添付ファイル4.1
実行バージョン
ビットディアテクノロジーズグループ
そして
アメリカ銀行信託会社国立協会は
受託者として
圧痕
2024 年 11 月 26 日現在
5.25% 転換シニアノート 2029 年満期
目次表
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ページ
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第 1 条 定義
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1
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第1.01節
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定義する
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1
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第1.02節
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興味への参照
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16 |
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第 2 条 証券の発行、説明、執行、登録及び交換
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17
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第2.01節
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指定と金額
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17
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第2.02節
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形式のメモ
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17
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第2.03節
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債券の日付と額面、利息の支払とデフォルト金額
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18
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第2.04節
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注釈の実行、認証、配達
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19
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第2.05節
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証券の交換及び譲渡の登録、譲渡の制限、預託者
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20
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第2.06節
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切断 · 破壊 · 紛失 · 盗難ノート
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26
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第2.07節
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仮付記
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27
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第2.08節
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支払済、換算済、等の手形のキャンセル
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28
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第2.09節
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CUSIP番号
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28
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第2.10節
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追加注釈； 買戻し
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29 |
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第 3 条満足と免責
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29
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3.01節
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満足感と解放
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29
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第 4 条 会社の特定規約
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30
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4.01節
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元金および利子の支払い
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30
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4.02節
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オフィスや機関のメンテナンス
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30
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4.03節
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受託者事務所の欠員を埋めるための任命
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30
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4.04節
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支払い代理人に関する規定
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30
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4.05節
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存在
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32
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第4.06節
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規則 144 A 情報要件と年次報告書
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32
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4.07節
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居留·延期·高利貸し法
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34
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4.08節
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コンプライアンス証明書； デフォルトに関する記述
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34
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第4.09節
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その他の文書 · 行為
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35
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4.10節
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追加額
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35
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第 5 条保有者名簿及び会社及び受託者の報告
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38
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第5.01節
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保有者リスト
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38
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第5.02節
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リストの保存 · 開示
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38
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第 6 条デフォルトと救済
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38
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第6.01節
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違約事件
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38
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第6.02節
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加速； 解消および取消
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40
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第6.03節
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追加利息
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41 |
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第6.04節
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デフォルト上の手形の支払； それに適合
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42
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-i-
目次表
（ 続き ）
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第6.05節
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受託者による徴収金の適用
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43
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第6.06節
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保有者による手続
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44
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第6.07節
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受託者による手続
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45
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第6.08節
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累積および継続的な救済
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45
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第6.09節
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株主過半数による手続の指示及び債務不履行の免除
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46
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第6.10節
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失責に関する通知
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46
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第6.11節
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費用を支払う約束
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47
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第 7 条 受託者について
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47
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第7.01節
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受託者の職務 · 責任
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47
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第7.02節
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文書、意見などへの依存
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49
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第7.03節
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リサイタル等の責任は承諾しません。
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50
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第7.04節
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受託者、支払代理人、転換代理人、入札勧誘代理人または手形登記官は手形を所有することができる。
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50
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第7.05節
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信託に保有する金銭及び普通株式
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51
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第7.06節
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受託者の報酬 · 費用
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51
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第7.07節
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役員の証明書証拠
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52
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第7.08節
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受託者の資格
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52
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第7.09節
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受託者の辞任 · 解任
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52
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第7.10節
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後継受託者による受諾
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53
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第7.11節
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合併による継承等
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54
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第7.12節
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受託者の会社からの指示の申請
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54
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第 8 条保有者について
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55
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第8.01節
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保有者によるアクション
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55
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8.02節
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保有者による執行証明書
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55
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第8.03節
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絶対所有者とみなされる人
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55
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第8.04節
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会社所有債の無視
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56
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セクション 8.0 5 同意の取り消し； 将来の保有者の拘束
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56
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第 9 条株主総会
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56
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第9.01節
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会議の目的
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56
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第9.02節
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受託者による招集
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57
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第9.03節
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会社 · 保有者による招集
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57
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第9.04節
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投票資格
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57
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第9.05節
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条例
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57
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第9.06節
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投票する．
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58
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第9.07節
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会合による権利の遅延なし
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58
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第 10 条補足契約
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59
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第十百九十一条
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保有者の同意なしに変更又は補足契約
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59
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-ii-
目次表
（ 続き ）
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第十百二十二条
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保有者の同意を得た修正又は補足契約
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60
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第十十零零三条
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補充性義歯の効果
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61
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第十百四十四条
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Notation on Notes
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61
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第十百五十五条
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受託者に提出する補足契約書の遵守の証拠
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62
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第 11 条資産の合併、合併及び売却
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62
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第十一条第一条
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会社が合併する場合など
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62
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第十一十二条
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代替される後継事業体
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62
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第 12 条設立者、株主、役員及び取締役の免責
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63
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第十二十一条
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契約書および社債のみ
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63
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第 13 条 [意図的に省略]
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63
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第 14 条証券の換算
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63
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第十四十一条
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変換特権
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63
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第十四百二十二条
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換算手続、換算時の決済
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68
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第十四百三十三条
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メイクホールファンダメンタルズ変更時の換算レートの調整
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74
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第十四十四条
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償還に伴う換算時の換算レートの調整
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76
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第十四十五条
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換算率の調整
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77
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第十四百六十六条
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価格調整について
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87
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第十四百七十七条
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全額支払済の株式
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87
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第十四百八十八条
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クラス A 普通株式の資本増強、分類変更及び変更の影響
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87
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第十四百九十九条
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ある種のチノ
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89
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第十四百十条
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受託者の責任
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90
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第十四百十一条
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特定のアクションに先立って所有者への通知
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90
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第十四十二条
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株主権利計画
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91
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第 14.13 節
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変換の代わりに交換
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91
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第 15 条保有者の選択による国債の買戻し
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92
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セクション 15.0 1
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2027 年 12 月 6 日の保有者オプションによる買戻し
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92
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セクション 15.0 2
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基本的変更時の保有者の選択による買戻し
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94
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第 15.0 3 節
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基本変更買戻し通知又は特定買戻し日の取消し買戻し通知
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98
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第 15.0 4 節
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基本変更買戻し価格の預金
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98
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セクション 15.05
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債券買戻しに関する適用法令遵守に関する契約
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99
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第 16 条任意償還、清掃償還及び税金償還
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100
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-iii-
目次表
（ 続き ）
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セクション 16.0 1
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オプションの償還
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100 |
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セクション 16.0 2
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クリーンアップ償還
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102
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セクション 16.0 3
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税金を引き換える
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103
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第 16.0 4 条
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償還請求手形の支払
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106
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セクション 16.0 5
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償還の制限
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106
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第 17 条雑則
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107
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セクション 17.0 1
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管轄権
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107
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セクション 17.0 2
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陪審員の取り調べを放棄する
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107
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セクション 17.0 3
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通知の住所、等
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108
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第 17.0 4 条
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会社の後継者に対する拘束力規定、後継者による公的行為
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108
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第 17.05 節
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以前の条件の遵守の証明書、受託者への顧問の証明書および意見
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108
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セクション 17.0 6
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法定祝祭日
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109
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第 17.0 7 節
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セキュリティ利息なし作成
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109
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セクション 17.0 8
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義歯のメリット
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109
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セクション 17.0 9
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目次、見出し、等
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109
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第 17.10 節
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認証エージェント
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110
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セクション 17.11
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複数のオリジナル
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111
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セクション 17.12
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分割可能性
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111
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セクション 17.13
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計算する
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111
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セクション 17.14
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シニアノートの認識
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111
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セクション 17.15
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通知の交付
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112
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第 17.16 条
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“アメリカ愛国者法案”
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112
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展示品
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展示物 A
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紙幣の格式
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A-1
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-iv-
圧痕2024 年 11 月 26 日付で、免除有限責任会社である BITDEER TECHNOLOGIES GROUP との間で
ケイマン諸島の法律の下で法人化された、発行者として （ 「会社， ” セクション 1.01 により完全に記載されているように、および U. S. BANK TRUST COMPANY， NATIONAL ASSOCIATION 、全国銀行協会、として、
トライスト （ The Trustee ）受託者詳細は、セクション 1.0 1 で説明します。
W I TN E S E T H：
一方、当社は、正当な企業目的のために、 2029 年満期 5.25% の可転換上級社債 （ 「備考」と、「 1 千円の金額は、
文脈では、 A 」注記)は，予備元金総額が400，000，000を超えず，そのようなチケットを認証する条項や条件を提供するために，
発行と交付、会社は本契約の署名と交付を正式に許可した
考えてみると、チケットのフォーマット、チケット毎に携帯する必要がある認証証明書、変換通知のフォーマット、買い戻し通知を基本的に変更するフォーマット、買い戻し日を指定する買い戻し通知のフォーマット、および
債券が負担する譲渡及び移転は、実質的に以下の規定のフォーマットを採用しなければならない
考慮して、手形が会社によって署名され、受託者又は本契約に規定された正式に許可された認証エージェントによって認証及び交付された場合、すべての必要な行為及び事柄は、本契約で規定されるように、有効で、拘束力があり、合法的である。
当社の責任及び本契約はその条項に基づいて有効な合意を締結及び履行していますが、本契約の締結及び本契約項の下の手形の発行は各方面で正式な許可を得ています。
だから、今この契約は証明されている
手形認証，発行および交付の条項や条件を発表するために，至る所に及ぶ所有者の手形の購入や受け取りの代償を考慮する.
会社と受託者は、債券保有者が時々享受する同等及び相応の利益(以下、別の規定を除く)について締結し、以下のように同意する
第 1 条定義
1.01節：第1節：第2節：第1節：第2節：定義する本契約のすべての目的については、本明細書で他に明確な規定がない限り、または文意に加えて指摘されている
(A)本条第1条で定義された用語は、本条第1条に与えられたそれぞれの意味を有し、複数および単数を含むべきである
(B)任意の指定された事項について使用する場合には，“ここ”，“ここ”，“以下”などの類似した意味の語を用いるべきである.
条項、章または分岐は、本契約の当該条項、章または分岐を意味し、(Ii)そうでなければ、特定の条項、章または他の枝ではなく、本契約の全体を指す
(C)本契約および/または“ドル付記”におけるすべての提案法はドルを指す
“1%例外“14.05(F)節で規定された意味を持つべきである。
“追加額“4.10(A)節で規定された意味を持つべきである.
“A類普通株を増発する“14.03(A)節で規定した意味を持つべきである.
“追加利息“14.02(C)節で規定された意味を持つべきである.“
““14.01(A)節で規定された意味を持つべきである.換算価格“いつまでも$1，000
“割る転換率当時の転換率
“転換率“14.01(A)節で規定された意味を持つべきである.
“企業信託事務室“受託者がいつでも本契約を管理する指定オフィスのことで、この契約日が米国銀行信託会社にある。
アメリカ国家協会、住所：ロサンゼルス西5街633号、24階、郵便番号：90071、郵便番号：ビットテクノロジーグループ管理人、あるいは受託者は時々通知によって指定された他の住所を教えます。
または任意の後任受託者の指定法人信託事務所(または当該後任受託者が時々所有者および当社に通知を出して指定された他の住所)。
“1日換算値“とは，観察期間内の連続40(40)取引日における取引日ごとに，(A)終局直後の有効な転換率積の2.5%である.
(B)この取引日の毎日VWAP.
“毎日の測定値“指定されたドルの金額(ある場合)、
“割る日決算額
2
““観察期間内の連続40(40)取引日における各取引日は、以下を含むべきである(A)現金総額が(I)1日メトリック値に等しいもの、および(Ii)1日換算値のうち小さいもの；
“(B)1日換算値が1日計量値を超える場合、クラスA普通株式の数は、(I)1日換算値と1日計量値との差に等しい
““14.05(C)節に規定する意味を持たなければならない。転換期を割り当てる
““14.01(B)節で規定された意味を持つべきである.“直接トルク
“「 Depository Trust Company 」の意味発効日
“14.03(C)節で規定した意味を持つべきであるが，14.05節と14.06節で用いた意味は除外し，効き目がある
日取り
““A類普通株が取引所又は市場正常取引に適用される最初の日に、関連する株式分割又は株式の組み合わせを反映する(適用されるものに応じて)(及び回避のために)
この目的に関しては、Aクラス普通株について独立株式コードまたはCUSIP番号で締結された任意の代替取引慣行は、取引所または市場に適用される場合には“通常方式”とはみなされない)。違約事件
““6.01節に規定する意味を持つべきである.配当金期日
“A類普通株が適用される取引所又は適用される市場で正常な方法で取引される最初の日を指し、発行、配当を得る権利がない
当社またはAクラス普通株式販売者は、取引所または市場によって決定された(満期手形または他の形態で)取引所または市場に関する任意の割り当てまたは割り当てを行う。疑問を抱かないために
この目的の場合、Aクラスの普通株について独立した株式コードまたはCUSIP番号で締結された取引所または市場が適用される任意の別の取引慣行は、“通常の方法”とはみなされないであろう。“取引所法案”
““1934年に改正された米国証券取引法、および委員会がこの法案に基づいて公布した規則および条例を指す。取引所選挙
“14.13(A)節に規定する意味を持たなければならない。免除の根本的変革
“は、15.02(D)節で規定された意味を持つべきである。基本原理
““15.02(A)節で規定された意味を持つべきである.“条項”
“V.与えられる郵送しました通知する「 OR 」
“送信する
本契約による所持者への通知とは，保管人またはその指定者の長期指示に基づいて，受け取った電子メールによる保管人(またはその指定者)への通知(X)を含むものである.
17.03節の規定に従う.このような“発行”された通知は、本契約に従って“郵送”または“配信”すべき任意の通知を含むものとみなされるべきである。
“グローバルノート“は、第2.05(B)節に規定された意味を持つべきである。
“保持者
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“圧痕“とは、最初に署名された本を意味し、または本契約の規定に従って修正または補足された場合、そのように修正または補足される。
“利息払い期日“毎年6月1日と12月1日を指し、2025年6月1日から始まる。“転換後の満期金額の決定については、(A)A類証券が存在する米国の主要国又は地域証券取引所又は市場の失敗を指す
期日まで
“測算期注記「 OR 」
“備考“本契約の朗読に示された意味を持つべきだ。
“注記保管人
“注記登録
“備考：登録者改装通知書40.
““14.02(C)節で規定された意味を持つべきである.観察期
いずれの償還済み手形についても、両替日に関する償還期間内に発生した場合、その償還日の直前の41番目の予定取引日から連続して40(40)取引日(当該日を含む)
(C)認証された紙幣の代わりに、又は代替するために、第2.06節第2項に従って支払われた紙幣又は他の紙幣を発行し、
第2.06節の条項によれば、受託者が満足できる証明を提出しない限り、そのようなチケットが適切なときに保護された購入者によって所有されていることが証明されなければならない(D)償還は、第14条に従って変換され、第2.08節の規定により抹消されなければならない手形、及び(E)第16条に従って償還された手形。
“部分償還制限“は、16.01(A)節に規定された意味を持つべきである。支払代理店“当社または当社が第4.02節で指定した者を指します。受託者は最初に支払い代理に任命された。
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“所持者を認める(I)呉継漢及び(Ii)当社が本契約日に改訂及び再予約した組織定款の大綱及び細則によって定義された“創設実体”を指す。
“人は…個人、会社、共同企業、合営企業、株式会社、有限責任会社、社団、信託、非法人組織、その他の単位又は組織のこと。
政府や政治地域、またはその機関や道具を含む。
“実物ノート“登録形式で発行された永久保証書手形のことで、元金の最低額面は1，000円とその整数倍である。
“実物が陥没する“14.02(A)節で規定された意味を持つべきである.
“前置備考“任意の特定のチケットとは、その特定のチケットによって証明された債務と同じ全部または部分的な債務を証明するすべての以前のチケットを意味し、本定義の場合、任意のものは、
第2.06節で認証され、破損、紛失、廃棄、または盗難されたチケットの代わりまたは交換のために交付されたチケットによれば、置換された残存、紛失、廃棄、または盗まれたチケットと同じ債務証拠とみなされるべきである。適格相続人実体“企業合併活動については、会社のこと
“提供ただし、(I)当該企業合併事件が
免除の根本的な変更であれば、有限責任会社、有限組合企業または他の類似エンティティも、当該企業合併事件の合格相続人実体；および(Ii)有限責任を構成する。
当該企業合併事件の結果、存続又は譲渡者である会社又は有限組合企業も、当該企業合併事件の合格相続人を構成することとなり、条件は
第(I)項において、(1)当該有限責任会社又は有限責任組合会社が会社とみなされていない場合又は会社から独立した実体とみなされている場合は、それぞれの場合において、米国連邦所得税の目的のために、会社は、
この企業合併事件は、規則1001節によれば、手形所有者や実益所有者の交換、および(Y)このような制限とはみなされないという国家公認税務弁護士の意見を受けた。
責任会社又は有限共同会社は、アメリカ合衆国、その任意の州、コロンビア特区、ケイマン諸島の法律に基づいて正式に組織及び存在する会社の直接又は間接完全子会社である
(2)このような企業合併イベントは株式取引イベントを構成し，その参考財産はドルと普通株の任意の組合せのみからなる.
又は(1)(Y)項に記載の会社の他の会社の普通株式権益。
“日付を記録する“クラスA普通株式(または他の適用証券)所有者が受け取る権利のある任意の配当金、割り当てまたは他の取引またはイベントを意味する
任意の現金、証券または他の財産、またはAクラスの普通株式(またはそのような他の証券)が、証券を決定するための日付のために、現金、証券または他の財産の任意の組み合わせに交換または変換される。
このような現金、証券、または他の財産の所有者を得る権利がある(その日が取締役会、法規、契約、または他の方法によって決定されるにかかわらず)。
“償還“オプション両替、整理両替、または税金両替のことです(場合によって)。償還期日“オプションの両替日、整理両替日、または納税両替日のことです(場合によって)。
“償還通知“オプションの両替通知、整理両替通知、または税務両替通知を指します(場合によって)。オプションの償還、整理償還または税務償還については、会社が適用償還の日付およびそれを含む期間を交付することを意味する。
通知は、償還日の直前の第2の営業日が終了するまで、会社が償還価格を支払うことができない限り(この場合、償還を要求された手形の所持者は、当該手形を変換することができる
償還代金の支払いまたは正式な準備日の直前の第2の営業日まで)、その間、所持者は、その所持者の全部または任意の部分の催促手形を変換することができる。
“償還価格“第十六条に基づいて償還された任意の債券を指し、当該等債券の元金の100%をいう
“プラス 利息と未払い利息を計算しなければならない，
いずれにしても、償還日が含まれていない(償還日が通常記録日の後であるが、次の利子支払日又は直前である場合を除き、この場合、利子支払日は累算されなければならない利息となる。
当該支払日の前に、又は当社の選択により、当該定期記録日時の営業時間が終了したときに、当該等手形の記録所持者に利息を支払い、償還価格は当該等手形元金の100%に等しくなる
注)。
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“参考日を償還する“オプション両替、整理両替、または税務両替に基づいて両替通知を出す日付のことです。
“参考価格を償還する“A類普通株が以下の日までの連続5(5)取引日以内に最終報告された販売価格の平均値、および
償還参考日直前の取引日が含まれています。
“引用属性“14.08(A)節に規定する意味を持たなければならない。
“正規記録日“と”
“通常の記録日「利子支払日」とは、 5 月 15 日および 11 月 15 日 （ 当該日が営業日であるかどうかにかかわらず ） を意味します。
6 月 1 日、 12 月 1 日の利子支払日の直前日。
“関連する管轄」は、第 4.10 条 （ a ） に規定された意味を持つ。関連課税管轄権.
