, in the case of shares of the Common Stock, do not bear the Restricted Stock Legend, and (B) with respect to Global Notes only, are identified by an unrestricted CUSIP number in the facilities of the Depositary.
“Fundamental Change” means the occurrence of a Change in Control or a Termination of Trading.
“Global Note” means a permanent global note that is in the form of the Note attached hereto as Exhibit A and that is registered in the name of the Depositary or the
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nominee of the Depositary and deposited with the Depositary, the nominee of the Depositary or a custodian appointed by the Depositary or the nominee of the Depositary.
“Global Notes Legend” means the legend identified as such in Exhibit A hereto.
The term “guarantee” means a guarantee, other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).
“Guarantors” means any Restricted Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:
(1)interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;
(2)other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3)other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
“Holder” or “Holders” means a Person or Persons in whose name a Note is registered in the Register.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(1)in respect of borrowed money;
(2)evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(3)in respect of banker’s acceptances;
(4)representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(5)representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such
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services are completed, but excluding any accrued liabilities being contested in good faith by appropriate proceedings promptly instituted and diligently conducted; or
(6)representing any Hedging Obligations,
in each case, if and to the extent any of the preceding items would appear as a liability upon a balance sheet (excluding the footnotes) of the specified Person prepared in accordance with U.S. GAAP. In addition, the term “Indebtedness” includes, (i) to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person and (ii) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) equal to the lesser of (x) the Fair Market Value of such asset as of the date of determination and (y) the amount of such Indebtedness.
Notwithstanding anything to the contrary in the foregoing paragraph, the term “Indebtedness” will not include (a) in connection with the purchase by the Company or any of its Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing unless such payments are required under U.S. GAAP to appear as a liability on the balance sheet (excluding the footnotes); provided, that at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; (b) contingent obligations incurred in the ordinary course of business and not in respect of borrowed money; (c) deferred or prepaid revenues; (d) any Capital Stock other than Disqualified Stock; or (e) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller. Indebtedness shall be calculated without giving effect to the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
“Indenture” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof.
“Intellectual Property” means, with respect to any Person, all intellectual property and proprietary rights in any jurisdiction throughout the world, and all corresponding rights, presently or hereafter existing, including: (a) all inventions (whether or not patentable or reduced to practice), all improvements thereto, and all patents, patent applications, industrial designs, industrial design applications, and patent disclosures, together with all reissues, continuations, continuations-in-part, revisions, divisionals, extensions, and reexaminations in connection therewith; (b) all trademarks, trademark applications, tradenames, servicemarks, servicemark applications, trade dress, logos and designs, business names, company names, Internet domain names, and all other indicia of origin, all applications, registrations, and renewals in connection therewith, and all goodwill associated with any of the foregoing; (c) all copyrights and other works of
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authorship, mask works, database rights and moral rights, and all applications, registrations, and renewals in connection therewith; (d) all trade secrets and proprietary knowhow and confidential information (including technical data, customer and supplier lists, manufacturing processes, pricing and cost information, and business and marketing plans and proposals); (e) all software (including source code, executable code, data, databases, and related documentation); and (f) all rights of privacy and publicity, including rights to the use of names, likenesses, images, voices, signatures and biographical information of real persons.
“Intellectual Property Licenses” means the licensing, development or commercialization of all or any substantial portion of the Intellectual Property related to the Products pursuant to any license, sub-license, collaboration agreement, strategic alliance or similar arrangement; provided, that Intellectual Property Licenses shall not include any Co-Promotion Arrangement or any license incidental to a Co-Promotion Arrangement.
“Intellectual Property Sale” means the sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions), other than, for the avoidance of doubt, pursuant to Intellectual Property Licenses or any Co-Promotion Arrangement, of all or any substantial portion of the Intellectual Property and other related assets related to the Products.
“Investments” means, with respect to any specified Person, all direct or indirect investments by such specified Person in other Persons (including Affiliates) in the forms of loans (including guarantees of Indebtedness or other Obligations), advances or capital contributions (excluding (i) commission, travel and similar advances to officers and employees made in the ordinary course of business and (ii) extensions of credit to customers or advances, deposits or payment to or with suppliers, lessors or utilities or for workers’ compensation, in each case, that are incurred in the ordinary course of business and recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of such specified Person prepared in accordance with U.S. GAAP), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with U.S. GAAP. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person determined as provided in Section 4.11(f). Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value but after giving effect (without duplication) to all subsequent reductions in the amount of such Investment as a result of (x) the repayment or disposition thereof for cash or (y) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (valued proportionately to the equity interest in such Unrestricted Subsidiary of the Company or such Restricted Subsidiary owning such Unrestricted Subsidiary at the time of such redesignation) at the Fair Market Value of the net assets of
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such Unrestricted Subsidiary at the time of such redesignation, in the case of clauses (x) and (y), not to exceed the original amount, or Fair Market Value, of such Investment.
“Israeli Fixed Charge” means the Israeli law governed fixed charge dated as of the Issue Date, between Protalix Ltd. and the Israeli Security Trustee, as replaced, modified or supplemented from time to time.
“Israeli Floating Charge” means the Israeli law governed floating charge, dated as of the Issue Date, between Protalix Ltd. and the Israeli Security Trustee, as replaced, modified or supplemented from time to time.
“Israeli Innovation Authority” means the Israeli National Authority for Technological Innovation (formerly known as the Office of the Chief Scientist of the Israeli Ministry of the Economy), or any successor governmental authority.
“Israeli Security Agreements” means the Israeli Fixed Charge, the Israeli Floating Charge and the Israeli Stock Pledge.
“Israeli Security Trustee” means Xxxxxxxxx Shaham Trusts Ltd., in its capacity as Security Trustee under the Israeli law governed Security Documents.
“Israeli Stock Pledge” means the Israeli law governed pledge by the Company over its Equity Interests in Protalix Ltd., dated as of the Issue Date, between the Company and the Israeli Security Trustee, as replaced, modified or supplemented from time to time.
“Issue Date” means the date of this Indenture, as set forth in the preamble hereto.
“Last Original Issue Date” means the last date of original issuance of the Notes; provided, however, that Notes originally issued hereunder on the Issue Date (or any Notes issued in exchange therefor or in substitution thereof) shall have a separate Last Original Issue Date (determined as aforesaid) than any other Notes originally issued hereunder (or any Notes issued in exchange therefor or in substitution thereof).
“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock 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 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 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 on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.
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“Legal Requirements” means, as to any Person, any treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction, policies and procedures, Order or determination of an arbitrator or a court or other governmental authority, and the interpretation or administration thereof, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, in each case whether or not having the force of law.
“Lien” means, with respect to any property, (a) any mortgage, deed of trust, lien (statutory or other), judgment liens, pledge, encumbrance, claim, charge, assignment, hypothecation, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference, including any easement, servitude, right-of-way or other encumbrance on title to real property, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, and any agreement to give any of the foregoing, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement and any lease in the nature thereof and any option, call, trust, contractual, statutory, UCC or similar right relating to such property, (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, and (d) any other arrangement having the effect of providing security.
“Make-Whole Adjustment Event” means (a) any Change in Control (determined after giving effect to any exceptions or exclusions from the definition of “Change in Control” but without giving effect to the proviso in clause (b) of the definition thereof) and (b) any Termination of Trading.
“Make-Whole Premium” means, with respect to each $1,000 in principal amount of Notes to be converted, an amount equal to the sum of the present values (with each such present value computed by a nationally recognized independent investment banking firm selected by the Company for this purpose using a discount rate per annum equal to (a) the Reference Discount Rate plus (b) 0.50%) of (i) subject to the immediately succeeding clause (ii), the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Notes from the related Conversion Settlement Date to the earlier of the Maturity Date and the date that is two years after such Conversion Settlement Date (excluding, for purposes of calculating such present value, interest accrued on such Note to, but excluding, such Conversion Settlement Date that is otherwise paid pursuant to Section 10.02(h)); or (ii) if the Conversion Date for such Notes occurs after the Regular Record Date with respect to an Interest Payment Date and prior to such Interest Payment Date, the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Note from such Interest Payment Date to the earlier of the Maturity Date and the date that is two years after such Interest Payment Date.
“Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale or Casualty or Condemnation Event (including, without limitation, any cash or Cash
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Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale or Casualty or Condemnation Event, including, without limitation, legal, accounting and investment banking fees and sales commissions, and any relocation expenses incurred as a result of the Asset Sale or Casualty or Condemnation Event, taxes paid or payable as a result of the Asset Sale or Casualty or Condemnation Event, in each case, after taking into account, without duplication, (1) any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness secured by a Permitted Lien on the asset or assets that were the subject of such Asset Sale or Casualty or Condemnation Event and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with U.S. GAAP, (2) any reserve or payment with respect to liabilities associated with such asset or assets and retained by the Company or any of its Restricted Subsidiaries after such sale or other disposition thereof, including, without limitation, severance costs, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (3) any cash escrows in connection with purchase price adjustments, reserves or indemnities (until released) and (4) in the case of any Asset Sale by a Restricted Subsidiary that is not a Guarantor, payments to holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity Interests held by the Company or any Restricted Subsidiary) to the extent that such payment is required to permit the distribution of such proceeds in respect of the Equity Interests in such Restricted Subsidiary held by the Company or any Restricted Subsidiary.
“Non-Recourse Debt” means Indebtedness:
(1)as to which none of the Company and its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender, except, in each case, to the extent not prohibited by Section 4.11;
(2)no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and
(3)as to which the lenders have been notified in writing that they will not have any recourse to the Equity Interests or assets of the Company or any Restricted Subsidiary, except as set forth above.
“Note Documents” means, collectively, this Indenture, the Notes, the Note Guarantees, the Security Documents and all other documents and instruments executed and delivered in connection herewith, in each case as such agreements may be amended, restated, supplemented or otherwise modified from time to time.
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“Note Guarantees” means the guarantees by each Guarantor of the Company’s Obligations under this Indenture and the Notes, as set forth in this Indenture.
“Note Liens” means all Liens in favor of the Collateral Agent or the Israeli Security Trustee, as applicable, on Collateral securing the Obligations of the Company under this Indenture and the Notes.
“Note Obligations” means the Obligations of the Company and the other obligors (including the Guarantors) under this Indenture and the other Note Documents to pay principal, premium, if any, and interest (including any interest accruing after the commencement of bankruptcy or insolvency proceedings, whether or not allowed or allowable as a claim in such proceedings) when due and payable, and all other amounts due or to become due under or in connection with the Note Documents and the performance of all other Note Obligations of the Company and the Guarantors under the Note Documents, according to the respective terms thereof.
“Notes” means any of the Company’s 7.50% Senior Secured Convertible Notes due 2024 issued under this Indenture.
“NYSE American Stockholder Approval” means the stockholder approval contemplated by Section 713(a) of the NYSE American Company Guide to issue 20% or more of the outstanding Common Stock in connection with the Notes.
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
“Observation Period” means, for any Note:
(a)subject to clause (b), if the Conversion Date for such Note occurs on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date, the 20 consecutive VWAP Trading Day period beginning on, and including, the 21st Scheduled Trading Day immediately preceding the Maturity Date;
(b)if the Conversion Date for such Note occurs on or after a Redemption Notice Date and on or prior to the second Business Day preceding the relevant Redemption Date, the 20 consecutive VWAP Trading Day period beginning on, and including, the 21st Scheduled Trading Day immediately preceding the relevant Redemption Date; and
(c)in all other instances, the 20 consecutive VWAP Trading Day period beginning on, and including, the second VWAP Trading Day immediately following the Conversion Date for such Note.
“Officer” means the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice
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President, any Senior Vice President, any Vice President, the Chief Accounting Officer, the Treasurer or the Secretary of the Company or any Guarantor, as applicable.
