HUTCHINSON TECHNOLOGY INCORPORATED, and AS TRUSTEE SECOND SUPPLEMENTAL INDENTURE DATED AS OF OCTOBER 5, 2016 TO THE INDENTURE DATED AS OF OCTOBER 20, 2014
Exhibit 4.1
XXXXXXXXXX TECHNOLOGY INCORPORATED,
and
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
DATED AS OF OCTOBER 5, 2016
TO THE
INDENTURE
DATED AS OF OCTOBER 20, 2014
8.50% CONVERTIBLE SENIOR NOTES DUE 2019
This SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of October 5, 2016, is by and between Xxxxxxxxxx Technology Incorporated, a Minnesota corporation (the “Company”), and U.S. Bank National Association, as trustee (the “Trustee”).
ARTICLE 1
Section 1.01 Definitions
For all purposes of this Second Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE 2
Section 2.01 Conversion of Securities
At and after the effective time of the Merger:
(a) in accordance with and subject to Section 4.10 of the First Supplemental Indenture, the right to convert each $1,000 principal amount of Securities shall be changed into the right to convert such principal amount of Securities into the amount of cash that a holder of the number of shares of Common Stock equal to the Conversion Rate (as may be increased by the Make-Whole Premium provided for pursuant to Section 4.01(f) of the First Supplemental Indenture as a consequence of the Merger) immediately prior to the Merger would have owned or been entitled to receive upon the Merger; and
(b) pursuant to Section 4.10 of the First Supplemental Indenture, upon conversion of the Securities by a Holder, the Company will pay or cause to be paid to such Holder, for each $1,000 principal amount of Securities, cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by the Make-Whole Premium pursuant to Section 4.01(f) in the case of a conversion made in connection with a Make-Whole Fundamental Change), multiplied by the Per Share Merger Consideration.
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ARTICLE 3
Section 3.01 Severability
In case any provision of this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.02 Modification, Amendment and Waiver
The provisions of this Second Supplemental Indenture may not be amended, supplemented, modified or waived, unless otherwise provided in the Indenture, except by the execution of a supplemental indenture in compliance with Article X of the First Supplemental Indenture.
Section 3.03 Ratification of Indenture; Second Supplemental Indenture Part of the Indenture
The Company (i) is a corporation organized and existing under the laws of the United States of America and the State of Minnesota and (ii) hereby expressly assumes the obligations of the Company under the Securities, Base Indenture and First Supplemental Indenture and the performance or observance of every covenant and provision of the Base Indenture, First Supplemental Indenture and the Securities required on the part of the Company to be performed or observed and the conversion rights hereby shall be provided for in accordance with Article IV thereof. 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. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Second Supplemental Indenture, then the terms and conditions of the Indenture shall prevail. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 3.04 Trust Indenture Act Controls
If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the TIA, through operation of Section 318(c) thereof, such imposed duties shall control.
Section 3.05 Governing Law
This Second Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.06 Trustee Makes No Representation
The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture. The recitals and statements contained in this Second Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
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Section 3.07 Multiple Counterparts
The parties may sign multiple counterparts of this Second Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together shall represent the same agreement.
Section 3.08 Headings
The headings of the Articles and Sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.09 Successors
All agreements of the Company in this Second Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successor.
Section 3.10 Calculations in Respect of the Securities
The Company shall make all calculations under this Second Supplemental Indenture and the Securities. The Company shall make all these calculations in good faith, and, absent manifest error, such calculations shall be final and binding on all Holders. The Company shall provide schedules of its calculations to the Trustee as required hereunder, and the Trustee shall be entitled to conclusively rely on the accuracy of any such calculation without independent verification.
[SIGNATURE PAGE FOLLOWS]
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XXXXXXXXXX TECHNOLOGY INCORPORATED | ||
By: | /s/ Xxxxx X. Xxxxxxx | |
Name: Xxxxx X. Xxxxxxx | ||
Title: Chief Financial Officer | ||
U.S. BANK NATIONAL ASSOCIATION, solely as Trustee hereunder and not in its individual capacity | ||
By: | /s/ Xxxxxx X. Xxxx | |
Name: Xxxxxx X. Xxxx | ||
Title: Vice President |
[Signature Page to Second Supplemental Indenture]