“」は、第 4.10 条 （ a ） に定める意味を持つ。“報告義務」は、第 6.03 項に規定されている意味を持つ。.
“責任者「本契約の管理を担当する受託者の法人信託部門内の役員をいう。制限付き有価証券.
“」は、第 2.05 条 （ c ） に規定された意味を持つ。制限注釈伝説」は、第 2.05 条 （ c ） に規定された意味を持つ。“.
“規則第百四十四条「証券法に基づく規則 144 」を意味する。ルール 144 A.
A “「証券法に基づくルール 144 A を意味します。取引予定日
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“A類普通株上場に指定されている米国の主要国または地域証券取引所または市場の取引日、または
取引を許可される。A類普通株がこのように上場していない場合や取引が許可されていなければ“取引予定日“営業日のことです。証券法, “1933年に改正された証券法、及び証監会が同法等に基づいて公布した規則及び条例を指す。決算額
“は14.02(A)(Iv)節で規定された意味を持つ.決済方式
“は，14.02(A)(Iii)節で規定された意味を持つ.
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, “14.08(A)節に規定する意味を持たなければならない。“株価.株価
““14.03(C)節で規定した意味を持つべきである.“重要子会社
“前提は、
“(W)(1)(Iii)(A)(2)段落に適用されない場合(W)(1)(Iii)(Iii)段落に記載されているような入情報審査が該当するか否か
第(I)又は(Ii)項以外の第(Iii)項を定義する準則は、上記規則が要約覚書日に発効する場合において、当該付属会社は、重要な付属会社とみなされてはならない。
期日前の最後の完全会計年度に、付属会社が経営を続けている所得税前の収入或いは損失は25，000，000ドルを超え、その中にはいかなる非持株権益も含まれていない金額を占めなければならない。適用することができます
疑問を持たないためには、このような付属会社はいかなるものともみなされない“重要子会社
“S-X法規第1条規則1-02(W)(1)における関連定義(又はいずれか
相続人規則)は，その付属会社は“とみなされてはならない”重要子会社“本契約によれば、当該付属会社が
そうでなければ“
重要子会社“前の文にあるが、本が発効した後。”, “指定ドル金額”, ““とは、決済通知書内に指定(または指定とする)された1$1，000元の債券元金変換時に受け取ることができる最高現金額を意味し、その現金額はいずれも
変換された付記。指定買い戻し“15.01(A)節で規定された意味を持つべきである.指定買い戻し日
““15.01(A)節で規定された意味を持つべきである.“買い戻し日買い戻し通知を指定する
““#に規定された意味を持つべきである
第十五百一条第一項。指定買い戻し日買い戻し価格
““15.01(A)節で規定された意味を持つべきである.派生製品
““14.05(C)節に規定する意味を持たなければならない子会社
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““誰の場合も、株式または他の株式の総投票権が50%を超える任意の会社、協会、共同企業、または他の商業エンティティを意味する
取締役、マネージャー、一般パートナーまたは受託者の選挙において投票する権利がある権益(組合権益を含む)(いかなる意外な状況が発生したか否かにかかわらず)は、その時点で所有または制御、直接または
(I)その人、(Ii)その人およびその1つまたは複数の付属会社、または(Iii)その人の1つまたは複数の付属会社。“営業日のことです。
“取引価格
確定日、ニューヨーク市時間午後3時30分ごろ、会社がこの目的のために選択した3つの独立した国が証券取引業者の手形を認めたが、もし3回このような入札が合理的にできなければ
入札エージェントが獲得したが2つのこのような入札を獲得したものは，2つの入札の平均値を用い，入札エージェントが1つのこのような入札しか合理的に獲得できない場合は，その入札を用いるべきである.もし、どんな中でも
確定日には，入札エージェントが国が認可した証券取引業者から少なくとも1回の元金2，000，000ドルのチケットに対する入札を得ることができなければ，その等のチケットに1，000ドルあたりの元金の取引価格を得ることができる.
確定日は、A類普通株の最終報告の販売価格と換算率の積の98%未満とみなされるべきである。明らかな誤りがない場合、どのような判断も決定的になるだろう。振替をする“は、第2.05(C)節に規定された意味を持つべきである。事件を触発する“14.05(C)節に規定する意味を持たなければならない。信託契約法“本契約が成立した日に有効な1939年”信託準拠法“のこと
提供しかし1939年“信託契約法”が本条例の施行日後に改正された場合“信託契約法,
“この条例に規定されている範囲内でなければならない
改正案は、1939年に“信託契約法”が、このように改正された。受託者
““本契約第1段落において”受託者“に指定された者を指し、後任の受託者が本契約の適用条項により受託者となるまで、及び
その後、“受託者”は、当時本契約受託者であったすべての人を指すか、または含むものとする。
““14.08(A)節に規定する意味を持たなければならない。
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““14.05(C)節に規定する意味を持たなければならない。
“
“(D)“証券法”第144条に規定する登録の免除又は他の任意の取得可能な免除を免れることにより、証券法の登録要求の制限を受けることなく、破産管理人を登録する。
証券法です。
“
受託保管人又は受託保管人の受託保管人又は別の受託保管人，又は受託保管人又は後任受託保管人又は当該後任受託保管人の代名人並びに(Ii)交換
“気をつけて。
“(I)受託者がいつでも当社に通知する場合は，当該受託者は，グローバル手形の受託者として望まないか，又は継続できず，90日以内に引継ぎ係を委任しない，(Ii)
当該等のグローバル手形の金額は、当該等のグローバル手形と交換され、当該等のグローバル手形が受託者に交付された後、当該等のグローバル手形はログアウトされる。
“
“
“
“
“
命令、債券、手形、利札、または他のそれらは、真実であると心から信じ、適切な当事者または複数の当事者によって署名または提出された文書または文書；
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“
“
“
本合意に従って慎重な方法で指定された任意の代理人、保管人、代理者、または権利者の任意の不適切な行為または不注意に責任を負う
“
当社は、当社から取得した情報または記録において、そのような情報に起因する可能性のあるいかなる不正確または漏れ、または受託者がいかなる不正確または不完全なためにその義務を履行できなかった場合、または本明細書に記載されたいずれの場合も、いかなる責任も負わない。
“
“
7.04節：第1節：第1節：第2節：第2節：第3節：
受託者、支払代理人、変換代理人、入札勧誘代理人 （ 場合は
当社またはその関連会社以外の ） または手形登記官は、個別またはその他の能力において、受託者、支払代理人、転換代理人でない場合と同じ権利を有する手形の所有者または質権者になることができます。
入札勧誘代理人または注記官。
セクション 7.05
(D)第7.09節のいずれかの規定により、受託者の任意の辞任又は免職及び後任受託者の任命は、第7.09節のいずれかの規定を受けた後に発効しなければならない。
7.10節：第1節：第1節：第2節：第1節：第2節：第2節：第1節：第2節：第3節：第2節：第3節：第3節：第2節：第3節：第3節：第3節：
“7.09節の規定により指定された任意の後任受託者は、会社及びその前任受託者に署名、確認して交付しなければならない
7.06節の規定による。
“
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“合併などで相続する
“
本契約の管理)は、本契約項の下の受託者の相続人であり、いかなる書類または本契約のいずれか一方のさらなる行為を署名または提出する必要はない提供
“それは
任意の組織または他のエンティティが受託者の全部またはほぼすべての会社の信託業務を継承する場合、その組織または他のエンティティは、第7.08節の規定に適合しなければならない。上記受託者相続人が本契約により設立された信託を相続する際には、いずれの手形も認証されているが交付されていない場合は、当該等受託者相続人は採用することができる
“提供しかし
“
任意の前任受託者の認証証明書または任意の前任受託者の名義で認証手形を使用することは、その合併、変換、または合併の1人または複数の相続人にのみ適用される。
“
受託者が本契約下の手形所有者の権利に影響を与える行動をとったり見落としたりする場合)は，受託者の選択に応じて，受託者の根拠を書面で列挙することができる
実際に当該出願を受領した者は，当該等の者が書面で任意の早い日に同意した場合を除き，そのような行動をとる前(又は何らかの漏れがあれば，効力発生日)でない限り，受託者は書面を受領しなければならない
本契約の指示により、返送すべきなどの申請で、取らなければならないまたは取らない行動を指定する。第八条保有者について
“しかしいかなる会議でも、議長によって未済と判断された未清算と疑われるいかなる手形についても投票またはポイントを行ってはならない。その委員会の議長
株主総会は、その保有する手形または上記のように他の所有者を代表して投票する書面文書として正式に指定されている以外は、投票する権利がない。本規定により正式に開催されるいかなる所有者会議も
9.02節や9.03節の規定では，会議に出席したチケット元本総額の過半数の所持者が時々休会することができ，定足数を構成するか否かにかかわらず，会議はこのように開催することができる.
予告なく休会いたします。
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“9.06節：第1節：第1節：第2節：第1節：第2節：第2節：第3節：第2節：第2節：投票する
“任意の所有者会議に提出された任意の決議の採決は、書面投票で行われ、各所有者またはその本人が署名しなければならない。
被委員会代表及びその保有又は代表される債券の未償還元金総額。会議の常任議長は2人の投票検査員を任命しなければならず、彼らは会議で投票されたすべての投票用紙を点検する。
いかなる決議にも反対し，その確認された書面報告書を会議秘書に提出し，式2部で，会議で投票されたすべての票を提出する。毎回の保持者会議の議事録は1式2部で，以下のように記録される.
会議秘書によって作成され、会議で行われた任意の投票に対する検査者のオリジナル報告書と、1人以上の関係者の宣誓書とを添付しなければならない。
4.会議通知コピー1部は、上記通知が第9.02節の規定に従って交付されたことを示す。任意の決議案に賛成または反対投票された手形の元本総額を記録しなければならない。議事録は会議常任議長と秘書及びそのうちの一人の宣誓書によって署名と確認されなければならない
再本は会社に送付し，もう1部は受託者に送付し，受託者が保存し，後者は会議で投票した票を添付しなければならない.
“このように署名され確認されたすべての記録は、その中に記載されている事項の確認でなければならない。9.07節：第1節：第1節：第2節：第2節：第3節：第1節：第2節：第2節：第3節：第2節：第2節：第2節：
“会議のために権利を延ばしてはならない本条第9条に記載されているいかなる規定も，所有者会議又はいかなるものであってもならない
本契約に基づいて明示的または暗黙的に付与された催促を行う権利は、本契約または本契約のいずれかの条項に従って受託者または所有者のいずれか1つまたは複数の権利に付与または保持される上で、任意の阻害または遅延を行使することができる。
メモを取る。
“第十条補充性義歯10.01.節所有者の同意を得ていない修正または補充契約。
“会社と受託者は本契約を修正または補充することができ，費用は会社が負担する
任意の所有者に通知を出したり、その同意を得たりする(A)曖昧性、漏れ、欠陥、または不一致の問題は訂正されなければならない
“(B)会社は、第11条の規定により、相続エンティティが当社の契約項の下での義務を負わなければならない(C)債券の保証を増加させる
“(D)紙幣の安全を確保する銀行(E)所有者の利益のために、政府は、会社の契約違反または違約事件に加入する権利があるか、または会社に与えられた任意の権利または権力を放棄する権利がある
“(F)任意の株式交換事件が発生した後、(I)債券を参考財産に変換することができると規定するが、第14.02節の規定により制限されなければならない。及び(Ii)関連する変更を発効させる
14.08節で述べた付記条項は、いずれの場合も、本契約の適用条項を満たすべきである(G)本規定に従って換算率を調整することができる(H)信託の管理を容易にするためには，銀行は後任受託者，手形登録処長，支払代理人，入札代理人又は転換代理人の委任及び受領委任について規定しなければならない.
(イ)会社は、決済方法及び/又は指定金額(又は最低指定金額)を取り消すことができず、又は会社が決済方法を選択する権利(を含む、会社の
“提供それは
“このような選挙や淘汰は何の影響も与えないだろう
第十四条に基づいて任意の手形について選択(又は選定とみなされる)の決済方法(J)すべての証券受託者は、DTCを含む適用可能な証券受託者の規則を守らなければならない(K)いかなる実質的な態様でも所有者の権利に悪影響を与えない任意の変化を行うことができる
13
“(M)銀行は債券について受託者を委任しなければならない；または(N)委員会は，本契約の資格について委員会が信託契約法に基づいて行った任意の要求を遵守する義務がある。
“所有者たちは修正案を提案する特定のフォーマットを承認する必要がない。このような所有者たちが修正案の実質的な内容を承認すれば十分だ。本契約項の下の改訂が発効した後，会社は
この改正された通知を所持者(副本予受託者とともに)に簡単に説明する。しかしながら、修正案の有効性を損なうことなく、すべての所有者に通知または通知におけるいかなる欠陥も発行されていない。当社の書面の要求に応じて，受託者は現在当社といかなる補充契約を締結して，任意の他の適切な合意及びその中に含まれる可能性のある規定を締結することを許可する.
しかし、受託者に責任はないが、受託者が本契約の下又はその他の場合の権利、責任又は免責権に影響を与える補充契約を適宜締結することができる。
“本条項10.01の規定により許可された任意の補充証書は、返済されていない場合のいかなる手形所有者の同意もなく、会社及び受託者によって署名することができる。
10.02節の規定.所有者の同意を得て契約を修正または補充する総金額の少なくとも過半数の所持者の同意を得た(第8条の規定による証明)
当時の未償還債券の元本金額(第8条に基づいて決定され、債券の購入、入札、または交換要約について得られた同意を含むが、会社は時々
本契約、付記または任意の補充契約の任意の条文を追加または任意の方法で変更または削除するために、任意の時間および任意の時間に1つまたは複数の本契約の補充契約を締結する。
契約を締結するか、または所有者の権利を任意の方法で修正する
“しかし前提は
“それは.17.05節で要求された書類のほかに，受託者はまた対応する.
役人証明書と弁護士の意見を受けて確実な証拠として、本契約によって締結された任意の補充契約が本条項第10条の要求に適合し、本契約によって許可または許可され、かつ
会社の合法的、有効かつ拘束力のある義務は、その条項に基づいて強制的に執行することができるが、習慣的な例外と制限条件の制限を受けなければならない。第十一条資産の合併·合併·売却11.01節では米国と日本の関係を紹介した
“会社はいつ合併などができますか11.02節の規定に別段の規定がある以外は、会社は合併、合併、合併又は売却を行ってはならない。
当社及びその付属会社の全部又は実質すべての総合財産及び資産全体の譲渡、譲渡又は賃貸を別の人に与える(A)
“企業合併活動“(その他)
会社の1つまたは複数の直接または間接完全子会社への売却、譲渡、譲渡またはレンタル)
“(A)当社が合資格の継承実体(当該等合資格の継承実体、すなわち“当該等合資格の継承実体”)でなければ、その会社が発生した存続又は譲渡者を確認する後継実体
““)、適時に
アメリカ合衆国、その任意の州、コロンビア特区、ケイマン諸島、英領バージン諸島、バミューダ、シンガポールあるいは香港の法律組織と存在、およびこのような適格な継承実体(そうでなければ
会社)補充契約により、手形と本契約項の下での当社のすべての義務(任意の追加金額の支払い義務を含む疑問を生じないための義務)を明確に負担すること(B)当該等の業務合併イベントが発効した後、いかなる違約又は違約イベントも本契約項の下で発生又は継続して発生しない。
“本第11.01節については、会社の1つまたは複数の子会社の全部または実質的にすべての財産および資産を他の子会社に売却、譲渡、譲渡またはリースする
誰でも、当該等の財産及び資産を当該等の付属会社ではなく当社が保有する場合は、当社の総合的な基礎上のすべて又は実質的にすべての財産及び資産を構成し、売却、転易とする必要がある。
会社の全部またはほとんどの財産と資産を他の人に譲渡またはレンタルする。11.02節でこの点を紹介した代替すべき後継者実体このような企業合併事件のいずれかの場合には、相続人実体が負担する場合には、補充契約、契約及び
すでに受託者に交付し、フォーマットで受託者を満足させ、すべての手形の元本及び未払い利息は期限通り及び時間通りに交付或いは支払いした(どのような状況に応じて決定される)
転換手形及び当社が本契約のすべての契約及び条件を定時に履行する際に支払うべき掛け値を妥当でなければならない場合は、当該等の相続人実体(例えば、当社ではない)は継承及び移転しなければならない。
当社及びその付属会社の全部又は実質すべての総合財産及び資産をリースする場合は、当社を全体として当社の代わりにする必要があり、その効力は本文書に指名されたようなものである
第一部の党代会。このような承継エンティティは、すぐに署名を手配することができ、それ自体の名義で、または当社の名義で、本協定に従って発行可能な任意またはすべての手形を発行することができ、そのような手形によれば、これまでは行われていなかった。
また、受託者に交付する。受託者は、当該承継実体に基づいて、当社の命令ではなく、本契約に規定するすべての条項、条件及び制限を満たす場合には、認証して交付し、又は
認証および交付をもたらし、以前に会社の上級者によって署名され、受託者認証された任意のチケットを交付しなければならず、後続エンティティはその後、署名された任意のチケットを手配しなければならない
そのために受託者に渡します。このように発行されたすべての手形は，その前または後に本契約条項に従って発行された手形と本契約の下で同じ法的地位と利益を持つ.
