false
0001123360
0001123360
2024-02-23
2024-02-23
0001123360
us-gaap:CommonStockMember
2024-02-23
2024-02-23
0001123360
gpn:Sec4.875SeniorNotesDue2031Member
2024-02-23
2024-02-23
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 23, 2024
Commission file number 001-16111
Global Payments Inc.
(Exact name of registrant as specified in charter)
Georgia |
58-2567903 |
(State or other jurisdiction
of incorporation) |
(I.R.S. Employer
Identification No.) |
3550 Lenox Road, Atlanta, Georgia |
30326 |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number, including
area code: (770) 829-8000
None
(Former name, former address and former fiscal
year, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol |
|
Name of exchange on which registered |
Common stock, no par value |
|
GPN |
|
New York Stock Exchange |
4.875% Senior Notes due 2031 |
|
GPN31A |
|
New York Stock Exchange |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2b under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01. | Entry into a Material Definitive Agreement. |
Indenture and Notes
On February 23, 2024 (the “Closing Date”),
Global Payments Inc. (the “Company”) closed its private offering (the “Convertible Senior Notes Offering”) of
$2.00 billion aggregate principal amount of its 1.50% Convertible Senior Notes due 2031 (the “Notes”), which amount includes
the exercise in full of the $250 million option granted to the initial purchasers of the Notes, to persons reasonably believed to be qualified
institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). The Notes
bear interest at a fixed rate of 1.50% per year, payable semi-annually in arrears on March 1 and September 1 of each year, beginning on
September 1, 2024. The Notes will mature on March 1, 2031, unless earlier repurchased, redeemed, or converted in accordance with their
terms. The Notes are convertible at the option of the holders, under certain circumstances and during certain periods, into cash up to
the aggregate principal amount of the Notes to be converted and cash, shares of the Company’s common stock, no par value per share
(“Common Stock”), or a combination of cash and shares of Common Stock, at the Company’s election, in respect of the
remainder, if any, of the Company’s conversion obligation in excess of the aggregate principal amount of the Notes being converted.
The net proceeds from the Convertible Senior Notes
Offering were approximately $1.96 billion, after deducting estimated initial purchasers’ discounts and estimated offering expenses
payable by the Company. The Company used a portion of the net proceeds from the Convertible Senior Notes Offering to repurchase 1,414,759
shares of the Company’s Common Stock from purchasers of Notes in the offering in privately negotiated transactions effected with
or through one of the initial purchasers of the Notes or its affiliate. The purchase price per share of the Common Stock repurchased in
such transactions equaled the closing sale price of the Common Stock on February 20, 2024, which was $130.80 per share. The Company also
used a portion of the net proceeds from the Convertible Senior Notes Offering to pay the cost of the capped call transactions (described
below). The Company intends to use the remainder of the net proceeds to repay borrowings and any accrued and unpaid interest under its
commercial paper program and also to repay borrowings and any accrued and unpaid interest under the Company’s Revolving Credit Agreement
(as defined below), and any prepayment premium, penalty or other amount, if any, due in connection with any such repayment, and for general
corporate purposes, including the repayment of other debt.
The Company issued the Notes pursuant to an indenture
dated as of February 23, 2024 (the “Indenture”) by and between the Company and U.S. Bank Trust Company, National Association,
as trustee.
Prior to the close of business on the business
day immediately preceding December 1, 2030, the Notes are convertible at the option of the holders of the Notes only under certain conditions.
On or after December 1, 2030 until the close of business on the second scheduled trading day immediately preceding the maturity date,
holders may convert all or any portion of their Notes, in principal amounts of $1,000 or integral multiples thereof, at their option at
the conversion rate then in effect, irrespective of these conditions. The conversion rate will initially be 6.3710 shares of Common Stock
per $1,000 principal amount of Notes (equivalent to an initial conversion price of approximately $156.96 per share of Common Stock). The
conversion rate is subject to customary adjustments upon the occurrence of certain events. The Company may not redeem the Notes prior
to March 6, 2028. The Company may redeem for cash all or part of the Notes, at its option, on or after March 6, 2028, under certain circumstances
at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding,
the redemption date (as defined in the Indenture).
If the Company undergoes a fundamental change
(as defined in the Indenture), subject to certain conditions, holders may require the Company to repurchase for cash all or part of their
Notes in principal amounts of $1,000 or an integral multiple thereof. The fundamental change repurchase price will be equal to 100% of
the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, if any, to, but excluding, the fundamental change
repurchase date (as defined in the Indenture). In addition, if a “make-whole fundamental change” (as defined in the Indenture)
occurs or if the Company sends a notice of redemption (as defined in the Indenture), the Company will be required in certain circumstances
to increase the conversion rate for any Notes converted in connection with such make-whole fundamental change or notice of redemption
by a specified number of shares of its Common Stock.
The Indenture provides for customary events of
default, which include (subject in certain cases to grace and cure periods), among others: nonpayment of principal or interest; failure
by the Company to comply with its conversion obligations upon exercise of a holder’s conversion right under the Indenture;
breach of covenants or other agreements in the Indenture; defaults by the Company or any significant subsidiary (as defined in the
Indenture) with respect to other indebtedness in excess of a threshold amount; and the occurrence of certain events of bankruptcy,
insolvency or reorganization with respect to the Company or any significant subsidiary. Generally, if an event of default occurs and is
continuing under the Indenture, either the trustee or the holders of at least 25% in aggregate principal amount of the Notes then outstanding
may declare the principal amount plus accrued and unpaid interest on the Notes to be immediately due and payable.
The Notes are the Company’s senior unsecured
obligations and will rank senior in right of payment to any of the Company’s indebtedness that is expressly subordinated in right
of payment to the Notes; equal in right of payment to any of the Company’s unsecured indebtedness that is not so subordinated; effectively
junior in right of payment to any of the Company’s secured indebtedness to the extent of the value of the assets securing such indebtedness;
and structurally junior to all indebtedness and other liabilities (including trade payables, but excluding intercompany obligations and
liabilities of a type not required to be reflected on a balance sheet of such subsidiaries in accordance with GAAP) of the Company’s
existing and future subsidiaries, including obligations of certain of the Company’s subsidiaries under the Revolving Credit Agreement.
As used herein, “Revolving Credit Agreement” refers to the credit agreement dated as of August 19, 2022 by and among Global
Payments Inc., as borrower, the other borrowers party thereto, Bank of America, N.A. as administrative agent and an L/C issuer and the
other lenders and L/C issuers party thereto, as such credit agreement may be amended, restated, supplemented or otherwise modified through
the date of filing of this Current Report on Form 8-K.
The foregoing description is a summary of terms
of the Indenture and the Notes above is qualified in its entirety by reference to the full text of the Indenture and the Form of Note,
which are filed as Exhibits 4.1 and 4.2, respectively, to this Current report on Form 8-K and are incorporated by reference into this
Item 1.01.
This Current Report on Form 8-K does not constitute an offer to
sell nor the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any state or jurisdiction
in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of
any such state or jurisdiction.
Capped Call Transactions
On February 20, 2024, in connection with the pricing
of the Notes, the Company entered into privately negotiated capped call transactions (the “Base Capped Call Transactions”)
with certain of the initial purchasers or their respective affiliates and certain other financial institutions (the “Option Counterparties”).
In addition, on February 21, 2024, in connection with the initial purchasers’ exercise in full of their option to purchase additional
Notes, the Company entered into additional capped call transactions (the “Additional Capped Call Transactions,” and, together
with the Base Capped Call Transactions, the “Capped Call Transactions”) with each of the Option Counterparties. The Company
used $254.00 million of the net proceeds from the Convertible Senior Notes Offering to pay the cost of the Capped Call Transactions. The
Capped Call Transactions are expected generally to reduce the potential dilution to the Common Stock upon any conversion of the Notes
and/or offset any cash payments the Company is required to make in excess of the principal amount of converted Notes, as the case may
be, with such reduction and/or offset subject to a cap based on the cap price of the Capped Call Transactions. The cap price of the Capped
Call Transactions will initially be $228.90 per share and is subject to certain adjustments under the terms of the Capped Call Transactions.
The Capped Call Transactions are separate transactions entered into by the Company with each of the Option Counterparties, are not part
of the terms of the Notes and will not change the holders’ rights under the Notes. Holders of the Notes will not have any rights
with respect to the Capped Call Transactions. The description of the Capped Call Transactions above is qualified in its entirety by reference
to the full text of the form of the capped call confirmation, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is
incorporated by reference into this Item 1.01.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of a Registrant. |
The information set forth under Item 1.01 under the heading “Indenture
and Notes” is incorporated by reference into this Item 2.03.
| Item 3.02. | Unregistered Sales of Equity Securities. |
The information set forth under Item 1.01 under the heading “Indenture
and Notes” is incorporated by reference into this Item 3.02. The Notes and shares of Common Stock issuable upon the conversion of
the Notes, if any, have not and will not be registered under the Securities Act or the securities laws of any other jurisdiction and may
not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
Forward-Looking
Statements
Some of the statements used in this Current Report
on Form 8-K are not statements of historical or current fact. As such, they are “forward-looking statements” within the meaning
of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, including statements concerning
the capped call transactions and the anticipated use of proceeds from the Convertible Senior Notes Offering. The Company has based these
forward-looking statements on its current plans and expectations, and these statements are subject to known and unknown risks, uncertainties
and assumptions. Actual events or results might differ materially from those expressed or forecasted in these forward-looking statements.
Accordingly, the Company cannot guarantee that its plans and expectations will be achieved. Although it is not possible to create a comprehensive
list of all factors and risks that may cause actual results to differ from the results expressed or implied by these forward-looking statements
or that may affect the Company’s future results, certain risks, including, but not limited to, uncertainties and other factors relating
to the intended use of proceeds from the Convertible Senior Notes Offering, could cause actual results and the timing of events to differ
materially from the anticipated results or other expectations expressed in the forward-looking statements. Although the Company believes
that the plans and expectations reflected in any forward-looking statements are based on reasonable assumptions, the Company can give
no assurance that its plans and expectations will be attained, and therefore actual outcomes and results may differ materially from what
is expressed or forecasted in such forward-looking statements. These forward-looking statements are subject to numerous risks and uncertainties,
including those identified elsewhere in this communication and those included in the “Risk Factors” section in the Company’s
most recent Annual Report on Form 10-K and in other documents that the Company files with the Securities and Exchange Commission, which
are available at https://www.sec.gov.
These cautionary statements qualify all of the
Company’s forward-looking statements, and you are cautioned not to place undue reliance on these forward-looking statements. The
Company’s forward-looking statements speak only as of the date they are made and should not be relied upon as representing the Company’s
plans and expectations as of any subsequent date. While the Company may elect to update or revise forward-looking statements at some time
in the future, it specifically disclaims any obligation to publicly release the results of any revisions to its forward-looking statements,
except as required by law.
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
GLOBAL PAYMENTS INC. |
|
|
|
Date: February 23, 2024 |
By: |
/s/ David L. Green |
|
|
David L. Green |
|
|
Senior Executive Vice President and Chief Administrative & Legal Officer |
Exhibit 4.1
Execution Version
Global
Payments Inc.,
as Issuer
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of February 23, 2024
1.50% Convertible Senior Notes due 2031
TABLE OF CONTENTS
Page
ARTICLE 1 |
Definitions |
|
Section 1.01. Definitions |
1 |
Section 1.02. References to Interest |
13 |
|
ARTICLE 2 |
Issue, Description, Execution, Registration and
Exchange of Notes |
|
Section 2.01. Designation and Amount |
14 |
Section 2.02. Form of Notes |
14 |
Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts |
15 |
Section 2.04. Execution, Authentication and Delivery of Notes |
16 |
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary |
17 |
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes |
24 |
Section 2.07. Temporary Notes |
25 |
Section 2.08. Cancellation of Notes Paid, Converted, Etc. |
25 |
Section 2.09. CUSIP Numbers |
26 |
Section 2.10. Additional Notes; Repurchases |
26 |
|
ARTICLE 3 |
Satisfaction and Discharge |
|
Section 3.01. Satisfaction and Discharge |
26 |
|
ARTICLE 4 |
Particular Covenants of the Company |
|
Section 4.01. Payment of Principal and Interest |
27 |
Section 4.02. Maintenance of Office or Agency |
27 |
Section 4.03. Appointments to Fill Vacancies in Trustee’s Office |
28 |
Section 4.04. Provisions as to Paying Agent |
28 |
Section 4.05. Existence |
29 |
Section 4.06. Rule 144A Information Requirement and Annual Reports |
29 |
Section 4.07. Stay, Extension and Usury Laws |
32 |
Section 4.08. Compliance Certificate; Statements as to Defaults |
32 |
Section 4.09. Further Instruments and Acts |
32 |
ARTICLE 5 |
Lists of Holders and Reports by the Company and
the Trustee |
|
Section 5.01. Lists of Holders |
33 |
Section 5.02. Preservation and Disclosure of Lists |
33 |
|
ARTICLE 6 |
Defaults and Remedies |
|
Section 6.01. Events of Default |
33 |
Section 6.02. Acceleration; Rescission and Annulment |
35 |
Section 6.03. Additional Interest |
36 |
Section 6.04. Payments of Notes on Default; Suit Therefor |
36 |
Section 6.05. Application of Monies Collected by Trustee |
38 |
Section 6.06. Proceedings by Holders |
39 |
Section 6.07. Proceedings by Trustee |
40 |
Section 6.08. Remedies Cumulative and Continuing |
40 |
Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders |
40 |
Section 6.10. Notice of Defaults |
41 |
Section 6.11. Undertaking to Pay Costs |
41 |
|
ARTICLE 7 |
Concerning the Trustee |
|
Section 7.01. Duties and Responsibilities of Trustee |
42 |
Section 7.02. Reliance on Documents, Opinions, Etc. |
43 |
Section 7.03. No Responsibility for Recitals, Etc. |
45 |
Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes |
45 |
Section 7.05. Monies and Shares of Common Stock to Be Held in Trust |
46 |
Section 7.06. Compensation and Expenses of Trustee |
46 |
Section 7.07. Officer’s Certificate as Evidence |
47 |
Section 7.08. Eligibility of Trustee |
47 |
Section 7.09. Resignation or Removal of Trustee |
47 |
Section 7.10. Acceptance by Successor Trustee |
48 |
Section 7.11. Succession by Merger, Etc. |
49 |
Section 7.12. Trustee’s Application for Instructions from the Company |
49 |
|
ARTICLE 8 |
Concerning the Holders |
|
Section 8.01. Action by Holders |
50 |
Section 8.02. Proof of Execution by Holders |
50 |
Section 8.03. Who Are Deemed Absolute Owners |
50 |
Section 8.04. Company-Owned Notes Disregarded |
51 |
Section 8.05. Revocation of Consents; Future Holders Bound |
51 |
ARTICLE 9 |
Holders’ Meetings |
|
Section 9.01. Purpose of Meetings |
51 |
Section 9.02. Call of Meetings by Trustee |
52 |
Section 9.03. Call of Meetings by Company or Holders |
52 |
Section 9.04. Qualifications for Voting |
52 |
Section 9.05. Regulations |
53 |
Section 9.06. Voting |
53 |
Section 9.07. No Delay of Rights by Meeting |
54 |
|
ARTICLE 10 |
Supplemental Indentures |
|
Section 10.01. Supplemental Indentures Without Consent of Holders |
54 |
Section 10.02. Supplemental Indentures with Consent of Holders |
55 |
Section 10.03. Effect of Supplemental Indentures |
56 |
Section 10.04. Notation on Notes |
56 |
Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee |
57 |
|
ARTICLE 11 |
Consolidation, Merger, Sale, Conveyance and Lease
of the Company |
|
Section 11.01. Company May Consolidate, Etc. on Certain Terms |
57 |
Section 11.02. Successor Company to Be Substituted |
58 |
Section 11.03. Officer’s Certificate and Opinion of Counsel to Be Given to Trustee |
58 |
|
ARTICLE 12 |
Immunity of Incorporators, Stockholders, Officers
and Directors |
|
Section 12.01. Indenture and Notes Solely Corporate Obligations |
58 |
|
ARTICLE 13 |
[Intentionally Omitted] |
|
ARTICLE 14 |
Conversion of Notes |
|
Section 14.01. Conversion Privilege |
59 |
Section 14.02. Conversion Procedure; Settlement Upon Conversion |
63 |
Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
or a Notice of Redemption |
66 |
Section 14.04. Adjustment of Conversion Rate |
69 |
Section 14.05. Adjustments of Prices |
78 |
Section 14.06. Shares to Be Fully Paid |
78 |
Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock |
79 |
Section 14.08. Certain Covenants |
81 |
Section 14.09. Responsibility of Trustee |
82 |
Section 14.10. Notice to Holders Prior to Certain Actions |
82 |
Section 14.11. Stockholder Rights Plans |
83 |
Section 14.12. Exchange in Lieu of Conversion |
83 |
ARTICLE 15 |
Repurchase of Notes at Option of Holders |
|
Section 15.01. [Intentionally Omitted] |
84 |
Section 15.02. Repurchase at Option of Holders Upon a Fundamental Change |
84 |
Section 15.03. Withdrawal of Fundamental Change Repurchase Notice |
87 |
Section 15.04. Deposit of Fundamental Change Repurchase Price |
88 |
Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes |
88 |
|
ARTICLE 16 |
Optional Redemption |
|
Section 16.01. Optional Redemption |
89 |
Section 16.02. Notice of Optional Redemption; Selection of Notes |
89 |
Section 16.03. Payment of Notes Called for Redemption |
90 |
Section 16.04. Restrictions on Redemption |
91 |
|
ARTICLE 17 |
Miscellaneous Provisions |
|
Section 17.01. Provisions Binding on Company’s Successors |
91 |
Section 17.02. Official Acts by Successor |
91 |
Section 17.03. Addresses for Notices, Etc. |
91 |
Section 17.04. Governing Law; Jurisdiction |
92 |
Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee |
93 |
Section 17.06. Legal Holidays |
93 |
Section 17.07. No Security Interest Created |
94 |
Section 17.08. Benefits of Indenture |
94 |
Section 17.09. Table of Contents, Headings, Etc. |
94 |
Section 17.10. Authenticating Agent |
94 |
Section 17.11. Execution in Counterparts; Electronic Signatures |
95 |
Section 17.12. Severability |
95 |
Section 17.13. Waiver of Jury Trial |
96 |
Section 17.14. Force Majeure |
96 |
Section 17.15. Calculations |
96 |
Section 17.16. USA PATRIOT Act |
96 |
Section 17.17. Tax Withholding |
97 |
Section 17.18. Service of Process |
97 |
EXHIBIT
Exhibit A |
Form of Note |
A-1 |
INDENTURE dated as of February 23, 2024 between
Global Payments Inc., a Georgia corporation, as issuer (the “Company,”
as more fully set forth in Section 1.01), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, as trustee (the “Trustee,” as more fully set forth in Section 1.01).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the issuance of its 1.50% Convertible Senior Notes due 2031 (the “Notes”), initially in
an aggregate principal amount not to exceed $2,000,000,000, and in order to provide the terms and conditions upon which the Notes are
to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, the Form of Note, the certificate
of authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice
and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and
WHEREAS, all acts and things necessary to make
the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in
this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its
terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects
been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
Article 1
Definitions
Section 1.01. Definitions. The terms
defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The
words “herein,” “hereof,” “hereunder” and words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The word “will” shall be construed to have the same
meaning and effect as the word “shall.” The terms defined in this Article include the plural as well as the singular.
“1%
Exception” shall have the meaning specified in Section 14.04(i).
“Additional Interest” means
all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03, as applicable.
“Additional Shares” shall have
the meaning specified in Section 14.03(a).
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the
power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing. Notwithstanding anything to the contrary herein, the determination of whether one Person is an “Affiliate”
of another Person for purposes of this Indenture shall be made based on the facts at the time such determination is made or required to
be made, as the case may be, hereunder.
“Bid Solicitation Agent” means
the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i).
The Company shall initially act as the Bid Solicitation Agent.
“Board of Directors” means the
board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors,
and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means, with respect
to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required
by law or executive order to close or be closed.
“Capital Stock” means, for any
entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however
designated) stock issued by that entity.
“Cash Percentage” shall have
the meaning specified in Section 14.02(a)(i).
“Clause A Distribution” shall
have the meaning specified in Section 14.04(c).
“Clause B Distribution” shall
have the meaning specified in Section 14.04(c).
“Clause C Distribution” shall
have the meaning specified in Section 14.04(c).
“close of business” means 5:00
p.m. (New York City time).
“Commission” means the U.S.
Securities and Exchange Commission.
“Common Equity” of any Person
means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if
such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others
that will control the management or policies of such Person.
“Common Stock” means the common
stock of the Company, no par value per share, at the date of this Indenture, subject to Section 14.07.
“Company” shall have the meaning
specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and
assigns.
“Company Order” means a written
order of the Company signed by at least one Officer of the Company and delivered to the Trustee.
“Conversion Agent” shall have
the meaning specified in Section 4.02.
“Conversion Consideration” shall
have the meaning specified in Section 14.12(a).
“Conversion Date” shall have
the meaning specified in Section 14.02(c).
“Conversion Obligation” shall
have the meaning specified in Section 14.01(a).
“Conversion Price” means as
of any time, $1,000, divided by the Conversion Rate as of such time.
“Conversion Rate” shall have
the meaning specified in Section 14.01(a).
“Corporate Trust Office” means
the designated office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date
hereof is located at U.S. Bank Trust Company, National Association, 2 Concourse Parkway, Suite 800, Atlanta, Georgia 30328-5588,
Attention: Administrator – Global Corporate Trust, Global Payments Inc., or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the designated corporate trust office of any successor trustee (or such other
address as such successor trustee may designate from time to time by notice to the Holders and the Company).
“Custodian” means the Trustee,
as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.
“Daily Conversion Value” means,
for each of the 40 consecutive Trading Days during the Observation Period, 2.5% of the product of (a) the Conversion Rate on such
Trading Day and (b) the Daily VWAP for such Trading Day.
“Daily Net Settlement Amount”
means, for each of the 40 consecutive Trading Days during the relevant Observation Period:
(a) if
the Company does not validly elect a Cash Percentage or the Company validly elects (or is deemed to have elected) a Cash Percentage of
0% as set forth herein, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value for such
Trading Day and $25, divided by (ii) the Daily VWAP for such Trading Day;
(b) if
the Company validly elects a Cash Percentage of 100% as set forth herein, cash in an amount equal to the difference between the Daily
Conversion Value for such Trading Day and $25; or
(c) if
the Company validly elects a Cash Percentage of less than 100% but greater than 0% as set forth herein, (i) cash in an amount equal
to the product of (x) the difference between the Daily Conversion Value for such Trading Day and $25 and (y) the Cash Percentage,
plus (ii) a number of shares of the Common Stock equal to the product of (x) (A) the difference between the Daily
Conversion Value for such Trading Day and $25, divided by (B) the Daily VWAP for such Trading Day and (y) 100% minus
the Cash Percentage.