“Officers’ Certificate” means a written certificate containing the information specified in Sections 15.03 and 15.04 hereof, signed in the name of the Company, or any Guarantor, as applicable, by any two Officers, and delivered to the Trustee and, if applicable, the Collateral Agent; provided that, if such certificate is given pursuant to Section 4.05 hereof, (i) one of the Officers signing such certificate must be the Chief Financial Officer or the Chief Accounting Officer of the Company and (ii) such certificate need not contain the information specified in Sections 15.03 and 15.04 hereof.
“Open of Business” means 9:00 a.m., New York City time.
“Opinion of Counsel” means a written opinion containing the information specified in Sections 15.03 and 15.04 hereof, from legal counsel who is reasonably satisfactory to the Trustee and, if applicable, the Collateral Agent. The counsel may be an employee of, or counsel to, the Company who is reasonably satisfactory to the Trustee and, if applicable, the Collateral Agent.
“Order” means any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.
“Permitted Business” means any business conducted by the Company or any of its Restricted Subsidiaries on the Issue Date and any business that, in the good faith judgment of the Board of Directors, is similar or reasonably related, ancillary, supplemental or complementary thereto or a reasonable extension, development or expansions thereof.
“Permitted Exchange” means any of The NYSE American, The New York Stock Exchange, the NASDAQ Global Market, the NASDAQ Capital Market or the NASDAQ Global Select Market (or any of their respective successors).
“Permitted Hedging Obligations” means any Hedging Obligations that would constitute Permitted Debt pursuant to Section 4.13(b)(ix).
“Permitted Investments” means:
(1)(i) any Investment in the Company or any Guarantor and (ii) any Investment by any Restricted Subsidiary of the Company that is not a Guarantor in the Company or any Restricted Subsidiary (in each case, other than any Investment in unsecured Indebtedness, any Indebtedness secured by a Lien junior in priority to the Liens securing the Notes or any Equity Interests of the Company);
(2)any Investment in Cash Equivalents;
(3)any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if, as a result of, or in connection with, such Investment:
26
(a)such Person becomes a Guarantor; or
(b)such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or any Guarantor;
(4)any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.14 or from a sale or other disposition of assets not constituting an Asset Sale;
(5)any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;
(6)any Investments received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (b) litigation, arbitration or other disputes;
(7)Investments represented by Permitted Hedging Obligations;
(8)loans and advances to officers, directors or employees (a) for business-related travel expenses, moving expenses and other similar expenses, including as part of a recruitment or retention plan, in each case incurred in the ordinary course of business or consistent with past practice or to fund any such Person’s purchase of Equity Interests of the Company or any direct or indirect parent entity of the Company, (b) required by applicable employment laws and (c) otherwise in an amount not to exceed $0.5 million at any one time outstanding;
(9)any Investment of the Company or any of its Restricted Subsidiaries existing on the Issue Date, and any extension, modification or renewal of such existing Investments, to the extent not involving any additional Investment other than as the result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investments as in effect on the Issue Date;
(10)guarantees of Indebtedness otherwise permitted by the terms of this Indenture;
(11)receivables owing to the Company or any of its Restricted Subsidiaries, prepaid expenses, and lease, utility, workers’ compensation and other deposits, if created, acquired or entered into in the ordinary course of business;
(12)payroll, business-related travel and similar advances to cover matters that are expected at the time of such advances to be ultimately treated as expenses for accounting purposes and that are made in the ordinary course of business;
27
(13)Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment pursuant to joint marketing, joint development or similar arrangements with other Persons in the ordinary course of business and entered with bona fide counterparties operating in the same industry as the Company;
(14)advances, loans, rebates and extensions of credit (including the creation of receivables and endorsements for collection and deposit) to suppliers, customers and vendors, and performance guarantees, in each case in the ordinary course of business;
(15)Investments resulting from the acquisition of a Person, otherwise permitted by this Indenture, which Investments at the time of such acquisition were held by the acquired Person and were not acquired in contemplation of the acquisition of such Person;
(16)stock, obligations or securities received in satisfaction of judgments and any renewal or replacement thereof;
(17)repurchases of any Notes; and
(18)other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) that, when taken together with all other Investments made pursuant to this clause (18), do not, at any time outstanding, exceed $2.5 million, net of any cash return of capital with respect to such Investments received by the Company or any Restricted Subsidiary of the Company.
In the event that an Investment (or any portion thereof) meets the criteria of more than one of the categories of Permitted Investments described in clauses (1) through (18) above, the Company will be permitted to classify (and may from time to time thereafter reclassify) such Investment (or any portion thereof) and will only be required to include such Investment in one of the categories of Permitted Investments described in clauses (1) through (18) above. At the time of making such Investment or upon any later reclassification, the Company may divide and classify an Investment in more than one of the categories of Permitted Investments described in clauses (1) through (18) above.
“Permitted Liens” means:
(1)(x) Liens on the Collateral securing any Indebtedness incurred under Section 4.13(b)(i); provided that the aggregate principal amount of such Indebtedness outstanding, on a pro forma basis, does not exceed the principal amount of the Notes issued on the Issue Date and (y) Liens securing the Existing Convertible Notes or Existing Indebtedness and related note guarantees with respect thereto, provided that the Existing Convertible Notes and related note guarantees are secured equally, ratably and pari passu with such Liens;
(2)Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or any Restricted Subsidiary; provided, that such Liens were in existence prior
28
to the contemplation of such Person becoming a Restricted Subsidiary of the Company or such merger or consolidation and do not extend to any assets other than those of the Person that becomes a Restricted Subsidiary of the Company or is merged into or consolidated with the Company or any Restricted Subsidiary of the Company (plus improvements and accessions to such property or proceeds or distributions thereof);
(3)Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Restricted Subsidiary of the Company (plus improvements and accessions to such property or proceeds or distributions thereof); provided, that such Liens were in existence prior to such acquisition and not incurred in contemplation of such acquisition;
(4)Liens to secure permitted Capital Lease or purchase money obligations, as permitted to be incurred pursuant to clause (iii) under Section 4.13(b), and encumbering only the assets acquired with or financed by such Indebtedness (plus improvements and accessions to such property or proceeds or distributions thereof);
(5)Liens in the form of licenses or sublicenses under commercial licensing agreements; provided that such licenses or sublicenses are permitted pursuant to clauses (1) or (16) of the second paragraph of the definition of Asset Sales;
(6)Liens in favor of the Company or the Guarantors;
(7)Liens (other than Liens imposed by the Employee Retirement Income Security Act of 1974, as amended) in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), insurance, surety, bid, performance, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance bonds and other similar obligations (in each case, exclusive of obligations for the payment of Indebtedness); provided, that, such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or any Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;
(8)[Reserved];
(9)Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded, which proceedings (or Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien; provided, that any reserve or other appropriate provision as is required in conformity with U.S. GAAP has been made therefor;
(10)any state of facts an accurate survey would disclose, prescriptive easements or adverse possession claims, minor encumbrances, easements or reservations of, or rights of others for, or pursuant to any leases, licenses, rights-of-way or other
29
similar agreements or arrangements, development, air or water rights, sewers, electric lines, telegraph and telephone lines and other utility lines, pipelines, service lines, railroad lines, improvements and structures located on, over or under, any property, drains, drainage ditches, culverts, electric power or gas generating or co-generation, storage and transmission facilities and other similar purposes, zoning or other restrictions as to the use of real property or minor defects in title, which were not incurred to secure payment of Indebtedness and that do not in the aggregate materially adversely affect the value or marketability of said properties or materially impair their use in the operation of the business of the owner or operator of such properties or business;
(11)[Reserved];
(12)Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and employee health and disability benefits, or casualty-liability insurance or self-insurance; provided, that, such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or any Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;
(13)judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made in conformity with U.S. GAAP;
(14)Liens on assets securing Permitted Hedging Obligations;
(15)Liens in favor of any collecting or payor bank having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Restricted Subsidiary thereof on deposit with or in possession of such bank;
(16)any obligations or duties affecting any of the property of the Company or any of its Restricted Subsidiaries to any municipality or public authority with respect to any franchise, grant, license, or permit that do not materially impair the use of such property for the purposes for which it is held;
(17)Liens on any amounts held by a trustee in the funds and accounts under an indenture securing any bonds issued for the benefit of the Company or any of the Guarantors;
(18)Liens on deposit accounts incurred to secure Treasury Management Arrangements pursuant to such Treasury Management Arrangements incurred in the ordinary course of business;
(19)any netting or set-off arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of its banking arrangements (including,
30
for the avoidance of doubt, cash pooling arrangements) for the purposes of netting debit and credit balances of the Company or any of its Restricted Subsidiaries;
(20)Liens on any cash deposit made by the Company to the account of the Existing Convertible Notes Trustee or to the account of a trustee of other Indebtedness of the Company, for the benefit of the holders of the Existing Convertible Notes or such other Indebtedness, solely in connection with an Effective Discharge or an effective discharge of such other Indebtedness; provided that, in each case, such cash is received in a transaction pursuant to Section 4.11(e)(ii) or Section 4.11(e)(vi) for the purpose of such Effective Discharge or such effective discharge of such other Indebtedness; and
(21)Liens imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business (including customary contractual landlords’ liens under operating leases entered into in the ordinary course of business); and (i) which do not in the aggregate materially detract from the value of the property of the Companies, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Company and its Restricted Subsidiaries, taken as a whole, and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings timely initiated and for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.
“Physical Settlement” means (a) with respect to the Conversion Settlement Method applicable to any conversion of Notes, that the Company shall have elected, in accordance with Section 10.02(a), to settle its Conversion Obligation solely in shares of Common Stock (and cash in lieu of any fractional shares) in accordance with Section 10.02(a)(iii)(B) and (b) with respect to the Make-Whole Settlement Method applicable to the Make-Whole Premium due upon any conversion of Notes, that the Company shall have elected, in accordance with Section 10.03(a), to settle its Make-Whole Obligation solely in shares of Common Stock (and cash in lieu of any fractional shares) in accordance with Section 10.03(a)(iii)(B).
“Products” means any of XXX-000, XXX-000, XXX-000, XXX-000, XXX-000 and PRX-119.
“Publicly Traded Securities” means shares of common stock traded on a Permitted Exchange.
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security)
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have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).
“Redemption Notice Date” means the date on which the Company delivers to Holders and the Trustee a Redemption Notice pursuant to Section 11.02(a).
“Redemption Price” means:
(a)for any Note to be redeemed pursuant to Section 11.01(a) on any Redemption Date, an amount calculated by the Company equal to (a) 100% of the principal amount of such Note; plus (b) any accrued and unpaid interest on such Note to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such Notes on such Regular Record Date and the Redemption Price will not include such accrued interest); plus (c) the sum of the present values (with each such present value computed by a nationally recognized independent investment banking firm selected by the Company for this purpose using a discount rate per annum equal to (x) the Reference Discount Rate plus (y) 0.50%) of (i) subject to the immediately succeeding clause (ii), the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Notes from the Redemption Date to the earlier of the Maturity Date and the date that is two years after such Redemption Date (excluding, for purposes of calculating such present value, interest accrued on such Note to, but excluding, the Redemption Date that is otherwise paid pursuant to the immediately preceding clause (b)); or (ii) if the Redemption Date occurs after the Regular Record Date with respect to an Interest Payment Date and prior to such Interest Payment Date, the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Note from such Interest Payment Date to the earlier of the Maturity Date and the date that is two years after such Interest Payment Date; or
(b)for any Note to be redeemed pursuant to Section 11.01(b) on any Redemption Date, an amount equal to (a) 101% of the principal amount of such Note; plus (b) any accrued and unpaid interest on such Note to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such Notes on such Regular Record Date and the Redemption Price will not include such accrued interest).