このようなすべての手形は本協定の署名日に発行されたにもかかわらず。このような合併、合併、売却、譲渡又は譲渡(ただし賃貸ではない場合)のいずれかの場合は、本条第11条を遵守した後、
本契約第一項の“会社”(又はその後、本条第11条に規定する方法で“会社”のいずれかの相続人となる)は、その後の任意の時間に解散、清算及び清算することができるが、次の場合を除く。
リース期間中，その者は，手形としての義務者及び荘家の責任，及び本契約及び手形の下での義務を免除されなければならない。このような業務統合イベントが発生した場合、その後に発行された付記において、適切な文言および形式的な変更を行うことができる(ただし、実質的には除く)。第十二条法人団体、株主、上級者及び役員の免責権第十二十一条=この配当日または発効日(場合によっては)開業直後に発効する転換率；オペレーティングシステム=当該配当日又は発効日(何者の適用に応じて)開業直前に発行及び発行されるA類普通株式数
任意の配当金、分配、分割または合併を実施する)；およびオペレーティングシステム
14
“=配当、分株、分株又は合併後直ちに発行·発行されるA類普通株の数。
“この第14.05(A)節で行われた任意の調整によれば、配当金又は割り当てられた配当金が開業した直後に発効し、又は配当金又は割り当ての発効日が開業した直後に発効しなければならない。
この株式分割または株式合併(場合によって決まる)。14.05(A)節に記載されたタイプの配当金または割り当てが発表されたが、そのように支払いまたは行われなかった場合、変換率は直ちに再調整されなければならない。
取締役会は、この配当または割り当ての日付を派遣しないことを決定し、換算率で計算し、この配当または割り当てが発表されていなければ、この換算率は発効する。(B)会社が、A類普通株式を保有する権利、オプションまたは株式承認証(株主権利計画に関連するものを除く)をすべてまたは実質的にすべてのA類普通株式所有者に発行する場合、
この割当公告日後45(45)暦を超えない日には，A類普通株を引受または購入し，1株当たり価格は最近公表された販売の平均価格を下回っている.
A類普通株の価格は，連続10(10)取引日が終了した期間内に，その割当て公告日直前の取引日を含めて換算率を向上させなければならない.
以下の式に基づく
“CR=この分配は、配当日を除く開業前に有効な転換率である
“CR=
“この配当日開業後に発効する転換率オペレーティングシステム
“=この配当日の寄り付き前に発行および発行されたAクラス普通株の数；
“CR=
“配当金または配当金の開業前の有効な転換率；CR
“=配当日がオープンした後、配当金または割り当てられた有効な転換率；
“SP=
“Aクラス普通株は、配当金または配当金割り当て日の直前の取引日に最終報告された販売価格と；=会社がA類普通株保有者全員に割り当てたA類普通株1株あたりの現金金額。本第14.05(D)条に基づく任意の増加は、配当金または割り当てられた配当金の営業開始直後に発効しなければならない。この配当金や割り当てがこのように支払われない範囲では
転換率を下げるべきであり、取締役会がこのような配当金または分配を支払わないことを決定した日から発効し、すなわち調整に基づいて行われた当時の有効な転換率である。
実際に支払ったか支払われた配当金または分配のみである(もしあれば)。上記の規定があるにもかかわらず、“C”(定義は上記参照)が“SP 0”以上である場合(定義は上記定義参照)、上記の増加の代わりに、各チケット保持者は必要である。
A類普通株式保有者と同じ時間と同じ条項で，1，000ドルの元金ごとにA類普通株保有者がその手形を変換する必要がない場合，その所持者がA類普通株を保有していた場合に受け取る現金支払額
この等現金配当金または配当日分換算率に相当するA類普通株式数を保有する。(E)当社又はその任意の付属会社がA類普通株の入札又は交換要約について支払うか否かを調査するが、当該等の要約又は交換要約は、その際に適用される要約買収規則に規定されている。
交換法案(任意の零細買収要約を除く)は、A類普通株1株当たりの現金及び任意の他の対価格の価値がA類普通株が最近報告した販売価格の平均値を超えていれば
入札又は交換要約満期後の連続10(10)取引日期間内(入札又は交換要約満期後の次の取引日を含む)において、普通株の換算率は、次の規定により向上しなければならない
公式：CR, =その日直後の第10取引日(それに続く次の取引日を含む)の終値前有効換算率
この入札または交換要約が満期になる(“期日までCR=それに続く10取引日(それに続く次の取引日を含む)の終値後に発効した換算率
期日が来る
15
“交流.交流=
“今回の入札または交換要約で購入されたA類普通株が支払うまたは対応するすべての現金および任意の他の代価(会社が善意に基づいて合理的に決定する)の総価値；オペレーティングシステム
“=満期日直前(A類普通株をすべて購入する前に)に発行·発行されるA類普通株の数
この入札または交換要約で購入または交換を受け付ける)；
“オペレーティングシステム=満期直後に発行·発行されるA類普通株の数(受け入れられたA類普通株をすべて購入した後
入札または交換要約を購入または交換するための)；および, SP=A類普通株の次の取引日(次の取引日を含む)から10(10)取引日以内に最終報告された販売価格の平均値
期日の後に。本第14.05(E)条により増加した転換率は、満期直後の第10取引日(満了後の次の取引日を含む)の取引終了時に行われなければならない
日付；
“しかし前提は
期日後の次の取引日を含め、前項における“10”又は“10”への言及は、次の取引日から過去の少ない取引日(次の取引日を含む)によって置き換えられたものとみなされるべきである
この納期後から当該両替日までに換算率を決定するために、及び(Y)任意の取引日に現金受渡し又は合併交収手形の両替を適用する
段は，その入札または交換要約の満期日以降の次の取引日(その取引日を含む)が通過する少ない取引日に置き換えられるべきである.
この取引日の割引率を決定する.
“入札または交換要約が発表されたが完了していない範囲内(当社が適用法により当該入札または交換要約の完了を禁止されていることを含む)または任意のもの
この要約や交換要約でA類普通株の購入や交換が撤回され，適用される換算率はその時点で発効した換算率に再調整され，調整すれば
A類普通株(ある場合)は、当該要約買収または交換要約で実際に購入または交換されてのみ破棄されない。(F)換算率調整が任意の配当金日に発効する場合、本第14.05節又は本契約又は手形の任意の他の規定にかかわらず、
この配当日または後および関連記録日または前に変換されたチケットは、14.02(H)節に記載された関連変換日によるAクラス普通株式の記録保持者とみなされる。
この配当日の調整後の換算率については、14.05節で換算率調整に関する規定があるにもかかわらず、当該配当日に関する換算率調整はその日に対して行うことはできない
調整します。
“それにもかかわらず、当社は、このような調整が少なくとも1%(1%)増加または減少する必要がない限り、換算率の調整を要求されないであろう提供
“しかし必要とされない任意のこのような微小な調整は繰り越され、任意の後続の調整において考慮されるであろう
提供さらに進む(I)1%未満の調整は、以下の場合に行わなければならない。
(Ii)現物引受が適用される任意の手形であれば，関連する両替日；及び(現金引受又は合併引受の手形に属する場合)
適用され、観察期間の各取引日が適用される。また、会社は、株主が特定の日にA類普通株をどれだけ保有するかを決定する際には、このような延期を考慮すべきではない。
付記(総称して“
16
1%例外
(G)本契約に別段の規定がある場合を除き、当社は、A類普通株又はA類普通株に変換又は交換可能な証券の株式交換比率を調整してはならない
またはクラスAの普通株式またはそのような変換可能または交換可能な証券を購入する権利。
(H)第14.05節(A)、第(B)、第(C)、第(D)及び第(E)項の要件の調整を除いて、法律の適用が許容される範囲内で、かつ該当する
このような増加が当社の最適な利益に合致することを確認し、当社はA類普通株または購入権所有者の任意の所得税を回避または減少させるために、換算率を向上させることができる
A類普通株式(又はA類普通株を買収する権利)又は類似事件に関連するA類普通株を発行する。(一)本条第十四条に逆の規定があっても、換算率は調整されない*(I)Aクラス普通株式は、交換価格未満またはその他の価格で発行されるが、14.05(A)節に記載されているいずれかのこのような発行は除外される。
*(Ii)任意の既存または将来の計画に従って任意のAクラス普通株式を発行する場合、配当金または当社が支払うべき利息の再投資
任意の計画下のA類普通株の証券および追加オプション金額の投資；
当社または当社の任意の付属会社に属するか、または当社または当社の任意の付属会社が負担するもの(任意の長青計画によるものを含む)*(4)公開市場株式買い戻し計画または他の非カプセルまたは交換要約の性質による買い戻し取引は、任意のAクラス普通株を買い戻す。
14.05(E)節で述べた；(V)第14.05(E)節に記載の会社1社または複数の子会社の買収要約を除いて、他のいずれか一方の第三者買収要約(Vi)本項(Iii)項に記載されていない任意のオプション、株式承認証、権利または行使可能、交換可能または変換可能証券に従って、任意のAクラス普通株式を発行する。
手形の初発行日までの未償還額(株主権利計画項のいずれかの権利を除く)
(Vii)クラスA普通株式額面(または額面不足)の変動についてのみ責任を負う；または
(Viii)課税利息及び未払い利息がある場合は、利息を支払わなければならない。
一人前に分ける。(K)本契約の規定により、換算率が本プロトコルの規定に従って調整される限り、会社は直ちに受託者(受託者でなければ、変換代理)に高級職員証明書を提出し、リストアップしなければならない。
このような調整後の変換率について，このような調整が必要であることを簡単に説明した。担当者がその者の証明書を受け取るまでは，受託者は取得されたものとされてはならない
また，それが知っている最後の変換率は依然として有効であると仮定できる.この証明書の交付後，会社はすぐに準備しなければならない
この等換算率調整キャリア調整後の換算率及び毎回調整の発効日は、当該等換算率調整に関する通知を各所持者に送信しなければならない。できなかった
このような調整の合法性や有効性に影響を与えず、疑問を生じないように、受託者や変換エージェントは転換率に対していかなる責任や責任を負わない。
計算したり応用したりします.
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（ L ） このセクション 14.0 5 の目的において、いつでも発行されているクラス A 普通株式の数には、会社の財務庫に保有されているクラス A 普通株式は含まれません。
当社は、当社の財務省に保有するクラス A 普通株式について、配当および配当を行わないが、下記の分数に代わって発行されたスクリプト証券に関して発行可能なクラス A 普通株式を含むものとする。
クラス A 普通株。
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指定買い戻し日
指定買い戻し
指定買い戻し日買い戻し価格(B)本項15.01条の規定により、本項に規定する手形の最終買い戻しは、手形所有者が以下の場合に選択されなければならない
*(I)記入済みの通知(“通知”)を所持している所持者は、その通知を支払代理人に交付しなければならない
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買い戻し日買い戻し通知を指定する
展示物 A
(Ii)債券元金の買い戻し部分を含み、1，000元またはその整数倍でなければならない
提供
しかし
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*(I)この第15.01条に従って、所有者が買い戻し権利を行使することができる最後の日；*(Ii)指定された買い戻し日の買い戻し価格を設定します
21
費用；提供しかし
提供
しかし
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免除する.
23
24
提供
しかし
I)会社は、受託者(又は会社が指定した他の支払代理店、又は会社が自分の身分で行動する場合)に入金する。
支払いエージェントは、ニューヨーク市時間の午前11：00または前に、買い戻し日または指定された買い戻し日の買い戻し価格を基本的に変更する(場合に応じて)第4.04節の規定に従って保留、分離、および信託形式で保有する。
買い戻し日の指定)は、(I)で購入日を基本的に変更します(
提供
所有者は15.02節の条件を満たしている)または指定されている
買い戻し期日(
提供
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所有者は、第15.01条の条件(適用に準じて)及び(Ii)帳簿帳簿簿の移転又は手形を受託者に交付した(又はその他
手形所有者が15.01または15.02節(何者に適用されるかに応じて)に規定されている方式で、あるいは当該等の手形を享受する権利を有する所持者の小切手に郵送して、当社が委任した支払代理人を支払う
提供
しかし
保管人への支払いは電信即日利用可能資金を口座に送る方法で行わなければなりません。
買い戻し価格。
(A)午前11時までに完了します。ニューヨーク市時間は，買い戻し日または指定された買い戻し日(場合によって決まる)を基本的に変更し，受託者(または会社が指定した他の支払いエージェント)が資金を保有する.
(I)これらの手形はもはや未償還手形ではなく、(Ii)これらの手形は利息が生じなくなる(当該手形の帳簿振込の有無にかかわらず)
手形は、受託者に交付され、(Iii)これらの手形所有者の他のすべての権利は終了する(基本的な変動購入価格を徴収するか、または購入日価格を指定する権利を除く。
この定期記録日に関わる，その定期記録日までに所持者に対応する当計および未払い利息).(B)15.01節または15.02節(何者に適用されるかに応じて)によって部分的に購入したチケットを返送する場合，会社は署名し，受託者は認証して交付すべきである.
元金を持っているのは、提出された未購入分の承認額面に相当する新紙幣。第十五百五十五条
26
それは.指定された買い戻し日による買い戻し通知または基本条項に関する任意の買い戻し要約
27
(A)投資家は、取引所法の下での要約買収規則を遵守すべきであり、これらの規則は適用可能である(B)“取引所法案”に規定されているスケジュール又は任意の他に必要なスケジュールを提出しなければならない
いかなる相反する規定もあるにもかかわらず，手形の最初の発行日後に採択された任意の連邦又は州証券法又はその他の適用法律又は法規の規定が当該等の規定と衝突する範囲内である。
このような衝突のため、本契約で規定された義務に違反します。第十六条
手形の元金の発行が加速され、償還日または前にこの加速発行が撤回されなかった場合は、整理償還方式で手形を償還することはできない(償還が加速された場合は除く
会社が償還代金を滞納したことによる損失)。税金を引き換える(A)企業が次の支払日に次の支払日に次の追加金を所有者に支払う義務があるか否かについては、政府は行動すべきである*(I)要約メモ日の当日以降の任意の変更または改訂(または要約日後に関連課税管轄区域となる場合)。
覚書)課税管轄区域に関する法律又は任意の規則又は条例において、又は
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*(Ii)要約メモの日付の当日または後(または要約メモの日付の後に関連課税管轄区の管轄区域に属する場合は、その後の日または後)に任意の変更を行う
課税管区に関するいかなる立法機関、裁判所、政府機関、税務機関又は監督管理又は行政機関(含む)
(それぞれ、一つ“税法の改正)は、当社は、一部の債券を除く全債券を償還することを選択することができる(以下に述べるいくつかの保有者を除く)
ST期日直前の予定取引日しかし前提は
当社は可能です
次の場合、手形の償還：(I)当社が取ることができる商業的合理的な措置をとることにより、当該等の責任から逃れることはできません(
しかし前提は
会社は商業上合理的な措置ではないとみなされるべきである)；及び(Ii)会社は関連課税司法管轄区域内で認められる地位を有する外部法律顧問の意見及び上級者証明書を受託者に交付する
税金を引き換える(B)慣例によれば、税務償還価格は、償還すべき債券元金の100%に等しく、別途償還日の利息及び未払い利息を加算すべきであるが、償還日は含まれていない。
償還価格に関連する任意の追加金額が含まれています
29
しかし前提は
償還日が通常記録日の後であり、対応する利息または前にある場合
支払日は、(I)当社は、支払日当日又は当社が選択した支払日前に、当該支払日の満了に対応する当算及び未払い利息を全数支払手形の記録保持者としなければならない
利息支払日に対応する定期記録日；及び(Ii)償還税の所持者が支払う償還価格は、当該手形元金の100%に等しくなければならない。
税法のこのような変化のみにより、このような追加金額の任意の支払いが義務付けられている(転換時であっても、根本的な変化に関連する必要があっても、買い戻し、必要
税法の変更のため、法に基づいて控除、控除された課税権限と税金に関するものである
4.08節，7.02(H)節，8.04節では，(A)証明書に署名した人が要求した行動と本契約を熟知している宣言，(B)証明書の性質と範囲に関する短い宣言を含むべきである.
いずれの場合も、任意の利息支払日、償還日、任意の基本的に買い戻し日を変更する場合、指定された買い戻し日、または満期日がそうではない場合
保証権は何も作成されていません
現在または後に任意の管轄区域内で制定され、施行されるような同様の法律。本契約又は付記中のいずれかの明示的又は黙示されたものは、所持者以外の誰にも与えてはならない(又は、第2及び第3人については
本契約項下の権利、救済又はクレーム。
身元検証エージェント
それは.
認証代理人は、受託者及び当社に書面による辞任通知を提出することにより、いつでも辞任することができます。受託者は、書面による終了通知により、いつでも認証代理人の代理権を終了することができます。
認証代理店と当社に。そのような辞任の通知を受領した場合、またはそのような終了した場合、またはいつでも認証代理人が本セクション 7.10 に基づく資格を有しなくなった場合、受託者は
後継者認証代理人 （ 受託者であってもよい ） を任命し、その任命について書面により当社に通知し、すべての保有者に通知するものとします。
30
当社は、認証代理人の手数料が不合理であると判断した場合には、認証代理人を解雇することがあるものの、そのサービスに対して合理的な補償を認証代理人に随時支払うことに同意します。
投資家
通知の交付
それは.
所定の時間内に保管人を交付する場合には、保管人に適用されるプログラムを十分に提供しなければならない。
31
“アメリカ愛国者法案”それは.
ページの残りをわざと空にする
Witness Whereof で
.