“Daily Settlement Amount,” for
each of the 40 consecutive Trading Days during the relevant Observation Period, shall consist of:
(a) cash
in an amount equal to the lesser of (i) $25 and (ii) the Daily Conversion Value for such Trading Day; and
(b) if
the Daily Conversion Value for such Trading Day exceeds $25, the Daily Net Settlement Amount for such Trading Day.
“Daily VWAP” means, for each
of the 40 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as displayed under
the heading “Bloomberg VWAP” on Bloomberg page “GPN <equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary
trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common
Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking
firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard to after-hours
trading or any other trading outside of the regular trading session trading hours.
“Default” means any event that
is, or after notice or passage of time, or both, would be, an Event of Default.
“Defaulted Amounts” means any
amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change Repurchase Price, principal and interest)
that are payable but are not punctually paid or duly provided for.
“Depositary” means, with respect
to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes, until a successor
shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.
“Designated Financial Institution”
shall have the meaning specified in Section 14.12(a).
“Distributed Property” shall
have the meaning specified in Section 14.04(c).
“Effective Date” shall have
the meaning specified in Section 14.03(c), except that, as used in Section 14.04 and Section 14.05, “Effective
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market,
regular way, reflecting the relevant share split or share combination, as applicable (it being understood and agreed, for the avoidance
of doubt, that any alternative trading convention on such exchange or such market in respect of shares of the Common Stock under a separate
ticker symbol or CUSIP number will not be considered “regular way” for this purpose).
“Event of Default” shall have
the meaning specified in Section 6.01.
“Ex-Dividend Date” means the
first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the
right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock
on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Election” shall have
the meaning specified in Section 14.12(a).
“Form of Assignment and Transfer”
means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.
“Form of Fundamental Change Repurchase
Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of
Note attached hereto as Exhibit A.
“Form of Note” means the
“Form of Note” attached hereto as Exhibit A.
“Form of Notice of Conversion”
means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
“Fundamental Change” shall be
deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a) except
in the case of a transaction described in clause (b) below, a “person” or “group” within the meaning of Section 13(d) of
the Exchange Act, other than the Company, its Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned
Subsidiaries, files any schedule, form or report under the Exchange Act that discloses that such “person” or “group”
has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common
Stock representing more than 50% of the voting power of the Common Stock, unless such beneficial ownership (i) arises solely as a
result of a revocable proxy delivered in response to a public proxy or consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act and (ii) is not also then reportable on Schedule 13D or Schedule 13G (or any successor schedule)
under the Exchange Act as a result thereof; provided that no “person” or “group” shall be deemed to be
the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person”
or “group” until such tendered securities are accepted for purchase or exchange under such offer;
(b) the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision
or combination or a change solely in par value) as a result of which the Common Stock would be converted into, or exchanged for, stock,
other securities, other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the
Common Stock will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one
transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken
as a whole, to any Person other than one or more of the Company’s direct or indirect Wholly Owned Subsidiaries; provided, however,
that a transaction described in clause (A) or (B) in which the holders of all classes of the Company’s Common Equity immediately
prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation
or transferee or the parent thereof immediately after such transaction in substantially the same proportions (relative to each other)
as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);
(c) the
stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(d) the
Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The Nasdaq
Global Select Market or The Nasdaq Global Market (or any of their respective successors);
provided, however, that a transaction or transactions
described in clause (a) or clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration
received or to be received by the common stockholders of the Company, excluding cash payments for fractional shares of Common Stock and
cash payments made in respect of dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares
of common stock that are listed or quoted on any of The New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global
Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction
or transactions and as a result of such transaction or transactions the Notes become convertible into such consideration, excluding cash
payments for fractional shares of Common Stock and cash payments made in respect of dissenters’ appraisal rights (subject to the
provisions of Section 14.02(a)). In addition, it shall not constitute a Fundamental Change pursuant to clause (d) if (x) the
Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The Nasdaq
Global Select Market or The Nasdaq Global Market (or any of their respective successors) solely after the close of the regular trading
session on any Scheduled Trading Day and (y) the Common Stock (or other common stock underlying the Notes) is re-listed or re-quoted
on one of The New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors)
prior to open of the regular trading session on the immediately succeeding Scheduled Trading Day. If any transaction in which the Common
Stock is replaced by the common stock or other Common Equity of another entity occurs, following completion of any related Make-Whole
Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change
but for the proviso immediately following clause (d) of this definition, following the effective date of such transaction) references
to the Company in this definition shall instead be references to such other entity.
“Fundamental Change Company Notice”
shall have the meaning specified in Section 15.02(c).
“Fundamental Change Repurchase Date”
shall have the meaning specified in Section 15.02(a).
“Fundamental Change Repurchase Notice”
shall have the meaning specified in Section 15.02(b)(i).
“Fundamental Change Repurchase Price”
shall have the meaning specified in Section 15.02(a).
“Fundamental Change Repurchase Right”
shall have the meaning specified in Section 15.02(a).
“Global Note” shall have the
meaning specified in Section 2.05(b).
“Holder,” as applied to any
Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular
Note is registered on the Note Register.
“Indenture” means this instrument
as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“Initial Dividend Threshold”
shall have the meaning specified in Section 14.04(d).
“Interest Payment Date” means
each March 1 and September 1 of each year, beginning on September 1, 2024.
“Last Reported Sale Price” of
the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in
composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common
Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale
Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported
by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price”
shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three
nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale
Price” shall be determined by the Company without regard to after-hours trading or any other trading outside of regular trading
session hours.
“Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving effect to any exceptions
to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).
“Make-Whole Fundamental Change Period”
means, for any Make-Whole Fundamental Change, the period from, and including, the Effective Date of such Make-Whole Fundamental Change
up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole
Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof,
the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change).
“Market Disruption Event” means,
for the purposes of determining amounts due upon conversion (a) a failure by the primary U.S. national or regional securities exchange
or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the
occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour
period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts
relating to the Common Stock.
“Maturity Date” means March 1,
2031.
“Maximum Conversion Rate” shall
have the meaning specified in Section 14.03(e).
“Measurement Period” shall have
the meaning specified in Section 14.01(b)(i).
“Merger Common Stock” shall
have the meaning specified in Section 14.07(e)(i).
“Merger Event” shall have the
meaning specified in Section 14.07(a).
“Merger Valuation Percentage”
for any Merger Event shall be equal to (x) the arithmetic average of the Last Reported Sale Prices of one share of such Merger Common
Stock over the relevant Merger Valuation Period (determined as if references to “Common Stock” in the definition of “Last
Reported Sale Price” were references to the “Merger Common Stock” for such Merger Event), divided by (y) the
arithmetic average of the Last Reported Sale Prices of one share of Common Stock over the relevant Merger Valuation Period.
“Merger Valuation Period” for
any Merger Event means the five consecutive Trading Day period immediately preceding, but excluding, the effective date for such Merger
Event.
“Note” or “Notes”
shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“Note Register” shall have the
meaning specified in Section 2.05(a).
“Note Registrar” shall have
the meaning specified in Section 2.05(a).
“Notice” shall have the meaning
specified in Section 17.03.
“Notice of Conversion” shall
have the meaning specified in Section 14.02(b).
“Notice of Redemption” shall
have the meaning specified in Section 16.02(a).
“Observation Period” with respect
to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs prior to December 1,
2030, the 40 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion
Date; (ii) if the relevant Conversion Date occurs on or after the date of the Company’s issuance of a Notice of Redemption
with respect to the Notes pursuant to Section 16.02 and prior to the close of business on the Second Scheduled Trading Day prior
to the relevant Redemption Date, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately
preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or after December 1,
2030, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity Date.
“Offering Memorandum” means
the preliminary offering memorandum dated February 20, 2024, as supplemented by the related pricing term sheet dated February 20,
2024, relating to the offering and sale of the Notes.
“Officer” means, with respect
to the Company, the President and Chief Executive Officer, the Chief Financial Officer or the Chief Administrative and Legal Officer.
“Officer’s Certificate,”
means, with respect to the Company or any other obligor upon the Notes, a certificate signed by one Officer of such Person that meets
the requirements of Section 17.05 hereof and delivered to the Trustee. Each such certificate shall include the statements provided
for in Section 17.05 if, and to the extent, required by the provisions of such Section 17.05. The Officer executing
an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the
Company.
“open of business” means 9:00
a.m. (New York City time).
“Opinion of Counsel” means an
opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel reasonably acceptable
to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth therein, that is delivered
to the Trustee in a form and substance reasonably acceptable to the Trustee. Each such opinion shall include the statements provided for
in Section 17.05 if and to the extent required by the provisions of such Section 17.05.
“Optional Redemption” shall
have the meaning specified in Section 16.01.
“outstanding,” when used with
reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and
delivered by the Trustee under this Indenture, except:
(a) Notes
theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes,
or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent);
(c) Notes
that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any
such Notes are held by protected purchasers in due course;
(d) Notes
converted pursuant to Article 14 and required to be canceled pursuant to Section 2.08;
(e) Notes
redeemed pursuant to Article 16; and
(f) Notes
repurchased by the Company or any of its Subsidiaries pursuant to the penultimate sentence of Section 2.10.
“Paying Agent” shall have the
meaning specified in Section 4.02.
“Person” means an individual,
a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated
organization or a government or an agency or a political subdivision thereof.
“Physical Notes” means permanent
certificated Notes in registered form issued in denominations of $1,000 in principal amount and integral multiples of $1,000 in excess
thereof.
“Predecessor Note” of any particular
Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.
“Redemption Date” shall have
the meaning specified in Section 16.02(a).
“Redemption Price” means, for
any Notes to be redeemed pursuant to Section 16.01, 100% of the principal amount of such Notes, plus accrued and unpaid interest,
if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately
succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such
Notes as of the close of business on such Regular Record Date, and the Redemption Price will be equal to 100% of the principal amount
of such Notes).
“Reference Property” shall have
the meaning specified in Section 14.07(a).
“Regular Record Date,” with
respect to any Interest Payment Date, means the February 15 or August 15 (whether or not such day is a Business Day) immediately
preceding the applicable March 1 or September 1 Interest Payment Date, respectively.
“Resale Restriction Termination Date”
shall have the meaning specified in Section 2.05(c).
“Responsible Officer” means,
when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively having direct responsibility
for the administration of this Indenture, or to whom any corporate trust matter is referred because of such person’s knowledge of
and familiarity with the particular subject.
“Restricted Securities” shall
have the meaning specified in Section 2.05(c).
“Rule 144” means Rule 144
as promulgated under the Securities Act.
“Rule 144A” means Rule 144A
as promulgated under the Securities Act.
“Scheduled Trading Day” means
a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common
Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day”
means a Business Day.
“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Settlement Amount” has the
meaning specified in Section 14.02(a).
“Settlement Notice” has the
meaning specified in Section 14.02(a)(i).
“Significant Subsidiary” means
a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation
S-X promulgated by the Commission.
“Spin-Off” shall have the meaning
specified in Section 14.04(c).
“Stock Price” shall have the
meaning specified in Section 14.03(c).
“Subsidiary” means, with respect
to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly,
by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of
such Person.
“Successor Company” shall have
the meaning specified in Section 11.01(a).
“Trading Day” means, except
for determining amounts due upon conversion, a day on which (i) trading in the Common Stock (or other security for which a closing
sale price must be determined) generally occurs on The New York Stock Exchange or, if the Common Stock (or such other security) is not
then listed on The New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock
(or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional
securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last
Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market;
provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a
Business Day; and provided, further, that for purposes of determining amounts due upon conversion only, “Trading
Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs
on The New York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange, on the principal other U.S.
national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S.
national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading,
except that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.
“Trading Price” of the Notes
on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5,000,000
in aggregate principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent
nationally recognized securities dealers the Company selects for this purpose; provided that if three such bids cannot reasonably
be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only
one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot
reasonably obtain at least one bid for $5,000,000 in aggregate principal amount of Notes from a nationally recognized securities dealer
on any determination date, then the Trading Price per $1,000 in principal amount of Notes on such determination date shall be deemed to
be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.
“Trading Price Condition” shall
have the meaning specified in Section 14.01(b)(i).
“transfer” shall have the meaning
specified in Section 2.05(c).
“Trigger Event” shall have the
meaning specified in Section 14.04(c).
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean,
to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
“Trustee” means the Person named
as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder.
“unit of Reference Property”
shall have the meaning specified in Section 14.07(a).
“Valuation Period” shall have
the meaning specified in Section 14.04(c).
“Wholly Owned Subsidiary” means,
with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “more
than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%.”
Section 1.02. References to Interest.
Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include
Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.06(d), Section 4.06(e) and
Section 6.03. Unless the context otherwise requires, any express mention of Additional Interest in any provision hereof shall not
be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.
Article 2
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01. Designation and Amount.
The Notes shall be designated as the “1.50% Convertible Senior Notes due 2031.” The aggregate principal amount of Notes that
may be authenticated and delivered under this Indenture is initially limited to $2,000,000,000, subject to Section 2.10 and except
for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly
permitted hereunder.
Section 2.02. Form of Notes. The
Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set
forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part
of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture and a Note, the provisions
of this Indenture shall control and govern to the extent of such conflict.
Any Global Note may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the
Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance
or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes
are subject.
Any of the Notes may have such letters, numbers
or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate
any special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall represent such principal
amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, conversions, transfers or exchanges
permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions
given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note
on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.
Section 2.03. Date and Denomination of
Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without interest coupons
in denominations of $1,000 in principal amount and integral multiples of $1,000 in excess thereof. Each Note shall be dated the date of
its authentication and shall bear interest from the date specified on the face of such Note. Accrued interest on the Notes shall be computed
on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of days actually elapsed
in a 30-day month.
(b) The
Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record
Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The principal
amount of any Note (x) in the case of any Physical Note, shall be payable at the corporate trust office or agency of the Company
maintained by the Company for such purposes in the continental United States, which shall initially be the Corporate Trust Office and
(y) in the case of any Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary
or its nominee. The Company shall pay interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate
principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their addresses as they appear in the Note Register
and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to
such a Holder or, upon written application by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by
wire transfer in immediately available funds to that Holder’s account within the United States if such Holder has provided the Company,
the Trustee or the Paying Agent with the requisite information necessary to make such wire transfer, which application shall remain in
effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
(c) Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at
the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant payment date,
and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes)
are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note
and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the
Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Amounts as in this clause (i) provided. Thereupon the Company shall fix
a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment (unless
the Trustee shall consent to an earlier date). The Company shall promptly notify the Trustee in writing of such special record date and
the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the
special record date therefor to be delivered to each Holder not less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Amounts and the special record date therefor having been so delivered, such Defaulted Amounts shall be paid
to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special
record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).
(ii) The
Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after written notice given by the Company to the Trustee of the proposed payment pursuant
to this clause (ii), such manner of payment shall be deemed practicable by the Trustee.
Section 2.04. Execution, Authentication
and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual or electronic signature of
the President and Chief Executive Officer, the Chief Financial Officer or the Chief Administrative and Legal Officer, in each case, of
the Company.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate
and deliver such Notes, without any further action by the Company hereunder; provided that the Trustee shall receive an Officer’s
Certificate and Opinion of Counsel of the Company with respect to the issuance, authentication and delivery of such Notes.
Only such Notes as shall bear thereon a certificate
of authentication substantially in the form set forth on the Form of Note attached as Exhibit A hereto, executed manually or
electronically by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.10),
shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such
an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of the Company who shall have
signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed
such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at
the actual date of the execution of such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture
any such person was not such an Officer.
Section 2.05. Exchange and Registration
of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office
a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02,
the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted
into written form within a reasonable period of time. The Trustee is hereby initially appointed the “Note Registrar”
for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars
in accordance with Section 4.02.
Upon surrender for registration of transfer of
any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05,
the Company shall execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained
by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and, upon
receipt of a Company Order, the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive,
bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration
of transfer or for exchange, repurchase, redemption or conversion shall (if so required by the Company, the Trustee, the Note Registrar
or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory
to the Note Registrar and/or the Company and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.
No service charge shall be imposed by the Company,
the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but
the Company, the Trustee or the Note Registrar may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar
issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or
registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company, the Trustee, the Note Registrar
or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if
a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or a portion
of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or (iii) any Notes selected for redemption
in accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.
All Notes issued upon any registration of transfer
or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b) So
long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fifth paragraph
from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global
Note”) registered in the name of the Depositary or the nominee of the Depositary. Each Global Note shall bear the legend required
on a Global Note set forth in Exhibit A hereto. The transfer and exchange of beneficial interests in a Global Note that does not
involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance
with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.
(c) Every
Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together
with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d),
collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including
those contained in the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written
consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound
by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d),
the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
Until the date (the “Resale Restriction
Termination Date”) that is the later of (1) the date that is one year after the last date of original issuance of the Notes,
or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any,
as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d),
if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer,
or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities
Act, or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee):
THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES
FOR THE BENEFIT OF Global Payments Inc. (THE “COMPANY”) THAT IT WILL
NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE
YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO
A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS
OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
No transfer of any Note prior to the Resale Restriction
Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been
checked.
Any Note (or security issued in exchange or substitution
therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been
transferred pursuant to a registration statement that has become effective or been declared effective under the Securities Act and that
continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided
by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such Note for exchange to the
Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a restricted
CUSIP number. The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the
conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction,
the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive
legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify
the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if
any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities
Act.
Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except
(i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for
exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.
The Depositary shall be a clearing agency registered
under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Note.
Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary,
and deposited with the Trustee as Custodian for Cede & Co.
If (i) the Depositary notifies the Company
at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not
appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor
depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing
and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall execute,
and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the authentication and delivery of Notes, shall
authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to
the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause
(i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal
amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global
Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in exchange for all or a
part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of
the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee in writing. Upon execution and authentication,
the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.
At such time as all interests in a Global Note
have been converted, canceled, repurchased, redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to
such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased, redeemed or transferred
to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary
and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by
the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.
None of the Company, the Trustee or any agent of
the Company or the Trustee shall have any responsibility or liability to any beneficial owner of a Global Note, a member of, or a participant
in, the Depositary or other Person for any aspect of the records relating to or payments or delivery of any securities or property to
be made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Neither the Trustee nor any agent shall have any
responsibility or liability for any actions taken or not taken by the Depositary. None of the Trustee or any agent shall have any responsibility
or obligation to any beneficial owner of an interest in a Global Note, a member of, or a participant in, the Depositary or other Person
with respect to the accuracy of the records of the Depositary or its nominee or of any participant member thereof, with respect to any
ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other person (other than
the Depositary) of any notice or the payment of any amount or delivery of any Notes (or other security or property) under or with respect
to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes
shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of
a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary and the applicable rules and
procedures of the Depositary. The Trustee and each agent may rely and shall be fully protected in relying upon information furnished by
the Depositary with respect to its members, participants and any beneficial owners.
(d) Until
the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note shall bear a
legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement that has
become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant
to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such
Common Stock has been issued upon conversion of a Note that has been transferred pursuant to a registration statement that has become
or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise
agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES
FOR THE BENEFIT OF Global Payments Inc. (THE “COMPANY”) THAT IT WILL
NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE
YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO
A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Any such Common Stock (i) as to which such
restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer
or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in
force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance
with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate
number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).
(e) Any
Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by the Company or any Affiliate of
the Company (or any Person who was an Affiliate of the Company at any time during the three months immediately preceding) may not be resold
by the Company or such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to
an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the
case may be, no longer being a “restricted security” (as defined under Rule 144). Any Notes resold, in accordance with
this Section 2.05(e), by the Company or
any Affiliate of the Company (or any Person who was an Affiliate of the Company at any time during the three months immediately preceding)
shall have one or more separate CUSIP numbers if any such Notes are not fungible with the Notes initially issued hereunder for U.S. federal
income tax or securities law purposes.
(f) Notwithstanding
anything contained herein to the contrary, neither the Trustee nor the Note Registrar shall be responsible for ascertaining whether any
transfer complies with the registration provisions of, or exemptions from, the Securities Act, applicable state securities laws or other
applicable law or have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants
or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof.
Section 2.06. Mutilated, Destroyed, Lost
or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute,
and upon its receipt of a Company Order, the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver,
a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in
lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, to the Trustee and, if applicable, to such authenticating agent such security and/or indemnity as may be required by them
to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating
agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate
any such substituted Note and deliver the same upon the receipt of a Company Order and of such security and/or indemnity as the Trustee,
the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee,
the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company, the Trustee,
the Note Registrar, any co-Note Registrar or the Paying Agent may require a Holder to pay a sum sufficient to cover any documentary, stamp
or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being
different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has
matured or is about to mature or has been surrendered for required repurchase or redemption or is about to be converted in accordance
with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing
a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except
in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security and/or indemnity as may be required by them to save each of
them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction,
loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of
their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions
of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all
the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all
other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement, payment, redemption, conversion or repurchase of mutilated, destroyed,
lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement, payment, redemption, conversion or repurchase of negotiable instruments or other
securities without their surrender.
Section 2.07. Temporary Notes. Pending
the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall,
upon its receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable
in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations
as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the
Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and
with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee or such
authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note)
may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee
or such authenticating agent shall, upon receipt of a Company Order, authenticate and deliver in exchange for such temporary Notes an
equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations
under this Indenture as Physical Notes authenticated and delivered hereunder.
Section 2.08. Cancellation of Notes Paid,
Converted, Etc. The Company may cause all Notes surrendered for the purpose of payment, repurchase, redemption, registration of transfer
or exchange or conversion (other than Notes exchanged pursuant to Section 14.12), if surrendered to any Person other
than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation.
All Notes so delivered to the Trustee shall be canceled promptly by it. Except for any Notes surrendered for registration of transfer
or exchange, or as otherwise expressly permitted by any of the provisions of this Indenture, no Notes shall be authenticated in exchange
for any Notes surrendered to the Trustee for cancellation. The Trustee shall dispose of canceled Notes in accordance with its customary
procedures and, after such disposition, shall deliver evidence of such disposition to the Company, at the Company’s written request
in a Company Order.
Section 2.09. CUSIP Numbers. The Company
in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in all notices issued to Holders as a convenience to such Holders; provided that the Trustee shall have no liability for
any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and provided further that any such
notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice
and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee
in writing of any change in the “CUSIP” numbers.