“Reference Discount Rate” means, for any conversion or Optional Redemption, as the case may be, the yield for 3-month U.S. Treasury bills in secondary market trading for the fifth Business Day immediately preceding the Conversion Date or Redemption Notice Date, as applicable, as displayed opposite the caption “U.S. government securities—Treasury bills (secondary market)—3-month” on the “H.15” weekly release
32
or daily update, as applicable, for that Business Day published by the Federal Reserve System Board of Governors (or its successor) (or its equivalent successor if such weekly release or daily update, as applicable, is not available). If such yield is unavailable, the “Reference Discount Rate” will be the average of the secondary market bid rates of at least three nationally recognized independent investment banking firms selected by the Company for this purpose and may include the investment banking firm selected by the Company to determine the Make-Whole Premium or Redemption Price, as applicable, as of 3:30 p.m., New York City time, on that Business Day for the issue of U.S. Treasury bills with a remaining maturity closest to three months.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Notes Legend” means the legend identified as such set forth in Exhibit A hereto, or any other similar legend indicating the restricted status of the Notes under Rule 144.
“Restricted Stock Legend” means a legend in the form set forth in Exhibit C hereto or any other similar legend indicating the restricted status of the Common Stock under Rule 144.
“Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an Unrestricted Subsidiary. Where such term is used without a referent Person, such term shall be deemed to mean a Subsidiary of the Company that is not an Unrestricted Subsidiary, unless the context otherwise requires.
“Rule 144” means Rule 144 under the Securities Act (or any successor provision), as it may be amended from time to time.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“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.
“SEC” means the Securities and Exchange Commission.
“Secured Parties” has the meaning set forth in the U.S. Security Agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security Agreements” means, as the context requires, (i) the U.S. Security Agreement, (ii) Israeli Fixed Charge, (iii) the Israeli Floating Charge and (iv) the Israeli Stock Pledge, each as amended, restated, amended and restated, modified, supplemented or replaced from time to time in accordance with this Indenture and the terms thereunder.
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“Security Documents” means the Security Agreements and all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Company or any other Guarantor creating (or purporting to create) a Lien upon Collateral in favor of the Collateral Agent or the Israeli Security Trustee, as applicable, in each case, as amended, restated, amended and restated, modified, renewed or replaced, in whole or in part, from time to time, in accordance with its terms.
“Share Make-Whole Premium Number” means, with respect to any Conversion Date, a number of shares of Common Stock equal to (a) (i) the Make-Whole Premium minus (ii) the applicable Cash Make-Whole Premium Amount divided by (b) the applicable Conversion Make-Whole Share Price; provided that, if the Make-Whole Premium is less than or equal to the Cash Make-Whole Premium Amount, the Share Make-Whole Premium Number shall be zero.
“Significant Subsidiary” means any Subsidiary that is a “significant subsidiary” of the Company within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act.
“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal, as applicable, was scheduled to be paid in the documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof; provided, however, that, with respect to Section 4.11(c), the Stated Maturity of any Existing Indebtedness shall be the Stated Maturity as of the Issue Date or a later date to the extent the documents governing such Indebtedness shall have been amended or modified to provide for such later date.
“Subsidiary” means, with respect to any specified Person:
(1)any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and
(2)any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof) to the extent such partnership is included in the consolidated financial statements of such Person.
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“Termination of Trading” means the Common Stock (or other Reference Property into which the Notes are then convertible) ceases to be listed or quoted on any Permitted Exchange.
“TIA” means the Trust Indenture Act of 1939 as in effect on the Issue Date; provided, however, that if the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended.
“Trading Day” means a day on which (i) trading in the Common Stock (or other security for which a Last Reported Sale Price must be determined) generally occurs on The NYSE American or, if the Common Stock (or such other security) is not then listed on The NYSE American, 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 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.
“Transfer” means, with respect to any Restricted Note or share of Common Stock that bears, or is required to bear, the Restricted Stock Legend, any sale, pledge, transfer, loan, hypothecation or other disposition of such Restricted Note or share of Common Stock, as the case may be.
“Transfer Agent” means, initially, American Stock Transfer & Trust Company, LLC, in its capacity as the transfer agent for the Common Stock, and any successor entity acting in such capacity.
“Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including, without limitation, deposit accounts, overdraft, overnight draft, credit cards, debit cards, p-cards (including purchasing cards, employee credit card programs and commercial cards), funds transfer, automated clearinghouse, direct debit, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services, netting services, cash pooling arrangements, credit and debit card acceptance or merchant services and other treasury or cash management services.
“Trust Officer” means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) or, if applicable, the Collateral Agent with direct responsibility for the administration of this Indenture or, if applicable, the U.S. Security Agreement and also means, with respect to a particular corporate trust matter hereunder, any other officer of the Trustee or, if applicable, the Collateral Agent to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
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“Trustee” means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means such successor. The foregoing sentence will likewise apply to any such subsequent successor or successors.
“U.S. GAAP” means generally accepted accounting principles set forth in opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States in effect on the date of this Indenture.
“U.S. Security Agreement” means the Amended and Restated U.S. Security Agreement dated as of the Issue Date, among the Company, the Guarantors party thereto, the Trustee, the Existing Convertible Notes Trustee and the Collateral Agent.
“UCC” means the New York Uniform Commercial Code as in effect from time to time.
“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1)has no Indebtedness other than Non-Recourse Debt;
(2)is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or any such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;
(3)is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has a direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and
(4)has not guaranteed or otherwise provided credit support for any Indebtedness of the Company or any of the Company’s Restricted Subsidiaries.
“VWAP Market Disruption Event” means, with respect to any date, (i) the failure by the principal 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, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (ii) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or future contracts relating to the Common
36
Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.
“VWAP Trading Day” means a day during which (i) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading and (ii) there is no VWAP Market Disruption Event. If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1)the sum of the products obtained by multiplying (a) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of such Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(2)the then-outstanding principal amount of such Indebtedness.
“Wholly Owned Subsidiary” of any specified Person means, (a) any corporation one hundred percent of whose capital stock (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a one hundred percent Equity Interest (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) at such time.
Term Section: | Defined in: |
|---|---|
“Act” | 1.04 |
“Additional Interest” | 4.04(a) |
“Additional Notes” | 2.01(a) |
“Additional Shares” | 10.04(a) |
“Affiliate Transaction” | 4.16(a) |
“Agent Members” | 2.02(c) |
“Aggregate Payments” | 12.01(e) |
“Aggregated Person” | 10.13 |
“Applicable Law” | 15.15 |
“Authorized Officer” | 15.02 |
“Calculation Date” | 1.01 |
“Cash Amount” | 10.02(a)(i) |
“Cash Make-Whole Premium Amount” | 10.03(a)(i) |
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Term Section: | Defined in: |
|---|---|
“Clause A Distribution” | 10.05(c) |
“Clause B Distribution” | 10.05(c) |
“Clause C Distribution” | 10.05(c) |
“Contributing Guarantors” | 12.01(e) |
“Conversion Agent” | 2.06(a) |
“Conversion Date” | 10.02(c) |
“Conversion Obligation” | 10.01 |
“Conversion Rate” | 10.01 |
“Conversion Settlement Method” | 10.02(a)(iii) |
“Default Interest” | 2.04(d) |
“Defaulted Amount” | 2.04(d) |
“Distributed Property” | 10.05(c) |
“Electronic Means” | 15.02 |
“Event of Default” | 6.01(a) |
“Fair Share” | 12.01(e) |
“Fair Share Contribution Amount” | 12.01(e) |
“Fundamental Change Company Notice” | 3.01(c) |
“Fundamental Change Repurchase Date” | 3.01(a) |
“Fundamental Change Repurchase Notice” | 3.01(b)(i) |
“Fundamental Change Repurchase Price” | 3.01(a) |
“Funding Guarantor” | 12.01(e) |
“incur” | 4.14(a) |
“Instructions” | 15.02 |
“Interest Payment Date” | 2.04(a) |
“Make-Whole Adjustment Period” | 10.04(a) |
“Make-Whole Exception” | 10.13 |
“Make-Whole Obligation” | 10.03(a) |
“Make-Whole Settlement Method” | 10.03(a)(iii) |
“Maturity Date” | 2.04(a) |
“Merger Event” | 10.08(a) |
“Xxxxx’x” | 1.01 |
“Notice of Conversion” | 10.02(b) |
“Optional Redemption” | 11.01 |
“Paying Agent” | 2.06(a) |
“Permitted Debt” | 4.14(b) |
“Permitted Refinancing Indebtedness” | 4.14(b)(v) |
“Redemption Date” | 11.02(a) |
“Redemption Notice” | 11.02(a) |
“Reference Property” | 10.08(a) |
“refinance” | 4.14(b)(v) |
“Register” | 2.06(a) |
“Registrar” | 2.06(a) |
“Regular Record Date” | 2.04(a) |
“Reorganization Event” | 5.01 |
“Reorganization Successor Corporation” | 5.01(a)(ii) |
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Term Section: | Defined in: |
|---|---|
“Restricted Note” | 2.10(a)(i) |
“Restricted Ownership Percentage” | 10.13 |
“Restricted Payments” | 4.12(d) |
“S&P” | 1.01 |
“Section 16 Conversion Blocker” | 10.13 |
“Settlement Notice” | 10.02(a)(i) |
“Special Interest” | 4.03(d) |
“Special Regular Record Date” | 2.04(d)(i) |
“Specified Proceeds” | 4.14(b)(i)(A) |
“Specified Proceeds Offer” | 4.14(c)(i) |
“Specified Proceeds Offer Company Notice” | 4.14(c)(ii) |
“Specified Proceeds Offer Purchase Date” | 4.14(c)(i) |
“Specified Proceeds Offer Purchase Price” | 4.14(c)(i) |
“Specified Proceeds Offer Repurchase Notice” | 4.14(c)(iii) |
“Spin-Off” | 10.05(c) |
“Stock Price” | 10.04(c) |
“Subordinated Indebtedness” | 4.12(c) |
“Temporary Notes” | 2.12 |
“Tender/Exchange Offer Valuation Period” | 10.05(e) |
“Trigger Event” | 10.05(c) |
“unit of Reference Property” | 10.08(a) |
“Valuation Period” | 10.05(c) |
(1)a term has the meaning assigned to it;
(2)an accounting term not otherwise defined has the meaning assigned to it and will be construed in accordance with U.S. GAAP;
(3)“or” is not exclusive;
(4)“including” means including, without limitation;
(5)words in the singular include the plural, and words in the plural include the singular;
(6)all references to $, dollars, cash payments or money refer to United States currency;
(7)all references to interest on the Notes (a) will include any Additional Interest payable pursuant to Section 4.04 hereof and Special Interest payable pursuant to Section 4.03(d) hereof, (b) but, for the avoidance of doubt, will not include any Default Interest payable on a Defaulted Amount pursuant to the terms of Section 2.04 hereof; and
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(8) unless otherwise provided in this Indenture, 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 or any document to be delivered hereunder (other than a Note) or the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be 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 permitted by, 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, neither the Trustee nor the Collateral Agent is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee or the Collateral Agent, as applicable, pursuant to procedures approved by the Trustee or the Collateral Agent, as applicable. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party delivered in accordance with this Section 1.03(8) and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit will also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee and the Collateral Agent (if applicable) deem sufficient.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note will bind every future Holder of the same Note and the
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Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Collateral Agent, the Company, the Paying Agent, the Conversion Agent or the Registrar in reliance thereon, whether or not notation of such action is made upon such Note.
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Each Note will bear a Trustee’s certificate of authentication substantially in the form set forth in Exhibit A hereto.
Notes that are Global Notes will bear the Global Notes Legend and the “Schedule of Increases and Decreases of Global Note” attached thereto.
Notes that are Restricted Notes will bear the Restricted Notes Legend.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the Guarantors, the Trustee and the Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent that any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture will govern and control.