ビットディール·テクノロジー·グループ
投稿者：
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名前 ：
呉継漢
タイトル ：
最高経営責任者
33
協会
受託者として名前：ブラッドリー·E·スカブロ
タイトル ： 副社長[印鑑署名ページ]添付ファイルA[FORm注目の表面]
34
[本証明書が信託会社A New York Corporationのライセンス代表によって提示されない限り(“直接トルク)は、当該会社又はその代理人へ
振込、交換または支払いの登録、および発行されたどの証明書もCEDEE&COの名義に登録されています。またはDTC許可で要求された他の名前(本プロトコルの下の任意の支払いは
&Co.またはDTC許可は、要求された他のエンティティを表す)、本ファイルの登録は、すべての人、放棄されたので、任意の人によって、または任意の人に譲渡、質権、または他の方法で本文書を使用する任意の譲渡、質権、または他の用途は間違っている。
会社はここに利害関係がある。]
[セキュリティが制限されていれば，以下の図の例を含む]本証券は、1933年に改正された“証券法”(以下、“証券法”と略称する)に基づいて登録されておらず、以下の規定に適合しない限り、提供、売却、質権又はその他の方法で譲渡することができない。買収を通じて
本契約または本契約における実益権益、購入者：(1)ニューヨーク証券取引所は、それに代表されるいずれの口座も“適格機関の買い手”であり(証券法第144 A条の意味により)行使されていることを示す
このような口座ごとの個別投資裁量権と(2)BITDEER Technologies Group(以下、“同社”と略す)の利益のために、同社は、当該証券またはその中のいかなる実益権益を提供、販売、質権、または他の方法で譲渡しないことに同意する。
ただし，以下の場合は除外した*(A)会社またはその付属会社に責任がある、または*(B)証券法により施行された登録宣言に基づいて、破産保護を申請するか、または*(C)証券法第144 A条の規定により、適格機関の買い手に債券を売却するか、または*(D)証券法第144条に規定する登録免除又は任意の他の取得可能な証券登録要件の免除により、破産管理を承認する。
行動を起こす
証券法です。ビットディアテクノロジーズグループ
| (i) |
違います
|
| (1) |
| (A) |
| (B) |
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| (C) |
会社
|
| (D) |
|
| (2) |
| (3) |
|
| (4) |
保管人のルールと適用プログラムによると、2029年12月1日に任意の時間に合計4億ドル、その利息は以下のようになる。
|
| (5) |
|
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| (6) |
場所。
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ページの残りをわざと空にするビットディアテクノロジーズグループ
投稿者：名前 ：タイトル ：
日付：
受託者の認証証明書
受託者として，内部命名された契約に記述されたアノテーションの1つであることを証明する.投稿者：署名者
ビットディアテクノロジーズグループ
UNIF GIFt MIN ACt = 未成年者への統一贈与法 CUSt = 注釈保管人
38
TEN ENt = テナントとして全体
Jt TEN = 共同テナントではなく生存権を有する共同テナント上記のリストには含まれないが、追加の略語も使用できます。
付表A
覚書の交換のスケジュール
ビットディアテクノロジーズグループ
5.25% 転換シニアノート 2029 年満期
39
本グローバルノートの初期元本額は __________DOLLARS （ $[_________] ） です。このグローバルノートでは、以下の増減が行われました。日取り
両替
40
額：減少する 元金この金額はグローバルノート額：増す プリンシパル この金額はグローバルノート元金この金額は グローバルノート
以下は…
この減少は
または増加
41
署名：授権署名者
受託者または
42
注意事項
保管人
グローバルノートを含む場合。
ATTACHMENt 1
[FORm変換の通知]致す：Bitdeer テクノロジーズグループ
08 カランアベニューアペリアタワー 1 # 09 — 03 / 04 シンガポール 339509
Second, in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and
any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the extent that such interest is payable on such Notes and
has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;
43
Third, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the
payment of the whole amount (including, if applicable, the payment of the Redemption Price, the Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price and any cash due upon conversion) then owing and unpaid upon
the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and
in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and the
Specified Repurchase Date Repurchase Price any cash due upon conversion) and interest without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price and any cash
due upon conversion) and accrued and unpaid interest; and
Fourth, to the payment of the remainder, if any, to the Company.
Section 6.06 Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and
the Specified Repurchase Date Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;
(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder;
(c) such Holders shall have offered, and if requested, provided, to the Trustee such security and/or indemnity satisfactory to it against any loss, liability or expense to be incurred
therein or thereby;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of such security and/or indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; and
44
(e) no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders of a majority of the aggregate principal
amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09, it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that
no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder (it being understood that the Trustee shall not have
an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any other Holder), or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.06, each and
every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Note, each Holder shall have the right to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price, the Specified
Repurchase Date Repurchase Price on the Specified Repurchase Date and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or
after the respective due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be, and such right to receive such payment or delivery, as the
case may be, on or after such respective dates shall not be impaired of affected without the consent of such Holder.
Section 6.07 Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.08 Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall
impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.07, every power and remedy given by this Article 6 or by law to
the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
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Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on the Trustee; provided, however that the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that the
Trustee determines is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any other Holder) or that
may involve the Trustee in personal liability, or if it is not provided with security and/or indemnity to its satisfaction may take any other action it deems proper that is not inconsistent with any such direction received from Holders. In
addition, the Trustee will not be required to expend its own funds under any circumstances. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 may on behalf of the
Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences (including, for the avoidance of doubt, any acceleration as a result of such Default or Event of Default) except any continuing Default or Event
of Default relating to (1) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price, any Fundamental Change Repurchase Price and any Specified Repurchase Date Repurchase Price) of, the
Notes when due that has not been cured pursuant to the provisions of Section 6.02, (2) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (3) a default in respect of a covenant or
provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former
positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by
this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Section 6.10 Notice of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of a Default of which a Responsible Officer receives written notice or obtains actual
knowledge, deliver to all Holders notice of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that, except in the
case of a Default in the payment of the principal of (including the Redemption Price, the Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes
or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding of such notice is in the interests of the
Holders (it being understood that the Trustee shall not have an affirmative duty to make such determination). The Trustee shall not be deemed to have knowledge of an Event of Default unless and until a Responsible Officer receives written
notification of such Event of Default describing the circumstances of such, and identifying the circumstances constituting such Event of Default and stating that such notification is a “notice of default.”
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Section 6.11 Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Redemption Price, the Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price,
if applicable) on or after the due date expressed or provided for in such Note or this Indenture or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the
provisions of Article 14.
ARTICLE 7
Concerning the Trustee.
Section 7.01 Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if an
Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested,
provided, to the Trustee indemnity or security satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
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(ii) in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may, as to the truth of the statements and the correctness of the opinions expressed therein, conclusively rely
upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated
therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority of the aggregate
principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture;
(d) whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to
the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any
Paying Agent or any records maintained by any co-Note Registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to
receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event;
(g) the Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture;
(h) in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for
the selection of investments or for investment losses, fees, taxes or other charges incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing
such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the
absence of such written investment direction from the Company; and
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(i) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and protections afforded to the
Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer agent.
(j) None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers. Prior to taking any action under this Indenture, the Trustee shall be entitled to indemnification or security satisfactory to it against any loss, liability, or expense caused by taking or not taking
such action.
Section 7.02 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) whenever in the administration of this Indenture, the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on its part, conclusively rely upon an Officer’s Certificate;
(d) the Trustee may consult with counsel of its selection, and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(e) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;
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(f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder;
(g) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(h) the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such times to take specified actions pursuant
to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded; and
(i) neither the Trustee nor any of its directors, officers, employees, agents, or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Company, or any of
their respective directors, members, officers, agents, affiliates, or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee shall not be responsible for any inaccuracy in the
information obtained from the Company or for any inaccuracy or omission in the records which may result from such information or any failure by the Trustee to perform its duties or set forth herein as a result of any inaccuracy or incompleteness.
The Trustee shall have no obligation to determine whether the Liquidity Conditions have been satisfied.
In no event shall the Trustee be liable for any special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default
or Event of Default or (2) written notice of such Default or Event of Default shall have been received by a Responsible Officer of the Trustee from the Company or from any Holder of the Notes.
Section 7.03 No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture, the Offering Memorandum or of the Notes. The Trustee shall not be
accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.
Section 7.04 Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation Agent (if
other than the Company or any Affiliate thereof) or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent,
Bid Solicitation Agent or Note Registrar.
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Section 7.05 Monies and Ordinary Shares to Be Held in Trust. All monies and Class A Ordinary Shares received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money and Class A Ordinary Shares held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any money or Class A Ordinary Shares received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
Section 7.06 Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time and the Trustee shall receive such compensation for all services
rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as previously and mutually agreed to in writing between the Trustee and the Company, and
the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity
thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross
negligence or willful misconduct. The Company also covenants to indemnify the Trustee or any predecessor Trustee in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents and any
authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense incurred without gross negligence or willful misconduct on the part of the Trustee, its officers, directors, agents or employees, or such
agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder and the enforcement of this Indenture (including this Section 7.06),
including the costs and expenses of defending themselves against any claim of liability in the premises. The obligations of the Company under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust
herewith for the benefit of the Holders of particular Notes, and, for the avoidance of doubt, such lien shall not be extended in a manner that would conflict with the Company’s obligations to its other creditors. The Trustee’s right to receive
payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of this
Indenture and the earlier resignation or removal of the Trustee. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall
extend to the officers, directors, agents and employees of the Trustee.
Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or
render services after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or
similar laws.
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Section 7.07 Officer’s Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence and
willful misconduct, on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence, and willful misconduct,
on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act
were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section 7.08, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.08, it shall resign promptly in the manner and with the effect hereinafter specified in this Article 7.
Section 7.09 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of such resignation to the Company and by delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment within 45 days after the giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders,
petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor trustee, or any Holder who has been a bona fide Holder of a Note or Notes for at least six months (or since the date of this
Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Holder,
or
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(ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide Holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on
behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee and nominate a successor
trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and
otherwise as in Section 7.09(a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.10.
Section 7.10 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due
it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08.
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Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the Company shall deliver or cause to be delivered notice of
the succession of such trustee hereunder to the Holders. If the Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be delivered at the
expense of the Company.
Section 7.11 Succession by Merger, Etc. Any organization or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any organization or other
entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any organization or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the
administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that
in the case of any organization or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such organization or other entity shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the
Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have
the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right
to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.12 Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to
be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Officer that the Company has indicated to the Trustee should receive such application
actually receives such application, unless any such Officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written
instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
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ARTICLE 8
Concerning the Holders
Section 8.01 Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may
be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by
the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall
be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02 Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument or writing by a Holder or its
agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note
Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03 Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose name
a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person
other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal (including any Redemption Price, any Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price) of
and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes under this Indenture; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any
Note Registrar shall be affected nor incur any liability by any notice to the contrary. The sole registered holder of a Global Note shall be the Depositary or its nominee. All such payments or deliveries so made to any Holder for the time being,
or upon its order, shall be valid, and, to the extent of the sums or Class A Ordinary Shares so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding
anything to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any
other action of the Depositary or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.
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Section 8.04 Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other
action under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer actually knows are so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to
such Notes and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the Company or a Subsidiary thereof. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of
the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding
for the purpose of any such determination.
Section 8.05 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the
Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have
consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action
taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof,
irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
ARTICLE 9
HOLDERS’ MEETINGS
Section 9.01 Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in
each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
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(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable
law.
Section 9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to
Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company. Such notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the
Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.
Section 9.03 Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the
Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of
such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by delivering notice
thereof as provided in Section 9.02.
Section 9.04 Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or
(b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 9.05 Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in
regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling
the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal amount of the
outstanding Notes represented at the meeting and entitled to vote at the meeting.
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Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him or her; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions
of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 9.06 Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was delivered as provided in Section 9.02.
The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07 No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the
Notes.
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ARTICLE 10
Supplemental Indentures
Section 10.01 Amendments or Supplemental Indentures Without Consent of Holders. The Company and the Trustee, at the Company’s expense, may amend or supplement this Indenture or the Notes without
notice to or the consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency;
(b) provide for the assumption by a Successor Entity of the obligations of the Company under this Indenture pursuant to Article 11;
(c) add guarantees with respect to the Notes;
(d) secure the Notes;
(e) add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;
(f) upon the occurrence of any Share Exchange Event, (i) provide that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02, and (ii) effect the related changes to
the terms of the Notes described under Section 14.08, in each case, in accordance with the applicable provisions of this Indenture;
(g) adjust the Conversion Rate as provided herein;
(h) provide for the appointment of and acceptance of appoint by a successor Trustee, Note Registrar, Paying Agent, Bid Solicitation Agent or Conversion Agent to facilitate the administration of the trusts
under this Indenture by more than one trustee;
(i) irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or minimum Specified Dollar Amount), or eliminate the Company’s right to elect a Settlement Method (including, at the Company’s
option upon an irrevocable election of a Settlement Method as provided under Section 14.02(a)), provided, that no such election or elimination will affect any
Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Article 14;
(j) comply with the rules of any applicable securities depositary, including DTC;
(k) make any change that does not adversely affect the rights of any Holder in any material respect;
(l) conform the provisions of this Indenture to the “Description of Notes” section of the Offering Memorandum;
(m) appoint a successor Trustee with respect to the Notes; or
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(n) to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act.
Holders do not need to approve the particular form of any proposed amendment. It will be sufficient if such Holders approve the substance of the proposed amendment. After an amendment under this Indenture becomes effective, the Company shall
send to the Holders (with a copy to the Trustee) a notice briefly describing such amendment. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the amendment.
Upon the written request of the Company, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 10.02.
Section 10.02 Amendments or Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate
principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company may from time
to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, the Notes or any supplemental
indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:
(a) reduce the principal amount of Notes whose Holders must consent to an amendment;
(b) reduce the rate of or extend the stated time for payment of interest on any Note;
(c) reduce the principal of or extend the Maturity Date of any Note;
(d) make any change that adversely affects the conversion rights of any Notes, except as required by this Indenture;
(e) reduce the Redemption Price, the Specified Repurchase Date Repurchase Price on the Specified Repurchase Date or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner
adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
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(f) make any Note payable in money other than U.S. dollars;
(g) change the ranking of the Notes;
(h) impair the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with
respect to such Holder’s Notes;
(i) change the Company’s obligation to pay Additional Amounts on any Note; or
(j) make any change in this Article 10 or in the waiver provisions in Section 6.02 or Section 6.09, in each case, that requires each Holder’s consent.
Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.
Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the substance of the proposed supplemental indenture. After any such
supplemental indenture becomes effective, the Company shall deliver to the Holders (with a copy to the Trustee) a notice briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in
the notice, will not impair or affect the validity of the supplemental indenture.
Section 10.03 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 10.04 Notation on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10
may, at the Company’s expense, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Company, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 17.10) upon receipt of a Company Order and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
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Section 10.05 Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee. In addition to the documents required by Section 17.05, the Trustee shall
receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 10, is permitted or authorized by this Indenture and is the
legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, subject to customary exceptions and qualifications.
ARTICLE 11
Consolidation, Merger and Sale of Assets
Section 11.01 When Company May Merge, Etc.. Subject to the provisions of Section 11.02, the Company shall not consolidate with or merge with or into, or sell,
convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, to, another Person (a “Business Combination Event”) (other
than any such sale, conveyance, transfer or lease to one or more of the Company’s direct or indirect Wholly Owned Subsidiaries), unless:
(a) the resulting, surviving or transferee Person if not the Company is a Qualified Successor Entity (such Qualified Successor Entity, the “Successor Entity”), duly
organized and existing under the laws of the United States of America, any State thereof, the District of Columbia, the Cayman Islands, the British Virgin Islands, Bermuda, Singapore or Hong Kong and such Qualified Successor Entity (if not the
Company) expressly assumes by supplemental indenture all of the obligations of the Company under the Notes and this Indenture (including, for the avoidance of doubt, the obligation to pay any Additional Amounts); and
(b) immediately after giving effect to such Business Combination Event, no Default or Event of Default shall have occurred and be continuing under this Indenture.
For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another
Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance,
transfer or lease of all or substantially all of the properties and assets of the Company to another Person.
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Section 11.02 Successor Entity to Be Substituted. In case of any such Business Combination Event and upon the assumption by the Successor Entity, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any
consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Entity (if not the Company) shall succeed to and, except
in the case of a lease of all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, shall be substituted for the Company, with the same effect as if it had been named herein as the
party of the first part. Such Successor Entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such Successor Entity instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or
cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by an Officer of the Company to the Trustee for authentication, and any Notes that such Successor Entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as
though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as
the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case
of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.
In case of any such Business Combination Event, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
.
ARTICLE 12
Immunity of Incorporators, Stockholders, Officers and Directors
Section 12.01 Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE 13
[Intentionally Omitted]
ARTICLE 14
Conversion of Notes
Section 14.01 Conversion Privilege.
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(a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted
is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding September
1, 2029, under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after September 1, 2029 until the close of business on the second Scheduled Trading
Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.7126 Class A Ordinary Shares (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per
$1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(b)
(i) Prior to the close of business on the Business Day immediately preceding September 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day
period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a
Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Class A Ordinary Shares on each such Trading Day and the Conversion
Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to
the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The
Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination in writing, and the Company shall have no
obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $2,000,000 aggregate
principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Class A Ordinary
Shares on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct the securities dealers to deliver bids and the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the
Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal
amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Ordinary Shares and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the
Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in
writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence,
then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Class A Ordinary Shares and the Conversion Rate on each Trading Day
of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing. If, at any time after the Trading Price condition
set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Ordinary Shares and the Conversion Rate for such date, the Company
shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee), and thereafter neither the Company nor the Bid Solicitation Agent (of other than the Company) shall be required to solicit bids again until
a new Holder request is made as provided in this Section 14.01(b)(i).
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(ii) If, prior to the close of business on the Business Day immediately preceding September 1, 2029, the Company elects to:
(A) distribute to all or substantially all holders of the Class A Ordinary Shares any rights, options or warrants (other than in connection with a shareholder rights plan prior to separation of such rights
from the Class A Ordinary Shares) entitling them, for a period of not more than forty-five (45) calendar days after the announcement date of such distribution, to subscribe for or purchase Class A Ordinary Shares at a price per share that is
less than the average of the Last Reported Sale Prices of the Class A Ordinary Shares for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution;
or
(B) distribute to all or substantially all holders of Class A Ordinary Shares, the Company’s assets, securities or rights to purchase securities of the Company (other than in connection with a shareholder
rights plan prior to separation of such rights from the Class A Ordinary Shares), which distribution has a per share value, as reasonably determined by the Company in good faith, exceeding 10% of the Last Reported Sale Price of the Class A
Ordinary Shares on the Trading Day preceding the date of announcement for such distribution,
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then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least forty-eight (48) Scheduled Trading Days prior to the Ex-Dividend Date for such
distribution (or, if later in the case of any such separation of rights issued pursuant to a shareholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will
occur); provided, that if the Company elects Physical Settlement for conversions that occur at any time from, and including, the date of notice until the earlier
of (1) the close of business on the second Business Day immediately preceding the Ex-Dividend Date for such distribution and (2) the Company’s announcement that such issuance or distribution will not take place (the “Distribution Conversion Period”), the Company may provide not less than ten (10) Business Days’ nor more than thirty (30) Business Days’ notice before such Ex-Dividend Date. Once the Company has given such notice, Holders may
surrender all or any portion of their Notes for conversion at any time from, and including, the date the Company provides such notice until the earlier of (1) the close of business on the second Business Day immediately preceding the Ex-Dividend
Date for such distribution and (2) the Company’s announcement that such issuance or distribution will not take place, even if the Notes are not otherwise convertible at such time; provided that Holders
may not convert their Notes pursuant to this subsection (b)(ii) if they participate, at the same time and upon the same terms as holders of the Class A Ordinary Shares and solely as a result of holding the Notes, in any of the transactions
described in clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of Class A Ordinary Shares equal to the applicable Conversion Rate multiplied by the principal amount (expressed in
thousands) of Notes held by such Holder.