Section 2.10. Additional Notes; Repurchases.
The Company may, from time to time, without the consent of, or notice to, the Holders and notwithstanding Section 2.01, reopen this
Indenture and issue additional Notes of the same series hereunder with the same terms as the Notes initially issued hereunder in all respects
(or in all respects other than differences in the issue date, the issue price and, if applicable, the date of the first payment of interest,
the date from which interest will accrue, the CUSIP or other securities numbers and, to the extent necessary, differences related to certain
temporary securities laws restrictions) in an unlimited aggregate principal amount. Such additional Notes shall be consolidated and form
a single series with the Notes initially issued hereunder; provided that if any such additional Notes are not fungible with the
Notes initially issued hereunder for U.S. federal income tax or securities law purposes, such additional Notes shall have one or more
separate CUSIP numbers. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order,
an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters,
in addition to those required by Section 17.05, as the Trustee shall reasonably request. In addition, the Company may, to the extent
permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the
open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through
counterparties to private agreements, including by cash-settled swaps or other derivatives, in each case, without prior notice to the
Holders of the Notes. The Company may cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other
derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and any Notes so surrendered and canceled
shall no longer be considered outstanding under this Indenture upon their repurchase.
Article 3
Satisfaction and Discharge
Section 3.01. Satisfaction and Discharge.
This Indenture shall upon request of the Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee,
at the expense of the Company and upon the Trustee’s receipt of a Company Order, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes
which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06) have been
delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable,
after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental Change Repurchase Date,
upon conversion or otherwise, cash or cash and shares of Common Stock, if any (solely to satisfy the Company’s Conversion Obligation,
if applicable), sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture by the Company;
and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 shall survive.
Article 4
Particular Covenants of the Company
Section 4.01. Payment of Principal and
Interest. The Company covenants and agrees that it will cause to be paid the principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the respective times
and in the manner provided herein and in the Notes.
Section 4.02. Maintenance of Office or
Agency. The Company will maintain in the continental United States an office or agency where the Notes may be surrendered for registration
of transfer or exchange or for presentation for payment, redemption or repurchase (“Paying Agent”) or for conversion
(“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office
or agency of the Trustee in the continental United States.
The Company may also from time to time designate
as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the continental United States for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other
offices or agencies, as applicable.
The Company hereby initially designates the Trustee
as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency in the continental
United States where Notes may be surrendered for registration of transfer or exchange or for presentation for payment, redemption or repurchase
or for conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served; provided
that the Corporate Trust Office shall not be a place for service of legal process for the Company. The Company may, however, change the
Paying Agent, Note Registrar or the Conversion Agent without prior notice to the Holders of the Notes, and the Company may act as the
Paying Agent, Note Registrar or Conversion Agent.
In acting hereunder and in connection with the
Notes, the Paying Agent, Conversion Agent and Note Registrar shall act solely as an agent of the Company and the Custodian shall act solely
as an agent of the Depositary and will not assume any fiduciary duty or relationship of agency or trust for or with any of the beneficial
owners or Holders.
Section 4.03. Appointments to Fill Vacancies
in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.04. Provisions as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that
it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;
(ii) that
it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due
and payable; and
(iii) that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or before each due date of
the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest
on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action; provided that if such deposit is made on the due date, such deposit
must be received by the Paying Agent by 11:00 a.m., New York City time, on such date; provided that to the extent such deposit
is received by the Paying Agent after 11:00 a.m., New York City time, on any such due date, such deposit shall be deemed deposited on
the next Business Day.
(b) If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price and
the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold
in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing
of any failure to take such action and of any failure by the Company to make any payment of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become
due and payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust
by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon
the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying
Agent shall be released from all further liability but only with respect to such sums or amounts.
(d) Subject
to applicable escheatment laws, any money and shares of Common Stock deposited with the Trustee, the Conversion Agent or any Paying Agent,
or then held by the Company, in trust for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase
Price, if applicable) of, accrued and unpaid interest on and the consideration due upon conversion of any Note and remaining unclaimed
for two years after such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), interest
or consideration due upon conversion has become due and payable shall be paid to the Company on request of the Company contained in an
Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust and the Trustee, the Conversion Agent
or such Paying Agent, as applicable, shall have no further liability with respect to such funds and/or shares of Common Stock, as the
case may be; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee, the Conversion Agent or such Paying Agent with respect to such trust money and/or shares of Common Stock,
as the case may be, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 4.05. Existence. Subject to
Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence.
Section 4.06. Rule 144A Information
Requirement and Annual Reports. (a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act,
the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion of the Notes shall, at such time,
constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide
to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common
Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A.
(b) The
Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission, copies of any documents
or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving
effect to any grace period provided by Rule 12b-25 under the Exchange Act (or any successor rule) and excluding any such information,
documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission). Any such document
or report that the Company files with the Commission via the Commission’s EDGAR system (or any successor system) shall be deemed
to be filed with the Trustee for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system,
it being understood that the Trustee shall have no responsibility to determine if any documents have been filed. For the avoidance of
doubt, any failure to comply with this Section 4.06(b) will
not constitute an Event of Default pursuant to Section 6.01(f) unless (i) the Company has received written notice from
the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding of such failure and (ii) the
Company has not cured such failure during the 90 consecutive days after receipt of such notice.
(c) Delivery
of the reports, information and documents described in subsection (b) above to the Trustee is for informational purposes only, and
the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice or knowledge
of any information contained therein or determinable from information contained therein, including the Company’s or any other Person’s
compliance with any of its covenants under this Indenture or the Notes (as to which the Trustee is entitled to conclusively rely exclusively
on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s
or any other Person’s compliance with the covenants under this Indenture or with respect to any reports or other documents filed
under this Indenture and the Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reports
or other documents required under or in connection with this Indenture or the Notes.
(d) If,
at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance
of the Notes, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder, including but not limited
to any grace period provided by Rule 12b-25 under the Exchange Act, and other than reports on Form 8-K), or the Notes are not
otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders that were the Company’s
Affiliates at any time during the three months immediately preceding (as a result of restrictions pursuant to U.S. securities laws or
the terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes. Such Additional Interest shall accrue
on the Notes at the rate of (i) 0.25% per annum of the principal amount of the Notes outstanding for each day during the first 90
days of such period for which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise freely
tradable as described above by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates
at any time during the three months immediately preceding) and (ii) 0.50% per annum of the principal amount of the Notes outstanding
for each day after the first 90 days of such period for which the Company’s failure to file has occurred and is continuing or the
Notes are not otherwise freely tradable as described above by Holders other than the Company’s Affiliates (or Holders that were
the Company’s Affiliates at any time during the three months immediately preceding). As used in this Section 4.06(d),
documents or reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of
the Exchange Act.
(e) If,
and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been removed, the Notes are assigned
a restricted CUSIP number or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s
Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately preceding (without restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the 385th day after the last date of original issuance
of the Notes, the Company shall pay Additional Interest on the Notes at a rate equal to (i) 0.25% per annum of the principal amount
of the Notes outstanding for the first 90 days after such 385th day until the restrictive legend has been removed in accordance with Section 2.05(c),
the Notes are assigned an unrestricted CUSIP number and the Notes are freely tradable as described above by Holders other than the Company’s
Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately preceding) without restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes and (ii) 0.50% per annum of the principal amount of
the Notes outstanding after the first 90 days after such 385th day until the restrictive legend on the Notes has been removed in accordance
with Section 2.05(c), the Notes are assigned an unrestricted CUSIP number and the Notes are freely tradable pursuant to Rule 144
by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the three
months immediately preceding) without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes. The Company
shall provide the Trustee and the Paying Agent written notice of any Additional Interest on or before the Regular Record Date immediately
preceding the first relevant Interest Payment Date for the payment of such Additional Interest.
(f) Additional
Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes.
(g) The
Additional Interest that is payable in accordance with Section 4.06(d) or
Section 4.06(e) shall be in addition to,
and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 6.03;
provided that in no event shall Additional Interest payable as a result of the Company’s failure to timely file any document
or report that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable
(after giving effect to all applicable grace periods thereunder, including but not limited to any grace period provided by Rule 12b-25
under the Exchange Act, and other than reports on Form 8-K) as set forth in Section 4.06(d),
together with any Additional Interest payable at the Company’s election pursuant to Section 6.03
for failure to comply with the Company’s obligations as set forth in Section 4.06(b),
accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of events or circumstances giving rise
to the requirement to pay such Additional Interest.
(h) If
Additional Interest is payable by the Company pursuant to Section 4.06(d) or
Section 4.06(e), the Company shall deliver
to the Trustee an Officer’s Certificate to that effect on or before the Regular Record Date immediately preceding the first relevant
Interest Payment Date for the payment of such Additional Interest stating (i) the amount of such Additional Interest that is payable
and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at
the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. If
the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s
Certificate setting forth the particulars of such payment. The Trustee shall have no duty to verify the Company’s determination
of whether Additional Interest is due or the Company’s calculations as to the amount of Additional Interest.
Section 4.07. Stay, Extension and Usury
Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive
the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now
or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to
any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
Section 4.08. Compliance Certificate; Statements
as to Defaults. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning
with the fiscal year ending on December 31, 2024) an Officer’s Certificate stating whether the signer thereof has knowledge
of any Event of Default under this Indenture and, if so, specifying each such Event of Default.
In addition, the Company shall deliver to the Trustee,
within 30 days after obtaining knowledge of the occurrence of any Event of Default or Default, an Officer’s Certificate setting
forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing to take in respect
thereof; provided that the Company is not required to deliver such notice if such Event of Default or Default has been cured.
Section 4.09. Further Instruments and Acts.
Upon request of the Trustee, the Paying Agent, the Conversion Agent or the Note Registrar, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
Article 5
Lists of Holders and Reports by the Company and the Trustee
Section 5.01. Lists of Holders. The
Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 15 days after
each February 15 and August 15 in each year beginning with August 15, 2024, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably
request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably
request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished
so long as the Trustee is acting as Note Registrar.
Section 5.02. Preservation and Disclosure
of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its
capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.
Article 6
Defaults and Remedies
Section 6.01. Events of Default. Each
of the following events shall be an “Event of Default” with respect to the Notes:
(a) default
in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;
(b) default
in the payment of principal of any Note when due and payable on the Maturity Date, upon Optional Redemption, upon any required repurchase,
upon declaration of acceleration or otherwise;
(c) failure
by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s
conversion right and such failure continues for five Business Days;
(d) failure
by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c) or notice of a specified corporate
event in accordance with Section 14.01(b)(ii) or
Section 14.01(b)(iii), in each case, when due
and such failure continues for five Business Days;
(e) failure
by the Company to comply with its obligations under Article 11;
(f) failure
by the Company for 90 consecutive days after written notice from the Trustee or the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this
Indenture;
(g) default
by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there
is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed in excess of $300,000,000 (or its foreign
currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness exists as of the
date of this Indenture or is thereafter created, where such default (i) results in such indebtedness becoming or being declared due
and payable prior to its stated maturity date or (ii) constitutes a failure to pay the principal or interest of any such debt when
due and payable (after the expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration
of acceleration or otherwise, and in the cases of clauses (i) and (ii), such acceleration shall not have been rescinded or annulled
or such failure to pay or default shall not have been cured or waived, or such indebtedness is not paid or discharged, as the case may
be, within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in
aggregate principal amount of Notes then outstanding in accordance with this Indenture;
(h) the
Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to the Company or such Significant Subsidiary or its respective debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the
Company or such Significant Subsidiary or any substantial part of its respective property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors or shall admit in writing its inability to pay its debts as they become due; or
(i) an
involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization
or other relief with respect to the Company or such Significant Subsidiary or its respective debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Company or such Significant Subsidiary or any substantial part of its respective property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60 consecutive days.
The Trustee shall not be deemed to have notice
of any Default or Event of Default (other than a payment Default) unless written notice of any event which is in fact such Default or
Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee and such notice references
the Notes, the Company and this Indenture and such notice is described as a “Notice of Default.”
Section 6.02. Acceleration; Rescission
and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other
than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the
Company or a Significant Subsidiary), unless the principal of all of the Notes shall have already become due and payable, either the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04,
by notice in writing to the Company (and to the Trustee if given by Holders), may (and the Trustee, at the written request of such Holders,
shall) declare 100% of the principal of, and accrued and unpaid interest on, all the outstanding Notes to be due and payable immediately,
and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in this
Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in Section 6.01(h) or
Section 6.01(i) with respect to the Company or a Significant Subsidiary occurs and is continuing, 100% of the principal
of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due and payable.
The immediately preceding paragraph, however, is
subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable (or have become
immediately due and payable), and before any judgment or decree for the payment of the monies due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid
interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest
on overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable law,
and on such principal at the rate borne by the Notes at such time) and amounts due to the Trustee pursuant to Section 7.06, and if
(1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) any and all existing
Events of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes
that shall have become due solely by such acceleration, shall have been cured, remedied or waived pursuant to Section 6.09 and (3) the
Company has paid to the Trustee a sum sufficient to pay for all sums paid or advanced by the Trustee and the compensation and reasonable
expenses, disbursements and advances of the Trustee, its agents and its counsel incurred in connection with such Default or Event of Default,
then and in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal
amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default
with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon.
Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default
or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required,
(iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iv) a Default
or Event of Default in respect of any provision of this Indenture, the modification of which requires the consent of each Holder of a
Note.
Section 6.03. Additional Interest.
Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event
of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) shall for
the first 365 days after the occurrence of such an Event of Default consist exclusively of the right to receive Additional Interest on
the Notes at a rate equal to (i) 0.25% per annum of the principal amount of the Notes outstanding for each day on which such Event
of Default is continuing during the 180-day period beginning on, and including, the date on which such Event of Default first occurs and
(ii) 0.50% per annum of the principal amount of the Notes outstanding for each day on which such Event of Default is continuing from
the 181st day until the 365th day after the occurrence of such Event of Default; provided that in no event shall Additional Interest
payable at the Company’s election pursuant to this Section 6.03 for failure to comply with the Company’s
obligations set forth in Section 4.06(b), together with any Additional Interest payable as a result of the Company’s
failure to timely file any document or report that the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder, including but not limited
to any grace period provided by Rule 12b-25 under the Exchange Act, and other than reports on Form 8-K) as set forth in Section 4.06(d),
accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of events or circumstances giving rise
to the requirement to pay such Additional Interest. Additional Interest payable pursuant to this Section 6.03 shall be in addition
to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e). If the Company so elects,
such Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On the
366th day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with its obligations
as set forth in Section 4.06(d) is not cured or waived prior to such 366th day), the Notes shall be immediately
subject to acceleration as provided in Section 6.02. The provisions of this paragraph will not affect the rights of Holders of Notes
in the event of the occurrence of any Event of Default other than the Company’s failure to comply with its obligations as set forth
in Section 4.06(b). In the event the Company does not elect to pay Additional Interest following an Event of Default
in accordance with this Section 6.03 or the Company elected to make such payment but does not pay the Additional Interest when due,
the Notes shall be immediately subject to acceleration as provided in Section 6.02.
In order to elect to pay Additional Interest as
the sole remedy during the first 365 days after the occurrence of any Event of Default described in the immediately preceding paragraph,
the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election prior to the beginning of such 365-day
period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
Section 6.04. Payments of Notes on Default;
Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred and is continuing,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then
due and payable on the Notes for principal and interest, if any, with, to the extent lawful, interest on any overdue principal and interest,
if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid,
may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes
and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon the Notes, wherever situated.
In the event there shall be pending proceedings
for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code,
or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other
obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant
to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file
and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in
case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may
deem necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation and reasonable expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to
the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies
or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the
Trustee in each of its capacities hereunder under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative
expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
in each of its capacities hereunder any amount due it for compensation and reasonable expenses, advances and disbursements, including
agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06, incurred by it up to the date of
such distribution. To the extent that such payment of compensation and reasonable expenses, advances and disbursements out of the estate
in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
All rights of action and of asserting claims under
this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation
and reasonable expenses, disbursements and advances of the Trustee in each of its capacities hereunder, its agents and counsel, be for
the ratable benefit of the Holders of the Notes.
In any proceedings brought by the Trustee (and
in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any
such proceedings.
In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09
or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Company, the Holders and the Trustee shall, subject to any determination in such proceeding, be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the
Trustee shall continue as though no such proceeding had been instituted.
Section 6.05. Application of Monies Collected
by Trustee. Any monies collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes,
and, with respect to any Physical Notes, stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First, to the payment of all amounts due
to the Trustee in each of its capacities hereunder and including its agents and counsel under Section 7.06;
Second, in case the principal of the outstanding
Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default
in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the
extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, such
payments to be made ratably to the Persons entitled thereto;
Third, in case the principal of the outstanding
Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable,
the payment of the Redemption Price, the Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid upon
the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been collected
by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the
Redemption Price, the Fundamental Change Repurchase Price and any cash due upon conversion) and interest without preference or priority
of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or
of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Redemption Price, the Fundamental
Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and
Fourth, to the payment of the remainder,
if any, to the Company.
Section 6.06. Proceedings by Holders.
Except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price and the Fundamental Change
Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder
of any Note shall have any right by virtue of or by availing of any provision of this Indenture 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 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 has not complied with such request for 60 days after its receipt of such notice, request and offer of such security and/or indemnity;
and
(e) no
direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders
of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,
it being understood and intended, and being expressly covenanted by
the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right
in any manner whatsoever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, 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), it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any actions or forbearances
by a Holder are prejudicial to any other Holders. For the protection and enforcement of this Section 6.06, each and every Holder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture
and any provision of any Note, each Holder shall have the right to receive payment or delivery, as the case may be, of (x) the principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest,
if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided
for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be.
Section 6.07. Proceedings by Trustee.
In case of an Event of Default, the Trustee may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Section 6.08. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or
to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes
to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed
to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06,
every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.09. Direction of Proceedings
and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes;
provided, however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction and (c) the
Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the written request or direction of
any Holders unless such Holders have offered the Trustee security and/or indemnity satisfactory to the Trustee against any loss, liability
or expense that might be incurred by it in compliance with such request or direction. The Trustee may refuse to follow any direction that
it determines is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee shall have no obligation to
determine if any such direction is unduly prejudicial to the rights of a Holder) or that would involve the Trustee in personal liability.
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 (including consents to such waiver obtained in connection with a repurchase of,
or tender or exchange offer for, Notes) any or all existing or past Defaults or Events of Default hereunder and its consequences except
(i) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price and any
Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a
failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default
in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder
of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09,
said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing;
but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10. Notice of Defaults. The
Trustee shall, within 90 days after a Responsible Officer has received written notice of the occurrence and continuance of a Default or
Event of Default, or, if earlier, the Trustee otherwise is deemed to have knowledge of such Default or Event of Default, in accordance
with the terms of this Indenture, deliver to all Holders notice of such Defaults and Events of Default known to a Responsible Officer,
unless such Defaults or Events of Default shall have been cured or waived before the giving of such notice; provided that, except
in the case of a Default or Event of Default in the payment of the principal of (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default or Event of Default in the payment
or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding (but the Trustee shall not be obligated
to withhold) such notice if, and so long as, it in good faith determines that the withholding of such notice is in the interests of the
Holders.
Section 6.11. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount
of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including but not limited to the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to
any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the
provisions of Article 14.
Article 7
Concerning the Trustee
Section 7.01. Duties and Responsibilities
of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that
may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity and/or security reasonably 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
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, 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 7.01;
(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) all
cash received by the Trustee shall be placed in a non-interest bearing trust account, and all cash shall remain uninvested unless otherwise
agreed in writing by the Company and the Trustee;
(h) the
rights, privileges, immunities, benefits and protections afforded to the Trustee pursuant to this Article 7
shall also be afforded to the Trustee in each of its capacities hereunder, and each agent, custodian, and other Person employed to act
hereunder, including, without limitation, in its capacities as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation
Agent or transfer agent hereunder;
(i) 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; and
(j) the
Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of
the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability
or expense that might be incurred by it in compliance with such request or direction.
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, decree, judgment, bond, note, coupon or other paper or document believed
by it in good faith to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Company 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. Before the Trustee acts or refrains from acting,
it may require an Officer’s Certificate or an Opinion of Counsel, or both. The Trustee shall not be responsible or liable for any
action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel;
(c) 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
reliance on such advice or Opinion of Counsel;
(d) 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, at a reasonable time on any Business Day, 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;
(e) 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;
(f) the
permissive rights of the Trustee enumerated herein shall not be construed as duties;
(g) in
no event shall the Trustee be responsible or liable for any special, indirect, consequential or punitive 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;
(h) the
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts, powers, and duties under this Indenture;
(i) the
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers
authorized at such time 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;
(j) the
Trustee shall not be responsible or liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized
or within its rights or powers;
(k) 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 its 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 as set forth herein as a result of any inaccuracy or incompleteness;
(l) notwithstanding
anything to the contrary in this Indenture, other than this Indenture and the Notes, the Trustee will have no duty to know or inquire
as to the performance or nonperformance of any provision of any other agreement, instrument, or contract, nor will the Trustee be responsible
for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or contract, whether or not a copy
of such agreement has been provided to the Trustee; and
(m) neither
the Trustee nor the Conversion Agent shall be obligated to take possession of any Common Stock, whether upon conversion of Notes or in
connection with any discharge of this Indenture pursuant to Article 3
hereof, but shall satisfy its obligation as Conversion Agent by working through the stock transfer agent of the Company from time to time
as directed by the Company.
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, of the Notes or of any Common Stock. 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. 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. The Trustee shall have no
responsibility or liability with respect to any information, statement or recital in the Offering Memorandum or other disclosure material
prepared or distributed with respect to the issuance of the Notes.
Section 7.04. Trustee, Paying Agents, Conversion
Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation
Agent (if other than the Company or any Affiliate thereof) or Note Registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent, Bid Solicitation
Agent or Note Registrar.
Section 7.05. Monies and Shares of Common
Stock to Be Held in Trust. All monies and shares of Common Stock received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received. Money and shares of Common Stock held by the Trustee in trust hereunder
need not be segregated from other funds or property except to the extent required by law. The Trustee shall be under no liability for
interest on any money or shares of Common Stock received by it hereunder except as may be agreed from time to time by the Company and
the Trustee.