Only the Trustee, or the custodian holding such Global Note for the Depositary, at the direction of the Trustee, may endorse a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of then outstanding Notes represented thereby, and whenever the Holder of a Global Note delivers instructions to the Trustee to increase or decrease the aggregate principal amount of then outstanding Notes represented by a Global Note in accordance with Section 2.09 hereof, the Trustee, or the custodian holding such Global Note for the Depositary, at the direction of the Trustee, will endorse such Global Note to reflect such increase or decrease in the aggregate principal amount of then outstanding Notes represented thereby. None of the Trustee, the Paying Agent, the Registrar, the Conversion Agent, the Collateral Agent, the
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Company, the Guarantors or any agent of the Trustee, the Paying Agent, the Registrar, the Conversion Agent, the Collateral Agent, the Company or the Guarantors will have any responsibility or bear any liability or any obligation to any Agent Members or any other Person on whose behalf Agent Members may act with respect to (i) any aspect of the records relating to, or payments made on account of, the ownership of any beneficial interest in a Global Note (ii) any notice required hereunder, (iii) with respect to maintaining, supervising or reviewing any records relating to such beneficial interest, or (iv) any actions taken or not taken by any Agent Members.
Neither any member of, or participant in, the Depositary (collectively, the “Agent Members”) nor any other Person on whose behalf an Agent Member may act will have any rights under this Indenture with respect to any Global Note or under such Global Note, and the Company, the Guarantors, the Trustee, the Paying Agent, the Registrar, the Conversion Agent, the Collateral Agent and any agent of the Company, the Guarantors, the Trustee, the Paying Agent, the Registrar, the Conversion Agent, or the Collateral Agent, may, for all purposes, treat the Depositary, or its nominee, if any, as the absolute owner and Holder of such Global Note.
The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that such Holder is entitled to take under this Indenture or the Notes with respect to such Global Note, and, notwithstanding the foregoing, nothing herein will prevent the Company, the Guarantors, the Trustee, the Collateral Agent, the Paying Agent, the Registrar, the Conversion Agent or any agent of the Company, the Guarantors, the Trustee, the Collateral Agent, the Registrar, the Conversion Agent or the Paying Agent from giving effect to any written certification, proxy or other authorization furnished by such Holder or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of their respective customary practices governing the exercise of the rights of a Holder of any interest in any Global Note.
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Interest will be payable semi-annually in arrears on March 1 and September 1 of each year (each, an “Interest Payment Date”), beginning March 1, 2022 (or such other date provided for in Section 2.01(b) with respect to Additional Notes issued in accordance with such Section), to the Holder of each such Note as of the Close of Business on the February 15 and August 15, as the case may be, immediately preceding the applicable Interest Payment Date whether or not a Business Day (each such date, a “Regular Record Date”), regardless of whether such Note is converted, repurchased or redeemed after such Regular Record Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Company will pay the principal of, the Fundamental Change Repurchase Price or the Redemption Price for, and any interest on, any Global Note to the Depositary by wire transfer of immediately available funds on the relevant payment date.
The Company will pay the principal of, the Fundamental Change Repurchase Price or Redemption Price for, and any interest due on the Maturity Date on, any Definitive Note in cash to the applicable Holder of such Note at the office of the Paying Agent on the relevant payment date.
The Company will pay the interest due, on an Interest Payment Date, on any Definitive Note (except interest due on the Maturity Date) to the applicable Holder of such Note (i) if such Holder holds $5,000,000 or less aggregate principal amount of Notes, by check mailed to such Holder’s registered address, and (ii) if such Holder holds more than $5,000,000 aggregate principal amount of Notes, (A) by check mailed to such Holder’s registered address or (B) if such Holder delivers, not later than the Regular Record Date relating to such Interest Payment Date, a written request to the Registrar that the Company make such payments by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account, which request shall remain in effect until such Holder notifies, in writing, the Registrar to the contrary.
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The Registrar will keep a register for the recordation of, and will record, the names and addresses of Holders, the Notes held by each Holder and the transfer, exchange, repurchase, redemption and conversion of Notes (the “Register”). Absent manifest error, the entries in the Register will be conclusive and the parties may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Indenture. The Register will be in written form or in any form capable of being converted into written form within a reasonably prompt period of time. The Company may have one or more registrars, one or more paying agents, one or more conversion agents and one or more places where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served. Before appointing any Registrar, Paying Agent or Conversion Agent that is not otherwise a party to this Indenture, the Company will enter into an appropriate agency agreement with such Registrar, Paying Agent or Conversion Agent, as the case may be, which agency agreement will implement the provisions of this Indenture that relate to such replacement or additional registrar, paying agent or conversion agent, as the case may be. The term Registrar includes any additional registrars named pursuant to this Indenture. The term Paying Agent includes any additional paying agent named pursuant to this Indenture. The term Conversion Agent includes any additional conversion agent named pursuant to this Indenture. Upon the occurrence of any Event of Default under
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Section 6.01(a)(xiv) or 6.01(a)(xv) with respect to the Company, the Trustee shall be the Paying Agent.
In addition, the Registrar, Paying Agent or Conversion Agent may resign at any time by delivering written notice of such resignation to each of the Company and the Trustee.
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Except as otherwise provided herein, by no later than 10:00 a.m., New York City time, on each due date for a payment on any Note, the Company will deposit with the Paying Agent an amount of money in immediately available funds sufficient to make such payment when due.
The Company will require that each Paying Agent (other than the Trustee, if the Trustee is a Paying Agent) agree in writing that it will (i) segregate all money and securities it holds for making payments with respect to the Notes; (ii) hold such money and securities in trust for the benefit of Holders; and (iii) notify the Trustee, in writing, as promptly as practicable, if the Company defaults in making any payment on the Notes.
If any such default has occurred and is continuing, the Paying Agent will, upon receiving a written request from the Trustee, forthwith pay to the Trustee all of the money and securities it holds in trust. In addition, at any time, the Company may require a Paying Agent to pay all money and securities that it holds for making payments with respect to the Notes to the Trustee and to account for any money and securities it has disbursed. After delivering all of such money and securities to the Trustee pursuant to this Section 2.07, the Paying Agent (in its capacity as such) will have no further liability for such money and securities.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee, (i) within five Business Days after each Regular Record Date, a list of the names and addresses of Holders as of such Regular Record Date, and (ii) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of such request, a list of the names and addresses of Holders as of no more than 15 days immediately prior to the date such list is furnished, in each case, in such form as the Trustee may reasonably require.
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In each such case, (1) each Global Note will be deemed surrendered to the Trustee for cancellation, (2) the Trustee will promptly cancel each such Global Note in accordance with the Applicable Procedures, (3) the Company, (x) in accordance with Section 2.05 hereof, will promptly execute, for each beneficial interest in each Global Note so cancelled, an aggregate principal amount of Definitive Notes equal to the aggregate principal amount of such beneficial interest, registered in such name and authorized denominations as the Depositary specifies, and bearing such legends as such Definitive Notes are required to bear under Section 2.02 and Section 2.10 hereof, and, (y) as provided in Section 2.05(c) hereof, will promptly deliver to the Trustee such Definitive Notes and a Company Order including the information specified in Section 2.05(c) hereof with respect to such Definitive Notes, and (4) the Trustee, upon receipt of such Definitive Notes and such Company Order, in accordance with Section 2.05 hereof, will promptly authenticate, and deliver to the Holder specified in such Company Order, such Definitive Notes.
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and, in case (B), the Holder effecting such Transfer delivers to the Trustee, the Company and the Registrar any documents or evidence reasonably required pursuant to this Indenture (including clause (iii) of this Section 2.10(a)). For the avoidance of doubt, the Exchange Notes shall not constitute Restricted Notes and shall not bear the Restricted Notes Legend. The Exchange Notes shall be deemed Freely Tradeable and shall not be subject to the restrictions set forth in this Section 2.10.
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and, in case (B), the Person effecting such Transfer delivers to the Company and the Transfer Agent any documents or evidence reasonably required pursuant to this Indenture (including clause (iii) of this Section 2.10(b)).
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If (a)(i) a mutilated Note is surrendered to the Registrar or (ii) the Holder of a Note claims that such Note has been lost, destroyed or stolen and provides the Company and the Trustee with (A) evidence of such loss, theft or destruction that is reasonably satisfactory to the Company and the Trustee and (B) any amount or kind of security or indemnity that either of the Company or the Trustee reasonably request to protect itself from any loss that it may suffer upon replacement of such Note, and, in either case, (b) such Holder satisfies any other reasonable requirements of the Trustee, including the payment of any tax or other governmental charge that may be imposed in connection with the replacement of such Note, then, unless the Company or the Trustee receives notice that such Note has been acquired by a bona fide purchaser, the Company will, in accordance with Section 2.05 hereof, promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, in accordance with Section 2.05 hereof, and the documents required by Sections 15.03 and 15.04 hereof, will promptly authenticate and deliver, in the name of such Holder, a replacement Note having the same aggregate principal amount as the Note that was mutilated or claimed to be lost, destroyed or stolen, bearing any restrictive legends required by Section 2.02 or 2.10 hereof and with a certificate number not contemporaneously outstanding.
Every new Note issued pursuant to this Section 2.11 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, will constitute an original contractual obligation of the Company and any other obligor upon the Notes, regardless of whether the mutilated, destroyed, lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all benefits of (and will be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
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having an aggregate principal amount equal to such Temporary Notes. Such exchange will be made by the Company at its own expense and without any charge therefor. Until so exchanged, the Temporary Notes will, in all respects, be entitled to the same benefits and subject to the same limitations under this Indenture as Definitive Notes authenticated and delivered hereunder.
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(a) 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 thereof that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 3.
The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
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provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.01 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 notice of withdrawal to the Paying Agent in accordance with Section 3.02.
The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or notice of withdrawal thereof.
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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 3.01.
At the Company’s request, 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; provided, further that the Company shall have delivered to the Trustee, at least five Business Days before the Fundamental Change Company Notice is required to be given to the Holders (or such shorter period agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and attaching the form of Fundamental Change Company Notice and including the information required by Section 3.01(c). Neither the Trustee nor the Paying Agent shall be responsible for determining if a Fundamental Change has occurred or for delivering a Fundamental Change Company Notice to Holders or for the content of any Fundamental Change Company Notice.
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provided, however, that if the Notes are Global Notes, the notice must comply with Applicable Procedures.
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in each case, so as to permit the rights and obligations under this Article 3 to be exercised in the time and in the manner specified in this Article 3.
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In addition, if any Note, or any shares of Common Stock issued upon the conversion of any Note, is not Freely Tradable at all times on and after the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a Business Day) with respect to such Note, then the Company will pay Additional Interest on such Note. Such Additional Interest will accrue on each day during such period on which such Note is not Freely Tradable on and after the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a Business Day). The accrual of Additional Interest will be the exclusive remedy available to Holders for the failure of the Notes or the Common Stock issued upon the conversion of the Notes to become Freely Tradable.
In each case, the Additional Interest will be payable on the same dates and in the same manner as the stated interest on the applicable Note and will initially accrue at the rate of 0.25% per annum on the principal amount of such Note. If the Additional Interest accrues for more than 90 consecutive days on any Note, the rate at which the Additional Interest accrues on such Note will increase to 0.50% per annum on the principal amount of such Note beginning on the 91st consecutive day on which it accrues and ending on the last consecutive day on which it continues to accrue.
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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).
provided, however, that the Company will not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the Board of Directors determines that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders.