(iii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding September 1, 2029,
regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.01, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of
changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental Change and (y) results in a reclassification, conversion or exchange of outstanding shares of the surviving entity
and such shares become Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding September 1, 2029, all or any portion of a Holder’s Notes may be surrendered for conversion at any time
from or after the actual effective date of such transaction or event until the earlier of (x) 35 Business Days after the actual effective date of such transaction or event or, if such transaction or event also constitutes a Fundamental Change
(other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately
preceding the Maturity Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing as promptly as practicable following the effective date of such transaction or event, but in no event
later than the effective date of such transaction or event.
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(iv) Prior to the close of business on the Business Day immediately preceding September 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter
commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Class A Ordinary Shares for at least 20 Trading Days (whether or not consecutive) during the period of
30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day.
(v) If the Company calls any Note for Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding September 1, 2029, then a Holder may surrender all or any
portion of its Called Notes for conversion at any time prior to the close of business on the second Business Day prior to the related Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right
to convert shall expire under this clause (v), unless the Company defaults in the payment of the Redemption Price, in which case the Holder of the Called Notes may convert such Note until the Redemption Price has been paid or duly provided for.
If the Company elects to redeem fewer than all of the outstanding Notes for Optional Redemption pursuant to Article 16, and the Holder of any Note, or any owner of a beneficial interest in any Global Note, is reasonably not able to determine,
prior to the close of business on the 44th Scheduled Trading Day immediately preceding the relevant Redemption Date (or, if the Company elects Physical Settlement for conversions that occur during the related Redemption Period, on the fourth
Business Day immediately preceding the relevant Optional Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable, will be entitled to
convert such Note or beneficial interest, as applicable, at any time during the related Redemption Period, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed
called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under
certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not
Called Notes shall not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and shall not be entitled to an increase in the Conversion Rate on account of the Optional Redemption Notice for conversions of such Notes during the
related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
67
Section 14.02 Conversion Procedure; Settlement Upon Conversion.
(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.08(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the
converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Class A Ordinary Shares, together with cash, if applicable, in lieu of delivering any
fractional Class A Ordinary Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Class A Ordinary Shares, together with cash, if applicable, in
lieu of delivering any fractional Class A Ordinary Shares in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after September
1, 2029, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or
after September 1, 2029, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or has previously made an irrevocable election with respect to all
subsequent conversions of Notes pursuant to Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method
with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant
Conversion Date occurs on or after September 1, 2029 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or either such period, as the case may be), the Company, shall deliver such Settlement Notice to converting Holders, the
Trustee and the Conversion Agent (if other than the Trustee) in accordance with Section 17.15, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversion of
Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the relevant Redemption Notice, (y) any conversions of Notes for which the relevant Conversion Date occurs on or after September 1, 2029, no later
than September 1, 2029, or (z) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in a notice as described in such Section). If the Company does not timely elect a Settlement Method
prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Settlement Method with respect to any such Conversion Date or during such period and the Company shall be deemed to have
elected the Default Settlement Method in respect of its Conversion Obligation. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall
indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation, or the Company is deemed to have elected Combination
Settlement, but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the
avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount will not constitute a Default or Event of Default under this Indenture.
68
By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to September 1, 2029. In addition, by notice to
Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2029, at its option, irrevocably elect to fix the Settlement Method to any Settlement Method that the Company is then permitted to
elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific
amount set forth in such notice. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per
$1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the
Trustee) of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount
will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement
Method or an irrevocable election will apply to all conversions of Notes on Conversion Dates occurring subsequent to delivery of such Settlement Notice; provided, however,
that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to
amend this Indenture or the Notes, including pursuant to the provisions described in Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option.
69
If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method pursuant to the provisions described in the preceding paragraph, then, concurrently with providing a Settlement
Notice to Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such change or election, the Company will post notice of the Default Settlement Method on its website or otherwise disclose such information in a
Current Report on Form 6-K or 8-K that is filed with the Commission.
(iv) The cash, Class A Ordinary Shares or combination of cash and Class A Ordinary Shares payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement
Amount”) shall be computed as follows:
| (A) |
if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal
amount of Notes being converted a number of Class A Ordinary Shares equal to the Conversion Rate in effect immediately after the close of business on the Conversion Date;
|
| (B) |
if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount
of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the forty (40) consecutive Trading Days during the related Observation Period; and
|
| (C) |
if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in
respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the forty (40) consecutive Trading Days during the related Observation Period.
|
(b) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly
after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Class A Ordinary Shares, the Company shall notify the Trustee and
the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Class A Ordinary Shares. The Trustee and the
Conversion Agent (if other than the Trustee) shall have no responsibility or liability for any such determination.
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(c) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, a Holder shall (i) in the case of a Global Note, comply with the Applicable
Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled, and if required, pay all transfer or similar taxes, if any, as
set forth in Section 14.02(h) and (ii) in the case of a Physical Note, the Holder thereof shall (1) complete, manually sign and deliver an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) to the Conversion
Agent as set forth in the Form of Notice of Conversion (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and
the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Class A Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly
endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required,
pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion
pursuant to this Article 14 on the Conversion Date for such conversion. No Holder may surrender Notes for conversion if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has
not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03.
If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of
the Notes so surrendered.
A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the
requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.08(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation, on the second
Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any
other Settlement Method; provided, that with respect to any Conversion Date occurring during a Redemption Period, the Company will settle any such
conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided, further, that notwithstanding the foregoing, with respect
to any Conversion Date occurring after the regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any Class A Ordinary
Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Class A Ordinary Shares to
which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
71
(d) In case any Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by
the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp, issue, transfer or similar tax due on the delivery of Class A Ordinary Shares required by law or that may be
imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp issue, transfer or similar tax due on the delivery of Class A Ordinary Shares upon conversion, unless the
tax is due because the Holder requests such Class A Ordinary Shares to be issued in a name other than such Holder’s name, in which case such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing
Class A Ordinary Shares being issued in a name other than such Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.05, no adjustment shall be made for dividends on any Class A Ordinary Shares issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Note Custodian (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as
to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
72
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, of
the Settlement Amount with respect to any converted Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date.
As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash
and Class A Ordinary Shares, accrued and unpaid interest shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date,
but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date shall receive the full amount of interest payable on such Notes on the
corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following
Interest Payment Date shall be accompanied by funds in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record
Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has
specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third
Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date or the Specified Repurchase Date that is after a Regular Record Date and on or prior to the Business Day
immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect to such Note.
Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, the Specified Repurchase Date, any Fundamental Change Repurchase Date, or
Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash, regardless of whether their Notes have been converted following such
Regular Record Date.
(i) The Person in whose name any Class A Ordinary Shares shall be issuable upon conversion shall become the holder of record of such shares as of the close of business on the relevant Conversion Date
(if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination
Settlement). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive
the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have
the right to receive the full amount of interest payable on such Interest Payment Date, in accordance with clause (h) above.
(j) The Company shall not issue any fractional Class A Ordinary Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Class A Ordinary Shares issuable upon
conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For
each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate
Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
73
Section 14.03 Adjustment to Conversion Rate Upon Conversion Upon a Make-Whole Fundamental Change.
(a) If a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes (or any portion thereof) in connection with such Make-Whole Fundamental Change, the
Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional Class A Ordinary Shares (the “Additional Class A
Ordinary Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period from, and
including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the second Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that
would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof or that constitutes an Exempted Fundamental Change, the 35th Business Day immediately following the
Effective Date of such Make-Whole Fundamental Change) (such period, the “Make- Whole Fundamental Change Period”). The Company will provide written notification to Holders, the Trustee and the
Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change and publish a notice on its website or through such other public medium as the Company may use at that time announcing such Effective
Date no later than five (5) Business Days after such Effective Date.
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change, the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash
Settlement or Combination Settlement in accordance with Section 14.02; provided, however, that if the consideration received by holders of Class A Ordinary
Shares in exchange for such Class A Ordinary Shares in any Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date
of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Share Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the
Conversion Rate (including any increase to reflect the Additional Class A Ordinary Shares), multiplied by such Share Price. In such event, the Conversion Obligation shall be determined and paid to
Holders in cash on the second Business Day following the Conversion Date.
74
(c) The number of Additional Class A Ordinary Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table in Section 14.03(e), based on the date on
which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the price paid (or deemed to be paid) per Class A Ordinary Share in the Make-Whole Fundamental Change
(the “Share Price”). If the holders of Class A Ordinary Shares receive in exchange for their Class A Ordinary Shares only cash in a Make-Whole Fundamental Change described in clause (b) of the
definition of Fundamental Change, the Share Price shall be the cash amount paid per share. Otherwise, the Share Price shall be the average of the Last Reported Sale Prices of the Class A Ordinary Shares over the five (5) consecutive Trading
Day period ending on, and including, the Trading Day immediately preceding the relevant Effective Date. The Company shall make appropriate adjustments to the Share Price, in its good faith determination, to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex- Dividend Date, Effective Date or expiration date of the event occurs during such five consecutive Trading Day period. In the
event that a conversion in connection with a Redemption Notice would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted shall be entitled solely to a single increase to the
Conversion Rate with respect to the first to occur of the applicable Redemption Reference Date or the Effective Date of the applicable Make-Whole Fundamental Change.
(d) The Share Prices set forth in the column headings of the table in Section 14.03(e) shall be adjusted as of any date on which the Conversion Rate is otherwise adjusted. The adjusted Share Prices
shall equal the Share Prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the
Share Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Class A Ordinary Shares in Section 14.03(e) shall be adjusted in the same manner and at the same time as the Conversion Rate
as set forth in Section 14.05.
(e) The following table sets forth the number of Additional Class A Ordinary Shares by which the Conversion Rate shall be increased per $1,000 principal amount of the Notes pursuant to this Section
14.03 for each Share Price and Effective Date set forth below:
|
Class A Ordinary Share price
|
|||||||||||||||||||||||||||
|
11.19
|
12.50
|
14.00
|
15.95
|
18.00
|
21.00
|
23.92
|
26.00
|
30.00
|
40.00
|
60.00
|
100.00
|
150.00
|
200.00
|
||||||||||||||
|
Effective Date
|
|||||||||||||||||||||||||||
|
November 26, 2024
|
26.6529
|
24.9504
|
20.4914
|
16.3473
|
13.2839
|
10.2405
|
8.2571
|
7.2081
|
5.7267
|
3.6190
|
1.8225
|
0.5998
|
0.1313
|
0.0000
|
|||||||||||||
|
December 1, 2025
|
26.6529
|
24.0992
|
19.3914
|
15.1154
|
12.0411
|
9.0829
|
7.2191
|
6.2573
|
4.9290
|
3.0980
|
1.5723
|
0.5236
|
0.1121
|
0.0000
|
|||||||||||||
|
December 1, 2026
|
26.6529
|
22.7200
|
17.7164
|
13.3392
|
10.3217
|
7.5490
|
5.8817
|
5.0500
|
3.9360
|
2.4640
|
1.2667
|
0.4271
|
0.0871
|
0.0000
|
|||||||||||||
|
December 1, 2027
|
26.6529
|
19.9976
|
15.1586
|
10.9473
|
8.1111
|
5.6290
|
4.2379
|
3.5835
|
2.7537
|
1.7285
|
0.9088
|
0.3114
|
0.0582
|
0.0000
|
|||||||||||||
|
December 1, 2028
|
26.6529
|
18.1344
|
12.5107
|
7.9085
|
5.1439
|
3.1129
|
2.1931
|
1.8208
|
1.3967
|
0.9060
|
0.4923
|
0.1726
|
0.0285
|
0.0000
|
|||||||||||||
|
December 1, 2029
|
26.6529
|
17.2872
|
8.7157
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
|||||||||||||
The exact Share Price and Effective Date may not be set forth in the table above, in which case:
(i) if the Share Price is between two Share Prices in the table above or the Effective Date is between two Effective Dates in the table above, the number of Additional Class A Ordinary Shares by
which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Class A Ordinary Shares set forth for the higher and lower Share Prices and the earlier and later Effective
Dates, as applicable, based on a 365-day year;
75
(ii) if the Share Price is greater than $200.00 per share (subject to adjustment in the same manner as the Share Prices set forth in the column headings of the table above pursuant to subsection (d)
above), no Additional Class A Ordinary Shares shall be added to the Conversion Rate; and
(iii) if the Share Price is less than $11.19 per share (subject to adjustment in the same manner as the Share Prices set forth in the column headings of the table above pursuant to subsection (d)
above), no Additional Class A Ordinary Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 89.3655 Class A Ordinary Shares, subject to adjustment in the same manner as
the Conversion Rate pursuant to Section 14.05.
Neither the Trustee nor any of the agents shall have any duty to monitor the accuracy of any of the calculations made by the Company which will be conclusive and binding on the Holders,
absent manifest error.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.05 in respect of a Make-Whole Fundamental Change.
Section 14.04 Adjustment to Conversion Rate upon Conversion in Connection with a Redemption. If a Holder elects to convert its Called Notes in connection with a Redemption, the Company will,
under certain circumstances, increase the Conversion Rate for the Notes so surrendered for conversion by a number of Additional Class A Ordinary Shares as described below. The Company will settle conversions of Notes and, for the avoidance
of doubt, pay Additional Amounts, if any, with respect to any such conversion.
A conversion of Called Notes shall be deemed to be in connection with a Redemption if such conversion occurs during the related Redemption Period. In the event that a conversion of Called Notes in connection with a Redemption would also
be deemed to be in connection with a Make-Whole Fundamental Change or any other Redemption, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the
applicable Redemption Notice and the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of Section 14.03 or this Section 14.04, as applicable.
For the avoidance of doubt, if the Company issues a Redemption Notice in connection with an Optional Redemption, the Company will increase the Conversion Rate during the related Redemption Period only with respect to conversions of
Called Notes. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes in connection with an Optional Redemption, Holders will not be entitled to convert the Notes that are neither called for Redemption nor
deemed to be called for Redemption on account of the Redemption Notice and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Redemption Notice during the related Redemption Period, even if
such Notes are otherwise convertible.
76
The number of Additional Class A Ordinary Shares by which the Conversion Rate will be increased in the event of conversion of Notes called for Redemption in connection with a Redemption will be determined by reference to the table in
Section 14.03(e), based on the Redemption Reference Date and the Redemption Reference Price, but determined for purposes of this Section 14.04 as if (x) the Holder had elected to convert its Notes called for Redemption in connection with a
Make-Whole Fundamental Change, (y) the applicable Redemption Reference Date were the “Effective Date” and (z) the applicable Redemption Reference Price were the Share Price (and subject, for the avoidance of doubt, to the two paragraphs
immediately following such table).
Neither the Trustee nor any of the agents shall have any duty to monitor the accuracy of any of the calculations made by the Company which will be conclusive and binding on the Holders, absent manifest error.
Section 14.05 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make
any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Class A Ordinary
Shares and solely as a result of holding the Notes, in any of the transactions described in this Section 14.05, without having to convert their Notes as if they held a number of Class A Ordinary Shares equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee nor the Conversion Agent shall have any responsibility to monitor the accuracy of any
calculation of any adjustment to the Conversion Rate and the same shall be conclusive and binding on the Holders, absent manifest error. Notice of such adjustment to the Conversion Rate will be given by the Company promptly in writing to
the Holders, the Trustee and the Conversion Agent (if other than the Trustee) and shall be conclusive and binding on the Holders, absent manifest error.
(a) If the Company exclusively issues Class A Ordinary Shares as a dividend or distribution on Class A Ordinary Shares, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based
on the following formula:
where,
|
CR0
|
=
|
the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date of such dividend or distribution, or immediately prior to the open of
business on the Effective Date of such share split or share combination, as applicable;
|
77
|
CR1
|
=
|
the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date or Effective Date, as applicable;
|
|
OS0
|
=
|
the number of Class A Ordinary Shares issued and outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date, as applicable (before
giving effect to any such dividend, distribution, split or combination); and
|
|
OS1
|
=
|
the number of Class A Ordinary Shares issued and outstanding immediately after giving effect to such dividend, distribution, share split or share combination.
|
Any adjustment made under this Section 14.05(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 14.05(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.
(b) If the Company distributes to all or substantially all holders of Class A Ordinary Shares any rights, options or warrants (other than in connection with a shareholder rights plan) entitling them,
for a period of not more than forty-five (45) calendar days after the announcement date of such distribution, to subscribe for or purchase Class A Ordinary Shares at a price per share that is less than the average of the Last Reported Sale
Prices of the Class A Ordinary Shares, for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, the Conversion Rate shall be increased
based on the following formula:
where,
|
CR0
|
=
|
the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date for such distribution;
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date;
|
|
OS0
|
=
|
the number of Class A Ordinary Shares issued and outstanding immediately prior to the open of business on such Ex-Dividend Date;
|
|
X
|
=
|
the total number of Class A Ordinary Shares deliverable pursuant to such rights, options or warrants; and
|
|
Y
|
=
|
the number of Class A Ordinary Shares 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
Class A Ordinary Shares over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such rights, options or warrants.
|
78
Any increase made under this Section 14.05(b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the open of business on the Ex-Dividend Date for such
distribution. To the extent that Class A Ordinary Shares are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase
with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Class A Ordinary Shares actually delivered. To the extent such rights, options or warrants are not so distributed,
the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made.
For the purpose of this Section 14.05(b) and for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase Class A Ordinary Shares at a price per Class
A Ordinary Share that is less than such average of the Last Reported Sale Prices of the Class A Ordinary Shares for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of
announcement of such distribution, and in determining the aggregate offering price of such Class A Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any
amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company in good faith.
(c) If the Company distributes its Capital Shares, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Shares or other
securities, to all or substantially all holders of Class A Ordinary Shares, excluding (i) dividends, distributions or issuances (including share splits) as to which an adjustment was effected (or would have been effected but for the 1%
exception) pursuant to Section 14.05(a) or Section 14.05(b), (ii) except as otherwise provided below, rights issued pursuant to any shareholder rights plan of the Company then in effect, (iii) distributions of Reference Property issued in
exchange for, or upon conversion of, Class A Ordinary Shares pursuant to Section 14.08, (iv) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 14.05(d) shall apply, and (v)
Spin-Offs as to which the provisions set forth below in this Section 14.05(c) shall apply (any of such Capital Shares, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Shares or other
securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:
79
where,
|
CR0
|
=
|
the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date for such distribution;
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date;
|
|
SP0
|
=
|
the average of the Last Reported Sale Prices of the Class A Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and
|
|
FMV
|
=
|
the fair market value (as determined by the Company in good faith) of the Distributed Property distributed with respect to each outstanding Class A Ordinary Share on the Ex-Dividend Date for such distribution.
|
Any increase made under the portion of this Section 14.05(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. To the extent such distribution is not so paid or made, the
Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid. 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 Class A Ordinary Shares receive the Distributed Property without having to convert its Notes, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of Class A Ordinary Shares equal to
the Conversion Rate in effect on the Ex-Dividend Date for the distribution.