Section 7.06. Compensation and Expenses
of Trustee. The Company covenants and agrees to pay to the Trustee (in any capacity hereunder) from time to time, and the Trustee
shall be entitled to, compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee and the Company,
and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the reasonable
compensation, expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as shall have been caused by its gross negligence or willful misconduct (as adjudicated in a final, non-appealable
decision by a court of competent jurisdiction). The Company also covenants to indemnify the Trustee in any capacity under this Indenture
and any other document or transaction entered into in connection herewith and its officers, directors, agents or employees, each agent
appointed pursuant to this Indenture and any authenticating agent for, and to hold each of them harmless against, any loss, claim, damage,
liability or expense (including reasonable attorneys’ fees) incurred without gross negligence or willful misconduct on the part
of the Trustee, its officers, directors, agents, employees, successors or assigns or such agent or authenticating agent, as the case may
be (as adjudicated in a final, non-appealable decision by a court of competent jurisdiction), and arising out of or in connection with
the acceptance or administration of this Indenture or in any other capacity hereunder (whether such claims arise by or against the Company
or a third person), including the costs and expenses of defending themselves against any claim of liability (including, without limitation,
any and all attorneys’ fees and expenses) or enforcing the Company’s obligations hereunder. The obligations of the Company
under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements
and advances shall be secured by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected
by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders
of particular Notes. The Trustee’s right to receive payment of any amounts due under this Article 7 shall not be
subordinate to any other liability or indebtedness of the Company. The obligations of the Company under this Article 7
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, conditioned or delayed. The indemnification
provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee and any successor
Trustee hereunder.
Without prejudice to any other rights available
to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after
an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.
Section 7.07. Officer’s Certificate
as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate 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 immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.09. Resignation or Removal of
Trustee. (a) The Trustee may at any time resign by giving written notice of such resignation to the Company and by delivering
notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within
30 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, at the expense of the Company, petition any court of competent jurisdiction 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
if this Indenture was executed within the prior six months) may, subject to the provisions of Section 6.11, on behalf of himself
or herself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(i) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(ii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in either case, the Company may by a Board Resolution remove
the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions
of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this
Indenture) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with Section 8.04,
may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within
ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed (at the expense
of the Company) or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided,
may petition any court of competent jurisdiction for an appointment of a successor trustee.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on
the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing
to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected
by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due
it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as
provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions
of Section 7.08.
Upon acceptance of appointment by a successor trustee
as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the
Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders. If the Company fails
to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such
notice to be delivered at the expense of the Company.
Section 7.11. Succession by Merger, Etc.
Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation
or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture),
shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the
corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor
trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor
to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor
trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.12. Trustee’s Application
for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard
to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this
Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be
liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer that
the Company has indicated to the Trustee should receive such application actually receives such application, unless any such officer shall
have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission),
the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the
action to be taken or omitted.
Article 8
Concerning the Holders
Section 8.01. Action by Holders. Whenever
in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing,
including as a response to a written consent solicitation, 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 by a
Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or
by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03. Who Are Deemed Absolute Owners.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person
in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the
Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal (including any Redemption Price
and any Fundamental Change Repurchase Price) of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion
of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any
Note Registrar shall be affected by any notice to the contrary. The sole registered Holder of a Global Note shall be the Depositary or
its nominee. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge the liability for monies payable
or shares deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of
Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation,
proxy, authorization or any other action of the Depositary or any other Person, such holder’s right to exchange such beneficial
interest for a Physical Note in accordance with the provisions of this Indenture.
Section 8.04. Company-Owned Notes Disregarded.
In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver
or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company
or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other
action only Notes that a Responsible Officer 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 outstanding Notes specified in this Indenture
in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have
consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided
in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any
Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange
or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon
such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
Article 9
Holders’ Meetings
Section 9.01. Purpose of Meetings.
A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the
following purposes:
(a) to
give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent
to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or
to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;
(b) to
remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
(c) to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to
take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under
any other provision of this Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at
such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01,
shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company. Such notices shall be delivered not less
than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice
if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the
Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have,
before or after the meeting, waived notice.
Section 9.03. Call of Meetings by Company
or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal
amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such meeting
within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining
to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record
date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal
amount of the outstanding Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions of Section 8.04,
at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 in 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 outstanding Notes represented at the
meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon
any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.
A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered
as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.
Article 10
Supplemental Indentures
Section 10.01. Supplemental Indentures
Without Consent of Holders. The Company, when authorized by the resolutions of the Board of Directors, and the Trustee, at the Company’s
expense, may from time to time and at any time amend this Indenture or enter into an indenture or indentures supplemental hereto for one
or more of the following purposes:
(a) to
cure any ambiguity, omission, defect or inconsistency;
(b) to
provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to Article 11;
(c) to
add guarantees with respect to the Notes;
(d) to
secure the Notes;
(e) to
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) to
make any change that does not adversely affect the rights of any Holder in any material respect;
(g) in
connection with any Merger Event, to provide that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02,
and make such related changes to the terms of the Notes to the extent expressly required by Section 14.07;
(h) to
conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Offering Memorandum;
(i) to
comply with the rules of any applicable securities depositary, including The Depository Trust Company, so long as such amendment
does not adversely affect the rights of any Holder in any material respect;
(j) to
increase the Conversion Rate;
(k) to
provide for the issuance of additional Notes in accordance with the terms of this Indenture;
(l) to
appoint a successor Trustee with respect to the Notes;
(m) to
provide for uncertificated Notes in addition to or in place of Physical Notes, so long as such amendment does not adversely affect the
rights of any Holder and so long as such Notes are in registered form for U.S. federal income tax purposes; or
(n) to
irrevocably elect a Cash Percentage with respect to conversions of Notes; provided that no such election shall affect any Cash
Percentage theretofore elected (or deemed to be elected) with respect to any Note pursuant to the provisions of Section 14.02.
Upon the written request of the Company, and subject
to Section 10.05, 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, privileges, liabilities,
indemnities 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. 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, when authorized by the resolutions
of the Board of Directors, and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture
or indentures supplemental hereto for the purpose of amending this Indenture or any supplemental indenture or the Notes; provided,
however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:
(a) reduce
the principal amount of Notes whose Holders must consent to an amendment;
(b) reduce
the rate of or extend the stated time for payment of interest on any Note;
(c) reduce
the principal of or extend the Maturity Date of any Note;
(d) except
as required by this Indenture, make any change that adversely affects the conversion rights of any Notes;
(e) reduce
the Redemption Price or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the
Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or
otherwise;
(f) make
any Note payable in a currency, or at a place of payment, other than that stated in the Note;
(g) change
the ranking of the Notes; or
(h) make
any change in this Article 10 that requires
each Holder’s consent or in the waiver provisions in Section 6.02
or Section 6.09.
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, privileges, liabilities, indemnities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
Holders do not need under this Section 10.02
to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the substance thereof.
After any such supplemental indenture becomes effective, the Company shall deliver to the Holders a notice briefly describing such supplemental
indenture. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity
of the supplemental indenture.
Section 10.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties 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, upon receipt of a Company Order, authenticated by the Trustee (or an authenticating agent duly appointed by the
Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Failure to make the appropriate notation or issue a new Note pursuant to this Section 10.04 will not affect the validity
of such supplemental indenture.
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, and each stating, that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture, with
such Opinion of Counsel to include a customary legal opinion stating that such supplemental indenture is the valid and binding obligation
of the Company, subject to customary exceptions and qualifications. The Trustee shall have no responsibility for determining whether any
amendment or supplemental indenture will or may have an adverse effect on any Holder.
Article 11
Consolidation, Merger, Sale, Conveyance and Lease of the Company
Section 11.01. Company May Consolidate,
Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate with, merge with or into,
or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person (provided that this
Article 11 shall not apply to a sale, conveyance, transfer or lease of property or assets between or among the Company
and its Subsidiaries), unless:
(a) the
resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be a corporation organized
and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company
(if not the Company) shall expressly assume, by supplemental indenture all of the obligations of the Company under the Notes and this
Indenture;
(b) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture; and
(c) if
the Company is not the Successor Company, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and
Opinion of Counsel in accordance with Section 11.03.
For purposes of this Section 11.01, the sale,
conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another
Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of
the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all
or substantially all of the properties and assets of the Company to another Person.
Section 11.02. Successor Company to Be
Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor
Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case
may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions
of this Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case
of a lease of all or substantially all of the Company’s properties and assets, may exercise every right and power of and 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 Company
thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the written order of such
Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and
delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though
all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance
or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company”
in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11)
may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from
its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.
In case of any such consolidation, merger, sale,
conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued
as may be appropriate.
Section 11.03. Officer’s Certificate
and Opinion of Counsel to Be Given to Trustee. No such consolidation, merger, sale, conveyance, transfer or lease shall be effective
unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence, and each stating, that
any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, complies with, and is authorized or permitted by, the provisions of
this Indenture and with such Opinion of Counsel stating that the supplemental indenture is the valid and binding obligation of the Successor
Company, subject to customary exceptions and qualifications.
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.
(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 in 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 December 1, 2030 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 December 1,
2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at
an initial conversion rate of 6.3710 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion
Rate”) per $1,000 in 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 December 1, 2030, 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 in principal amount of Notes, as determined by the Bid
Solicitation Agent following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement
Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion
Rate on each such Trading Day (the “Trading Price Condition”). 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 in principal amount of Notes unless
the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting
as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 in principal amount of Notes)
unless Holders of at least $5,000,000 in aggregate principal amount of Notes provide the Company with a written request and reasonable
evidence that the Trading Price per $1,000 in principal amount of Notes on any Trading Day would be less than 98% of the product of the
Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company
shall instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent,
the Company shall determine, the Trading Price per $1,000 in principal amount of Notes (in accordance with the procedures described above)
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 in principal amount of Notes is
greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the
Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading
Price per $1,000 in principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid
Solicitation Agent 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 in principal amount of Notes shall be deemed to be less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price Condition set
forth above has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in
writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price Condition set forth
above has been met, the Trading Price per $1,000 in principal amount of Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the Holders of the Notes, the
Trustee and the Conversion Agent (if other than the Trustee) in writing. The Company may replace the Bid Solicitation Agent with any Person
by written notice to the Trustee and the Holders. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify
the Company’s determination of whether the Trading Price Condition has been met.
(ii) If,
prior to the close of business on the Business Day immediately preceding December 1, 2030, the Company elects to:
(A) issue
to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights
plan prior to the separation of such rights from the Common Stock) entitling them, for a period of not more than 60 calendar days after
the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than
the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute
to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the
Company (other than in connection with a stockholder rights plan prior to the separation of such rights from the Common Stock), which
distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price
of the Common Stock on the Trading Day preceding the date of announcement for such distribution,
then, in either case, the Company shall notify all Holders of the Notes,
the Trustee and the Conversion Agent (if other than the Trustee) at least 50 Scheduled Trading Days prior to the Ex-Dividend Date for
such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan,
as soon as reasonably practicable after the Company becomes aware that such separation or relevant triggering event has occurred or will
occur). Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until
the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution
and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes
are not otherwise convertible at such time. A Holder of the Notes may not exercise its conversion right under this Section 14.01(b)(ii) if
such Holder participates, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the
Notes, in any such issuance or distribution without having to convert its Notes as if such Holder held a number of shares of Common Stock
equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither
the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance
or distribution described in this clause (ii) has occurred.
(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 December 1, 2030, regardless of whether a Holder has the right to require the Company to
repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a consolidation, merger, binding share exchange,
or transfer or lease of all or substantially all of its assets (other than a transaction that is solely for the purpose of changing the
Company’s jurisdiction of organization that (1) does not constitute a Fundamental Change or a Make-Whole Fundamental Change
and (2) results in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common
stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business
on the Business Day immediately preceding December 1, 2030, in each case, pursuant to which the Common Stock would be converted into
cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after
the effective date of such transaction until the earlier of (i) 35 Trading Days after the actual effective date of such transaction
(or, if the Company gives notice to the Holders of the Notes after the actual effective date of such transaction, 35 Trading Days after
the date the Company gives notice to the Holders of the Notes of such transaction) or, if such transaction also constitutes a Fundamental
Change, until the related Fundamental Change Repurchase Date and (ii) the close of business on the second Scheduled Trading Day immediately
preceding the Maturity Date. The Company shall notify in writing the Holders, the Trustee and the Conversion Agent (if other than the
Trustee) as promptly as practicable but in any event no later than two Business Days after the effective date of such transaction or event,
as applicable. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination
of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iv) Prior
to the close of business on the Business Day immediately preceding December 1, 2030, 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 June 30, 2024 (and
only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive)
during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar
quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day as determined by the Company. The Company
shall determine at the beginning of each calendar quarter commencing after June 30, 2024 whether the Notes may be surrendered for
conversion in accordance with this clause (iv) and shall notify in writing the Holders, the Trustee and the Conversion Agent (if
other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent
shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has
been met.
(v) If
the Company calls any or all of the Notes for redemption pursuant to Article 16, then a Holder may surrender all or any portion of
its Notes for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date,
even if the Notes are not otherwise convertible at such time. After that time, the right to convert shall expire, unless the Company defaults
in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the date on which the Redemption Price
has been paid or duly provided for.
Section 14.02. Conversion Procedure; Settlement
Upon Conversion.
(a) Subject
to this Section 14.02, Section 14.03(b) and
Section 14.07(a), upon conversion of any
Note, the Company shall pay and, if applicable, deliver, as the case may be, to the converting Holder, in respect of each $1,000 in principal
amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of
the 40 Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share
of Common Stock in accordance with subsection (j) of
this Section 14.02.
(i) All
conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to
the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, and all conversions
for which the relevant Conversion Date occurs on or after December 1, 2030, shall be settled using the same Cash Percentage. Except
for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect
to the Notes but prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date and any conversions
for which the relevant Conversion Date occurs on or after December 1, 2030, the Company shall use the same Cash Percentage for all
conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Cash Percentage with respect
to conversions with different Conversion Dates. If, in respect of any Conversion Date (or one of the periods described in the fourth immediately
succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess
of the principal amount of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be),
the Company (or the Trustee, upon the written request of the Company) shall inform converting Holders of such election (the “Settlement
Notice”) no later than the close of business on the Trading Day immediately following the related Conversion Date (or, in the
case of any conversions for which the relevant Conversion Date occurs (i) after the date of issuance of a Notice of Redemption with
respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, in such
Notice of Redemption or (ii) on or after December 1, 2030, no later than December 1, 2030) and the Company shall indicate
in such Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being
converted that will be paid in cash (the “Cash Percentage”). If the relevant Holders are not informed of a Cash Percentage
prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage,
the Company shall be deemed to have elected a Cash Percentage of 0% and the Company shall settle its Conversion Obligation by paying cash
in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the remainder, if any,
of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein (subject to
Section 14.02(j)). At the time that the Company informs the Holders of any election pursuant
to the second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion
Agent (if other than the Trustee). For the avoidance of doubt, failure to deliver a Settlement Notice to the Trustee or the Conversion
Agent (if other than the Trustee) shall not affect the right of the Company to elect a Cash Percentage or the validity or sufficiency
of any such election made in accordance with the second and third immediately preceding sentences.
(ii) For
any conversion of Notes, the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement
Amount shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination
of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, as the case
may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee
and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion
Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common
Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject
to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in
the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest
payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in
the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in
the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable
procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”)
at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names
(with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement
of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied
by appropriate endorsement and transfer documents), at the corporate trust office of the Conversion Agent, (3) if required, furnish
appropriate endorsements and transfer documents, (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), and (5) if required, pay all transfer or similar
taxes, if any, pursuant to Section 14.02(e).
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 Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such
Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn
such Fundamental Change Repurchase Notice in accordance with Section 15.03.
If more than one Note shall be surrendered for
conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A
Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”)
that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and
Section 14.07(a), the Company shall pay
and deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately
following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting Holder, the Company
shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee
or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary,
in satisfaction of the Company’s Conversion Obligation.
(d) In
case any Note shall be surrendered for partial conversion, the Company shall execute and, upon receipt of a Company Order, 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, the Conversion Agent or Trustee, with payment of a sum sufficient to
cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in
connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name
of the Holder of the old Notes surrendered for such conversion.
(e) If
a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue
or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued
in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver
or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name
other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance
with the immediately preceding sentence.
(f) Except
as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion
of any Note as provided in this Article 14.
(g) Upon
the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on
such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon
conversion, a Holder shall not receive any separate cash payment or shares of Common Stock for accrued and unpaid interest, if any, except
as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation
to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date.
As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full
rather than canceled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first
out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular
Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable
on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period
from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must
be accompanied by funds equal to the amount of interest payable on the Notes so converted on the corresponding Interest Payment Date;
provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding
the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the
second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental
Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding
Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts 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, any Redemption Date described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above
shall, in each case, receive the full interest payment due on the Maturity Date or the applicable Interest Payment Date, as the case may
be, in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The
Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the
close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes, such Person shall no longer be
a Holder of such Notes surrendered for conversion.
(j) The
Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering
any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation
Period. For each Note surrendered for conversion, the full number of shares of Common Stock 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
of Common Stock remaining after such computation shall be paid in cash.
Section 14.03. Increased Conversion Rate
Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Notice of Redemption. (a) If (x) the
Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (y) the Company gives a Notice of Redemption
to the Holders of the Notes with respect to any or all of the Notes in accordance with Section 16.02 and, in each case,
a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or Notice of Redemption, as the case may be,
the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by
a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes
shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of
Conversion is received by the Conversion Agent during the related Make-Whole Fundamental Change Period. A conversion of Notes shall be
deemed for these purposes to be “in connection with” a Notice of Redemption if the relevant Conversion Date occurs during
the period from, and including, the date of the Notice of Redemption with respect to such Notes until the close of business on the second
Scheduled Trading Day immediately preceding the Redemption Date.
(b) Upon
surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or Notice of Redemption, the Company shall satisfy
the related Conversion Obligation in accordance with Section 14.02 based on the Conversion Rate as increased to reflect the Additional
Shares pursuant to the table set forth in Section 14.03(e) below;
provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the
definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for
any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated
based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 in principal amount of converted
Notes equal to the Conversion Rate (including any adjustment for Additional Shares), multiplied by such Stock Price. In such event,
the Conversion Obligation will be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The
Company shall notify the Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any
Make-Whole Fundamental Change and issue a press release announcing such Effective Date no later than five Business Days after such Effective
Date. If a conversion of Notes “in connection with” a Notice of Redemption shall also be deemed to be a conversion “in
connection with” a Make-Whole Fundamental Change, a Holder of any such Notes to be converted shall be entitled to a single increase
to the Conversion Rate with respect to the first to occur of the Effective Date of the Notice of Redemption and the Effective Date of
the Make-Whole Fundamental Change, as applicable, and the later event shall be deemed not to have occurred.
(c) The
number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions “in connection with”
a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which
the Make-Whole Fundamental Change occurs or becomes effective or the date of the Notice of Redemption, as the case may be, (in each case,
the “Effective Date”) and the price (the “Stock Price”) paid (or deemed to be paid) per share of
the Common Stock in the Make-Whole Fundamental Change or with respect to the Optional Redemption, as the case may be. If the holders of
the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of
the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the
average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day
immediately preceding the Effective Date of the Make-Whole Fundamental Change or the date of the Notice of Redemption, as the case may
be. The Board of Directors shall make appropriate adjustments to the Stock 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 (as such term is used in Section 14.04) or expiration date of the event occurs during such five consecutive
Trading Day period.
(d) The
Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the
Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied
by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment
and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall
be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e) The
following table sets forth the number of Additional Shares of Common Stock by which the Conversion Rate shall be increased per $1,000
in principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:
| |
Stock Price | |
Effective Date | |
$ | 130.80 | | |
$ | 138.00 | | |
$ | 146.00 | | |
$ | 156.96 | | |
$ | 180.00 | | |
$ | 204.05 | | |
$ | 230.00 | | |
$ | 255.00 | | |
$ | 280.00 | | |
$ | 310.00 | | |
$ | 340.00 | | |
$ | 370.00 | | |
$ | 400.00 | | |
$ | 430.00 | |
February 23, 2024 | |
| 1.2742 | | |
| 1.1024 | | |
| 0.9418 | | |
| 0.7630 | | |
| 0.4981 | | |
| 0.3218 | | |
| 0.2061 | | |
| 0.1331 | | |
| 0.0849 | | |
| 0.0478 | | |
| 0.0249 | | |
| 0.0109 | | |
| 0.0030 | | |
| 0.0000 | |
March 1, 2025 | |
| 1.2742 | | |
| 1.1024 | | |
| 0.9418 | | |
| 0.7630 | | |
| 0.4981 | | |
| 0.3187 | | |
| 0.2003 | | |
| 0.1271 | | |
| 0.0796 | | |
| 0.0438 | | |
| 0.0222 | | |
| 0.0095 | | |
| 0.0027 | | |
| 0.0000 | |
March 1, 2026 | |
| 1.2742 | | |
| 1.1024 | | |
| 0.9418 | | |
| 0.7630 | | |
| 0.4817 | | |
| 0.2965 | | |
| 0.1806 | | |
| 0.1108 | | |
| 0.0670 | | |
| 0.0350 | | |
| 0.0164 | | |
| 0.0061 | | |
| 0.0011 | | |
| 0.0000 | |
March 1, 2027 | |
| 1.2742 | | |
| 1.1024 | | |
| 0.9418 | | |
| 0.7409 | | |
| 0.4446 | | |
| 0.2619 | | |
| 0.1520 | | |
| 0.0888 | | |
| 0.0508 | | |
| 0.0244 | | |
| 0.0099 | | |
| 0.0026 | | |
| 0.0000 | | |
| 0.0000 | |
March 1, 2028 | |
| 1.2742 | | |
| 1.1024 | | |
| 0.9129 | | |
| 0.6934 | | |
| 0.3917 | | |
| 0.2156 | | |
| 0.1163 | | |
| 0.0629 | | |
| 0.0330 | | |
| 0.0136 | | |
| 0.0041 | | |
| 0.0002 | | |
| 0.0000 | | |
| 0.0000 | |
March 1, 2029 | |
| 1.2742 | | |
| 1.0682 | | |
| 0.8472 | | |
| 0.6151 | | |
| 0.3123 | | |
| 0.1522 | | |
| 0.0722 | | |
| 0.0342 | | |
| 0.0152 | | |
| 0.0044 | | |
| 0.0003 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | |
March 1, 2030 | |
| 1.2742 | | |
| 0.9820 | | |
| 0.7309 | | |
| 0.4785 | | |
| 0.1882 | | |
| 0.0692 | | |
| 0.0250 | | |
| 0.0090 | | |
| 0.0025 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | |
March 1, 2031 | |
| 1.2742 | | |
| 0.8754 | | |
| 0.4783 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | |
The exact Stock Price and Effective Date may not
be set forth in the table above, in which case:
(i) if
the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the table above,
the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between
the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable,
based on a 365-day or 366-day year, as the case may be;
(ii) if
the Stock Price is greater than $430.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if
the Stock Price is less than $130.80 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings
of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate
per $1,000 in principal amount of Notes exceed 7.6452 shares of Common Stock, subject to adjustment in the same manner as the Conversion
Rate pursuant to Section 14.04 (the “Maximum Conversion Rate”).