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(all such payments and other actions set forth in these clauses (a) through (d) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
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provided, further, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this Section 4.13(b)(vii);
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Proceeds(millions) | Note Repurchase (%) | Company Retention (%) |
First $15.0 | 0.0 | 100.0 |
Next $20.0 | 30.0 | 70.0 |
Next $20.0 | 40.0 | 60.0 |
Next $20.0 | 55.0 | 45.0 |
Next $20.0 | 70.0 | 30.0 |
Any remaining proceeds thereafter | 80.0 | 20.0 |
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(ii)The Company will commence the Specified Proceeds Offer by giving notice to the Holders (the “Specified Proceeds Offer Company Notice”), with a copy to the Trustee, in accordance with Section 15.02 at least 15 but not more than 60 days before the Specified Proceeds Offer Purchase Date. Each Specified Proceeds Offer Company Notice shall specify:
(1)the last date on which a Holder may exercise the repurchase right pursuant to this Section 4.14(c);
(2)the Specified Proceeds Offer Purchase Price;
(3)the Specified Proceeds Offer Purchase Date;
(4)the name and address of the Paying Agent and the Conversion Agent, if applicable; and
(5) 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 4.14(c).
(iii)Repurchases of Notes under this Section 4.14(c) shall be made, at the option of the Holder thereof, upon:
(1)delivery to the Paying Agent by a Holder of a duly completed notice (the “Specified Proceeds Repurchase Notice”) in the form titled “Option of Holder to Elect Purchase” in Exhibit A hereto, if the Notes are Definitive 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 Specified Proceeds Offer Purchase Date; and
(2)delivery of the Notes, if the Notes are Definitive Notes, to the Paying Agent at any time after delivery of the Specified Proceeds 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 Applicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Specified Proceeds Offer Purchase Price therefor.
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The Specified Proceeds Repurchase Notice in respect of any Notes to be repurchased shall state:
(x)in the case of Definitive Notes, the certificate numbers of the Notes to be delivered for repurchase;
(y)the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(z)that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided, however, that if the Notes are Global Notes, the Specified Proceeds Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Specified Proceeds Repurchase Notice contemplated by this Section 4.14(c) shall have the right to withdraw, in whole or in part, such Specified Proceeds Repurchase Notice at any time prior to the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date by delivery of a notice of withdrawal to the Paying Agent in accordance with Section 4.14(c)(iv).
(iv)A Specified Proceeds Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 4.14(c) at any time prior to the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date, specifying:
(1)the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,
(2)if Definitive Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(3)the principal amount, if any, of such Note that remains subject to the original Specified Proceeds Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
provided, however, that if the Notes are Global Notes, the notice must comply with Applicable Procedures.
(v)If the aggregate principal amount of Notes tendered into such Specified Proceeds Offer exceeds the amount of Specified Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes so tendered, with adjustments so that only Notes in minimum denominations of $2,000 principal amount or an integral multiple of $1,000 in excess of $2,000 will be purchased. The Company shall deposit with the Trustee (or other Paying Agent
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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 2.07) on or prior to 10:00 a.m., New York City time, on the Specified Proceeds Offer Purchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Specified Proceeds Offer Purchase 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 withdrawn prior to the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date) will be made on the later of (i) the Specified Proceeds Offer Purchase Date (provided the Holder has satisfied the conditions in Section 4.14(c)(iii) 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 4.14(c) by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the 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 Specified Proceeds Offer Purchase Price.
(vi)If by 10:00 a.m. New York City time, on the Specified Proceeds Offer Purchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Specified Proceeds Offer Purchase Date, then, with respect to the Notes that have been accepted for repurchase, (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 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 Specified Proceeds Offer Purchase Price and, if applicable, accrued and unpaid interest).
(vii)Upon surrender of a Note that is to be repurchased in part pursuant to Section 4.14(c), 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.
(viii)If any Specified Proceeds remain after consummation of a Specified Proceeds Offer, the Company may use those Specified Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Specified Proceeds Offer, the amount of Specified Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the purchase of Notes pursuant to a Specified Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14(c), the Company shall comply with the applicable securities laws and regulations and shall not be deemed
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to have breached its obligations under the provisions of this Section 4.14(c) by virtue thereof.
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The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien securing Indebtedness of any kind on any asset now owned or hereafter acquired, except Permitted Liens.
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If, after the date of this Indenture, the Company or any Restricted Subsidiary of the Company forms or acquires any Restricted Subsidiary, then the Company shall cause such Restricted Subsidiary to, within 30 Business Days after the date of such event:
Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes.
As of the Issue Date, all of the Subsidiaries of the Company are Restricted Subsidiaries. The Board of Directors may at any time after the Issue Date (a) designate any Restricted Subsidiary to be an Unrestricted Subsidiary and (b) redesignate any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that immediately before and after any such designation, no Default or Event of Default shall have occurred and be continuing. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Restricted Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 4.11 or under one or more clauses of the definition of “Permitted Investments,” as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary.” The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee and the Collateral Agent by filing with the Trustee and the Collateral Agent a certified copy of a resolution of the Board of Directors giving
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effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.11. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.13, the Company will be in default of such covenant. The Board of Directors may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and the creation, incurrence, assumption or otherwise causing to exist any Lien of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.13, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter period referred to in such Section; (2) such Lien is permitted under Section 4.16 and (3) no Default or Event of Default would be in existence following such designation.
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No Guarantor shall issue any Equity Interest of such Guarantor (including by way of sales of treasury stock or the issuance of any debt security that is convertible into, or exchangeable for, Equity Interest of such Guarantor) to any Person other than (i) to the Company or any other Guarantor or (ii) in connection with the transfer of all of the Equity Interests of such Guarantor otherwise permitted under this Indenture.
The Company shall, and shall cause each Guarantor to, take all actions and execute and deliver all documents or deliverables, including each Security Document, to secure the payment obligations of the Company under the Notes and this Indenture (subject to the provisions of the U.S. Security Agreement, as applicable) by Liens on the Collateral in accordance with, within the time periods specified by, and subject to the limitations of Section 14.01.
The Company and the Guarantors shall comply with the following obligations, in each case, within the applicable periods of time specified with respect to such item:
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90
Notwithstanding anything to the contrary herein, the Company or any Reorganization Successor Corporation shall at all times be a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia.
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92
93
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If the Note Obligations are accelerated for any reason pursuant to Section 6.02 following an Event of Default, such amount that would have been due upon a redemption of the outstanding Notes pursuant to Section 11.01(a) will also be automatically due and payable in cash on the date of acceleration regardless of whether the Note Obligations were voluntarily or involuntarily prepaid, repaid, paid, satisfied, distributed or discharged and shall constitute part of the Note Obligations.
In view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof, any premium payable above shall be presumed to be the liquidated damages sustained by each Holder and the Company agrees that it is reasonable under the circumstances currently existing. The premium shall also be payable in the event the Notes (and/or this Indenture) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. EACH OF THE COMPANY AND GUARANTORS EXPRESSLY WAIVE (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each of the Company and the Guarantors expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Holders and the Company and the Guarantors giving specific consideration in this transaction for such agreement to pay the premium; and (D) each of the Company and the Guarantors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Each of the Company and the Guarantors expressly acknowledges that its agreement to pay the premium to Holders as herein described is a material inducement to Holders to purchase the Notes.
To the extent such amounts are not repaid immediately, any post-acceleration payments made by the Company or any Guarantor shall be additional compensation for such failure to repay such amounts and shall not be a credit against any claim relating to such amounts. The Company and the Guarantors will each expressly waive the provisions of any present or future statute or law which prohibits or may prohibit the collection of such amounts or damages in connection with any such acceleration of the obligations, rescission of such acceleration, earlier maturity of the Notes or the commencement of any insolvency proceeding or other proceeding pursuant to any Bankruptcy Laws or pursuant to a plan of reorganization.
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extend to any subsequent or other Default or Event of Default or impair any consequent right.
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FIRST: ratably to the Trustee and the Collateral Agent and their respective agents and attorneys for amounts due under the Note Documents, including payment of all compensation, expenses, indemnities and liabilities incurred, and all advances made, by the Trustee or the Collateral Agent and the costs and expenses of collection;
SECOND: to the Holders, for any amounts due and unpaid on the principal of, the Fundamental Change Repurchase Price or the Redemption Price for, accrued and unpaid interest on, and any consideration (including any Make-Whole Premium) due upon the conversion of, any Note, without preference or priority of any kind, according to such amounts due and payable on all of the Notes; and
THIRD: the balance, if any, to the Company or to such other party as a court of competent jurisdiction directs.
The Trustee may fix a record date and payment date for any payment to the Holders pursuant to this Section 6.11. If the Trustee so fixes a record date and a payment date, at least 15 days prior to such record date, the Company will deliver to each Holder and the Trustee a written notice, which notice will state such record date, such payment date and the amount of such payment.
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100
101
102
103
104
105
Notwithstanding the satisfaction and discharge of this Indenture, (i) any obligation of the Company to any Holder under Article 10 hereof with respect to the conversion of any Note, to the Trustee under Article 7 hereof with respect to compensation or indemnity or
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to the Collateral Agent under Section 16 of the U.S. Security Agreement and under Section 19 of each of the Israeli Security Agreements with respect to compensation or indemnity, and (ii) any obligation of the Trustee with respect to money deposited with the Trustee under this Article 8 and Section 15.02 hereof will survive.
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If any amendment to, or waiver of, the provisions of this Indenture, the Notes, the Note Guarantees, any Security Document to which it is a party or any other Note Document affects the rights or obligations of the Trustee, the Collateral Agent or the Israeli Trustee, as applicable, then in such case the consent of the Trustee, the Collateral Agent or the Israeli Trustee, as applicable, shall also be required.
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of) such Security Documents; provided, however, that without the consent of each affected Holder, no amendment or supplement to, or waiver of, any provision of this Indenture, the Notes, the Note Guarantees or any Security Documents, may:
In addition, (x) any amendment to, or waiver of, the provisions of this Indenture, the Notes, the Note Guarantees or any Security Document that has the effect of releasing all or substantially all of the Collateral from the Note Liens or (y) any changes in the provisions of this Indenture or any material change in the provisions in the Security Documents, in each case dealing with the application of proceeds of Collateral upon exercise of remedies with respect to such Collateral that adversely affects the Holders, shall require the consent of the Holders of at least 66 and 2/3% in aggregate principal amount of the Notes then outstanding under this Indenture (including any consents
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obtained in connection with a tender offer or exchange for the Notes). If any amendment, to, or waiver of, the provisions of this Indenture, the Notes, the Note Guarantees, any Security Document or any other Note Document to which it is a party affects the rights or obligations of the Trustee, the Collateral Agent or the Israeli Security Trustee, as applicable, then in such case the consent of the Trustee, the Collateral Agent or the Israeli Security Trustee, as applicable, shall also be required.
It will not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, but it will be sufficient if such consent approves the substance of such proposed amendment.
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Notes called for redemption by the Company upon exercise of its Optional Redemption right, the Close of Business on the second Business Day immediately preceding the applicable Redemption Date) based on an initial conversion rate of 563.2216 shares of Common Stock (subject to adjustment as provided in this Article 10, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 10.02, the “Conversion Obligation”).
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If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and the Make-Whole 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.
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Stock Price | |||||||||||||||||||||||
Effective Date | $1.34 | $1.50 | $1.78 | $2.00 | $2.31 | $2.75 | $3.00 | $3.50 | $4.00 | $5.00 | $7.50 | ||||||||||||
August 24, 2021 | 183.0470 | 183.0470 | 150.9516 | 114.4655 | 79.2938 | 47.7048 | 35.7027 | 19.5773 | 10.0722 | 1.5646 | 0.0000 | ||||||||||||
September 1, 2022 | 183.0470 | 183.0470 | 133.8029 | 98.2715 | 65.0580 | 36.5466 | 26.2032 | 12.9508 | 5.7407 | 0.3401 | 0.0000 | ||||||||||||
September 1, 2023 | 183.0470 | 152.8738 | 102.2844 | 69.1696 | 40.5382 | 18.7952 | 11.8694 | 4.1943 | 0.9847 | 0.0000 | 0.0000 | ||||||||||||
September 1, 2024 | 183.0470 | 81.9397 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||
The exact Stock Prices and Effective Dates may not be set forth in the table above, in which case:
Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 746.2686 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 10.05.