With respect to an adjustment pursuant to this Section 14.05(c) where there has been a payment of a dividend or other distribution on the Class A Ordinary Shares or Capital Shares of any class or series, or similar equity interest, of or
relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion
Rate shall be increased based on the following formula:
where,
|
CR0
|
=
|
the Conversion Rate in effect immediately prior to the end of the Valuation Period;
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the end of the Valuation Period;
|
|
FMV0
|
=
|
the average of the Last Reported Sale Prices of the Capital Shares or similar equity interest distributed to holders of the Class A Ordinary Shares applicable to one Class A
Ordinary Share (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Class A Ordinary Shares were to such Capital Shares or similar equity interest) over the
first ten (10) consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
|
80
|
MP0
|
=
|
the average of the Last Reported Sale Prices of the Class A Ordinary Shares over the Valuation Period.
|
The increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that (x) in respect of any
conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of
Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of the Notes for which Cash Settlement or
Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, the references to “10” in the preceding paragraph shall be deemed replaced with
such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day. If the dividend or other
distribution constituting a Spin-Off is declared but not so paid or made, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or other distribution, to the
Conversion Rate that would be in effect if such dividend or distribution had not been declared or announced.
For purposes of this Section 14.05(c) (and subject in all respects to Section 14.12), rights, options or warrants distributed by the Company to all holders of Class A Ordinary Shares entitling them to subscribe for or purchase the
Company’s Capital Shares, including Class A Ordinary Shares (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 Class A Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Class A Ordinary Shares, shall be deemed not to have been distributed
for purposes of this Section 14.05(c) (and no adjustment to the Conversion Rate under this Section 14.05(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 14.05(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 14.05(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 Class A Ordinary Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders
of Class A Ordinary Shares of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights, options and warrants had not been issued.
81
For purposes of Section 14.05(a), Section 14.05(b) and this Section 14.05(c), if any dividend or distribution to which this Section 14.05(c) is applicable also includes one or both of:
(A) a dividend or distribution of Class A Ordinary Shares to which Section 14.05(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 14.05(b) is applicable (the “Clause B Distribution”),
then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 14.05(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 Conversion Rate adjustment required by Section 14.05(a) and Section 14.05(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 Class A Ordinary Shares included in the Clause A Distribution
or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex- Dividend Date or Effective Date” within the meaning of Section 14.05(a) or “outstanding immediately prior to the open of
business on such Ex-Dividend Date” within the meaning of Section 14.05(b).
(d) If the Company makes any cash dividend or distribution to all or substantially all holders of the shares of the Class A Ordinary Shares, the Conversion Rate shall be adjusted based on the following formula:
where,
|
CR0
|
=
|
the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date for such dividend or distribution;
|
82
|
CR1
|
=
|
the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date for such dividend or distribution;
|
|
SP0
|
=
|
the Last Reported Sale Price of the Class A Ordinary Shares on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
|
|
C
|
=
|
the amount in cash per Class A Ordinary Share the Company distributes to all or substantially all holders of the Class A Ordinary Shares.
|
Any increase made pursuant to this Section 14.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. To the extent 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 had the adjustment been made on the basis
of only the dividend or distribution, if any, actually made or paid. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of Class A Ordinary Shares without having to convert its Notes, the amount of cash that such Holder would have received if such Holder
owned a number of Class A Ordinary Shares equal to the Conversion Rate on the Ex- Dividend Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for Class A Ordinary Shares that is subject to the then- applicable tender offer rules under the
Exchange Act (other than any odd-lot tender offer), to the extent that the cash and value of any other consideration included in the payment per Class A Ordinary Share exceeds the average of the Last Reported Sale Prices of the Class A
Ordinary Shares over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires, the Conversion Rate shall be increased based on the following
formula:
where,
|
CR0
|
=
|
the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date
such tender or exchange offer expires (the “Expiration Date”);
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the
Expiration Date;
|
83
|
AC
|
=
|
the aggregate value of all cash and any other consideration (as reasonably determined by the Company in good faith) paid or payable for Class A Ordinary Shares purchased in such tender or exchange offer;
|
|
OS0
|
=
|
the number of Class A Ordinary Shares issued and outstanding immediately prior to the Expiration Date (prior to giving effect to the purchase of all Class A Ordinary Shares
accepted for purchase or exchange in such tender or exchange offer);
|
|
OS1
|
=
|
the number of Class A Ordinary Shares issued and outstanding immediately after the Expiration Date (after giving effect to the purchase of all Class A Ordinary Shares accepted
for purchase or exchange in such tender or exchange offer); and
|
|
SP1
|
=
|
the average of the Last Reported Sale Prices of the Class A Ordinary Shares over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next
succeeding the Expiration Date.
|
The increase to the Conversion Rate under this Section 14.05(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration
Date; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and
including, the Trading Day next succeeding the Expiration Date, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next
succeeding such Expiration Date to, and including, such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day
that falls within the relevant Observation Period for such conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding any Expiration Date, references to “10” or “10th” in the preceding
paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding such Expiration Date of such tender or exchange offer to, and including, such Trading Day in
determining the Conversion Rate as of such Trading Day.
To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable law) or any
purchases or exchanges of Class A Ordinary Shares in such tender or exchange offer are rescinded, the applicable Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis
of only the purchases or exchanges of the Class A Ordinary Shares, if any, actually made, and not rescinded, in such tender or exchange offer.
(f) Notwithstanding this Section 14.05 or any other provision of this Indenture or the Notes, if a Conversion Rate adjustment becomes effective on any Ex- Dividend Date, and a Holder that has
converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of Class A Ordinary Shares as of the related Conversion Date as described under Section 14.02(h) based on
an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.05, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such
converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of Class A Ordinary Shares on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such
adjustment.
84
Notwithstanding the foregoing, the Company will not be required to adjust the Conversion Rate unless such adjustment would require an increase or decrease of at least one percent (1%); provided, however, that any such minor adjustments that are not required to be made will be carried forward and taken into account in any subsequent adjustment, and provided, further, that any such adjustment of less than one percent (1%) that has not been made shall be made upon the occurrence of (i) the Effective Date for
any Fundamental Change or Make-Whole Fundamental Change and (ii) in the case of any Note to which Physical Settlement applies, the relevant Conversion Date, and, in the case of any Note to which Cash Settlement or Combination Settlement
applies, each Trading Day of the applicable Observation Period. In addition, the Company shall not account for such deferrals when determining what number of Class A Ordinary Shares a Holder would have held on a given day had it converted its
Notes (collectively, the “1% exception”).
(g) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of Class A Ordinary Shares or any securities convertible into or exchangeable for Class A Ordinary Shares
or the right to purchase Class A Ordinary Shares or such convertible or exchangeable securities.
(h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.05, and to the extent permitted by applicable law and subject to the applicable rules of the
Nasdaq Capital Market and any other securities exchange on which any securities of the Company are then listed, the Company may increase the Conversion Rate by any amount for a period of at least twenty (20) Business Days if the Company
determines that such increase would be in the Company’s best interest, and the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Class A Ordinary Shares or rights to purchase
Class A Ordinary Shares in connection with a dividend or distribution of Class A Ordinary Shares (or rights to acquire Class A Ordinary Shares) or similar event.
(i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not be adjusted:
(i) upon the issuance of Class A Ordinary Shares at a price below the Conversion Price or otherwise, other than any such issuance described in Section 14.05(a), Section
14.05(b), Section 14.05(c) or Section 14.05(e);
(ii) upon the issuance of any Class A Ordinary Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s
securities and the investment of additional optional amounts in Class A Ordinary Shares under any plan;
85
(iii) upon the issuance of any Class A Ordinary Shares or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program
(including pursuant to any evergreen plan) of or assumed by the Company or any of the Company’s Subsidiaries;
(iv) upon the repurchase of any Class A Ordinary Shares pursuant to an open-market share repurchase program or other buyback transaction that is not a tender offer or exchange offer of the nature
described in Section 14.05(e);
(v) for a third-party tender offer by any party other than a tender offer by one or more of the Company’s Subsidiaries as described in Section 14.05(e);
(vi) upon the issuance of any Class A Ordinary Shares pursuant any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (iii) of this subsection and
outstanding as of the date the Notes were first issued (other than any rights under a shareholder rights plan);
(vii) solely for a change in the par value (or lack of par value) of the Class A Ordinary Shares; or
(viii) for accrued and unpaid interest, if any.
(j) All calculations and other determinations under this Article 14 shall be made by the Company and all calculations of the Conversion Rate shall be made to the nearest one-ten thousandth (1/10,000th)
of a share.
(k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth the
Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer shall have received such Officer’s Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of
such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder. Failure to
deliver such notice shall not affect the legality or validity of any such adjustment and for the avoidance of doubt, neither the Trustee nor the Conversion Agent shall have any liability or responsibility for the Conversion Rate, the
calculation thereof or application thereof.
(l) For purposes of this Section 14.05, the number of Class A Ordinary Shares at any time outstanding shall not include Class A Ordinary Shares held in the treasury of the Company so long as the
Company does not pay any dividend or make any distribution on the Class A Ordinary Shares held in the treasury of the Company, but shall include Class A Ordinary Shares issuable in respect of scrip certificates issued in lieu of fractions of
Class A Ordinary Shares.
86
Section 14.06 Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the
Daily Settlement Amounts, the Share Price for purposes of a Make- Whole Fundamental Change or the Redemption Reference Price for purposes of a Redemption over a span of multiple days, the Company shall make appropriate adjustments in good
faith and in a commercially reasonable manner to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or
Expiration Date, as the case may be, of the event occurs, at any time during the period when such Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts or Share Prices are to be calculated.
Section 14.07 Shares To Be Fully Paid. The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient Class A Ordinary
Shares to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming delivery of the maximum number of Additional Class A Ordinary Shares pursuant to Section 14.03 and that at the time of
computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement were applicable).
Section 14.08 Effect of Recapitalizations, Reclassifications and Changes of the Class A Ordinary Shares.
(a) In the case of:
(i) any recapitalization, reclassification or change of the Class A Ordinary Shares (other than a change in par value, or from par value to no par value, or changes resulting
from a subdivision or combination),
(ii) any consolidation, merger, combination or similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety or
(iv) any statutory share exchange,
87
in each case, as a result of which the Class A Ordinary Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Share Exchange Event”), then, the Company, or the successor or acquiring company, as the case may be, will execute with the Trustee a supplemental indenture providing that, at and after the effective time
of such Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property
or assets (including cash or any combination thereof) that a holder of a number of Class A Ordinary Shares equal to the Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one Class A Ordinary Share would have
been entitled to receive) upon such Share Exchange Event; provided, however, that at and after the effective time of the Share Exchange Event (A) the Company,
or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B)
(I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any Class A Ordinary Shares that the Company would have been required to deliver upon conversion of the
Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of Class A Ordinary Shares would have received in such Share Exchange Event and (III) the Daily VWAP
shall be calculated based on the value of a unit of Reference Property that a holder of one Class A Ordinary Share would have received in such Share Exchange Event.
If the Share Exchange Event causes the Class A Ordinary Shares 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 shareholder election), then (i)
the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Class A Ordinary Shares. The Company shall notify
Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made.
If the Reference Property in respect of any such Share Exchange Event includes, in whole or in part, shares of Common Equity or depositary receipts (or other interests) in respect thereof, the supplemental indenture providing that the
Notes will be convertible into Reference Property will also provide for anti-dilution and other adjustments that shall be as nearly equivalent as practicable to the adjustments provided for in this Article 14 (it being understood that no such
adjustments shall be required with respect to any portion of the Reference Property that does not consist of shares of Common Equity (however evidenced) or depositary receipts (or other interests) in respect thereof). If the Reference
Property in respect of any Share Exchange Event includes shares of stock, securities or other property or assets (other than cash and/or cash equivalents) of a company other than the Company or the successor or acquiring company, as the case
may be, in such Share Exchange Event, then such other company, if an Affiliate of the Company or the successor or acquiring company, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional
provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change pursuant to Section 15.02 and on the Specified Repurchase Date pursuant to Section
15.01, as the Company in good faith reasonably considers necessary by reason of the foregoing.
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(b) Promptly following execution by the Company of a supplemental indenture pursuant to subsection (a) of this Section 14.08, the Company shall file with the Trustee an Officer’s Certificate briefly
stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Share Exchange Event, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be delivered to each Holder, within twenty days after
execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.08. None of the foregoing provisions shall affect the right of a Holder to convert
its Notes into cash, Class A Ordinary Shares or a combination of cash and Class A Ordinary Shares, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Share Exchange Event.
(d) The above provisions of this Section 14.08 shall similarly apply to successive Share Exchange Events.
Section 14.09 Certain Covenants.
(a) The Company covenants that all Class A Ordinary Shares issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to
the issue thereof.
(b) The Company covenants that, if any Class A Ordinary Shares to be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental authority under any
federal or state law before such Class A Ordinary Shares may be validly issued upon conversion, the Company will, to the extent then permitted by the rules and interpretations of the Commission, secure such registration or approval, as the
case may be.
(c) The Company further covenants that if at any time the Class A Ordinary Shares shall be listed on any national securities exchange or automated quotation system the Company will list and keep listed,
so long as the Class A Ordinary Shares shall be so listed on such exchange or automated quotation system, any Class A Ordinary Shares issuable upon conversion of the Notes.
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Section 14.10 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any
adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any
Class A Ordinary Shares, 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 Class A Ordinary Shares or stock certificates or other securities or property or cash upon the surrender of any Note
for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 14. Neither the Trustee nor any other Conversion Agent shall have any duty or responsibility whatsoever
to determine compliance with the conversion procedures, or to make or confirm any calculations with respect to the settlement provisions, of Section 14.02. Without limiting the generality of the foregoing, neither the Trustee nor any
Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 14.08 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 14.08 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section
7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the Company shall be obligated to file with
the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has occurred
that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b) with respect to the commencement or termination of
such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event or
at such other times as shall be provided for in Section 14.01(b).
Section 14.11 Notice to Holders Prior to Certain Actions. In case of any:
(a) action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 14.05 or Section 14.12; or
(b) voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture, in which case the timing and delivery requirements of such provision shall supersede this Section 14.11 or when the
Company otherwise provides public notice of such event), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be delivered to each Holder, as promptly as possible but in any event at
least 10 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the
date as of which the holders of Class A Ordinary Shares 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 Share Exchange Event, dissolution, liquidation or
winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Class A Ordinary Shares of record shall be entitled to exchange their Class A Ordinary Shares for securities or other property
deliverable upon such dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Share Exchange Event,
dissolution, liquidation or winding-up; provided, however, that the Company may delay the delivery of any such notice required under this Section 14.11 to the
effective date of such event if the Company in good faith determines that the withholding of such notice is in the interests of the Company and does not adversely affect the rights of any Holder in any material respect.
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Section 14.12 Shareholder Rights Plans. If the Company has a shareholder rights plan in effect upon conversion of the Notes, each Class A Ordinary Shares, if any, issued upon such conversion shall
be entitled to receive the appropriate number of rights, if any, and the certificates representing the Class A Ordinary Shares issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any
such shareholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from the Class A Ordinary Shares in accordance with the provisions of the applicable
shareholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all holders of the Distributed Property as provided in Section 14.05(c), subject to readjustment in the event of the
expiration, termination or redemption of such rights.
Section 14.13 Exchange in Lieu of Conversion.
(a) When a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”), direct the Conversion Agent to deliver, on or
prior to the Trading Day immediately following the Conversion Date, such Notes to one or more financial institutions designated by the Company (each, a “Designated Financial Institution”) for exchange
in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree to timely pay and/or deliver, as the case may be, in exchange for such Notes, cash, Class A Ordinary Shares or
a combination of cash and Class A Ordinary Shares, at the Company’s election, that would otherwise be due upon conversion as described under Section 14.02, or such other amount agreed to by the Holder and the Designated Financial
Institution(s) (the “Conversion Consideration”). If the Company makes an Exchange Election, it shall, by the close of business on the Business Day following the relevant Conversion Date, notify in
writing the Trustee, the Conversion Agent (if other than the Trustee) and the Holder surrendering its Notes for conversion that the Company has made such Exchange Election and notify the Designated Financial Institution(s) of the relevant
deadline for payment or delivery, as the case may be, of the Conversion Consideration and the type of Conversion Consideration to be paid and/or delivered, as the case may be.
(b) Any Notes delivered to the Designated Financial Institution(s) shall remain outstanding, subject to the Applicable Procedures. If the Designated Financial Institution(s) agree(s) to accept any
Notes for exchange but does not timely pay and/or deliver, as the case may be, the related Conversion Consideration, or if such Designated Financial Institution(s) does not accept the Notes for exchange, the Company shall pay and/or deliver,
as the case may be, the relevant Conversion Consideration, as, and at the time, required pursuant to this Indenture as if the Company had not made an Exchange Election.
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(c) The Company’s designation of any Designated Financial Institution(s) to which the Notes may be submitted for exchange in lieu of conversion does not require such Designated Financial Institution(s)
to accept any Notes.
ARTICLE 15
Repurchase of Notes at Option of Holders
Section 15.01 Repurchase at Option of Holders on December 6, 2027.
(a) On December 6, 2027 (the “Specified Repurchase Date”), 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 (the “Specified Repurchase”), or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, at a repurchase price equal to
100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to but excluding, the Specified Repurchase Date (the “Specified Repurchase Date Repurchase Price”).
(b) Repurchases of Notes under this Section 15.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Specified Repurchase Date Repurchase Notice”) in the form set forth in Attachment
3 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s Applicable 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 second Business Day immediately preceding the Specified Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Specified Repurchase Date 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 of the Depositary, in each case such delivery being a condition
to receipt by the Holder of the Specified Repurchase Date Repurchase Price therefor.
The Specified Repurchase Date Repurchase Notice in respect of any Notes to be repurchased that are Physical Notes shall state:
(i) the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
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provided, however, that if the Notes are Global Notes, Holders must surrender their Notes in accordance with the Applicable Procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Specified Repurchase Date Repurchase Notice contemplated by this Section 15.01 shall have the right to withdraw, in whole or in part, such
Specified Repurchase Date Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Specified Repurchase Date Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 15.03.