(f) Nothing
in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole
Fundamental Change.
Section 14.04. Adjustment of Conversion
Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the
Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a
share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Common
Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to
convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal
amount (expressed in thousands) of Notes held by such Holder.
(a) If
the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects
a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:
where,
CR0 | = |
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or
immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; |
| |
|
CR' | = |
the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date; |
| |
|
OS0 | = |
the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date
(before giving effect to any such dividend, distribution, split or combination); and |
| |
|
OS' | = |
the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share
combination. |
Any adjustment made under this Section 14.04(a) shall become
effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open
of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type
described in this Section 14.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted,
effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.
(b) If
the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant to a stockholder
rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such issuance, to subscribe
for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the
Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement
of such issuance, 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 issuance; |
| |
|
CR' | = |
the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; |
| |
|
OS0 | = |
the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; |
| |
|
X | = |
the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and |
| |
|
Y | = |
the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. |
Any increase made under this Section 14.04(b) shall be made
successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business
on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such
rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase
with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common
Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion
Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.
For purposes of this Section 14.04(b) and
for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders of the Common
Stock to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common
Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement
for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any
consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the
value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) If
the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights,
options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding
(i) dividends, distributions or issuances as to which an adjustment was effected (or would have been effected but for the 1% Exception)
pursuant to Section 14.04(a) or Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as to which
the provisions set forth in Section 14.04(d) shall apply, (iii) Spin-Offs as to which the provisions set forth below in
this Section 14.04(c) shall apply, (iv) except as otherwise provided in Section 14.11,
rights issued pursuant to any of the Company’s stockholder rights plans then in effect and (v) distributions of Reference Property
in exchange for, or upon conversion of, the Common Stock in a Merger Event (any of such shares of Capital Stock, evidences of indebtedness,
other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”),
then the Conversion Rate shall be increased based on the following formula:
where,
CR0 | = |
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; |
| |
|
CR' | = |
the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; |
| |
|
SP0 | = |
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and |
| |
|
FMV | = |
the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of
the Common Stock on the Ex-Dividend Date for such distribution. |
Any increase made under the portion of this Section 14.04(c) above
shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not
so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not
been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0”
(as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 in principal amount
thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property and 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 shares
of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board of Directors determines
the “FMV” (as defined above) of any distribution for purposes of this Section 14.04(c) by reference to the actual
or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in
computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the Ex-Dividend Date for such distribution.
With respect to an adjustment pursuant to this
Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital
Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are,
or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the
Conversion Rate shall be increased based on the following formula:
where,
CR0 | = |
the Conversion Rate in effect immediately prior to the end of the Valuation Period; |
| |
|
CR' | = |
the Conversion Rate in effect immediately after the end of the Valuation Period; |
| |
|
FMV0 | = |
the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common
Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth
in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10
consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”);
and |
| |
|
MP0 | = |
the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. |
The increase to the Conversion Rate under the preceding
paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that for any Trading Day
that falls within the relevant Observation Period for such conversion and within the Valuation Period, the references to “10”
in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including,
the Ex-Dividend Date of such Spin-Off to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day of
such Observation Period. If any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Conversion
Rate shall be immediately 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.
For purposes of this Section 14.04(c) (and
subject in all respects to Section 14.11), rights, options or warrants distributed by the Company to all holders of the Common Stock
entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued
in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and
no adjustment to the Conversion Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger
Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required)
to the Conversion Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights,
options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on
such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights,
options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.04(c) was
made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by
any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options
or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase
price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained
such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in
the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion
Rate shall be readjusted as if such rights, options and warrants had not been issued.
For purposes of Section 14.04(a), Section 14.04(b) and
this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) is applicable also includes one or
both of:
(A) a
dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”);
or
(B) a
dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause B Distribution”),
then, in either case, (1) such dividend or distribution, other
than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 14.04(c) with
respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed
to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b) with
respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause
A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any
shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately
prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 14.04(a) or “outstanding
immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.04(b).
(d) If
any cash dividend or distribution is made to all or substantially all holders of the Common Stock, other than a regular, quarterly cash
dividend that does not exceed $0.25 per share (the “Initial Dividend Threshold”), the Conversion Rate shall be adjusted
based on the following formula:
where,
CR0 | = |
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; |
| |
|
CR' | = |
the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; |
| |
|
SP0 | = |
the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend
or distribution; |
| |
|
T | = |
the Initial Dividend Threshold; provided that if the dividend or distribution is not a regular quarterly cash dividend, the
Initial Dividend Threshold shall be deemed to be zero; and |
| |
|
C | = |
the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock. |
The Initial Dividend Threshold shall be subject to adjustment in a
manner inversely proportional to adjustments to the Conversion Rate; provided that no adjustment shall be made to the Initial Dividend
Threshold for any adjustment to the Conversion Rate pursuant to this Section 14.04(d).
Any increase pursuant to this Section 14.04(d) shall become
effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution
is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay
such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined
above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 in principal amount of Notes, at the same
time and upon the same terms as holders of shares of the Common Stock and without having to convert its Notes, the amount of cash that
such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend
Date for such cash dividend or distribution.
(e) If
the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock that is subject to
then-applicable tender offer rules under the Exchange Act (other than any odd-lot tender offer), to the extent that the cash and
value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices
of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last
date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based
on the following formula:
where,
CR0 | = |
the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including,
the Trading Day next succeeding the date such tender or exchange offer expires; |
| |
|
CR' | = |
the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including,
the Trading Day next succeeding the date such tender or exchange offer expires; |
| |
|
AC | = |
the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares
of Common Stock purchased in such tender or exchange offer; |
| |
|
OS0 | = |
the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving
effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); |
| |
|
OS' | = |
the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect
to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and |
| |
|
SP' | = |
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including,
the Trading Day next succeeding the date such tender or exchange offer expires. |
The increase to the Conversion Rate under this
Section 14.04(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading
Day next succeeding the date such tender or exchange offer expires; provided that for any Trading Day that falls within the relevant
Observation Period for such conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding
the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall
be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the expiration
date of such tender or exchange offer to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day of
such Observation Period.
If the Company is obligated to purchase shares
of Common Stock pursuant to any such tender or exchange offer described in Section 14.04(e) but is permanently prevented
by applicable law from effecting any such purchase or all such purchases are rescinded, the applicable Conversion Rate will be readjusted
to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect
of the purchases that have been made.
(f) Except
as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible
into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable
securities.
(g) In
addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04, and to the extent permitted
by law and the rules of The New York Stock Exchange and any other securities exchange on which any of the Company’s securities
are then listed, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days
if the Company determines that such increase would be in the Company’s best interest. In addition, to the extent permitted by applicable
law and subject to the applicable rules of The New York Stock Exchange and any other securities exchange on which any of the Company’s
securities are then listed, the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock
(or rights to acquire shares of Common Stock) or similar event.
(h) Notwithstanding
anything to the contrary in this Article 14, the Conversion Rate shall not be adjusted:
(i) upon
the issuance of any shares of Common Stock at a price below the Conversion Price or otherwise, other than as described in Sections 14.04 (a),
(b) and (c);
(ii) upon
the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;
(iii) upon
the repurchase of any shares of the Common Stock pursuant to an open-market share repurchase program or other buy-back transaction, including
structured or derivative transactions, that is not a tender offer or exchange offer of the kind described in Section 14.04(e);
(iv) upon
the issuance of any shares of Common Stock, restricted stock units or options or rights to purchase those shares pursuant to any present
or future employee, director or consultant benefit plan, incentive plan or program of or assumed by the Company or any of the Company’s
Subsidiaries;
(v) upon
the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
not described in clause (iv) of this subsection and outstanding as of the date the Notes were first issued (other than a rights plan
as described in Section 14.11);
(vi) for
a third-party tender offer by any party other than a tender offer by one or more of the Subsidiaries of the Company;
(vii) solely
for a change in the par value of the Common Stock or a change in the Company’s jurisdiction of incorporation; or
(viii) for
accrued and unpaid interest, if any.
(i) All
calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten
thousandth (1/10,000th) of a share. If an adjustment to the Conversion Rate otherwise required by the provisions described above would
result in a change of less than 1% to the Conversion Rate, then, notwithstanding the foregoing, the Company may, at its election by written
notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) promptly after the date such adjustment is otherwise
required to be made, defer and carry forward such adjustment, except that all such deferred adjustments must be given effect immediately
upon the earliest to occur of the following: (i) when all such deferred adjustments would result in an aggregate change of at least
1% to the Conversion Rate, (ii) the Conversion Date for any Notes (in the case of any conversion following a replacement of the Common
Stock by Reference Property solely consisting of cash), (iii) each Trading Day of any Observation Period related to any conversion
of Notes (other than as described in clause (ii)), (iv) the effective date of any Fundamental Change or the Effective Date of any
Make-Whole Fundamental Change, (v) on the date the Company sends a Notice of Redemption to the Holders of the Notes for all or any
of the Notes and (vi) December 1, 2030, in each case, unless the adjustment has already been made or is no longer required under
this Indenture. The provisions described in the preceding sentence are referred to as the “1% Exception.”
(j) Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not
the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry
that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate, the date on which each adjustment
becomes effective and, in the case of an increase pursuant to Section 14.04(g),
the period during which the adjusted Conversion Rate will be in effect 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.
(k) For
purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock
held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.
Section 14.05. Adjustments of Prices.
Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion
Values, the Daily Net Settlement Amounts or the Daily Settlement Amounts over a span of multiple days (including, without limitation,
an Observation Period and the period for determining the Stock Price for purposes of any conversion in connection with a Make-Whole Fundamental
Change or Notice of Redemption), the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective
Date or expiration date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices, the
Daily VWAPs, the Daily Conversion Values, the Daily Net Settlement Amounts or the Daily Settlement Amounts are to be calculated.
Section 14.06. Shares to Be Fully Paid.
The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient
shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming delivery
upon conversion of the Notes of a number of shares of Common Stock per $1,000 in principal amount of Notes equal to the Maximum Conversion
Rate).
Section 14.07. Effect of Recapitalizations,
Reclassifications and Changes of the Common Stock.
(a) In
the case of:
(i) any
recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination or a
change solely in par value),
(ii) any
consolidation, merger, combination or similar transaction involving the Company,
(iii) any
sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially
as an entirety or
(iv) any
statutory share exchange,
in each case, as a result of which the Common Stock would be converted
into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event,
a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 in
principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of
Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference
Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that
a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger
Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture
permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 in principal amount of Notes;
provided, however, that at and after the effective time of the Merger Event, the Conversion Obligation shall be determined
and conversions shall be settled in accordance with Section 14.02 such that (A) the amount otherwise payable in cash upon conversion
of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company (or the successor or purchasing
Person, as the case may be) shall continue to have the right to determine the form of consideration to be paid or delivered, as the case
may be, in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted
as set forth under Section 14.02, (C) the number of shares of Common Stock, if any, otherwise deliverable upon conversion
of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that
a holder of that number of shares of Common Stock would have received in such Merger Event and (D) the Daily VWAP shall be calculated
based on the value of a unit of Reference Property that a holder of one share of Common Stock would have received in such Merger Event.
If the Merger Event causes the Common Stock to
be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any
form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the
weighted average of the types and amounts of consideration actually received by the holders of Common Stock and (ii) the unit of
Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable
to one share of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for
which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion
of each $1,000 in principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion
Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common
Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the
second Business Day immediately following the relevant Conversion Date. The Company shall notify in writing the Holders, the Trustee and
the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made.
The supplemental indenture described in the second
immediately preceding paragraph providing that the Notes will be convertible into Reference Property (other than cash and/or cash equivalents)
shall also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided
for in this Article 14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other
property or assets (other than cash and/or cash equivalents) of a Person other than the Company or the successor or purchasing corporation,
as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain
such additional provisions to protect the interests of the Holders of the Notes as the Company shall in good faith reasonably consider
necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) When
the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file
with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property
or asset that will comprise a unit of Reference Property after any such Merger 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 20 days after execution thereof. Failure
to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The
Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing
provisions shall affect the right of a Holder to convert its Notes into cash and shares of Common Stock, if any, as set forth in Section 14.01
and Section 14.02 prior to the effective date of such Merger Event.
(d) The
provisions of this Section 14.07 shall similarly
apply to successive Merger Events.
(e) In
connection with any Merger Event, the Initial Dividend Threshold shall be subject to adjustment as described in clause (i), clause (ii) or
clause (iii) below, as the case may be.
(i) In
the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding
any dissenters’ appraisal rights) is composed entirely of shares of common stock or American depositary receipts (or other interests)
in respect thereof (the “Merger Common Stock”), the Initial Dividend Threshold at and after the effective time of such
Merger Event shall be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such Merger Event, divided
by (y) the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive in such Merger Event
(such quotient rounded down to the nearest cent).
(ii) In
the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding
any dissenters’ appraisal rights) is composed in part of shares of Merger Common Stock, the Initial Dividend Threshold at and after
the effective time of such Merger Event shall be equal to (x) the Initial Dividend Threshold immediately prior to the effective time
of such Merger Event, multiplied by (y) the Merger Valuation Percentage for such Merger Event (such product rounded down to
the nearest cent).
(iii) For
the avoidance of doubt, in the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection
(a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares of common
stock or American depositary receipts (or other interests) in respect thereof, the Initial Dividend Threshold at and after the effective
time of such Merger Event shall be equal to zero.
Section 14.08. Certain Covenants. (a) The
Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof.
(b) The
Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued
upon conversion, the Company will, to the extent then permitted by the rules and interpretations of the Commission, secure such registration
or approval, as the case may be.
(c) The
Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation
system the Company will list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system,
any Common Stock issuable upon conversion of the Notes.
Section 14.09. Responsibility of Trustee.
The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility, nor shall the Trustee and any other
Conversion Agent have any liability, to any Holder to calculate or determine the Conversion Rate (or any adjustment thereto) or whether
any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent
or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided
to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or
delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no representations with respect thereto.
Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares
of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion
or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality
of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to
in such Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01,
may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected,
in the absence of gross negligence or willful misconduct on its part, in conclusively 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). In no event shall the Trustee nor the Conversion Agent be charged with knowledge of or have any duty to monitor
the Stock Price or the Measurement Period. The parties agree that all notices to the Trustee or the Conversion Agent under this Article 14
shall be in writing.
Section 14.10. 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 14.04 or Section 14.11;
(b) Merger
Event; or
(c) voluntary
or involuntary dissolution, liquidation or winding-up of the Company or any of its Subsidiaries;
then, in each case (unless notice of such event is otherwise required
pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other
than the Trustee) and to be delivered to each Holder, as promptly as possible but in any event at least 20 days prior to the applicable
date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the
Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are
to be determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such Merger
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 Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Merger
Event, 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, Merger Event, dissolution, liquidation or winding-up.
Section 14.11. Stockholder Rights Plans.
To the extent the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued
upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common
Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder
rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from
the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted
at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as
provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
Section 14.12. Exchange in Lieu of Conversion.
(a) When a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”),
direct in writing the Conversion Agent to deliver, on or prior to the Trading Day immediately following the Conversion Date, such Notes
to one or more financial institutions designated by the Company (each, a “Designated Financial Institution”) for exchange
in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree
to timely pay and deliver, as the case may be, in exchange for such Notes, cash up to the aggregate principal amount of converted Notes
and cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in respect of the
remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of such Notes, that would otherwise be due
upon conversion pursuant to Section 14.02 (the “Conversion Consideration”). If the Company makes an Exchange Election,
the Company shall, by the close of business on the Trading Day immediately 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
the Exchange Election, and the Company shall notify the Designated Financial Institution(s) of the relevant deadline for delivery
of the Conversion Consideration and the relevant Cash Percentage, as the case may be.
(b) Any
Notes delivered to the Designated Financial Institution(s) shall remain outstanding, subject to applicable procedures of the Depositary.
If the Designated Financial Institution(s) agree(s) to accept any Notes for exchange but does/do not timely pay and deliver,
as the case may be, the related Conversion Consideration to the Holder surrendering any such Note for conversion, or if such Designated
Financial Institution does not accept the Notes for exchange pursuant to this Section 14.12, the Company shall pay and deliver, as
the case may be, the relevant Conversion Consideration as, and at the time, required pursuant to this Indenture as if the Company had
not made the Exchange Election.
(c) The
Company’s designation of any Designated Financial Institution(s) to which the Notes may be submitted for exchange does not
require such Designated Financial Institution(s) to accept any Notes (unless such Designated Financial Institution(s) has/have
separately made an agreement with the Company). The Company may, but shall not be obligated to, enter into a separate agreement with any
Designated Financial Institution that would compensate the Company for any such transaction.
Article 15
Repurchase of Notes at Option of Holders
Section 15.01. [Intentionally Omitted].
Section 15.02. Repurchase at Option of
Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time, each Holder shall have the right (the “Fundamental
Change Repurchase Right”), at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s
Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03
that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified
by the Company that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company
Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding,
the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase
Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which
case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date,
and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this
Article 15. The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company to comply with
applicable law as a result of changes to such applicable law occurring after the date of this Indenture.
(b) Repurchases
of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery
to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form
set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance
with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before
the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery
of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice
(together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the
Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery or transfer being
a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase Notice in respect
of any Physical Notes to be repurchased shall state:
(i) the
certificate numbers of the Notes to be delivered for repurchase;
(ii) the
portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that
the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture.
If the Notes are Global Notes, in order to exercise the Fundamental
Change Repurchase Right, Holders must surrender their Notes in accordance with applicable Depositary procedures.
Notwithstanding anything herein to the contrary,
any Holder exercising the Fundamental Change Repurchase Right contemplated by this Section 15.02 shall have the right to withdraw,
in whole or in part, its election to exercise the Fundamental Change Repurchase Right at any time prior to the close of business on the
Business Day immediately preceding the Fundamental Change Repurchase Date by, in the case of Physical Notes, delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 15.03, or in accordance with the applicable procedures of the Depositary
in the case of Global Notes.
The Paying Agent shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On
or before the 20th Business Day after (i) the date that the Company knew or reasonably should have known that the Fundamental Change
occurred, in the case of a Fundamental Change described in clause (a) of the Fundamental Change definition in Section 1.01,
or (ii) the date the Fundamental Change occurred, in the case of any other Fundamental Change, the Company shall provide to all Holders
of Notes, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Trustee and the Paying Agent (in the
case of a Paying Agent 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 Fundamental Change Repurchase Right at the option of the Holders arising as
a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice
shall be delivered in accordance with the applicable procedures of the Depositary. Each Fundamental Change Company Notice shall specify:
(i) the
events causing the Fundamental Change;
(ii) the
date of the Fundamental Change;
(iii) the
last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the
Fundamental Change Repurchase Price;
(v) the
Fundamental Change Repurchase Date;
(vi) the
name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if
applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of a Fundamental Change;
(viii) that
the Notes with respect to which a Holder has elected to exercise the Fundamental Change Repurchase Right may be converted only if the
Holder withdraws its election to exercise the Fundamental Change Repurchase Right in accordance with the terms of this Indenture; and
(ix) the
procedures that Holders must follow to require the Company to repurchase their Notes.
Notwithstanding anything to the contrary above,
the Company shall not be required to repurchase or make an offer to repurchase the Notes upon a Fundamental Change if a third party makes
such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company
as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer
in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in
this Indenture.
No failure of the Company to give the foregoing
notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase
of the Notes pursuant to this Section 15.02.
At the Company’s written request, 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
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 procedures of the Depositary
shall be deemed to have been canceled, 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.
(e) Notwithstanding
the foregoing, the Company shall not be required to offer to repurchase, or to repurchase, the Notes pursuant to the provisions set forth
in this Article 15 in respect of a Fundamental Change (i) that constitutes a Merger Event for which the Reference Property consists
entirely of cash in U.S. dollars; (ii) pursuant to which, immediately after the consummation of such transaction or event, the Notes
become convertible into consideration that consists solely of cash in U.S. dollars in an amount per $1,000 in principal amount of Notes
that equals or exceeds the Fundamental Change Repurchase Price per $1,000 in principal amount of Notes (calculated assuming that such
amount includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such
transaction or event); and (iii) in respect of which the Company timely sends the notice of such Fundamental Change, as required
pursuant to this Indenture.
Section 15.03. Withdrawal of Fundamental
Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) in respect of Physical
Notes by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.03
at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i) the
principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which amount must be in principal amounts
of $1,000 or an integral multiple of $1,000,
(ii) the
certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(iii) the
principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be
in principal amounts of $1,000 or an integral multiple of $1,000.
If the Notes are Global Notes, Holders may withdraw their exercise
of the Fundamental Change Repurchase Right at any time prior to the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date in accordance with applicable procedures of the Depositary.
Section 15.04. Deposit of Fundamental Change
Repurchase Price. (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company
is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 11:00 a.m.,
New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased
at the appropriate Fundamental Change Repurchase Price; provided, however, that to the extent any such deposit is received
by the applicable Paying Agent after 11:00 a.m., New York City time on any Fundamental Change Repurchase Date, such deposit shall be deemed
deposited on the next Business Day. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company),
payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding
the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date (provided
the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note
to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 15.02 by
mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided,
however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary
or its nominee. The Trustee (or other applicable Paying Agent) shall, promptly after such payment and upon written demand by the Company,
return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(b) If
by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the
Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change
Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn,
(i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer
of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders
of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the
Notes and, if applicable, accrued and unpaid interest).
(c) Upon
surrender of a Note that is to be repurchased in part pursuant to Section 15.02, the Company shall execute and, upon receipt of a
Company Order, the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount
to the unrepurchased portion of the Note surrendered.
Section 15.05. Covenant to Comply with
Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer upon a Fundamental Change pursuant to this Article 15,
the Company will, if required:
(a) comply
with the tender offer rules under the Exchange Act that may then be applicable;
(b) file
a Schedule TO or any other required schedule under the Exchange Act; and
(c) otherwise
comply 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.
Article 16
Optional Redemption
Section 16.01. Optional Redemption.
No sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company prior to March 6, 2028. On or after March 6,
2028, the Company may redeem (an “Optional Redemption”) for cash all or any portion of the Notes, at the Redemption
Price, if the Last Reported Sale Price of the Common Stock has been at least 130% of the Conversion Price then in effect for at least
20 Trading Days (whether or not consecutive) during any 30 consecutive Trading Day period (including the last Trading Day of such period)
ending on, and including, the Trading Day immediately preceding the date on which the Company provides the Notice of Redemption to the
Holders of the Notes in accordance with Section 16.02.
Section 16.02. Notice of Optional Redemption;
Selection of Notes. (a) If the Company exercises its Optional Redemption right with respect to all or any part of the Notes pursuant
to Section 16.01, it shall fix a date for redemption (each, a “Redemption Date”) and it shall deliver or cause
to be delivered a written notice of such Optional Redemption (a “Notice of Redemption”) not less than 45 nor more than
65 Scheduled Trading Days prior to the Redemption Date to the Trustee, the Paying Agent and each Holder of Notes. The Redemption Date
must be a Business Day, and the Company shall not specify a Redemption Date that falls on or after the 41st Scheduled Trading Day immediately
preceding the Maturity Date. At the Company’s request, the Trustee shall give such Notice of Redemption in the Company’s name
and at the Company’s expense; provided, however, that, in all cases, the text of such Notice of Redemption shall be
prepared by the Company.
(b) The
Notice of Redemption, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, failure to give such Notice of Redemption or any defect in the Notice of Redemption to the
Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption
of any other Note.
(c) Each
Notice of Redemption shall specify:
(i) the
Redemption Date;
(ii) the
Redemption Price;
(iii) that
on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if
any, shall cease to accrue on and after the Redemption Date;
(iv) the
place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v) that
Holders may surrender their Notes for conversion at any time prior to the close of business on the second Scheduled Trading Day immediately
preceding the Redemption Date;
(vi) the
procedures a converting Holder must follow to convert its Notes and the Cash Percentage, if applicable;
(vii) the
Conversion Rate and, if applicable, the number of Additional Shares added to the Conversion Rate in accordance with Section 14.03;
(viii) the
CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(ix) 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 Redemption
Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.
A Notice of Redemption shall be irrevocable.
(d) If
the Company redeems fewer than all of the outstanding Notes, the Notes to be redeemed will be selected according to the Depositary’s
applicable procedures, in the case of Global Notes, or, in the case of Physical Notes, the Trustee shall select the Notes to be redeemed
(in principal amounts of $1,000 or integral multiples thereof) by lot, on a pro rata basis or by another method the Trustee considers
to be fair and appropriate. If any Note selected for partial redemption is submitted for conversion in part after such selection, the
portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for redemption, subject,
in the case of Notes represented by a Global Note, to the Depositary’s applicable procedures.
Section 16.03. Payment of Notes Called
for Redemption. (a) If any Notice of Redemption has been given in respect of the Notes in accordance with Section 16.02,
the Notes shall become due and payable on the Redemption Date at the place or places stated in the Notice of Redemption and at the applicable
Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Notice of Redemption, the Notes shall
be paid and redeemed by the Company at the applicable Redemption Price.
(b) Prior
to 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 of all of the Notes to be redeemed on such
Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption
Date for such Notes. The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company
any funds in excess of the Redemption Price.
Section 16.04. Restrictions on Redemption.
The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the terms
of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Redemption Price with respect to such Notes).
Article 17
Miscellaneous Provisions
Section 17.01. Provisions Binding on Company’s
Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors
and assigns whether so expressed or not.
Section 17.02. Official Acts by Successor.
Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer
of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation
or other entity that shall at the time be the lawful sole successor of the Company.
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 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 Global Payments Inc., 3550 Lenox Road, Suite 3000, Atlanta, Georgia 30326, Attention: David L. Green. Any notice, direction,
approvals, request, demand or communications hereunder or with respect to the Notes to or upon the Trustee in each of its capacities hereunder
shall be in writing (provided that any communication sent to Trustee hereunder must be in the form of a document that is signed
manually or by facsimile or by way of a digital signature, including electronic images of handwritten signatures and digital signatures
provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee) and shall be deemed to have
been sufficiently given or made, for all purposes, upon the receipt by a Responsible Officer of the Trustee at the Corporate Trust Office.
The Trustee, by notice to the Company, may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication delivered or to be
delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the
Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or
to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable procedures of the Depositary and shall
be sufficiently given to it if so delivered within the time prescribed.
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 of Physical Notes by mail, then
such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
In addition to the foregoing, the Trustee shall
have the right to accept and act upon any notice, instruction, direction or other communication, including any funds transfer instruction,
(each, a “Notice”) sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods and
shall not have any duty to confirm that the person sending such Notice is, in fact, a person authorized to do so. If any party elects
to give the Trustee an e-mail or facsimile Notice (or a Notice by a similar electronic method), the Trustee’s understanding of such
Notice shall be deemed controlling. Each other party to this Indenture assumes all risks arising out of the use of electronic signatures
and electronic methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
Notice and the risk of interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance and in
its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in
lieu of, or in addition to, any such electronic Notice. The Trustee shall not be liable for any losses, costs or expenses arising directly
or indirectly from the Trustee’s reliance upon and compliance with any Notice notwithstanding such instructions conflict or are
inconsistent with a subsequent written Notice.
Section 17.04. Governing Law; Jurisdiction.
THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (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 or the Notes brought in the courts of the State of New
York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 17.05. Evidence of Compliance with
Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company 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 and an Opinion of Counsel, each stating that such action is permitted by the terms of this Indenture and
that in the opinion of the certificate or opinion provider(s), all conditions precedent to such action have been complied with.
Each Officer’s Certificate and Opinion of
Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with this
Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a) a statement that the
person signing such certificate or opinion 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 whether or not all conditions precedent provided
for in this Indenture have been complied with; 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.
Notwithstanding anything to the contrary in this
Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel
in connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall be entitled to, or entitled to request,
such Opinion of Counsel.
Section 17.06. Legal Holidays. In any
case where any Interest Payment Date, any Redemption Date, any Fundamental Change 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, the parties hereto,
any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 17.09. Table of Contents, Headings,
Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 17.10. Authenticating Agent.
The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication
and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under
Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04 as fully to all
intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate
and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed
to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of
the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate
of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.
Any corporation or other entity into which any
authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from
any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding
to 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 17.10,
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:
__________________________,
as Authenticating Agent, certifies that this is one of the Notes described
in the within-named Indenture.
By: ____________________
Authorized Signatory
Section 17.11. Execution in Counterparts;
Electronic Signatures. 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, electronic means or PDF 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. The words “execution,” “signed,” “signature,”
and words of like import in this Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic
format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including,
without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any
contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect,
validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted
by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions
Act or the Uniform Commercial Code; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any
obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to
procedures approved by the Trustee.
Section 17.12. Severability. In the
event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law)
the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 17.13. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14. Force Majeure. In no
event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out
of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
epidemics, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 17.15. Calculations. Except
as otherwise provided herein, the Company shall be responsible for making all calculations called for under the Notes. These calculations
include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the Trading Price (if the Company
is the Bid Solicitation Agent at the relevant time), the Daily VWAPs, the Daily Conversion Values, the Daily Net Settlement Amounts, the
Daily Settlement Amounts, the Settlement Amount, accrued interest payable on the Notes, Additional Interest, if any, payable on the Notes,
the Redemption Price, the Conversion Rate and the Conversion Price of the Notes, including adjustments to the Conversion Rate and the
Conversion Price. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations
shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee, the Paying
Agent and the Conversion Agent, and each of the Trustee, the Paying Agent and the Conversion Agent is entitled to rely conclusively upon
the accuracy of the Company’s calculations without independent verification (and none of the Trustee, the Paying Agent nor the Conversion
Agent shall have any responsibility for such calculations or for any information used to determine the Conversion Rate or Conversion Price).
The Trustee will forward the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost
and expense of the Company.
Section 17.16. USA PATRIOT Act. The
parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the
USA PATRIOT Act.
Section 17.17. Tax Withholding. Notwithstanding
anything to the contrary contained in this Indenture, each of the Company, the Trustee and the Paying Agent may, to the extent it is required
to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments
hereunder.
Section 17.18. Service of Process.
The Company irrevocably consents to service of process in any manner, and at any place, provided for notices in Section 17.03,
however, the Trustee shall not accept service of process on behalf of any party. Nothing in this Indenture or the Notes shall affect the
right of any Person to serve process in any other manner permitted by applicable law.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first written above.
|
Global
Payments Inc. |
|
|
|
By: |
/s/ David L. Green |
|
|
Name: |
David L. Green |
|
|
Title: |
Senior Executive Vice President and Chief Administrative and Legal Officer |
[Signature Page to Indenture]
|
U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as the Trustee |
|
|
|
By: |
/s/ Mark C. Hallam |
|
|
Name: |
Mark C. Hallam |
|
|
Title: |
Assistant Vice President |
[Signature Page to Indenture]
EXHIBIT A
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON
STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES
FOR THE BENEFIT OF Global Payments Inc. (THE “COMPANY”) THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE
YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A PERSON
REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER
IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
NO AFFILIATE (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF Global Payments Inc. OR PERSON THAT HAS BEEN AN AFFILIATE
(AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF Global Payments Inc. DURING THE IMMEDIATELY
PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.
Global Payments Inc.
1.50% Convertible Senior Note due 2031
No. [_____] |
[Initially]1
$[_________] |
CUSIP No. [_________]
Global Payments Inc., a corporation duly organized
and validly existing under the laws of the State of Georgia (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 Increases and Decreases in Global 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 $2,000,000,000 in aggregate at any time, in accordance with the rules and procedures of the Depositary, on March 1, 2031,
and interest thereon as set forth below.
This Note shall bear interest at the rate of 1.50%
per year from February 23, 2024, or from the most recent date to which interest had been paid or provided for to, but excluding,
the next scheduled Interest Payment Date until March 1, 2031. Interest is payable semi-annually in arrears on each March 1 and
September 1, commencing on September 1, 2024, to Holders of record at the close of business on the preceding February 15
and August 15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth in Section 4.06(d),
Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of,
any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant
to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional
Interest in any provision therein shall not be construed as excluding Additional Interest in those provisions thereof where such express
mention is not made.
Any Defaulted Amounts shall accrue interest per
annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment
date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in accordance with
Section 2.03(c) of the Indenture.
The Company shall pay or cause the Paying Agent
to pay by wire transfer 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 or cause the Paying Agent to 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 in the continental United States of America, as a place
where Notes may be presented for payment or for registration of transfer and exchange.
1
Include if a global note.
2
Include if a global note.
3
Include if a physical note.
4
Include if a global note.
5
Include if a physical note.
Reference is made to the further provisions of
this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right to convert
this Note into cash and shares of Common Stock, if any, 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 or electronically by the Trustee or a duly
authorized authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Company has caused this
Note to be duly executed.
|
GLOBAL PAYMENTS INC. |
|
|
|
By: |
|
|
|
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 |
|
[FORM OF REVERSE OF NOTE]
Global Payments Inc.
1.50% Convertible Senior Note due 2031
This Note is one of a duly authorized issue of
Notes of the Company, designated as its 1.50% Convertible Senior Notes due 2031 (the “Notes”), limited to the aggregate
principal amount of $2,000,000,000 all issued or to be issued under and pursuant to an Indenture dated as of February 23, 2024 (the
“Indenture”), 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 in accordance with 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, the Redemption Price on any Redemption Date and the principal amount on the Maturity Date, as the case may be, to the Holder who
surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company will pay cash amounts in money of the
United States that at the time of payment is legal tender for payment of public and private debts.
The Indenture contains provisions permitting the
Company and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances,
with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced
as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described therein.
It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the Holders of all of the Notes waive certain past Defaults or Events of Default under
the Indenture and the consequences thereof.
Each Holder shall have the right to receive payment
or delivery, as the case may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price,
if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, this Note
at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein prescribed.
The Notes are issuable in registered form without
coupons in denominations of $1,000 in principal amount and integral multiples of $1,000 in excess thereof. At the office or agency of
the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, 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 Notes are not subject to redemption at the
Company’s option prior to March 6, 2028. The Notes shall be redeemable at the Company’s option on or after March 6,
2028 in accordance with the terms and subject to the conditions specified in the Indenture. No sinking fund is provided for the Notes.
Upon the occurrence of a Fundamental Change, 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) surrendered for repurchase in accordance with the Indenture
on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.
Subject to the provisions of the Indenture, the
Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion
thereof that is $1,000 or an integral multiple thereof, into cash and shares of Common Stock, if any, at the Conversion Rate specified
in the Indenture, as adjusted from time to time as provided in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription
of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though
not in the above list.
SCHEDULE A6
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTES
Global Payments Inc.
1.50% Convertible Senior Notes due 2031
The initial principal amount of this Global Note
is [_______] DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:
Date of increase
or
decrease |
|
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
Custodian |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
Include if a global note.
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION FOR PHYSICAL
NOTES]
To: | U.S. Bank Trust Company, National
Association, as Conversion Agent |
2 Concourse Parkway
Suite 800
Atlanta, Georgia 30328-5588
Attention: Administrator – Global Corporate Trust,
Global Payments Inc.
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 and shares of Common Stock, if any, in accordance with the terms of the Indenture referred to in this Note,
and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash
for any fractional share of Common Stock, and any Notes representing any unconverted principal amount hereof, be issued and delivered
to the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or any portion of this
Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp
or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e) of the Indenture.
Any amount required to be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not
defined shall have the meanings ascribed to such terms in the Indenture.
Dated: |
|
|
|
|
|
|
|
|
Signature(s) |
|
|
|
|
Signature Guarantee |
|
|
|
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder. |
|
|
Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder: |
|
|
|
|
|
(Name) |
|
|
|
|
|
(Street Address) |
|
|
|
|
|
(City, State and Zip Code) |
|
Please print name and address |
|
|
|
|
Principal amount to be converted (if less than all): $______,000 |
|
|
|
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in
every particular without alteration or enlargement or any change whatsoever. |
|
|
|
|
|
Social Security or Other Taxpayer Identification Number |
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE
FOR PHYSICAL NOTES]
To: | U.S. Bank Trust Company, National
Association, as Trustee |
2 Concourse Parkway
Suite 800
Atlanta, Georgia 30328-5588
Attention: Administrator – Global Corporate Trust,
Global Payments Inc.
The undersigned registered owner of this Note hereby
acknowledges receipt of a notice from Global Payments Inc. (the “Company”) as to the occurrence of a Fundamental Change
with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the
registered Holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal
amount of this Note, or the portion thereof (that is $1,000 in 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.
The certificate numbers of the Notes to be repurchased
are as set forth below:
Dated: |
|
|
|
|
|
|
|
|
Signature(s) |
|
|
|
|
|
Social Security or Other Taxpayer Identification Number |
|
|
|
Principal amount to be repaid (if less than all): $______,000 |
|
|
|
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in
every particular without alteration or enlargement or any change whatsoever. |
ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
For value received ____________________________ hereby sell(s), assign(s) and
transfer(s) unto _________________ (Please insert social security or Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints _____________________ attorney to transfer the said Note on the books of the Company,
with full power of substitution in the premises.
In connection with any transfer of the within Note occurring prior
to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that such Note is
being transferred:
¨ To
Global Payments Inc. 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. |
|
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 whatsoever.
Exhibit 10.1
[Dealer Contact Information]
[_], 2024
To: |
Global Payments Inc. |
|
3550 Lenox Road |
|
Atlanta, Georgia 30326 |
|
Attention: |
David Green |
|
Telephone No.: |
(770) 829-8000 |
|
Facsimile No.: |
(770) 829-8265 |
Re: | [Base][Additional] Call Option Transaction |
The purpose of this letter
agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction entered into
between [•] (“Dealer”) and Global Payments Inc. (“Counterparty”) as of the Trade Date
specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to
in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation, together with the Agreement, evidence
a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction to which this Confirmation
relates and shall supersede all prior or contemporaneous written or oral communications with respect thereto.
The definitions and provisions
contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International
Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency
between the Equity Definitions and this Confirmation, this Confirmation shall govern, except that with respect to the standards of Section
1.40 of the Equity Definitions, as expressly modified by Section 4 below, the Equity Definitions shall govern. Certain defined terms used
herein are based on terms that are defined in the Offering Memorandum dated February [_], 2024 (the “Offering Memorandum”)
relating to the [__]% Convertible Senior Notes due 2031 (as originally issued by Counterparty, the “Convertible Notes”
and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty in an aggregate
initial principal amount of USD [1,750,000,000] (as increased by [up to] an aggregate principal amount of USD [250,000,000] [if and to
the extent that][pursuant to the exercise by] the Initial Purchasers (as defined below) [exercise][of] their option to purchase additional
Convertible Notes pursuant to the Purchase Agreement (the “Purchase Agreement”) dated as of February [__], 2024, between
Counterparty and BofA Securities, Inc. and J.P. Morgan Securities LLC, as representatives of the Initial Purchasers party thereto (the
“Initial Purchasers”)) pursuant to an Indenture [to be] dated February [_], 2024 between Counterparty and U.S. Bank
Trust Company, National Association, as trustee (the “Indenture”). In the event of any inconsistency between the terms
defined in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that
this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture that are also
defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions
thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions
thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation.
The parties further acknowledge that the Indenture section numbers and cross-references used herein are based on the [draft of the Indenture
last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers or cross-references are changed in the Indenture
as executed, the parties will amend this Confirmation in good faith to preserve the intent of the parties][Indenture as executed]. Subject
to the foregoing, references to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if
the Indenture is amended or supplemented following such date (other than any amendment or supplement (x) pursuant to Section 10.01(h)
of the Indenture that, as determined in a commercially reasonable manner by the Calculation Agent, conforms the Indenture to the description
of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture, subject, in the case of this clause
(y), to the second paragraph under “Method of Adjustment” in Section 3), any such amendment or supplement will be disregarded
for purposes of this Confirmation (other than as provided in Section 9(j)(iii) below) unless the parties agree otherwise in writing.
Each party is hereby advised,
and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates
on the terms and conditions set forth below.
1. This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction
to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of
the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form
on the date hereof (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without
reference to choice of law doctrine), (ii) in respect of Section 5(a)(vi) of the Agreement, the election that the “Cross Default”
provisions shall apply to Dealer with a “Threshold Amount” of three percent of the shareholders’ equity of [Dealer][Dealer’s
ultimate parent] as of the Trade Date; provided that (a) the phrase “or becoming capable at such time of being declared”
shall be deleted from clause (1) of such Section 5(a)(vi) of the Agreement, (b) the following sentence shall be added to the end thereof:
“Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (i) the default
was caused solely by error or omission of an administrative or operational nature; (ii) funds were available to enable the party to make
the payment when due; and (iii) the payment is made within two Local Business Days of such party’s receipt of written notice of
its failure to pay.”; and (c) the term “Specified Indebtedness” shall have the meaning specified in Section 14 of the
Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of a party’s
banking business). In the event of any inconsistency between provisions of the Agreement, the Equity Definitions and this Confirmation,
the following shall prevail for purposes of the Transaction to which this Confirmation relates in the order of precedence indicated: (i)
this Confirmation; (ii) the Equity Definitions; and (iii) the Agreement. The Transaction hereunder shall be the sole Transaction under
the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation or other agreement between
Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding
anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer and Counterparty
are parties, the Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master
Agreement.
2. The Transaction shall be considered a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular
Transaction to which this Confirmation relates are as follows:
General Terms.
|
Trade Date: |
[____], 2024 |
|
|
|
|
Effective Date: |
The second Exchange Business Day immediately prior to the Premium Payment Date |
|
|
|
|
Option Style: |
“Modified American”, as described under “Procedures for Exercise” below |
|
|
|
|
Option Type: |
Call |
|
|
|
| Buyer: | Counterparty |
| | |
| Seller: | Dealer |
| | |
| Shares: | The common stock of Counterparty, no par value (Exchange symbol “GPN”). |
| | |
|
Number of Options: |
[_______]. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will
the Number of Options be less than zero. |
|
|
|
|
Applicable Percentage: |
[__]% |
|
Option Entitlement: |
A number equal to the product of the Applicable Percentage and [______]. |
|
|
|
|
Strike Price: |
USD [______] |
|
|
|
|
Cap Price: |
USD [______] |
|
|
|
|
Premium: |
USD [______] |
|
|
|
|
Premium Payment Date: |
[______], 2024 |
|
|
|
|
Exchange: |
The New York Stock Exchange |
|
|
|
|
Related Exchange(s): |
All Exchanges; provided that Section 1.26 of the Equity Definitions shall be amended to add the words “United States” before the word “exchange” in the tenth line of such section. |
|
|
|
|
Excluded Provisions: |
Section 14.04(g) and Section 14.03 of the Indenture. |
|
|
|
Procedures for Exercise. |
|
|
|
|
|
Conversion Date: |
With respect to any conversion of a Convertible Note (other than any conversion of Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date (any such conversion, an “Early Conversion”), to which the provisions of Section 9(j)(iv) of this Confirmation shall apply), the date on which the “Holder” (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture; provided that if Counterparty has not delivered to Dealer a related Notice of Exercise, then in no event shall a Conversion Date be deemed to occur hereunder (and no Option shall be exercised or deemed to be exercised hereunder) with respect to any surrender of a Convertible Note for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion of such Convertible Note pursuant to Section 14.12 of the Indenture. With the exception of Options exercised under “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below, Options may only be exercised hereunder on a Conversion Date in respect of the Convertible Notes and only in an amount equal to the number of USD 1,000 principal amount of Convertible Notes converted on such Conversion Date. |
|
|
|
|
Free Convertibility Date: |
December 1, 2030 |
|
|
|
|
Expiration Time: |
The Valuation Time |
|
|
|
|
Expiration Date: |
March 1, 2031, subject to earlier exercise. |
|
|
|
|
Multiple Exercise: |
Applicable, as described under “Automatic Exercise” and “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below. |
|
Automatic Exercise: |
Notwithstanding Section 3.4 of the Equity Definitions, on each Conversion Date occurring on or after the Free Convertibility Date in respect of which a “Notice of Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder, a number of Options equal to [(i)] the number of Convertible Notes in denominations of USD 1,000 as to which such Conversion Date has occurred[, minus (ii) the number of Options that are or are deemed to be automatically exercised on such Conversion Date under the Base Call Option Transaction Confirmation letter agreement dated February [_], 2024 between Dealer and Counterparty (the “Base Call Option Confirmation”) (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be automatically exercised hereunder or under the Base Call Option Confirmation, the Convertible Notes subject to conversion shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated),] shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below. |
|
|
|
|
|
Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options. |
|
|
|
|
|
|
|
Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date: |
Notwithstanding anything herein or in Section 3.4 of the Equity Definitions to the contrary, unless Counterparty notifies Dealer in writing prior to 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date that it does not wish Automatic Exercise to occur with respect to any Remaining Repurchase Options (as defined below), a number of Options equal to the lesser of (a) the Number of Options (after giving effect to the provisions opposite the caption “Automatic Exercise” above) as of 9:00 a.m. (New York City time) on the Expiration Date and (b) the Remaining Repurchase Options [minus the number of Remaining Options (as defined in the Base Call Option Transaction Confirmation)] (such lesser number, the “Remaining Options”) will be deemed to be automatically exercised as if (i) a number of Convertible Notes (in denominations of USD 1,000 principal amount) equal to such number of Remaining Options were converted with a Conversion Date occurring on or after the Free Convertibility Date and (ii) the Relevant Settlement Method applied to such Convertible Notes; provided that no such automatic exercise pursuant to this paragraph will occur if the Relevant Price for each Valid Day during the Settlement Averaging Period is less than or equal to the Strike Price. “Remaining Repurchase Options” shall mean the excess of (I) the aggregate number of Convertible Notes (in denominations of USD 1,000 principal amount) that were subject to a Convertible Note Repurchase Event other than in connection with a “Fundamental Change” (as such term is defined in the Indenture) (“Repurchase Events”) during the term of the Transaction over (II) the aggregate number of Repurchase Options (as defined below) that were terminated hereunder relating to Repurchase Events during the term of the Transaction [plus the number of Repurchase Options (as defined in the Base Call Option Transaction Confirmation) terminated under the Base Call Option Transaction Confirmation relating to Repurchase Events (as defined therein) during the term of the “Transaction” under the Base Call Option Transaction Confirmation]. Counterparty shall notify Dealer in writing of the number of Remaining Repurchase Options before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date. |
|
Notice of Exercise: |
Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but
subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date,” in order to exercise
any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must
notify Dealer in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date specifying
the number of such Options that are to be exercised; provided that, notwithstanding the foregoing, such notice (and the related
exercise of Options) shall be effective if given after the applicable notice deadline specified above but prior to 4:00 p.m. (New York
City time) on the fifth Scheduled Valid Day following such notice deadline, in which event the Calculation Agent shall have the right
to adjust the delivery obligation under this Confirmation and the Settlement Date as appropriate to reflect the commercially reasonable
additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses and gains) and commercially
reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any
commercially reasonable Hedge Positions) as a result of Dealer not having received such notice on or prior to such notice deadline and
Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; provided further
that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received
a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m.