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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; 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 10.05(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 10.05(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.
where,
CR0=the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance;
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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 issuable 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 issuance of such rights, options or warrants.
Any increase made under this Section 10.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance. To the extent 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 issuance 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 issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.
For purposes of this Section 10.05(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
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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 Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.
Any increase made under the portion of this Section 10.05(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. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 10.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
With respect to an adjustment pursuant to this Section 10.05(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:
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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 if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0=the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
The increase to the Conversion Rate under the preceding paragraph shall occur at the Close of Business on the last Trading Day of the Valuation Period; provided that (x) in respect of any conversion of Notes for which Physical Settlement is the applicable Conversion Settlement Method, if the relevant Conversion Date occurs during the Valuation Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is the applicable Conversion Settlement Method, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date of the Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of the settlement of the Conversion Obligation for any Notes, and any Trading Day in the Valuation Period occurs during such Observation Period, then references to “10” or “10th” in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such Observation Period.
For purposes of this Section 10.05(c) (and subject in all respect to Section 10.12), 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
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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 10.05(c) (and no adjustment to the Conversion Rate under this Section 10.05(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 10.05(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 10.05(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 10.05(a), Section 10.05(b) and this Section 10.05(c), if any dividend or distribution to which this Section 10.05(c) is applicable also includes one or both of:
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 10.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.05(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
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Conversion Rate adjustment required by Section 10.05(a) and Section 10.05(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 10.05(a) or “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 10.05(b).
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 10.05(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), then, in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, 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.
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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 Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
OS0=the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS'=the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP'=the average of the Last Reported Sale Prices of the Common Stock over the 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 10.05(e) shall occur at the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is the applicable Conversion Settlement Method, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date that such tender or exchange offer expires and the Conversion Date in determining the Conversion Rate and (y) in respect of any
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conversion of Notes for which Cash Settlement or Combination Settlement is the applicable Conversion Settlement Method, for any Trading Day that falls within the relevant Observation Period for such conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such tender or exchange offer and such Trading Day in determining the Conversion Rate as of such Trading Day. In addition, if the Trading Day next succeeding the date such tender or exchange offer expires is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of the settlement of the Conversion Obligation for any Notes, and any Trading Day in the Tender/Exchange Offer Valuation Period occurs during such Observation Period, then, references to “10” or “10th” in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or exchange offer expires to, and including, the last Trading Day of such Observation Period.
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129
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in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of 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 Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 9.01(d) 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 Merger Event (A) the Company shall continue to have the right to elect Cash Settlement, Combination Settlement or Physical Settlement for the Conversion Settlement Method applicable to the conversion of Notes in accordance with Section 10.02, (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 10.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 10.02 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 been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property and (C) the Make-Whole Obligation shall be satisfied by Cash Settlement.
If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant Conversion Date
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occurs after the effective date of such Merger Event, (A) the consideration due upon settlement of the Conversion Obligation for 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 10.04), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy each of the Conversion Obligation and the Make-Whole Obligation by paying cash to converting Holders on or before the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent of such weighted average as soon as practicable after such determination is made.
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 10. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 3.
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liens and charges with respect to the issue thereof, except with respect to any U.S. federal withholding taxes that might apply.
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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 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 10.08 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon settlement of the Conversion Obligation or the Make-Whole Obligation after any event referred to in such Section 10.08 or to any adjustment to be made with respect thereto, but may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.
In addition, in case of any:
then, in each case (unless earlier notice of such event is otherwise required pursuant to the first paragraph of this Section 10.11), the Company shall provide written notice to the Holders and the Trustee, as promptly as possible but in any event at least 20 days prior to the applicable date hereinafter specified, of (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
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of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such dissolution, liquidation or winding-up.
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Notwithstanding the foregoing, the Company shall issue shares of Common Stock upon conversion of such beneficial owner’s Notes up to (but not exceeding) the amount that would cause such beneficial owner’s beneficial ownership of Common Stock (together with that of any Aggregated Person) to equal the Restricted Ownership Percentage; provided that each beneficial owner shall have the right at any time and from time to time to reduce the Restricted Ownership Percentage applicable to such beneficial owner immediately upon prior written notice to the Company (provided that, for the avoidance of doubt, in such event, such beneficial owner may sell shares of Common Stock or Notes to reduce the aggregate number of shares of Common Stock deemed beneficially owned by such beneficial owner (together with any Aggregated Person) to a level below the reduced Restricted Ownership Percentage, in which case the Notes will be convertible by such beneficial owner up to (but will not exceed) the reduced Restricted Ownership Percentage) or increase the Restricted Ownership Percentage applicable to such beneficial owner (together with any Aggregated Person) upon 65 days’ prior written notice to the Company.
Under no circumstances shall the Trustee or the Conversion Agent have any obligation to identify any beneficial owner of the Notes, or otherwise make any determination, monitor or otherwise take any action with respect to the restrictions set forth in this Section 10.13.
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“Redemption Notice”) not less than 25 nor more than 30 Scheduled Trading Days prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or in part in accordance with Section 15.02; provided, however, that, if the Company shall give such notice, it shall also give written notice of the Redemption Date to the Trustee. The Redemption Date must be a Business Day. Notwithstanding anything to the contrary herein, the Company may not designate a Redemption Date that falls during or within three Business Days after the end of a Make-Whole Adjustment Period. The Trustee may conclusively rely upon an Officers’ Certificate of the Company as to (i) whether or not any day is a Scheduled Trading Day, and (ii) whether a Make-Whole Adjustment Period has occurred or is continuing. All Redemption Prices shall be calculated by the Company.
A Redemption Notice shall be irrevocable.
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exceeds the aggregate Redemption Price of every Note outstanding (excluding, for the avoidance of doubt, any Notes tendered for conversion pursuant to Article 10 hereof), then as soon as practicable following the Trustee’s receipt of such Officers’ Certificate, the Trustee will return such excess to the Company.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
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Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 12, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
To evidence its Note Guarantee set forth in Section 12.01, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit D hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers (but the failure to execute such notation shall not affect the validity of any Note Guarantee).
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 12.01 will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee. An Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will be deemed to constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of each of the Guarantors.
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Except as otherwise provided in Section 12.05, a Guarantor may not, directly or indirectly, (1) consolidate with or merge with or into, or (2) sell, convey, transfer or lease all or substantially all of its properties and assets to (whether or not such Guarantor is the surviving Person), any other Person, other than the Company or another Guarantor, unless:
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The Note Guarantee of any Guarantor, and the Collateral Agent’s and Israeli Security Trustee’s Lien on the Collateral of such Guarantor, will be released:
Notwithstanding the foregoing, no Guarantor shall be released from its Note Guarantee for so long as such Guarantor guarantees, is an obligor of, or provides credit support for, any Indebtedness of the Company or its Restricted Subsidiaries. If the Note Guarantee of any Guarantor is released, the Company shall deliver to the Trustee and the Collateral Agent an Officers’ Certificate stating the identity of the released Guarantor, the basis for release in reasonable detail and that such release complies with this Indenture. Upon delivery by the Company to the Trustee and the Collateral Agent of an Officers’ Certificate and an Opinion of Counsel to the effect that the conditions of any of clauses (a) through (c) of this Section 12.05 have been met with respect to a Guarantor in accordance with the provisions of this Indenture, including without limitation, in the case of Section 12.05(a) hereof, Section 4.14 hereof, the Trustee and the Collateral Agent, as applicable, will execute any documents reasonably requested by the Company and such Guarantor in order to evidence the release of such Guarantor from its obligations under its Note Guarantee. Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 12.05 will remain liable for the full amount of principal of and interest and premium, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 12.
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Notwithstanding the foregoing, (i) at any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and, if the Trustee has delivered a notice of acceleration to the Collateral Agent or the Israeli Security Trustee, no release of Collateral pursuant to the provisions of this Indenture or the Security Documents will be effective as against the Holders or in connection with the exercise of remedies and (ii) if any asset of the Company or any Restricted Subsidiary that was released from the Note Liens pursuant to this Indenture or the Security Documents is subsequently subject to any Lien to secure other permitted secured Indebtedness, such Company or Restricted Subsidiary shall concurrently xxxxx x Xxxx on such asset to secure the Note Obligations.
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In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 14 upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any officer or officers thereof required by the provisions of this Article 14; and if the Collateral Agent shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Collateral Agent.
In connection with any matter under the U.S. Security Agreement requiring a vote of holders of Secured Obligations (as defined in the U.S. Security Agreement), the holders of such Secured Obligations shall be treated as a single class and the Holders of Notes shall cast their votes in accordance with this Indenture. The amount of the Notes to be voted by the Holders will equal the aggregate outstanding principal amount of the Notes. Following and in accordance with the outcome of the applicable vote under this Indenture, the Trustee shall vote the total amount of the Notes as a block in respect of any vote submitted to the Holders of the Notes under the U.S. Security Agreement, as directed by the Holders in writing.
The Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and
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protection from liability in respect of any action taken, omitted or suffered by it hereunder or under the Security Documents in good faith and in accordance with the advice or opinion of such counsel.
Each of the Company and the Guarantors, and each Holder by the acceptance of its Note hereby acknowledges and agrees that, in addition to its appointment as collateral agent herein, the Collateral Agent has been appointed as collateral agent under the Existing Convertible Notes Indenture and waives any purported conflict in connection with such appointment.
In the event that the Company delivers to the Trustee and the Collateral Agent, in form and substance acceptable to it, an Officers’ Certificate and Opinion of Counsel certifying that all the obligations under this Indenture, the Notes and the Security Documents have been satisfied and discharged by the payment in full of the Company’s Obligations under the Notes, this Indenture and the Security Documents, and all such obligations have been so satisfied, the Trustee shall deliver to the Company and the Collateral Agent a notice stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all rights it has in or to the Collateral, and any rights it has under the Security Documents, and upon receipt by the Collateral Agent of such notice, the Lien held by the Collateral Agent for the benefit of the Trustee and the Holders of Notes shall be deemed released and the Collateral Agent shall (at the sole cost of the Company) do or cause to be done all acts reasonably requested by the Company to release such Lien in respect of the Trustee and the Holders of Notes.
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The Collateral Agent may resign or be removed, and a successor Collateral Agent appointed, pursuant to the terms of the U.S. Security Agreement. Notwithstanding the replacement of the Collateral Agent, the Company’s payment obligations, including with respect to indemnification obligations, to the Collateral Agent under the Note Documents will continue for the benefit of the retiring Collateral Agent.
If the Collateral Agent consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association without any further act will be the successor Collateral Agent.