The Paying Agent (if other than the Company) shall promptly notify the Company of the receipt by it of any Specified Repurchase Date Repurchase Notice or written notice of withdrawal thereof.
No Specified Repurchase Date Repurchase Notice with respect to any Notes may be surrendered by a Holder thereof if such Holder has also surrendered a Specified Repurchase Date Repurchase Notice and has not validly withdrawn such Specified
Repurchase Date Repurchase Notice in accordance with Section 15.03.
(c) On or before the 20th Business Day prior to the Specified Repurchase Date, the Company shall provide to all Holders and the Trustee, the Conversion Agent (if other than the Trustee) and the Paying
Agent (if other than the Trustee) the Specified Repurchase Date Repurchase Notice of the Specified Repurchase Date and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such
notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the Applicable Procedures. Each Specified Repurchase Date Repurchase Notice shall specify:
(i) the last date on which a Holder may exercise the repurchase right pursuant to this Section 15.01;
(ii) the Specified Repurchase Date Repurchase Price;
(iii) the Specified Repurchase Date;
(iv) the name and address of the Trustee, the Conversion Agent and the Paying Agent;
(v) the procedures that Holders must follow to require the Company to repurchase their Notes.
Simultaneously with providing such notice, the Company will publish a notice containing this information on its website or through such other public medium as the Company may use at that time.
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No failure of the Company to give the foregoing notice and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this
Section 15.01.
At the Company’s request given at least five (5) Business Days before such notice is to be sent (or such shorter period as shall be acceptable to the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s
expense; provided, however, that, in all cases, the text of such Specified Repurchase Date Repurchase Notice shall be prepared by the Company.
Notwithstanding the foregoing, no Notes may be repurchased by the Company on the Specified Repurchase Date if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date
(except in the case of an acceleration resulting from a Default by the Company in the payment of the Specified Repurchase Date Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders
thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Specified Repurchase Date Repurchase Price with respect to such
Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Specified
Repurchase Date Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change.
(a) If a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of
such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on the Business Day notified in writing (the “Fundamental Change Repurchase Date”)
by the Company that is not less than twenty (20) Business Days or more than thirty-five (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, if any, to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the
Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid
interest to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal
amount of Notes to be repurchased pursuant to this Section 15.02. The Fundamental Change Repurchase Date will be subject to postponement to comply with applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
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(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to
the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s Applicable 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 second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for
transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures of the Depositary, in each case such delivery being a condition to
receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased that are Physical Notes shall state:
(i) the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided, however, that if the Notes are Global Notes, Holders must surrender their
Notes in accordance with the Applicable Procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or
in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 15.03.
The Paying Agent (if other than the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
No Fundamental Change Repurchase Notice with respect to any Notes may be surrendered by a Holder thereof if such Holder has also surrendered a Fundamental Change Repurchase Notice and has not validly withdrawn
such Fundamental Change Repurchase Notice in accordance with Section 15.03.
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(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders and the Trustee, the Conversion Agent (if other than
the Trustee) and the Paying Agent (if other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the
resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with
the Applicable Procedures. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Section 15.02;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Trustee, the Paying Agent and the Conversion Agent;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in
accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes.
Simultaneously with providing such notice, the Company will publish a notice containing this information on its website or through such other public medium as the Company may use at that time.
No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
Notwithstanding the foregoing, the Company will not be required to repurchase, or to make an offer to repurchase, the Notes upon the occurrence of a Fundamental Change if a third party makes such an offer in the same manner, at the same time,
for the same or greater price and otherwise is in compliance with the requirements for an offer made by the Company as set forth above, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in
the same manner, at the same time, and for the same or greater price and otherwise is in compliance with the requirements for an offer made by the Company as set forth above.
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At the Company’s request given at least five (5) Business Days before such notice is to be sent (or such shorter period as shall be acceptable to the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s
expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Section 15.02, the Company will not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes in
connection with a Fundamental Change occurring pursuant to clause (2)(A) or (B) of the definition of Fundamental Change (or, for the avoidance of doubt, pursuant to clause (1) of the definition that also constitutes a Fundamental Change
occurring pursuant to clause (2)(A) or (B) of the definition thereof), if:
(i) such Fundamental Change constitutes a Share Exchange Event for which the resulting Reference Property consists entirely of cash in U.S. dollars;
(ii) immediately after such Fundamental Change, the Notes become convertible into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of
Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change
Repurchase Price for such Fundamental Change); and
(iii) the Company timely sends the notice relating to Make-Whole Fundamental Change required pursuant to Section 14.01(b)(iii) .
Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(d), the Company does not offer to repurchase any Notes is referred to herein as an “Exempted
Fundamental Change.”
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been
accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment
of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures of the Depositary shall be deemed to have been cancelled, and, upon
such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
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Section 15.03 Withdrawal of Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase Notice. A Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase
Notice may be withdrawn (in whole or in part) in respect of Physical Notes by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.03 at any time prior to the
close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date or the Specified Repurchase Date, as applicable, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which must be $1,000 or an integral multiple thereof;
(ii) the certificate numbers of the Notes in respect of which such notice of withdrawal is being submitted; and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase Notice, which portion must be in
principal amounts of $1,000 or an integral multiple of $1,000;
provided, however, that if the Notes are Global Notes, Holders must withdraw the
relevant Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase Notice, as applicable, in accordance with the Applicable Procedures.
Section 15.04 Deposit of Fundamental Change Repurchase Price. i) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own
Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date or Specified Repurchase Date Repurchase Price, as applicable, an amount
of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price or Specified Repurchase Date Repurchase Price, as applicable. Subject to receipt of funds and/or Notes by the Trustee
(or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not validly withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date or the
Specified Repurchase Date, as applicable) will be made on the later of (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in Section 15.02) or the Specified
Repurchase Date (provided the Holder has satisfied the conditions in Section 15.01), as applicable, and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other
Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 15.01 or Section 15.02, as applicable, or by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall
appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account
of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price or Specified Repurchase Date
Repurchase Price.
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(a) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date or Specified Repurchase Date, as applicable, 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 Fundamental Change Repurchase Date or Specified Repurchase Date, as applicable, then, with respect to the Notes that have been properly
surrendered for repurchase to the Paying Agent and not validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the
Notes have been delivered to the Trustee), and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price or the Specified Repurchase Date Repurchase Price, as
applicable, and, if the Fundamental Change Repurchase Date or the Specified Repurchase Date, as applicable, falls after a Regular Record Date but on or prior to the Business Day immediately following the corresponding Interest Payment Date to
which such Regular Record Date relates, accrued and unpaid interest payable to the Holders as of such Regular Record Date).
(b) Upon surrender of a Note that is to be repurchased in part pursuant to Section 15.01 or Section 15.02, as applicable, the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.
Section 15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer pursuant to the Specified Repurchase Date Repurchase Notice or Fundamental
Change Repurchase Notice, the Company will, if required:
(a) comply with the tender offer rules under the Exchange Act that may then be applicable;
(b) file a Schedule TO or any other required schedule under the Exchange Act; and
(c) otherwise comply in all material respects with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;
in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.
Notwithstanding anything to the contrary, to the extent that provisions of any federal or state securities laws or other applicable laws or regulations adopted after the date on which the Notes are first issued conflict with the provisions
of this Indenture relating to the Company’s obligations to repurchase the Notes upon a Fundamental Change or the Specified Repurchase, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under such provisions of this Indenture by virtue of such conflict.
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ARTICLE 16
Optional Redemption, Cleanup Redemption and Tax Redemption
Section 16.01 Optional Redemption.
(a) No sinking fund is provided for the Notes. Except in the case of a Cleanup Redemption or a Tax Redemption, the Notes shall not be redeemable by the Company prior to December 6, 2027. On or after
December 6, 2027 and prior to the 41st scheduled Trading Day immediately preceding the Maturity Date, the Company may redeem for cash all or any portion of the Notes (subject to the Partial Redemption Limitation), at the Redemption Price, if
(i) the Liquidity Conditions are satisfied in accordance with the definition thereof and (ii) the Last Reported Sale Price of the Class A Ordinary Shares has been at least 150% of the Conversion Price then in effect for at least twenty (20)
Trading Days (whether or not consecutive) during any thirty (30) consecutive Trading Day period (including the last Trading Day of such period) ending on, and including, the Trading Day immediately preceding the date on which the Company
provides the Optional Redemption Notice in accordance with this Section 16.01 (an “Optional Redemption”); provided, however that
the Company may not redeem less than all of the outstanding Notes for Optional Redemption unless at least $75,000,000 aggregate principal amount of Notes are outstanding and not called for redemption as of the time the Company sends the
related Optional Redemption Notice and after giving effect to the delivery of such Optional Redemption Notice (such limitation, a “Partial Redemption Limitation”).
(b) In case the Company exercises its Optional Redemption right to redeem all or, as the case may be, any part of the Notes pursuant to Section 16.01, it shall fix a date for Optional Redemption (each, an
“Optional Redemption Date”) and it or, at its written request received by the Trustee not less than five (5) Business Days prior to the date such Optional Redemption Notice is to be sent (or such
shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice of such Optional Redemption (an “Optional
Redemption Notice”) not less than forty-five (45) nor more than sixty (60) Scheduled Trading Days prior to the Optional Redemption Date to each Holder of Notes so to be redeemed (provided, that if the Company elects Physical Settlement for conversions of Called Notes during the related Redemption Period, the Company may not provide less than ten (10) Business Days’ nor more than thirty (30)
Business Days’ notice before the applicable Optional Redemption Date); provided, however, that, if the Company shall give such notice, it shall also give
written notice of the Optional Redemption Date to the Trustee, the Conversion Agent (if other than the Trustee) and the Paying Agent (if other than the Trustee). The Optional Redemption Date must be a Business Day, and the Company may not
specify an Optional Redemption Date that falls on or after the 41st Scheduled Trading Day immediately preceding the Maturity Date.
(c) The Optional Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure
to give such Optional Redemption Notice by mail or any defect in the Optional Redemption Notice to the Holder of any Note designated for Optional Redemption as a whole or in part shall not affect the validity of the proceedings for the
Optional Redemption of any other Note.
(d) Each Optional Redemption Notice shall specify:
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(i) the Optional Redemption Date;
(ii) the Redemption Price;
(iii) that on the Optional Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to accrue on and after the
Optional Redemption Date;
(iv) the name and address of the Paying Agent and Conversion Agent;
(v) the place or places where such Notes are to be surrendered for payment of the Redemption Price;
(vi) the procedures a converting Holder must follow to convert its Notes and the Settlement Method and Specified Dollar Amount, if applicable;
(vii) the Conversion Rate and, if applicable, the number of Additional Class A Ordinary Shares added to the Conversion Rate in accordance with Section 14.04;
(viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(ix) in case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Optional Redemption Date, upon surrender of such Note, a new Note in
principal amount equal to the unredeemed portion thereof shall be issued.
An Optional Redemption Notice shall be irrevocable.
Simultaneously with providing the Optional Redemption Notice, the Company shall publish a notice containing the information included in the Optional Redemption Notice on the Company’s website or through such other public medium as the
Company may use. The Trustee shall have no obligation to make any determination in connection with the foregoing.
If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are Global Notes, the Notes to be redeemed shall be selected by the Depositary in accordance with the Applicable Procedures. If fewer than all of
the outstanding Notes are to be redeemed and the Notes to be redeemed are not Global Notes, the Trustee will select the Notes to be redeemed (in principal amounts of $1,000 or multiples there) by lot, on a pro rata basis (subject to rounding
to the nearest $1,000 principal amount) or by other method the Trustee considers to be fair and appropriate.
No Notes may be redeemed by Optional Redemption if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting
from a default by the Company in the payment of the Redemption Price).
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Section 16.02 Cleanup Redemption.
(a) Prior to the 41st scheduled Trading Day immediately preceding the Maturity Date, the Company may redeem for cash all but not part of the Notes at the Redemption Price, if less than $25,000,000
aggregate principal amount of Notes remains outstanding at such time (such redemption, a “Cleanup Redemption”).
(b) In case the Company exercises its Cleanup Redemption right to redeem all of the Notes pursuant to Section 16.02(a), it shall fix a date for Cleanup Redemption (each, a “Cleanup Redemption Date”) and it or, at its written request received by the Trustee not less than five (5) Business Days prior to the date such Cleanup Redemption Notice is to be sent (or such shorter period of time as may be
acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice of such Cleanup Redemption (a “Cleanup Redemption Notice”) not
less than 45 nor more than 60 Scheduled Trading Day prior to the Cleanup Redemption Date to each Holder of Notes so to be redeemed (provided, that if the Company elects Physical Settlement for
conversions of Notes called for Cleanup Redemption that occur during the related Redemption Period, the Company may not provide less than ten (10) Business Days’ nor more than thirty (30) Business Days’ notice before the applicable Cleanup
Redemption Date); provided, however, that, if the Company shall give such notice, it shall also give written notice of the Cleanup Redemption Date to the
Trustee, the Conversion Agent (if other than the Trustee) an the Paying Agent (if other than the Trustee). The Cleanup Redemption Date must be a Business Day, and the Company may not specify a Cleanup Redemption Date that falls on or after
the 41st Scheduled Trading Day immediately preceding the Maturity Date.
(c) The Cleanup Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure
to give such Cleanup Redemption Notice by mail or any defect in the Cleanup Redemption Notice to the Holder of any Note designated for Cleanup Redemption as a whole or in part shall not affect the validity of the proceedings for the Cleanup
Redemption of any other Note.
(d) Each Cleanup Redemption Notice shall specify:
(i) the Cleanup Redemption Date;
(ii) the Redemption Price;
(iii) that on the Cleanup Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to accrue on and after the
Cleanup Redemption Date;
(iv) the place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v) the procedures a converting Holder must follow to convert its Notes and the Settlement Method and Specified Dollar Amount, if applicable;
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(vi) the Conversion Rate and, if applicable, the number of Additional Class A Ordinary Shares added to the Conversion Rate in accordance with Section 14.04; and
(vii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes.
A Cleanup Redemption Notice shall be irrevocable.
Simultaneously with providing the Cleanup Redemption Notice, the Company shall publish a notice containing the information included in the Cleanup Redemption Notice on the Company’s website or through such other public medium as the
Company may use.
No Notes may be redeemed by Cleanup Redemption if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting
from a default by the Company in the payment of the Redemption Price).
Section 16.03 Tax Redemption.
(a) If the Company has, or on the next Interest Payment Date would, become obligated to pay to any Holder Additional Amounts as a result of:
(i) any change or amendment on or after the date of the Offering Memorandum (or, in the case of a jurisdiction that becomes a Relevant Taxing Jurisdiction after the date of the Offering
Memorandum, on or after such later date) in the laws or any rules or regulations of a Relevant Taxing Jurisdiction; or
(ii) any change on or after the date of the Offering Memorandum (or, in the case of a jurisdiction that becomes a Relevant Taxing Jurisdiction after the date of the Offering Memorandum, on or after such later date) in an
interpretation, administration or application of such laws, rules or regulations by any legislative body, court, governmental agency, taxing authority or regulatory or administrative authority of such Relevant Taxing Jurisdiction (including
the enactment of any legislation and the announcement or publication of any judicial decision or regulatory or administrative interpretation or determination);
(each, a “Change in Tax Law”), the Company may, at its option, redeem all but not part of the Notes (except in respect of certain Holders that elect otherwise as described below) on a Tax Redemption
Date before the 41st Scheduled Trading Day immediately preceding the Maturity Date; provided that the Company may only
redeem the Notes if: (i) the Company cannot avoid such obligations by taking commercially reasonable measures available to the Company (provided that changing the jurisdiction of incorporation of the
Company shall be deemed not to be a commercially reasonable measure); and (ii) the Company delivers to the Trustee an opinion of outside legal counsel of recognized standing in the Relevant Taxing Jurisdiction and an Officer’s Certificate
attesting to such Change in Tax Law and obligation to pay Additional Amounts (such redemption, a “Tax Redemption”).
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(b) The Redemption Price for a Tax Redemption shall be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date,
including any Additional Amounts with respect to such Redemption Price; provided, however, that if the Redemption Date occurs after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, then (i) the Company shall pay on or, at the Company’s election, before the Interest Payment Date the full amount of accrued and unpaid interest, if any, due on such Interest Payment Date to the record Holder of the Notes on the
Regular Record Date corresponding to such Interest Payment Date, and (ii) the Redemption Price payable to the Holder who presents a Note for the Tax Redemption shall be equal to 100% of the principal amount of such Note, including, for the
avoidance of doubt, any Additional Amounts with respect to such Redemption Price, but without the accrued and unpaid interest on such Note to, but excluding, the Redemption Date. The Redemption Date must be a Business Day.
(c) Upon receiving the Tax Redemption Notice, each Holder shall have the right to elect to not have its Notes redeemed, in which case the Company shall not be obligated to pay any Additional Amounts on
any payment with respect to such Notes solely as a result of such Change in Tax Law that resulted in the obligation to pay such Additional Amounts (whether upon conversion, required repurchase in connection with a Fundamental Change, required
repurchase on the Specified Repurchase Date, redemption, maturity or otherwise, and whether in cash, Class A Ordinary Shares, or a combination thereof, Reference Property or otherwise) after the Tax Redemption Date (or, if the Company fails
to pay the Redemption Price on the Tax Redemption Date, the date on which the Redemption Price has been paid or duly provided for), and all future payments with respect to such Notes shall be subject to the deduction or withholding of such
Relevant Taxing Jurisdiction and taxes required by law to be deducted or withheld as a result of such Change in Tax Law; provided that, notwithstanding the foregoing, if a Holder electing not to have
its Notes redeemed converts its Notes in connection with a Tax Redemption pursuant to Section 14.04, the Company shall be obligated to pay Additional Amounts, if any, with respect to such conversion.
(d) Subject to the Applicable Procedures of the Depositary in the case of Global Notes, a Holder electing to not have its Notes so redeemed must deliver to the Company, with a copy to the Paying Agent
a written notice of election so as to be received by the Company and the Paying Agent or otherwise by complying with the requirements for conversion described under Section 14.02 prior to the close of business on the second Business Day
immediately preceding the Tax Redemption Date. A Holder may withdraw any such notice of election (other than such a deemed notice of election in connection with a conversion) by delivering to the Company and the Paying Agent a written notice
of withdrawal prior to the close of business on the business day immediately preceding the Tax Redemption Date (or, if the Company fails to pay the Redemption Price and any Additional Amounts with respect to such Redemption Price on the Tax
Redemption Date, such later date on which the Company pays the Redemption Price and any Additional Amounts with respect to such Redemption Price). If no election is made, the Holder will have its Notes redeemed without any further action.