(New York City time) on the Free Convertibility Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the settlement
method for the related Convertible Notes is not Settlement in Cash (as defined below), the fixed percentage of the consideration due
upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to pay to Holders of the
related Convertible Notes in cash (the “Cash Percentage”). If Counterparty fails to timely provide such Notice of
Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement
Method is Net Share Settlement and that the Cash Percentage elected in connection with the settlement of the conversion of the related
Convertible Notes is 0%. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9
and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a Cash
Percentage in connection with the settlement of the conversion of the related Convertible Notes. |
|
Valuation Time: |
At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended,
the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner. |
Settlement Terms.
|
Settlement Method: |
For any Option, Net Share Settlement; provided that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty shall have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement Method for such Option. |
|
|
|
|
Relevant Settlement Method: |
In respect of any Option: |
|
|
|
|
|
(i) if Counterparty has not elected to settle all or any portion of its conversion obligations in respect of the related Convertible Note in excess of the principal amount thereof in cash, either by specifying a Cash Percentage of 0% or not timely specifying a Cash Percentage, in each case, pursuant to Section 14.02(a)(i) of the Indenture, then the Relevant Settlement Method for such Option shall be Net Share Settlement; |
|
|
|
|
|
(ii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in excess of the principal amount thereof in a combination of cash and Shares by specifying a Cash Percentage less than 100% but greater than 0% pursuant to Section 14.02(a)(i) of the Indenture, then the Relevant Settlement Method for such Option shall be Combination Settlement; and |
|
|
|
|
|
(iii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in excess of the principal amount thereof entirely in cash by specifying a Cash Percentage of 100% pursuant to Section 14.02(a)(i) of the Indenture (such settlement method, “Settlement in Cash”), then the Relevant Settlement Method for such Option shall be Cash Settlement. |
|
Net Share Settlement: |
If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on
the relevant Settlement Date for each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to
the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such
Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement
Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal
to the Applicable Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option. |
|
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued
at the Relevant Price for the last Valid Day of the Settlement Averaging Period. |
|
Combination Settlement: |
If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay and/or deliver, as the
case may be, to Counterparty, on the relevant Settlement Date for each such Option: |
| (i) | cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid Day
during the Settlement Averaging Period for such Option, of (A) an amount for such Valid Day (the “Daily Combination Settlement
Cash Amount”) equal to the product of (1) the Cash Percentage and (2) the Daily Option Value for such Valid Day, divided
by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A) above results
in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash Amount for such Valid Day shall be deemed to be
zero; and |
| (ii) | Shares (the “Combination Settlement Share Amount”) equal to the sum, for each Valid
Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily Combination
Settlement Share Amount”) equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily Combination
Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number
of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or
a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero; |
|
|
provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit for such Option. If any reduction is made to the delivery obligation hereunder as a result of the foregoing proviso, such reduction shall first be made to any Combination Settlement Share Amount. |
|
|
|
|
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. |
|
|
|
|
Cash Settlement: |
If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Cash Settlement Amount exceed the Applicable Limit for such Option. |
|
|
|
|
Daily Option Value: |
For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero. |
|
|
|
|
Applicable Limit: |
For any Option, an amount of cash equal to the Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash payable to the Holder of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, deliverable to the Holder of the related Convertible Note upon conversion of such Convertible Note multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000. |
|
|
|
|
Applicable Limit Price: |
On any day, the opening price as displayed under the heading “Op” on Bloomberg page GPN <equity> (or any successor thereto). |
|
|
|
|
Valid Day: |
A “Trading Day” for purposes of determining the amounts due upon conversion of the Convertible Notes as such term is defined in the Indenture. |
|
|
|
|
Scheduled Valid Day: |
A “Scheduled Trading Day” as such term is defined in the Indenture. |
|
Business Day: |
A “Business Day” as such term is defined in the Indenture. |
|
|
|
|
Relevant Price: |
On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GPN <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading on the Exchange to the Scheduled Closing Time of the Exchange on such Valid Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Valid Day, as determined by the Calculation Agent in a commercially reasonable manner using, if practicable, a volume-weighted average method). The “Relevant Price” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours. |
|
|
|
|
Settlement Averaging Period: |
For any Option, the 40 consecutive Valid Days commencing on, and including, the 41st Scheduled Valid Day immediately prior to the Expiration Date. |
|
|
|
|
Settlement Date: |
For any Option, the second Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option. |
|
|
|
|
Settlement Currency: |
USD |
|
|
|
|
Other Applicable Provisions: |
The provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physical Settlement” or “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option. |
|
|
|
|
Representation and Agreement: |
Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of delivery through the Clearance System, (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)) and (iv) the “Representation and Agreement” contained in Section 9.11 of the Equity Definitions shall be deemed modified accordingly. |
3. | Additional Terms applicable to the Transaction. |
Adjustments applicable to the Transaction:
|
Potential Adjustment Events: |
Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event
or condition, as set forth in any Dilution Adjustment Provision, that requires an adjustment under the Indenture to the “Conversion
Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price,” “Daily
VWAP,” “Daily Conversion Value,” “Daily Net Settlement Amount” or “Daily Settlement Amount”
(as each such term is defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation
hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property
or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in
which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the
type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of Section 14.04(c)
of the Indenture or the fifth sentence of Section 14.04(d) of the Indenture). |
|
|
|
|
Method of Adjustment: |
Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment
Event, the Calculation Agent, acting in good faith and a commercially reasonable manner in accordance with the terms of the Indenture,
shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable
relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment is required to be made pursuant
to the Indenture in connection with such Potential Adjustment Event. |
|
|
|
|
|
Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below: |
| (i) | if the Calculation Agent in good faith and in a commercially reasonable manner disagrees with any adjustment
to the Convertible Notes (based on the terms of the Indenture and that is a basis of any adjustment hereunder) that involves an exercise
of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture, Section
14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment or the
determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will
determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable
relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner taking into account the relevant
provisions of the Indenture; |
| (ii) | in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section
14.04(b) of the Indenture or Section 14.04(c) of the Indenture where, in either case, the period for determining “Y” (as such
term is used in Section 14.04(b) of the Indenture) or “SP0” (as such term is used in Section 14.04(c) of the Indenture),
as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to such Potential Adjustment
Event, then the Calculation Agent shall have the right to adjust in good faith and in a commercially reasonable manner, taking into account
the terms of the Indenture, any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect
the commercially reasonable costs (including, but not limited to, hedging mismatches and market losses customary for transactions similar
to the Transaction with counterparties similar to Counterparty) and commercially reasonable, documented out-of-pocket expenses incurred
by Dealer in connection with its commercially reasonable hedging activities customary for transactions similar to the Transaction with
counterparties similar to Counterparty as a result of such event or condition not having been publicly announced prior to the beginning
of such period; and |
| (iii) | if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such Potential
Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the “Conversion Rate” (as such term is defined
in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment Provision based
on such declaration or (c) the Conversion Rate is adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted
(each of clauses (a), (b) and (c), a “Potential Adjustment Event Change”) then, in each case, the Calculation Agent
shall have the right to adjust, in good faith and in a commercially reasonable manner, taking into account the terms of the Indenture,
any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs (including, but not
limited to, hedging mismatches and market losses customary for transactions similar to the Transaction with counterparties similar to
Counterparty) and commercially reasonable, documented out-of-pocket expenses incurred by Dealer in connection with its commercially reasonable
hedging activities customary for transactions similar to the Transaction with counterparties similar
to Counterparty as a result of such Potential Adjustment Event Change. |
|
Dilution Adjustment Provisions: |
Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture. |
Extraordinary Events applicable to the
Transaction:
|
Merger Events: |
Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 14.07(a) of the Indenture. |
|
|
|
|
Tender Offers: |
Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture. |
|
|
|
|
Consequences of Merger Events / Tender Offers: |
Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent, in a commercially reasonable manner, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment is required to be made pursuant to the Indenture in connection with such Merger Event or Tender Offer, as the case may be, subject to the second paragraph under “Method of Adjustment”; provided, however, that no such adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that, in respect of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, the Calculation Agent shall have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to compensate Dealer for any losses (including, without limitation, market losses customary for transactions similar to the Transaction with counterparties similar to Counterparty) solely as a result of any mismatch between its Hedge Position, assuming Dealer maintains a commercially reasonable Hedge Position, and the type and amount of consideration actually paid or issued to the holders of Shares in respect of such Merger Event; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not treated as a corporation for U.S. federal income tax purposes or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be treated as a corporation for U.S. federal income tax purposes or will not be organized under the laws of the United States, any State thereof or the District of Columbia, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s commercially reasonable discretion; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. |
|
Nationalization, Insolvency or Delisting: |
Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. |
|
|
|
|
Consequences of Announcement Events: |
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event (w) references in such Section 12.3(d) to “Tender Offer” shall be replaced by references to “Announcement Event” and references in such Section 12.3(d) to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” in such Section 12.3(d) shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, (y) the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event,” shall be inserted prior to the word “which” in the seventh line of such Section 12.3(d), and (z) for the avoidance of doubt, the Calculation Agent shall determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, shall, acting in good faith and in a commercially reasonable manner, adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that (1) any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and (2) such adjustment shall be made without duplication of any other adjustment hereunder. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions, as modified in this paragraph, is applicable. |
|
Announcement Event: |
(i) The public announcement by Issuer or any Valid Third Party Entity of (x) any transaction or event that is reasonably likely to be completed (as determined by the Calculation Agent taking into account the effect of such announcement on the market for the Shares and/or options on the Shares) and, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 35% of the market capitalization of Issuer as of the date of such announcement (an “Acquisition Transaction”) or (z) the intention to enter into a Merger Event, Tender Offer or Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that includes, a Merger Event, Tender Offer or Acquisition Transaction or (iii) any subsequent public announcement by Issuer or any Valid Third Party Entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent in good faith and in a commercially reasonable manner. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” (A) “Merger Event” shall mean such term as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded) and (B) “Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions (provided that all references to “voting shares” in Sections 12.1(d), 12.1(e) and 12.1(l) of the Equity Definitions shall be replaced with references to “Shares”). |
|
|
|
|
Valid Third Party Entity: |
In respect of any transaction, any third party that the Calculation Agent determines has a bona fide intent to enter into or consummate such transaction (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares and, if such effect is material, may deem such third party to have a bona fide intent to enter into or consummate such transaction). |
Additional Disruption
Events:
|
Change in Law: |
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or the public announcement of, the formal or informal interpretation”, (ii) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (iii) replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption, effectiveness or promulgation of new regulations authorized or mandated by existing statute) at the end of clause (A) thereof”. |
|
|
|
|
Failure to Deliver: |
Applicable |
|
|
|
|
Hedging Disruption: |
Applicable; provided that: |
| (i) | Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words
at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting
the following text at the end of such Section: |
| | |
|
|
“, provided that any such inability that occurs solely due to the deterioration of the creditworthiness of the Hedging Party
shall not be deemed a Hedging Disruption. For the avoidance of doubt, the term “equity price risk” shall be deemed to include,
but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets
referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and |
|
|
|
| (ii) | Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof,
after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging
Disruption”. |
|
Increased Cost of Hedging: |
Not Applicable |
|
|
|
|
Hedging Party: |
For all applicable Additional Disruption Events, Dealer. Following any determination or calculation by the Hedging Party hereunder, upon
written request by Counterparty, the Hedging Party shall promptly (but in any event within five Scheduled Trading Days) provide to Counterparty
by e-mail to the e-mail address provided by Counterparty in such request a written explanation and report (in a commonly used file format
for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including
any quotations, market data or information from internal or external sources, and any assumptions, used in making such determination
or calculation), it being understood that the Hedging Party shall not be obligated to disclose any proprietary or confidential models
used by it for such determination or calculation or any information that may be proprietary or confidential. |
|
Determining Party: |
For all applicable Extraordinary Events, Dealer. Following any determination or calculation by the Determining Party hereunder, upon
written request by Counterparty, the Determining Party shall promptly (but in any event within five Scheduled Trading Days) provide to
Counterparty by e-mail to the e-mail address provided by Counterparty in such request a written explanation and report (in a commonly
used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination
or calculation (including any quotations, market data or information from internal or external sources, and any assumptions, used in
making such determination or calculation), it being understood that the Determining Party shall not be obligated to disclose any proprietary
or confidential models used by it for such determination or calculation or any information that may be proprietary or confidential. |
|
Agreements and Acknowledgments
Regarding Hedging Activities: |
Applicable |
|
|
|
|
Additional Acknowledgments: |
Applicable |
4. |
Calculation Agent. | Dealer; provided that following the occurrence and during
the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the
sole Defaulting Party, if the Calculation Agent fails to timely make any adjustment, determination or calculation required to be made
by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five
(5) Exchange Business Days following notice to the Calculation Agent by Counterparty of such failure, Counterparty shall have the right
to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing
on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default (or, if earlier,
the date on which such Event of Default is no longer continuing), as the Calculation Agent. The Calculation Agent’s judgments,
adjustment, determinations and calculations shall be made in good faith and in a commercially reasonable manner. Following any adjustment,
determination or calculation by the Calculation Agent hereunder, upon written request by Counterparty, the Calculation Agent shall promptly
(but in any event within five Scheduled Trading Days) provide to Counterparty by e-mail to the e-mail address provided by Counterparty
in such request a written explanation and report (in a commonly used file format for the storage and manipulation of financial data)
displaying in reasonable detail the basis for such adjustment, determination or calculation (including any quotations, market data or
information from internal or external sources, and any assumptions, used in making such adjustment, determination or calculation), it
being understood that the Calculation Agent shall not be obligated to disclose any proprietary or confidential models used by it for
such adjustment, determination or calculation or any information that may be proprietary or confidential. |
| Hedging Adjustments: | For the avoidance of doubt, whenever the Calculation Agent,
Determining Party or Dealer is permitted to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to
take into account the economic effect of an event (other than, for the avoidance of doubt, any adjustment that is required to be made
by reference to the Indenture), the Calculation Agent, Determining Party or Dealer shall make such adjustment, if any, by reference to
the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable Hedge Position. |
| (a) | Account for payments to Counterparty: |
To be provided by Counterparty.
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
| (b) | Account for payments to Dealer: |
|
[Bank: |
[____________]. |
|
ABA#: |
[____________] |
|
Acct No.: |
[____________] |
|
Beneficiary: |
[____________] |
|
Ref: |
[____________]] |
[To be provided by Dealer.]
Account for delivery of Shares from Dealer:
To be provided by Dealer.
| (a) | The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party. |
| (b) | The Office of Dealer for the Transaction is: [●] |
| (a) | Address for notices or communications to Counterparty: |
|
Global Payments Inc. |
|
3550 Lenox Road |
|
Atlanta, Georgia 30326 |
|
Attention: |
David Green |
|
Telephone No.: |
(770) 829-8000 |
|
Facsimile No.: |
[***] |
| (b) | Address for notices or communications to Dealer: |
[●]
With a copy to:
[●]
8. | Representations and Warranties of Counterparty. |
Counterparty hereby represents and warrants
to Dealer on the date hereof and on and as of the Premium Payment Date that:
| (a) | Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations
in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on
Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its
valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution
hereunder may be limited by federal or state securities laws or public policy relating thereto. |
| (b) | Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations
of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent
documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental
authority or agency, or any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year
ended December 31, 2023, as updated by any subsequent filings made with the Securities and Exchange Commission, to which Counterparty
or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of
its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument. |
| (c) | To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this
Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws;
provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the
ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions
and/or broker-dealers. |
| (d) | Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required
to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
| (e) | Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18)
of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the
Commodity Exchange Act). |
| (f) | Counterparty is not, on the date hereof, in possession of any material non-public information with respect
to Counterparty or the Shares. |
| (g) | To the knowledge of Counterparty, no state or local (including any non-U.S. jurisdiction’s) law,
rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction
that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s
activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without
limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding
(however defined) Shares. |
| (h) | Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard
to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating
the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and
(C) has total assets of at least USD 50 million. |
| (i) | On each of the Trade Date and the Premium Payment Date, Counterparty is not “insolvent” (as
such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy
Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws
of the jurisdiction of Counterparty’s incorporation. |
| (j) | Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a
capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security
Act (the “CARES Act”), Counterparty will be required to agree to certain time-bound restrictions on its ability to
purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined
in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain
time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees
or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal
Reserve System, the U.S. Department of Treasury or similar governmental entity for the purpose of providing liquidity to the financial
system. Accordingly, Counterparty represents and warrants that neither it, nor any of its subsidiaries have applied, and have no
present intention to apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act) or other investment,
or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable
law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act
and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement
thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial
assistance or relief, that Counterparty comply with any requirement to, or otherwise agree, attest, certify or warrant that it has not,
as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty; provided that
Counterparty may apply for any such governmental assistance if Counterparty determines based on the advice of nationally recognized outside
counsel that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt
or retention of such governmental assistance based on the terms of the relevant program or facility as of the date of such advice.
Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds
received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection
Program”, that (a) is established under applicable law, including without limitation the CARES Act and the Federal Reserve Act,
as amended, and (b) requires under such applicable law (or
any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility)
that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction (either by specific reference
to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects). |
| (k) | [Counterparty has received, read and understands the OTC Options Risk Disclosure Statement and a copy
of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized
Options”.] |
| (a) | Opinions. Counterparty shall deliver to Dealer one or more opinions of counsel (which, solely
for opinions with respect to the law of the State of Georgia may include in-house counsel to Counterparty), dated as of the Premium Payment
Date, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation; provided that any such opinion of
counsel may contain customary exceptions and qualifications. Delivery of such opinion to Dealer shall be a condition precedent for the
purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. |
| (b) | Repurchase Notices. Counterparty shall, on or prior to the opening of the regular trading
session for the Shares on the Exchange on the date that is one Scheduled Trading Day following any date on which Counterparty obtains
actual knowledge that it has effected any repurchase of Shares, give Dealer a written notice of such repurchase (a “Repurchase
Notice”) if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than 201.6
million (in the case of the first such notice) or (ii) thereafter more than 36.4
million less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold
harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons
(each, an “Indemnified Person”) from and against any and all losses (including losses relating to Dealer’s commercially
reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including
without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith
with respect to the Transaction), claims, damages, judgments, liabilities and reasonable, documented out-of-pocket expenses (including
reasonable external attorney’s fees), joint or several, which an Indemnified Person may become subject to, in each case, as a result
of Counterparty’s failure to provide Dealer with a Repurchase Notice when and in the manner specified in this paragraph, and to
reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred
in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing.
If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted
against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with
this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty
may designate in such proceeding and shall pay the reasonable, documented fees and expenses of such counsel related to such proceeding.
Counterparty shall not be liable for any such settlement of any proceeding contemplated by this paragraph that is effected without its
written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify
any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall be relieved
from liability to the extent that any Indemnified Person fails promptly to notify Counterparty of any action commenced against it in respect
of which indemnity may be sought hereunder to the extent Counterparty is materially prejudiced as a result thereof. Counterparty shall
not, without the prior written consent of the Indemnified Person, effect any settlement of any such proceeding that is pending or threatened
contemplated by this paragraph that is in respect of which any Indemnified Person is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified
Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities.