The Trustee shall not have any duty or responsibility in the event of any default by the Collateral Agent or the Israeli Security Trustee or any action or inaction by the Collateral Agent or the Israeli Security Trustee in the performance of any of its obligations under this Indenture, the Notes and/or the Security Documents, as the case may be, and/or any other agreement pertaining to any or all of the foregoing, included but not limited to any duty or responsibility to initiate or attempt to initiate any proceeding at law or otherwise against the Collateral Agent or the Israeli Security Trustee or to make any demand of any kind or nature upon the Collateral Agent or the Israeli Security Trustee. The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or otherwise, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Grantors to the Collateral, for insuring the Collateral or for payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have no responsibility for recording, filing, re-recording or re-filing any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to the Collateral Agent or the Israeli Security Trustee or for otherwise taking any action under or pursuant to the Security Documents. The Trustee shall not be required to make any determination (i) with respect to the Collateral or (ii) as to what rights the Holders may have under this Indenture, the Security Documents or any other document in respect of the Collateral and the Trustee’s sole obligation in respect of the Collateral shall be limited to (x) execution of the U.S. Security Agreement on behalf of and at the direction of the Holders of the Notes, and (y) the delivery of instructions to the Collateral Agent and the Israeli Security Trustee upon written request of the Holders of the requisite percentage of outstanding Notes as required by this Indenture. Except for delivery of instructions in accordance with the foregoing sentence, the Trustee shall not be required to take any action outside the United States or take any action under any agreement forming part of, or constituting the Collateral, it being understood that the Trustee is
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authorized to receive any funds for the benefit of the Trustee and the Holders distributed under the Security Documents and to make further distributions of such funds according to the provisions of this Indenture, subject to the terms of the U.S. Security Agreement.
if to the Company or a Guarantor:
2 Snunit Street, Science Park,
X.X. Xxx 000
Xxxxxxx 0000000, Xxxxxx
if to the Trustee, Registrar, Paying Agent or Conversion Agent:
The Bank of New York Mellon Trust Company, N.A.,
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Trust
if to the Collateral Agent:
Wilmington Savings Fund Society, FSB
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxxx – Protalix
With a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
The Company, the Guarantors, the Collateral Agent or the Trustee, by notice given to the other in the manner provided above, may designate additional or different addresses for subsequent notices or communications.
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Any notice or communication given to a Holder of a Definitive Note will be mailed to the Holder, by first class mail, postage prepaid, at the Holder’s address as it appears on the Register of the Registrar and will be deemed given on the date of such mailing; provided, however, that with respect to any Global Note, such notice or communication will be sent to the Holder thereof pursuant to the Applicable Procedures. Failure to mail or send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders. If a notice or communication is mailed or sent in the manner provided above, it is duly given, whether or not received by the addressee. If the Company or any Guarantor mails or sends a notice or communication to the Holders, it will, at the same time, mail a copy to the Trustee and each of the Registrar, Paying Agent and Conversion Agent. If the Company or any Guarantor is required under this Indenture to give a notice to the Holders, in lieu of delivering such notice to the Holders, the Company or such Guarantor may deliver such notice to the Trustee and cause the Trustee, at the Company’s or Guarantor’s expense, as applicable, to have delivered such notice to the Holders on or prior to the date on which the Company or such Guarantor would otherwise have been required to deliver such notice to the Holders. In such a case, the Company or such Guarantor will also cause the Trustee to mail a copy of the notice to each of the Registrar, Paying Agent and Conversion Agent (if other than the Trustee) at the same time it sends the notice to the Holders.
The Trustee and the Collateral Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or the Collateral Agent, or another method or system specified by the Trustee, or the Collateral Agent, as available for use in connection with its services hereunder (collectively, “Electronic Means”); provided, however, that the Company and each Guarantor, as applicable, shall provide to the Trustee and the Collateral Agent an incumbency certificate listing Officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and each Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If any of the Company and Guarantors, as applicable, elects to give the Trustee or the Collateral Agent Instructions using Electronic Means and the Trustee or the Collateral Agent in its discretion elects to act upon such Instructions, the Trustee’s or the Collateral Agent’s understanding of such Instructions shall be deemed controlling. Each of the Company and the Guarantors understands and agrees that neither the Trustee nor the Collateral Agent can determine the identity of the actual sender of such Instructions and that the Trustee and the Collateral Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee or the Collateral Agent have been sent by such Authorized Officer. Each of the Company and the Guarantors shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee or the Collateral Agent and that the each of the Company and the Guarantors and all Authorized Officers are solely responsible to safeguard the use and confidentiality of
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applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company or any Guarantor, as applicable. Neither the Trustee nor the Collateral Agent shall be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Collateral Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. Each of the Company and the Guarantors agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee or the Collateral Agent, including without limitation the risk of the Trustee or the Collateral Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and the Collateral Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company or any Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee or the Collateral Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
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maintain such designation and appointment of such agent in full force and effect for the term of this Indenture. Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such writs, process or summonses in any other manner permitted by applicable law.
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In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) to provide to the Trustee and the Paying Agent sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so the Trustee and the Paying Agent can determine whether it has tax related obligations under Applicable Law, provided such information is readily available to the Company, and (ii) that the Trustee and the Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and the Paying Agent shall not have the liability. The terms of this section shall survive the termination of this Indenture.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as a deed the day and year first before written.
Protalix BioTherapeutics, Inc., as Company
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Senior Vice President & Chief Financial Officer
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President & Chief Executive Officer
Protalix Ltd., as Guarantor
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Senior Vice President & Chief Financial Officer
Protalix B.V., as Guarantor
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the undersigned, being duly authorized, has executed this Indenture as of the day and year first before written.
The Bank of New York Mellon Trust Company, N.A., as Trustee,
Registrar, Paying Agent and Conversion Agent
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the undersigned, being duly authorized, has executed this Indenture as of the day and year first before written.
Wilmington Savings Fund Society, FSB, as Collateral Agent
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Trust Officer
EXHIBIT A
FORM OF NOTE
[FORM OF FACE OF NOTE]
[Include the following legend for Global Notes only (the “Global Notes Legend”):]
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Include the following legend on all Notes that are Restricted Notes (the “Restricted Notes Legend”):]
THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE FREE TRADE DATE (AS DEFINED BELOW), THIS NOTE (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:
(A) | TO THE COMPANY OR ANY SUBSIDIARY THEREOF; |
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(B) | PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT; |
(C) | TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR |
(D) | UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT). |
THE “FREE TRADE DATE” MEANS THE DATE THAT IS ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THIS NOTE.
PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
[Include the following legend on all Notes that are issued with Original Issue Discount (the “OID Notes Legend”):]
THIS NOTE WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT. TO OBTAIN THE “ISSUE PRICE”, “ISSUE DATE”, “YIELD TO MATURITY”, “COMPARABLE YIELD” AND “PROJECTED PAYMENT” SCHEDULE FOR THE NOTES REQUIRED PURSUANT TO SECTION 1.1275-3(B) OF THE TREASURY REGULATIONS, CONTACT THE SENIOR DIRECTOR, FINANCE OF PROTALIX BIOTHERAPEUTICS, INC. AT THE ADDRESS SET FORTH IN SECTION 15.02 OF THE INDENTURE.
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No.: [ ]
CUSIP: [●]
ISIN: US[●]
Principal Amount $[ ]
[as revised by the Schedule of Increases and
Decreases of Global Note attached hereto]1
Protalix BioTherapeutics, Inc.
7.50% Senior Secured Convertible Notes due 2024
Protalix BioTherapeutics, Inc., a Delaware corporation (the “Company”), promises to pay to [ ],2 or registered assigns, the principal amount of $[ ] [(as revised by the Schedule of Increases and Decreases of Global Note attached hereto)]3 on the Maturity Date (as defined in the within-mentioned Indenture).
Interest Payment Dates: March 1 and September 1, beginning on March 1, 2022.
Record Dates: February 15 and August 15 of each year (whether or not a Business Day).
Additional provisions of this Note are set forth on the other side of this Note.
1 Include for Global Notes only.
2 Insert Cede & Co. for Global Notes.
3 Include for Global Notes only.
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon Trust Company, N.A., as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
The Bank of New York Mellon Trust Company, N.A. | ||
By: | | |
| | Authorized Signatory |
| | Dated: |
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[FORM OF REVERSE OF NOTE]
Protalix BioTherapeutics, Inc.
7.50% Senior Secured Convertible Notes due 2024
This Note is one of a duly authorized issue of notes of Protalix BioTherapeutics, Inc. (the “Company”), designated as its 7.50% Senior Secured Convertible Notes due 2024 (the “Notes”), all issued or to be issued under and pursuant to an indenture dated as of the Issue Date (the “Indenture”), among the Company, the guarantors party thereto (the “Guarantors”), The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) registrar, paying agent and conversion agent and Wilmington Savings Fund Society, FSB, as collateral agent (the “Collateral Agent”), 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 Registrar, the Paying Agent, the Conversion Agent, the Collateral Agent, the Company, the Guarantors and the Holders. Capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture, and the terms of the Notes include those stated in the Indenture and those incorporated into the Indenture. Notwithstanding anything herein to the contrary, to the extent that any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture will govern and control. The Notes and the related Note Guarantees and the obligations of the Company and the Guarantors are secured obligations of the Company and the relevant Guarantors. The Notes, the related Note Guarantees and the obligations of the Company and the Guarantors are secured by the Collateral pursuant to the Security Documents referred to in the Indenture.
1.Interest. This Note will bear interest at a rate equal to 7.50% per annum. Interest on this Note will accrue from the most recent date to which interest has been paid or provided for, or, if no interest has been paid or provided for, August 24, 2021. Interest will be payable semiannually in arrears on March 1 and September 1 of each year, beginning on March 1, 2022. Each payment of interest on this Note will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, August 24, 2021) through, and including, the day before the applicable Interest Payment Date.
Pursuant to Section 4.03(d) and Section 4.04 of the Indenture, in certain circumstances, the Company will pay Special Interest and Additional Interest, respectively, on this Note.
Pursuant to Section 2.03 of the Indenture, in certain circumstances, the Company will pay Default Interest on Defaulted Amounts with respect to this Note.
2.Method of Payment. The Company will promptly make all payments on this Note on the dates and in the manner provided herein and in the Indenture. Payments on Notes represented by a Global Note (including principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depositary. The Company will pay principal of, and any Fundamental Change Repurchase Price or
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Redemption Price for, Definitive Notes at the office or agency designated by the Company for such purpose. Interest on Definitive Notes will be made as described in Section 2.03, except that any payment of interest due on the Maturity Date will be made at the office or agency designated by the Company for such purpose. All cash payments on this Note will be made in money of the United States that at the time of payment is legal tender for payment of public and private debts.
3.Paying Agent, Conversion Agent and Registrar. Initially, The Bank of New York Mellon Trust Company, N.A. will act as the Trustee, Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent or Registrar, provided that the Company will maintain at least one Paying Agent, Conversion Agent and Registrar in the continental United States. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent or Registrar.
4.Repurchase By the Company at the Option of the Holder. At the option of the Holder, and subject to the terms and conditions of the Indenture, upon the occurrence of a Fundamental Change, each Holder will have the right, at its option, to require the Company to repurchase for cash all of its Notes, or any portion of its Notes having a principal amount equal to $1,000 or an integral multiple of $1,000 in excess thereof, at a Fundamental Change Repurchase Price equal to 100% of the principal amount of Notes to be purchased plus accrued and unpaid interest, if any, to but excluding, the Fundamental Change Repurchase Date, 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 will instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to Article 3 of the Indenture. To exercise its purchase right, a Holder must comply with the procedures set forth in Article 3 of the Indenture.
5.Redemption at the Option of the Company. From time to time prior to the Maturity Date, the Company may redeem, in cash at the applicable Redemption Price, (a) on or after March 31, 2023, any or all of the Notes 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 Trading Day immediately preceding the Redemption Notice Date exceeds 130% of the applicable Conversion Price on each applicable Trading Day or (b) all (and not less than all) of the Notes then outstanding if, at any time after the Issue Date, the aggregate principal amount of Notes then outstanding is less than 15% of the aggregate principal amount of Notes issued on the Issue Date. Any Redemption Notice must be given to the Holders of the Notes not less than 25 nor more than 30 Scheduled Trading Days prior to the applicable Redemption Date. The Company may not designate a Redemption Date that falls during or within three Business Days after the end of a Make-Whole Adjustment Period. The Redemption Price that the Company will pay for any Notes is set forth in the Indenture.