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(e) In case the Company exercises its Tax Redemption right to redeem all of the Notes pursuant to Section 16.03(a), it shall fix a date for Tax Redemption (each, a “Tax
Redemption Date”) and it or, at its written request received by the Trustee not less than five (5) Business Days prior to the date such Tax Redemption Notice is to be sent (or such shorter period of time as may be acceptable to the
Trustee), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice of such Tax Redemption (a “Tax Redemption Notice”) not less than 45 nor more than
60 Scheduled Trading Day prior to the Tax Redemption Date to each Holder of Notes so to be redeemed as a whole or in part (provided, that if the Company elects Physical Settlement for conversions of
Notes called for Tax Redemption that occur during the related Redemption Period, the Company may not provide less than ten (10) Business Days’ nor more than thirty (30) Business Days’ notice before the applicable Tax Redemption Date); provided, however, that, if the Company shall give such notice, it shall also give written notice of the Tax Redemption Date to the Trustee, the Conversion Agent
(if other than the Trustee) an the Paying Agent (if other than the Trustee). The Tax Redemption Date must be a Business Day, and the Company may not specify a Tax Redemption Date that falls on or after the 41st Scheduled Trading Day
immediately preceding the Maturity Date.
(f) The Tax Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to
give such Tax Redemption Notice by mail or any defect in the Tax Redemption Notice to the Holder of any Note designated for Tax Redemption as a whole or in part shall not affect the validity of the proceedings for the Tax Redemption of any
other Note.
(g) Each Tax Redemption Notice shall specify:
(i) the Tax Redemption Date;
(ii) the Redemption Price and any Additional Amounts with respect to such Redemption Price;
(iii) that on the Tax Redemption Date, the Redemption Price and any Additional Amounts with respect to such Redemption Price will become due and payable upon each Note to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after the Tax Redemption Date;
(iv) the place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v) the procedures a converting Holder must follow to convert its Notes and the Settlement Method that will apply to all conversions with a Conversion Date that occurs during the related Redemption
Period and Specified Dollar Amount, if applicable;
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(vi) the Conversion Rate and, if applicable, the number of Additional Class A Ordinary Shares added to the Conversion Rate in accordance with Section 14.04;
(vii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(viii) that such Holder may elect that its Notes not be subject to such Tax Redemption, subject to the Applicable Procedures of the Depositary, in accordance with Section 16.03(d), by written notice to
the Company and the Trustee no later than the 5th Business Day prior to the Tax Redemption Date.
A Tax Redemption Notice shall be irrevocable.
Simultaneously with providing the Tax Redemption Notice, the Company shall publish a notice containing the information included in the Tax Redemption Notice on the Company’s website or through such other public medium as the Company may
use.
No Notes may be redeemed by Tax Redemption if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting from a
default by the Company in the payment of the Redemption Price).
Section 16.04 Payment of Notes Called for Redemption.
(a) If any Redemption Notice has been given in respect of the Notes in accordance with Section 16.01, Section 16.02 or Section 16.03, the Notes shall become due and payable on the Redemption Date at
the place or places stated in the Redemption Notice and at the applicable Redemption Price (and any Additional Amounts with respect to such Redemption Price, in the case of a Tax Redemption). On presentation and surrender of the Notes at the
place or places stated in the Redemption Notice, the Notes shall be paid and redeemed by the Company at the applicable Redemption Price.
(b) Prior to the open of business on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 7.05 an amount of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price (and any Additional Amounts with respect to such Redemption Price, in
the case of a Tax Redemption) of all of the Notes to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption Date for such Notes. The Paying
Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption Price (and any Additional Amounts with respect to such Redemption Price, in the case of a Tax
Redemption).
Section 16.05 Restrictions on Redemption. The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the terms of this Indenture,
and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Redemption Price with respect to such Notes).
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ARTICLE 17 Miscellaneous Provisions
Section 17.01 Governing Law; Jurisdiction. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter
arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and
to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with
respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in
connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Service of any process, summons, notice or document by registered mail addressed to the Company’s agent, Cogency Global Inc., at the address 122 E. 42nd Street, 18th
Floor, New York, New York 10168, shall be effective service of process against the Company for any suit, action or proceeding brought in any such court.
Section 17.02 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 17.03 Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company
shall be deemed to have been sufficiently given or made, for all purposes if given or served by overnight courier or by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another
address is filed by the Company with the Trustee) to Bitdeer Technologies Group, 08 Kallang Avenue, Aperia tower 1, #09- 03/04 Singapore 339509, Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office or
sent electronically in PDF format to an email address specified by the Trustee.
The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if
so mailed within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the Applicable Procedures of the Depositary and shall be sufficiently given to it
if so delivered within the time prescribed. Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any Redemption Notice or Fundamental Change Company
Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by
electronic mail in accordance with the Depositary’s Applicable Procedures.
Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed or delivered, as the case may be, in the manner
provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 17.04 Provisions Binding on Company’s Successors; Official Acts by Successor Entity. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture
shall bind its successors and assigns whether so expressed or not. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done
and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.
Section 17.05 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officer’s Certificate stating that such action is permitted by the terms of this Indenture.
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Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than the Officer’s Certificates provided
for in Section 4.08, Section 7.02(h) and Section 8.04) shall include (a) a statement that the person signing such certificate is familiar with the requested action and this Indenture; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable him or her to
express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture and that all conditions
precedent to such action have been complied with; provided that no Opinion of Counsel shall be required to be delivered in connection with (1) the original issuance of Notes on the date hereof under this Indenture, or (2) a request by the
Company that the Trustee deliver a notice to Holders under this Indenture where the Trustee receives an Officer’s Certificate with respect to such notice. With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s
Certificate or certificates of public officials.
Notwithstanding anything to the contrary in this Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in connection with any action
to be taken by the Trustee or the Company hereunder, the Trustee shall be entitled to such Opinion of Counsel.
Section 17.06 Legal Holidays. In any case where any Interest Payment Date, any Redemption Date, any Fundamental Change Repurchase Date, the Specified Repurchase Date or the Maturity Date is not a
Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue in respect of
the delay.
Section 17.07 No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.08 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders (or, with respect to the second and third
paragraphs of Section 2.05(d), beneficial owners of the Notes), the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 17.09 Table of Contents, Headings, Etc. The table of contents and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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Section 17.10 Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the
authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04 as
fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.
Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, consolidation or conversion to which any
authenticating agent shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if
such successor corporation or other entity is otherwise eligible under this Section 17.10, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.
Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination
to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section 7.10, the Trustee may
appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.
The Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it determines such agent’s fees to be unreasonable.
The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section
17.10 shall be applicable to any authenticating agent.
If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:
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as Authenticating Agent, certifies that this is one of the Notes described in the within- named Indenture.
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By:
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Authorized Officer
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Section 17.11 Multiple Originals. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the
same instrument. The exchange of copies of this Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used
in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or such other electronic means shall be deemed to be their original signatures for all purposes. All notices, approvals,
consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by
DocuSign (or such other digital signature provider as specified in writing to Trustee by the authorized representative), in English). The Company agrees to assume all risks arising out of the use of using digital signatures and electronic
methods to submit communications to Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 17.12 Severability. In case any one or more of the provisions contained in this Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Notes, but this Indenture and such Notes shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 17.13 Calculations. Except as otherwise provided herein, the Company shall be responsible for making all calculations called for under this Indenture and the Notes and the Trustee, acting
in any capacity under this Indenture, shall have no liability or responsibility for any such calculations or information underlying such calculations. These calculations include, but are not limited to, determinations of the Share Price, Last
Reported Sale Prices of the Class A Ordinary Shares, the trading price of the Notes (for purposes of determining whether the Notes are convertible as set forth in this Indenture), the Daily VWAPs, the Daily Conversion Values, the Daily
Settlement Amounts, accrued interest payable on the Notes, any Additional Interest payable on the Notes and the Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the
Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee, the Paying Agent (if other than the Trustee) and the Conversion Agent (if other than the
Trustee), and each of the Trustee, the Paying Agent and Conversion Agent has no duty to verify such calculations and is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The
Trustee shall forward the Company’s calculations to any registered Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.
Section 17.14 Acknowledgement of Senior Notes. By accepting any Note, each Holder acknowledges to the Company and the “Investors” (as defined below) that the
senior secured notes (Series A1-A30), each with the principal amount of $500,000 issued pursuant to that certain Senior Secured Note Purchase Agreement, dated April 15, 2024, by and among various investors (the “Investors”) from time to time party thereto, the Company, Norwegian AI Technology AS, as security provider, and Nordic Trustee AS, as collateral agent, constitute bona fide indebtedness of the Company. Such acknowledgment is
part of the consideration for the issuance of the Notes.
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Section 17.15 Delivery of Notices. Any notice or communication delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address
as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the
Applicable Procedures of the Depositary and shall be sufficiently given to it if so delivered within the time prescribed.
Failure to send a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is sent in the manner provided above, it is
duly given, whether or not the addressee receives it.
Section 17.16 USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Remainder of page intentionally left blank]
112
In Witness Whereof, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
|
Bitdeer Technologies Group
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|||
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By:
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/s/Jihan Wu
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||
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Name:
|
Jihan Wu
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Title:
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Chief Executive Officer
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U.S. BANK TRUST COMPANY, NATIONAL
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||
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ASSOCIATION, as Trustee
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||
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By: /s/ Bradley E. Scarbrough
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Name: Bradley E. Scarbrough
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Title: Vice President
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[Signature Page to Indenture]
113
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
[INCLUDE THE FOLLOWING LEGEND IF A RESTRICTED SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES
SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF BITDEER TECHNOLOGIES GROUP (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN,
EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
A-1
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
A-2
BITDEER TECHNOLOGIES GROUP
5.25% Convertible Senior Note due 2029
|
No. [________]
|
[Initially]1 $[_________]
|
CUSIP No. [_________]
Bitdeer Technologies Group, a company incorporated under the laws of the Cayman Islands (the “Company,” which term includes any successor corporation or other entity under
the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.]2 []3, or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto]4
[of $[]]5, which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed
$400,000,000, in aggregate at any time, in accordance with the rules and the Applicable Procedures of the Depositary, on December 1, 2029, and interest thereon as set forth below.
This Note shall bear interest at the rate of 5.25% per year from November 26, 2024 or from the most recent date to which interest had been paid or duly provided for to, but excluding, the next scheduled Interest
Payment Date until December 1, 2029. Interest is payable semi- annually in arrears on June 1 and December 1, commencing on June 1, 2025, to Holders of record at the close of business on the preceding May 15 or November 15 (whether or not such
day is a Business Day), respectively. Additional Interest will be payable as set forth in Section 4.06(d) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed
to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of such Section 4.06(d) and Section 6.03, and any express mention of the payment of Additional Interest in any provision
therein shall not be construed as excluding Additional Interest in those provisions thereof where such express mention is not made.
Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to, but excluding,
the date on which such Defaulted Amounts shall have been paid by the Company in accordance with Section 2.03(c) of the within-mentioned Indenture.
The Company shall pay, or cause the Paying Agent to pay, the principal of and interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee,
as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency
designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and the Corporate Trust Office, as a place where Notes may be presented for payment or
for registration of transfer and exchange.
1Include if a global note.
2Include if a global note.
3Include if a physical note.
4Include if a global note.
5Include if a physical note.
A-3
Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right to convert this Note into cash, Class A Ordinary Shares or a
combination of cash and Class A Ordinary Shares, as applicable, on the terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this
place.
This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State
of New York (without regard to the conflicts of laws provisions thereof).
In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
A-4
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
|
BITDEER TECHNOLOGIES GROUP
|
||
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By:
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||
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Name:
|
||
|
|
Title:
|
|
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described in the within-named Indenture.
|
By:
|
||
|
|
Authorized Signatory
|
A-5
[FORM OF REVERSE OF NOTE]
BITDEER TECHNOLOGIES GROUP
5.25% Convertible Senior Note due 2029
This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.25% Convertible Senior Notes due 2029 (the “Notes”), limited to the aggregate principal amount of
$400,000,000, all issued or to be issued under and pursuant to an Indenture dated as of November 26, 2024 (the “Indenture”), by and between the Company and U.S. Bank Trust Company, National Association
(the “Trustee”) to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined
in this Note shall have the respective meanings set forth in the Indenture.
In case certain Events of Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then
outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.
Subject to the terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date (if applicable), the Specified
Repurchase Date Repurchase Price on the Specified Repurchase Date (if applicable)the Redemption Price on any Redemption Date (if applicable) and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a
Note to a Paying Agent to collect such payments in respect of the Note. The Company shall pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.
Subject to the terms and conditions of the Indenture, Additional Amounts will be paid in connection with any payments made and deliveries caused to be made by the Company or any successor to the Company under or with respect to the
Indenture and the Notes, including, but not limited to, payments of principal (including, if applicable the Redemption Price, the Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price), payments of interest
and the payment of cash and/or deliveries of Class A Ordinary Shares (together with payments for any fractional Class A Ordinary Shares) upon conversion of the Notes to ensure that the net amount received by the Holder after any applicable
withholding or deduction (and after deducting any taxes on the Additional Amounts) will equal the amount that would have been received by such Holder had no such withholding or deduction been required.
The Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described therein.
A-6
It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default
or Event of Default under the Indenture and its consequences.
Each Holder shall have the right to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Specified Repurchase Date Repurchase Price, if
applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money and/or Class A Ordinary Shares, as the case
may be, herein prescribed.
The Notes are issuable in registered form without coupons in minimum denominations of
$1,000 principal amount and integral multiples thereof. At the office or agency of the Company designated by the Company for such purpose under the Indenture, and in the manner and subject to the limitations provided in the Indenture,
Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer
or similar tax that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.
The Company may not redeem the Notes prior to the Maturity Date, except in the event of a Redemption as described in Article 16 of the Indenture. No sinking fund is provided for the Notes.
On the Specified Repurchase Date and upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in
principal amounts of $1,000 or integral multiples thereof) on the Specified Repurchase Date or the Fundamental Change Repurchase Date, as applicable, at a price equal to the Fundamental Change Repurchase Price or the Specified Repurchase Date
Repurchase Price, as applicable.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the Indenture, prior to the close of business on the second
Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash, Class A Ordinary Shares or a combination of cash and Class A Ordinary Shares, as
applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.
A-7
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act CUST = Note Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list.
A-8
SCHEDULE A6
SCHEDULE OF EXCHANGES OF NOTES
BITDEER TECHNOLOGIES GROUP
5.25% Convertible Senior Notes due 2029
The initial principal amount of this Global Note is_________DOLLARS ($[________]).
The following increases or decreases in this Global Note have been made:
|
Date of
exchange
|
Amount of
decrease in
principal
amount of this
Global Note
|
Amount of
increase in
principal
amount of this
Global Note
|
Principal
amount of this
Global Note
following
such decrease
or increase
|
Signature of
authorized
signatory of
Trustee or
Note
Custodian
|
6Include if a global note.
A-9
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
| To: |
Bitdeer Technologies Group
|
08 Kallang Avenue
Aperia tower 1, #09-03/04 Singapore 339509
Telephone: +65 62828220
U.S. Bank Trust Company, National Association, as Conversion Agent
633 West 5th Street, 24th Floor,
Los Angeles, California 90071
The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 in principal amount or an integral multiple thereof) below designated, into cash, Class A Ordinary Shares
or a combination of cash and Class A Ordinary Shares, as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any Class A Ordinary Shares issuable and deliverable upon such
conversion, together with any cash for any fractional Class A Ordinary Shares, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been
indicated below. If any Class A Ordinary Shares or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes,
if any in accordance with Section 14.02(d) and Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture.
|
Dated:
|
||||
| Signature(s) | ||||
|
Signature Guarantee
|
||||
| Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange | ||||
1
| Commission Rule 17Ad-15 if Class A Ordinary Shares are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder. |
|
|
|
||
|
Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:
|
|
||
|
|
|
||
| (Name) |
|
||
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|
|
||
| (Street Address) |
|
||
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|
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| (City, State and Zip Code) | |||
|
Please print name and address
|
|||
| Principal amount to be converted (if less than all): | |||
|
$_______,000
|
|||
| NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. | |||
| Social Security or Other Taxpayer Identification Number | |||
2
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
| To: |
Bitdeer Technologies Group
|
08 Kallang Avenue
Aperia tower 1, #09-03/04 Singapore 339509
Telephone: +65 62828220
U.S. Bank Trust Company, National Association, as Paying Agent
633 West 5th Street, 24th Floor,
Los Angeles, California 90071
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Bitdeer Technologies Group (the “Company”) as to the occurrence of a Fundamental Change with respect to the
Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with Section 15.01 of the Indenture referred to in this Note (1) the entire principal
amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and
on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to
such terms in the Indenture.
In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
|
Dated:
|
|
|
|
|
|
|
|
|
|
|
|
|
| Signature(s) | |||||
|
Social Security or Other Taxpayer
Identification Number
|
|||||
| Principal amount to be repurchased (if less than all): | |||||
|
$_______,000
|
|||||
| NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. | |||||
1
ATTACHMENT 3
[FORM OF SPECIFIED REPURCHASE DATE REPURCHASE NOTICE]
| To: |
Bitdeer Technologies Group
|
08 Kallang Avenue
Aperia tower 1, #09-03/04 Singapore 339509
Telephone: +65 62828220
U.S. Bank Trust Company, National Association, as Paying Agent
633 West 5th Street, 24th Floor,
Los Angeles, California 90071
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Bitdeer Technologies Group (the “Company”) as to the occurrence of Specified Repurchase Date and specifying
the Specified Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with Section 15.03 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the
portion thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Specified Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding
Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Specified Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
|
Dated:
|
|
|
|
|
|
|
|
|
|
|
|
|
| Signature(s) | |||||
|
Social Security or Other Taxpayer
Identification Number
|
|||||
| Principal amount to be repurchased (if less than all): | |||||
|
$_______,000
|
|||||
| NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. | |||||
1
ATTACHMENT 4
[FORM OF ASSIGNMENT AND TRANSFER]
For value received_________________________hereby sell(s), assign(s) and transfer(s) unto___________________(Please insert social security or Taxpayer Identification Number of assignee) the within Note, and
hereby irrevocably constitutes and appoints __________________attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.
In connection with any transfer of the within Note, the undersigned confirms that such Note is being transferred:
☐ To Bitdeer Technologies Group or a subsidiary thereof; or
☐ Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or
☐ Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
☐ Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended.
| Dated: |
|
|
|
|
||
|
|
||
| Signature(s) |
|
|
|
|
||
| Signature Guarantee | ||
|
|
||
| Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than to and in the name of the registered holder. | ||
1
NOTICE: The signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.