The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available
to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative
and in full force and effect regardless of the termination of the Transaction. |
| (c) | Regulation M. Counterparty is not on the Trade Date engaged in a distribution, as such term
is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities
of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation
M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution. |
| (d) | No Manipulation. Counterparty is not entering into the Transaction to create actual or apparent
trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or manipulate
the price of the Shares (or any security convertible into or exchangeable for the Shares) in violation of the Exchange Act. |
| (e) | Transfer or Assignment. |
| (i) | Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect
to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that
such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following
conditions: |
| (A) | With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification
obligations pursuant to Section 9(b) of this Confirmation or any obligations under Section 9(o) or 9(t) of this Confirmation; |
| (B) | Any Transfer Options shall only be transferred or assigned to a third party that is a United States person
(as defined in the Internal Revenue Code of 1986, as amended (the “Code”)); |
| (C) | Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such
third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that,
in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any
documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as
are reasonably requested by and reasonably satisfactory to Dealer; |
| (D) | Dealer will not, as a result of such transfer or assignment, be required to pay the transferee or assignee
on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required to
pay to Counterparty in the absence of such transfer or assignment; |
| (E) | An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such
transfer or assignment; |
| (F) | Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to
make such Payee Tax Representations and to provide such tax documentation as may be reasonably
requested by Dealer to permit Dealer to determine that results described in clauses (D)
and (E) will not occur upon or after such transfer or assignment; and |
| (G) | Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel
fees, incurred by Dealer in connection with such transfer or assignment. |
| (ii) | Dealer may, transfer or assign all or any part of its rights or obligations under the Transaction (A)
without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than
Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant
to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate
parent, or (B) without Counterparty’s consent, to any Leading Dealer; provided that, under the applicable law effective on
the date of such assignment, (1) Counterparty will not (including for the avoidance of doubt, after giving effect to any indemnity from
the transferee to Counterparty provided in connection with such transfer or assignment), as a result of such transfer or assignment, receive
from the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement less than the amount that Counterparty
would have received from Dealer in the absence of such transfer or assignment, except to the extent of any deduction or withholding that
results from a Change in Tax Law occurring after the date of such transfer and/or assignment; (2) such transfer or assignment does not
cause a deemed exchange for Counterparty of the Transaction under Section 1001 of the Code; and (3) no Event of Default, Potential Event
of Default or Termination Event will occur as a result of such transfer or assignment. If at any time at which (A) the Section 16 Percentage
exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies)
(any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer, acting in good faith,
is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party in accordance
with the preceding sentence on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer
such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect
to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess
Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction,
a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a
Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated
Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the
sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) of this Confirmation shall apply to any amount
that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section
16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares
that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership”
test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which
Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication,
on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations
thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such
day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of
which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying
any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding.
The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would
be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory
order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable
Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant
definition of ownership under any Applicable Restriction, in any such case as determined by Dealer in its reasonable discretion. The “Applicable
Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration
obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in
effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or
could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion,
minus (B) 1% of the number of Shares outstanding. Dealer shall provide Counterparty with written notice of any transfer or assignment
on, or as promptly as practicable after, the date of such transfer or assignment. “Leading Dealer” means any of the
following dealers and each of their respective affiliated dealers: [•], or any successor or Affiliate of any of the foregoing. |
| (iii) | Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer
to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Counterparty
or Dealer, as the case may be, may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities,
or make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such
designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance. |
| (f) | Staggered Settlement. If upon advice of counsel with respect to applicable legal, regulatory
or self-regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder
that would be customarily applicable to transactions similar to the Transaction with counterparties similar to Counterparty as determined
by the Calculation Agent, Dealer reasonably determines that it would not be practicable or advisable, based upon such advice of counsel,
under such applicable legal, regulatory or self-regulatory requirements, to deliver, or to acquire Shares to deliver, any or all of the
Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any
Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered
Settlement Date”) as follows: |
| (i) | in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (the first
of which will be such Nominal Settlement Date and the last of which will be no later than the twentieth (20th) Exchange Business Day following
such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date; |
| (ii) | the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered
Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and |
| (iii) | if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on
the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on
each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such
Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above. |
| (h) | [Conduct Rules. Each party acknowledges and agrees to be bound by the Conduct Rules of the
Financial Industry Regulatory Authority applicable to transactions in options, and further agrees not to violate the position and exercise
limits set forth therein.] [Reserved]. |
| (i) | Dividends. If at any time during the period from and including the Trade Date, to but excluding
the Expiration Date, (i) an ex-dividend date for a regular quarterly cash dividend occurs with respect to the Shares (an “Ex-Dividend
Date”), and that dividend is less than the Regular Dividend on a per Share basis or (ii) if no Ex-Dividend Date for a regular
quarterly cash dividend occurs with respect to the Shares in any quarterly dividend period of Counterparty, then the Calculation Agent
will adjust the Cap Price to preserve the fair value of the Options to Dealer after taking into account such dividend or lack thereof.
“Regular Dividend” shall mean USD 0.25 per Share per quarter. Upon any adjustment to the “Initial Dividend Threshold”
(as such term is defined in the Indenture) for the Convertible Notes pursuant to the Indenture, the Calculation Agent will make a corresponding
adjustment to the Regular Dividend for the Transaction. |
| (j) | Additional Termination Events. |
| (i) | Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty
occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture that results in the Convertible Notes becoming
or being declared due and payable pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination
Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the
sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate
an Early Termination Date pursuant to Section 6(b) of the Agreement. |
| (ii) | Promptly (but in any event within three Scheduled Trading Days) following any repurchase and cancellation
of Convertible Notes, including without limitation pursuant to Articles 15 or 16 of the Indenture in connection with a “Fundamental
Change” or an “Optional Redemption” (as each such term is defined in the Indenture) (a “Convertible Notes Repurchase
Event”), Counterparty shall (in the case of a Fundamental Change) and may, but shall not be required to (in the case of any
other Convertible Notes Repurchase Event), notify Dealer in writing of such repurchase and cancellation and the number of Convertible
Notes in USD 1,000 principal amount so repurchased and cancelled (any such notice, a “Notes Repurchase Notice”), which
Notes Repurchase Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and
in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of such repurchase
and cancellation and its delivery of such Notes Repurchase Notice[; provided that any “Notes Repurchase Notice” delivered
to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Notes Repurchase Notice pursuant to this Confirmation
and the terms of such Notes Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]. Notwithstanding anything to
the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Notes Repurchase Notice and (y) in the case of a
Convertible Notes Repurchase Event other than a Convertible Notes Repurchase Event in connection with a “Fundamental Change”,
a written representation and warranty delivered by Counterparty to Dealer that, as of the date of such Notes Repurchase Notice, Counterparty
is not in possession of any material nonpublic information regarding Counterparty or the Shares, in each case, within the applicable time
period set forth in the preceding sentence, shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt
of any such Notes Repurchase Notice and the related written representation and warranty (if applicable), Dealer shall promptly designate
an Exchange Business Day following receipt of such Notes Repurchase Notice (which in no event shall be earlier than the related repurchase
settlement date for such Convertible Notes) as an Early Termination Date with respect to the portion of the Transaction corresponding
to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified
in such Notes Repurchase Notice, [minus the
“Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and
for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the
Repurchase Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Notes
Repurchase Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]
and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options
shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant
to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical
to the Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with
respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction. For
the avoidance of doubt, in determining the amount payable in respect of such Additional Termination Event pursuant to Section 6 of the
Agreement, Dealer shall assume (1) the relevant Convertible Notes Repurchase Event and any conversions, adjustments, agreements, payments,
deliveries or acquisitions of, by or on behalf of Counterparty leading thereto had not occurred, (2) no adjustments to the Conversion
Rate have occurred pursuant to any Excluded Provision and (3) the corresponding Convertible Notes remain outstanding. |
| (iii) | Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall
constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty
shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the
party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event”
means that Counterparty amends, modifies, supplements or obtains a waiver in respect of any term of the Indenture or the Convertible Notes
that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than,
in each case, any amendment or supplement pursuant to Section 10.01(h) or Section 14.07 of the Indenture), without the consent of Dealer
(such consent not to be unreasonably withheld or delayed). |
| (iv) | Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of
which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: |
| (A) | Counterparty shall, within three Scheduled Trading Days of the Conversion Date for such Early Conversion,
provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered
for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) [(provided
that any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be
an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis,
to this Confirmation)], and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in
this clause (iv); |
| (B) | upon receipt of any such Early Conversion
Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no
earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the
Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x)
the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base
Call Option Confirmation), if any, that relate to such Affected Convertible
Notes (and for purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be
among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Transaction Confirmation, the Affected
Convertible Notes specified in such Early Conversion Notice shall be allocated first to the Base Call Option Transaction Confirmation
until all Options thereunder are exercised or terminated)] and (y) the Number
of Options as of the Conversion Date for such Early Conversion; |
| (C) | any payment hereunder with respect to such termination
shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction
having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole
Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected
Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage,
multiplied by (2) the Affected Number of Options, multiplied by (3)(x) the sum of (i) the amount of cash paid (if any) to
the Holder of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if
any) to the Holder of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable
Limit Price on the settlement date for the conversion of such Affected Convertible Notes, minus the Specific Price. “Specific
Price” shall mean (x) if the relevant Affected Convertible Notes are not Relevant Convertible Notes, USD 1,000 and (y) if the
relevant Affected Convertible Notes are Relevant Convertible Notes, the Synthetic Instrument Adjusted Issue Price with respect to such
Affected Convertible Notes, as determined by the Calculation Agent in a commercially reasonable manner, on the Relevant Conversion Unwind
Date. “Relevant Convertible Notes” shall mean Convertible Notes with respect to the exercise of any Options
that, according to the relevant Notice of Exercise for such Options, were converted in connection with a “Make Whole Fundamental
Change” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture and for which additional Shares will be added to
the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture. “Relevant Conversion
Unwind Date” shall mean, for any Relevant Convertible Notes, the settlement date for the conversion of such Relevant Convertible
Notes. “Synthetic Instrument Adjusted Issue Price” shall mean, for each Relevant Convertible Note, the amount per USD
1,000 principal amount of Relevant Convertible Notes determined by the Calculation Agent by reference
to the table set forth below based on the Relevant Conversion Unwind Date. If the Relevant Conversion Unwind Date is not listed
below, the amount in the preceding sentence shall be determined by the Calculation Agent by reference to the table below using a linear
interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the Relevant Conversion Unwind Dates immediately
preceding and immediately following the Relevant Conversion Unwind Date. |
|
Relevant Conversion Unwind Date |
Synthetic Instrument Adjusted Issue Price |
|
February [__], 2024 |
USD [●] |
|
September 1, 2024 |
USD [●] |
|
March 1, 2025 |
USD [●] |
|
September 1, 2025 |
USD [●] |
|
March 1, 2026 |
USD [●] |
|
September 1, 2026 |
USD [●] |
|
March 1, 2027 |
USD [●] |
|
September 1, 2027 |
USD [●] |
|
March 1, 2028 |
USD [●] |
|
September 1, 2028 |
USD [●] |
|
March 1, 2029 |
USD [●] |
|
September 1, 2029 |
USD [●] |
|
March 1, 2030 |
USD [●] |
|
September 1, 2030 |
USD [●] |
|
March 1, 2031 |
USD [●] |
| (D) | for the avoidance of doubt, in determining the amount payable in respect
of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion
and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had
not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the Affected Convertible
Notes remain outstanding; |
| (E) | the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such
Early Conversion, the Number of Options shall be reduced by the Affected Number of Options; and |
| (F) | Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section
9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any Early Conversion
Notice. |
| (k) | Amendments to Equity Definitions and the Agreement. |
| (i) | Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “a diluting
or concentrative” and replacing them with the words “a material” and adding the phrase “or the Options”
at the end of the sentence. |
| (ii) | Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(1)” immediately
following the word “means” in the first line thereof and (2) inserting immediately prior to the semi-colon at the end of subsection
(B) thereof the following words: “or (2) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the
ISDA Master Agreement with respect to that Issuer”. |
| (iii) | Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may
elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty”
in the first sentence of such section. |
| (iv) | Section 12(a) of the Agreement is hereby amended by (1) deleting the phrase “or email” in
the third line thereof and (2) deleting the phrase “or that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day” in the final clause thereof. |
| (l) | No Setoff. The provisions of Section 2(c) of the Agreement shall not apply to the Transaction.
Each party waives any and all rights it may have to set-off delivery or payment obligations it owes to the other party under the Agreement
and the Transaction against any delivery or payment obligations owed to it by the other party under any other agreement between the parties
hereto, by operation of law or otherwise. |
| (m) | Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.
If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect
to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result
of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to all holders of Shares consists solely of
cash, (ii) an Announcement Event, a Merger Event or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default
in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the sole Affected Party other than an Event
of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type
described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control),
and if Dealer would owe any amount to Counterparty pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to
Article 12 of the Equity Definitions (any such amount, a “Payment Obligation”), then Dealer shall satisfy the Payment
Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives irrevocable telephonic notice to
Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the date of the Announcement
Event, the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination
Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Counterparty
acknowledges to Dealer, as of the date of such election, its responsibilities under applicable securities laws, and in particular Section
9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in connection with such election and (c) Dealer agrees,
in its sole discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the
provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply. |
|
Share Termination Alternative: |
If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment. |
|
|
|
|
Share Termination Delivery Property: |
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price. |
|
|
|
|
Share Termination Unit Price: |
The value to Dealer of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider the purchase price paid in connection with the purchase of Share Termination Delivery Property. |
|
Share Termination Delivery Unit: |
One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent. |
|
|
|
|
Failure to Deliver: |
Applicable |
|
|
|
|
Other applicable provisions: |
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 of this Confirmation will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that Share Termination Alternative is applicable to the Transaction. |
| (n) | Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies
that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in
the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided
herein. |
| (o) | Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment
of Dealer, based on advice of counsel, the Shares (“Hedge Shares”) acquired and held by Dealer for the purpose of effecting
a commercially reasonable hedge of its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration
under the Securities Act (other than any such Hedge Shares that were, at the time of acquisition by Dealer, “restricted securities”
(as defined in Rule 144 under the Securities Act)), Counterparty shall, at its election, either (i) in order to allow Dealer to sell the
Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and enter
into an agreement, in customary form and substance commercially reasonably satisfactory to Dealer, substantially in the form of an underwriting
agreement for a registered secondary offering of equity securities of comparable size, maturity and line of business (provided,
however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results
of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii)
or clause (iii) of this paragraph shall apply at the election of Counterparty), (ii) in order to allow Dealer to sell the Hedge Shares
in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary
for private placements of equity securities of comparable size, maturity and line of business, in customary form and substance reasonably
satisfactory to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary,
in its commercially reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on
the sale of Hedge Shares in a private placement),
or (iii) purchase the Hedge Shares from Dealer at prevailing market prices on such Exchange Business Days, and in the amounts and at such
time(s), requested by Dealer. |
| (p) | Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction,
Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses)
that are provided to Counterparty relating to such tax treatment and tax structure. |
| (q) | Right to Extend. Dealer may postpone or add, in a commercially reasonable manner, in whole
or in part, any Valid Day or Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by
Dealer, with respect to some or all of the Options hereunder (in which event Dealer shall make commercially reasonable adjustments to
the Transaction to reflect the impact of such postponement or addition on Dealer’s commercially reasonable Hedge Positions and commercially
reasonable hedging or hedge unwind activity), if Dealer reasonably determines (based on advice of counsel in the case of clause (y) only)
that such action is reasonably necessary or appropriate (x) to preserve commercially reasonable hedging or hedge unwind activity hereunder
in light of existing liquidity conditions (but only if liquidity as of the relevant time is less than the liquidity at such time as of
the Trade Date) or (y) to enable Dealer to effect transactions with respect to Shares or Share Termination Delivery Units in connection
with its commercially reasonable hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty
or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with
related policies and procedures applicable to Dealer; provided that such policies and procedures have been adopted by Dealer in
good faith and are generally applicable in similar situations and applied in a non-discriminatory manner; provided further that
no such Valid Day or other date of valuation, payment or delivery may be postponed or added more than 40 Valid Days after the original
Valid Day or other date of valuation, payment or delivery, as the case may be. |
| (r) | Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is
not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders
of Counterparty in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall
be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements
with respect to the Transaction; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights
in respect of any transactions other than the Transaction. |
| (s) | Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to
be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties hereto to
be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy
Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default
under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code,
and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement
payment” and a “transfer” as defined in the Bankruptcy Code. |
| (t) | Notice of Certain Other Events. Counterparty covenants and agrees that: |
| (i) | promptly following the public announcement of the results of any election by the holders of Shares with
respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of the types and
amounts of consideration actually received by holders of Shares pursuant to such Merger Event (the date of such notification, the “Consideration
Notification Date”); provided that in no event shall the Consideration Notification Date be later than the date on which
such Merger Event is consummated; and |
| (ii) | (A) Counterparty shall give Dealer commercially reasonable advance (but in no event less than one Exchange
Business Day) written notice of the section or sections of the Indenture and, if applicable, the formula therein, pursuant to which any
adjustment will be made to the Convertible Notes in connection with any Potential Adjustment Event, Merger Event or Tender Offer and (B)
promptly following any such adjustment, Counterparty shall give Dealer written notice of the details of such adjustment. |
| (u) | Wall Street Transparency and Accountability Act. In connection with Section 739 of the Wall
Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of
WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair
either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement,
as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under
this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change
in Law, Hedging Disruption, an Excess Ownership Position, or Illegality (as defined in the Agreement)). |
| (v) | Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges
and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities
or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its Hedge Position with
respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging
activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging
or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price
and market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares
may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty. |
| (w) | Early Unwind. In the event the sale of the [“Initial Securities”][“Option
Securities”] (as defined in the Purchase Agreement) is not consummated with the Initial Purchaser for any reason, or Counterparty
fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a) of this Confirmation, in each case by 5:00 p.m. (New
York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later
date, the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”)
on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the
Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees
not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to
be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Counterparty represents
and acknowledges to the other that upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally
discharged. |
| (x) | Payment by Counterparty. In the event that, following payment of the Premium, (i) an Early
Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other
than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an
amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of
the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero. |
| (i) | Withholding Tax Imposed on Payments to non-U.S. Counterparties under the United States Foreign Account
Tax Compliance Provisions of the HIRE Act. “Indemnifiable Tax” as defined in Section 14 of the Agreement, shall not include
any withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official
interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation,
rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections
of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction
or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement. |
| (ii) | Section 871(m). “Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall
not include any tax imposed on payments treated as dividends from sources within the United States under Section 871(m) of the Code or
any regulations issued thereunder. For the avoidance of doubt, any such tax imposed under Section 871(m) of the Code is a Tax the deduction
or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement. |
| (iii) | Tax Documentation. For purposes of Section 4(a)(i) of the Agreement: (x) Counterparty shall provide
to Dealer a valid U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation,
(ii) upon reasonable request of Dealer and (iii) promptly upon learning that any such tax form previously provided by Counterparty has
become obsolete or incorrect. Additionally, Counterparty shall, promptly upon request by Dealer, provide such other tax forms and documents
reasonably requested by Dealer; and (y) Dealer shall provide to Counterparty a valid U.S. Internal Revenue Service Form [___], or any
successor thereto, (i) on or before the date of execution of this Confirmation, (ii) upon reasonable request of Counterparty and (iii)
promptly upon learning that any such tax form previously provided by Dealer has become obsolete or incorrect. |
| (iv) | Tax Representations. For purposes of Section 3(f) of the Agreement: (i) Counterparty represents
to Dealer that for U.S. federal income tax purposes it is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii)
of the United States Treasury Regulations) and an “exempt recipient” (as that term is used in section 1.6049-4(c)(1) of the
United States Treasury Regulations); and (ii) Dealer represents to Counterparty that [_____]. |
| (bb) | Counterparts. This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed signature page by
facsimile or electronic transmission (e.g. “pdf” or “tif”), or any electronic signature complying with the U.S.
federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law, e.g., www.docusign.com, shall be effective as
delivery of a manually executed counterpart hereof. |
| (cc) | Other Adjustments Pursuant to the Equity Definitions. |
| (i) | Notwithstanding anything to the contrary in the Agreement, the Equity Definitions or this Confirmation,
upon the occurrence of a Merger Date, the occurrence of a Tender Offer Date, or declaration by Counterparty of the terms of any Potential
Adjustment Event, the Calculation Agent may, in its commercially reasonable discretion, adjust the Cap Price to preserve the fair value
of the Options to Dealer (provided that in no event shall the Cap Price be less than the Strike Price; provided further that
that any adjustment to the Cap Price made pursuant to this Section 9(cc)(i) shall be made without duplication of any other adjustment
hereunder (including, for the avoidance of doubt, any adjustment made pursuant to the provisions opposite the captions “Method of
Adjustment,” “Consequences of Merger Events / Tender Offers”
and “Consequences of Announcement Events” in Section 3 above)). |
| (ii) | Solely for purposes of this Section 9(cc), the term “Potential Adjustment Event” shall have
the meaning assigned to such term in the Equity Definitions, as amended by Section 9(k)(i); provided that any (i) repurchases by
or on behalf of Counterparty of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar
derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on
customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of Counterparty
at prevailing market prices, in each case, shall not be considered Potential Adjustment Events, unless such purchases described in clause
(i) and (ii) occurring after the Trade Date in the aggregate exceed (x) 10% of total Shares outstanding during any calendar year or (y)
20% of total Shares outstanding during the term of the Transaction. |
| (iii) | Solely for purposes of this Section 9(cc), (A) the term “Merger Event” shall have the
meaning assigned to such term in the Equity Definitions and (B) the term “Extraordinary Dividend” shall mean any cash
dividend on the Shares other than a regular, quarterly cash dividend in an amount per Share equal to or less than the Regular Dividend. |
| (iv) | Solely for purposes of this Section 9(cc), the term “Tender Offer” shall have the meaning
assigned to such term in the Equity Definitions; provided that (x) such definition is hereby amended by replacing the phrase “greater
than 10% and less than 100% of the outstanding voting shares of the Issuer” in Section 12.1(d) of the Equity Definitions with the
phrase “(x) greater than 15% and less than 100% of the outstanding Shares in respect of any Tender Offer made by any entity or person
other than the Issuer or any subsidiary thereof or (y) greater than 20% and less than 100% of the outstanding Shares in respect of any
Tender Offer made by the Issuer or any subsidiary thereof.” and (y) all references to “voting shares” in Sections 12.1(d),
12.1(e) and 12.1(l) of the Equity Definitions shall be replaced with references to “Shares”. |
| (dd) | [Add QFC Provisions, If Applicable]. |
| (ee) | [Insert Additional Dealer Boilerplate, If Any] |
Please confirm that the foregoing
correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.
|
Very truly yours, |
|
|
|
[DEALER] |
|
|
|
By: |
|
|
Authorized Signatory |
|
Name: |
Accepted and confirmed
as of the Trade Date:
GLOBAL PAYMENTS INC. |
|
|
|
By: |
|
|
Authorized Signatory |
|
Name: |
|
v3.24.0.1
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Details
Name: |
us-gaap_StatementClassOfStockAxis=us-gaap_CommonStockMember |
Namespace Prefix: |
|
Data Type: |
na |
Balance Type: |
|
Period Type: |
|
|
X |
- Details
Name: |
us-gaap_StatementClassOfStockAxis=gpn_Sec4.875SeniorNotesDue2031Member |
Namespace Prefix: |
|
Data Type: |
na |
Balance Type: |
|
Period Type: |
|
|
Global Payments (NYSE:GPN)
Historical Stock Chart
From Apr 2024 to May 2024
Global Payments (NYSE:GPN)
Historical Stock Chart
From May 2023 to May 2024