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6.Conversion. Subject to, and upon compliance with, the provisions of Article 10 of the Indenture, a Holder may, at its option, convert all of its Notes, or any portion of its Notes having a principal amount equal to $1,000 or an integral multiple of $1,000 in excess thereof, into cash, Common Stock, or a combination thereof, at the election of the Company, as provided in Article 10 of the Indenture, based on the Conversion Rate. Notes may not be converted after the Close of Business on the Business Day immediately preceding the Maturity Date (or, for any Notes called for redemption by the Company upon exercise of its Optional Redemption right, after the Close of Business on the second Business Day immediately preceding the applicable Redemption Date). Section 10.13 of the Indenture imposes a limitation on the number of shares of Common Stock that may be received by a beneficial owner upon conversion of the Notes.
7.Ranking and Collateral. The Notes and the Note Guarantees are general senior secured obligations of the Company and the Guarantors, respectively, and are pari passu in right of payment with all existing and future Indebtedness of the Company and the Guarantors that is not, by its terms, expressly subordinated in right of payment to the Notes or Note Guarantees. The security interests securing the Notes and the Note Guarantees will be, other than as set forth in the Indenture and the Security Documents, first in priority to any and all security interests.
8.Denominations; Transfer; Exchange. The Notes are in fully registered form, without coupons, in minimum denominations of $1,000 of principal amount and in integral multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Notes (i) in respect of which a Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the case of a Note to be repurchased in part, the portion of the Note not to be repurchased), (ii) after the Company has delivered a Notice of Redemption (except to the extent that Notes are converted or the Company fails to pay the Redemption Price in accordance with Article 11 of the Indenture) or (iii) in respect of which a Conversion Notice has been given (except, in the case of a Note to be converted in part, the portion of the Note not to be converted).
9.Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture permits the Indenture, the Notes, the Note Guarantees and any Security Documents to be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes. In certain circumstances, the Company and the Trustee may also amend or supplement the Indenture, the Notes, the Note Guarantees or any Security Documents without the consent of any Holder. Subject to certain exceptions, the Indenture permits the waiver of certain Events of Default or the noncompliance with certain provisions of the Indenture, the Notes, the Note Guarantees and any Security Documents with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes.
In addition, (x) any amendment to, or waiver of, the provisions of the Indenture, the Notes, the Note Guarantees or any Security Document that has the effect of releasing
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all or substantially all of the Collateral from the Note Liens or (y) any changes in the provisions of the Indenture or any material change in the provisions in the Security Documents, in each case dealing with the application of proceeds of Collateral upon exercise of remedies with respect to such Collateral that adversely affects the Holders, shall require the consent of the Holders of at least 66 and 2/3% in aggregate principal amount of the Notes then outstanding under the Indenture (including any consents obtained in connection with a tender offer or exchange for the Notes).
10.Defaults and Remedies. Subject to the immediately following paragraph, if an Event of Default specified in the Indenture occurs and is continuing, the Trustee, by delivering a written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by delivering a written notice to the Company and the Trustee, may declare all the Notes to be due and payable immediately by delivering notice to the Company. In addition, certain specified Events of Default will cause the Notes to become immediately due and payable without the Trustee or Holders taking any action.
Holders may not enforce the Indenture, the Notes, the Note Guarantees and any Security Documents except as provided in the Indenture. The Trustee and the Collateral Agent may each refuse to enforce the Indenture, the Notes, the Note Guarantees and any Security Documents unless it receives indemnity or security satisfactory to it. Holders of a majority of the principal amount of the then outstanding Notes may direct the Trustee and the Collateral Agent in its exercise of any trust or power, subject to certain limitations set forth in the Indenture. Subject to certain exceptions, the Trustee may withhold from Holders notice of any continuing Event of Default or Default if it determines that withholding notice is in their interest.
11.Persons Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.
12.Unclaimed Money or Notes. The Trustee and the Paying Agent will return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Notes that remain unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors, unless an applicable abandoned property law designates another Person.
13.Trustee Dealings with the Company. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee.
14.Calculations in Respect of Notes. Except as otherwise provided in the Indenture, the Company will be responsible for making all calculations called for under the Notes and the Indenture. These calculations include, but are not limited to, determinations of the Last Reported Sale Price of the Common Stock or any other security, the amount and
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type of consideration due upon the conversion of any Note, accrued interest payable on the Notes and the Conversion Rate in effect on any Conversion Date.
The Company will make all these calculations in good faith and, absent manifest error, its calculations will be final and binding on all Holders.
00.Xx Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or any Guarantor will not have any liability for any obligations of the Company or the Guarantors under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes
16.Authentication. This Note will not be valid until an authorized signatory of the Trustee signs the Trustee’s certificate of authentication on the other side of this Note manually, electronically or by facsimile.
17.Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors Act).
18.GOVERNING LAW. THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19.CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures and the International Securities Identification Numbers Organisation, the Company has caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP and ISIN numbers in any notices as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice, and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder, upon written request and without charge, a copy of the Indenture which has in it the text of this Note. Requests may be made to:
Protalix BioTherapeutics, Inc.
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx 0000000, Xxxxxx
Attention: Xxxx Xxxxx
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CONVERSION NOTICE
PROTALIX BIOTHERAPEUTICS, INC.
7.50% SENIOR SECURED CONVERTIBLE NOTES DUE 2024
To convert this Note, check the box
To convert the entire principal amount of this Note, check the box
To convert only a portion of the principal amount of this Note, check the box and here specify the principal amount to be converted, which principal amount must equal $1,000 or an integral multiple of $1,000 in excess thereof:
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$ | | |
Signature Guaranteed | ||
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Participant in a Recognized Signature | ||
Guarantee Medallion Program | ||
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By: | | |
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OPTION OF HOLDER TO ELECT PURCHASE
The Bank of New York Mellon Trust Company, N.A.,
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Trust
[Include for repurchases pursuant to Section 3.01:
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Protalix BioTherapeutics, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the Holder hereof in accordance with the applicable provisions of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is equal to $1,000 principal amount or an integral multiple of $1,000 in excess thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not occur 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.]
[Include for repurchases pursuant to Section 4.14(c):
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Protalix BioTherapeutics, Inc. (the “Company”) as to the Specified Proceeds Offer and specifying the Specified Proceeds Offer Purchase Date and requests and instructs the Company to pay to the Holder hereof in accordance with the applicable provisions of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is equal to $1,000 principal amount or an integral multiple of $1,000 in excess thereof) below designated, and (2) if such Specified Proceeds Offer Purchase Date does not occur 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 Specified Proceeds Offer Purchase Date.]
Principal amount to be repaid (if less than all): $ ,000
CUSIP/ISIN: ___________________
Signature Guaranteed | |
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Guarantee Medallion Program | |
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Authorized Signatory |
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[Include for Global Note]
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
Initial Principal Amount of Global Note: $[ ]
Date | Amount of Increase in Principal Amount of Global Note | Amount of Decrease in Principal Amount of Global Note | Principal Amount of Global Note After Increase or Decrease | Notation by Custodian |
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EXHIBIT B
FORM OF TRANSFER CERTIFICATE
PROTALIX BIOTHERAPEUTICS, INC.
7.50% SENIOR SECURED CONVERTIBLE NOTES DUE 2024
Transfer Certificate
In connection with any transfer of any of this Note, the undersigned registered owner of this Note hereby certifies, with respect to $___________ principal amount of the above-captioned Notes (CUSIP: [ ]/ISIN: [ ]) presented or surrendered on the date hereof (the “Surrendered Note”) for registration of transfer, or for exchange or conversion where the securities issuable upon such exchange or conversion are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “Transfer”), that such Transfer complies with the Restricted Notes Legend set forth on the face of the Surrendered Note for the reason checked below:
The Transfer of the Surrendered Note is being made to the Company or a Subsidiary thereof; or
The Transfer of the Surrendered Note complies with Rule 144A under the Securities Act; or
The Transfer of the Surrendered Note is being made pursuant to an effective registration statement under the Securities Act; or
The Transfer of the Surrendered Note is being made pursuant to another available exemption from the registration requirement of the Securities Act.
Date: | |
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By: | |
(If the registered owner is a corporation, partnership or fiduciary, the title of the Person signing on behalf of such registered owner must be stated.)
Signature Guaranteed | |
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Participant in a Recognized Signature | |
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Guarantee Medallion Program | |
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By: | |
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EXHIBIT C
[FORM OF RESTRICTED STOCK LEGEND]
THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, PRIOR TO THE FREE TRADE DATE (AS DEFINED BELOW), THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:
(A) | TO THE COMPANY OR ANY SUBSIDIARY THEREOF; |
(B) | PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT; |
(C) | TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR |
(D) | UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT). |
THE “FREE TRADE DATE” MEANS THE DATE THAT IS ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE COMPANY’S 7.50% SENIOR SECURED CONVERTIBLE NOTES DUE 2024 IN RESPECT OF WHICH THIS SECURITY WAS ISSUED.
PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D), THE COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of August 24, 2021 (the “Indenture”) among Protalix BioTherapeutics, Inc. (the “Company”), the Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) and Wilmington Savings Fund Society, FSB, as collateral agent (the “Collateral Agent”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee or the Collateral Agent all in accordance with the terms of the Indenture, the Notes, the Note Guarantees and any Security Documents and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders and to the Trustee and the Collateral Agent pursuant to the Indenture, the Notes, the Note Guarantees and any Security Documents are expressly set forth in Article 12 of the Indenture, and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
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[GUARANTORS] | ||
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By: | | |
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Title: | | |
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EXHIBIT E
[FORM OF SUPPLEMENTAL INDENTURE FOR GUARANTOR]
[ ] SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [ ], among [NEW GUARANTOR] (the “New Guarantor”), a subsidiary of PROTALIX BIOTHERAPEUTICS, INC. (or its successor), a Delaware corporation (the “Company”), the Company, each of [ ] (the “Existing Guarantors”), Wilmington Savings Fund Society, FSB, as the collateral agent (the “Collateral Agent”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), registrar, paying and conversion agent under the indenture referred to below.
WHEREAS the Company (or its successor) has heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”) dated as of August 24, 2021, providing for the issuance of the Company’s 7.50% Senior Secured Convertible Notes due 2024 (the “Notes”), initially in an aggregate principal amount of twenty-eight million seven hundred fifty thousand dollars ($28,750,000);
WHEREAS Section 4.17 of the Indenture provides that, under certain circumstances, the Company is required to cause the New Guarantor to execute and deliver to the Trustee and the Collateral Agent a supplemental indenture pursuant to which the New Guarantor shall unconditionally guarantee all the obligations of the Company under the Notes and the Indenture pursuant to a Note Guarantee on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01(b) of the Indenture, the parties are 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 New Guarantor, the Company, the Collateral Agent and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders (as defined in the Indenture) as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to unconditionally guarantee the Obligations of the Company under the Notes and the Indenture on the terms and subject to the conditions set forth in Article 12 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a guarantor under the Indenture.
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3. Notices. All notices or other communications to the New Guarantor shall be given as provided in Section 15.02 of the Indenture.
4. 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 shall be bound hereby.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. Trustee Makes No Representation. Neither the Trustee nor the Collateral Agent makes any representation as to the validity or sufficiency of this Supplemental Indenture or any Note Guarantee.
7. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. One signed copy is enough to prove this Supplemental Indenture. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by 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 applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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PROTALIX BIOTHERAPEUTICS, INC. | ||
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By: | | |
Name: | | |
Title: | | |
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PROTALIX LTD. | ||
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By: | | |
Name: | | |
Title: | | |
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PROTALIX B.V. | ||
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By: | | |
Name: | | |
Title: | | |
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[NEW GUARANTOR] | ||
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By: | | |
Name: | | |
Title: | | |
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The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
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By: | | |
Name: | | |
Title: | | |
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Wilmington Savings Fund Society, FSB, | ||
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By: | | |
Name: | | |
Title: | | |
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SCHEDULE I
Existing Indebtedness
2021 7.50% convertible notesPrincipal Amount $57,918,000
SCH I-1
