Exhibit 4.7

 

ASSIGNMENT, ASSUMPTION AND AMENDED & RESTATED
WARRANT AGREEMENT

 

THIS ASSIGNMENT, ASSUMPTION AND AMENDED & RESTATED WARRANT AGREEMENT (this “Agreement”), dated as of [●], 202[●] (the “Effective Date”), is by and among Silver Crest Acquisition Corporation, a Cayman Islands exempted company (“SPAC”), TH International Limited, a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (in such capacity, the “Warrant Agent”).

 

WHEREAS, SPAC and the Warrant Agent are parties to that certain Warrant Agreement, dated as of January 13, 2021 (the “Existing Warrant Agreement”);

 

WHEREAS, SPAC issued (i) 17,250,000 warrants as part of the units offered in its initial public offering (the “Public Warrants”) and (ii) 8,900,000 warrants to Silver Crest Management LLC, a Cayman Islands limited liability company (the “Sponsor”) in a concurrent private placement (the “Private Placement Warrants”) pursuant to that certain Private Placement Warrants Purchase Agreement, dated as of January 13, 2021, in each case, on the terms and conditions set forth in the Existing Warrant Agreement;

 

WHEREAS, on August 13, 2021, the Company, Miami Swan Ltd, a Cayman Islands exempted company and a direct, wholly-owned subsidiary of the Company (“Merger Sub”), and SPAC entered into that certain Agreement and Plan of Merger (the “Merger Agreement”);

 

WHEREAS, upon the terms and subject to the conditions of the Merger Agreement, on the Effective Date (i) Merger Sub will merge with and into SPAC (the “First Merger”), with SPAC continuing as the surviving entity after the First Merger and becoming a direct, wholly-owned subsidiary of the Company, and (ii) SPAC will merge with and into the Company (the “Second Merger” and, together with the First Merger, the “Mergers”), with the Company continuing as the surviving entity after the Second Merger;

 

WHEREAS, upon consummation of the Mergers, as provided in Section 4.5 of the Existing Warrant Agreement, (i) the Public Warrants and Private Placement Warrants will no longer be exercisable for Class A ordinary shares of SPAC, par value $0.0001 per share (the “SPAC Class A Shares”), but instead will be exercisable (subject to the terms and conditions of the Existing Warrant Agreement as amended hereby) for a number of ordinary shares of the Company, par value $[●] per share (the “Ordinary Shares”), equal to the number of SPAC Class A Shares for which such warrants were exercisable immediately prior to the Mergers, subject to adjustment as described herein (such warrants as so adjusted and amended, the “Warrants”) and (ii) the Warrants shall be assumed by the Company;

 

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, SPAC desires to assign to the Company, and the Company desires to assume, all of SPAC’s rights, interests and obligations under the Existing Warrant Agreement;

 

 

WHEREAS, the consummation of the transactions contemplated by the Merger Agreement will constitute a Business Combination as defined in the Existing Warrant Agreement;

 

WHEREAS, Section 9.8 of the Existing Warrant Agreement provides that SPAC and the Warrant Agent may amend the Existing Warrant Agreement without the consent of any Registered Holder for the purpose of (i) curing any ambiguity or correcting any defective provision or mistake contained therein, including to conform the provisions thereof to the description of the terms of the Warrants and the Existing Warrant Agreement set forth in the registration statements on Form S-1, File No. 333-251655 and 333-252085, and a prospectus (the “Prospectus”) filed by SPAC with the Securities and Exchange Commission (the “Commission”), and (ii) adding or changing any provisions with respect to matters or questions arising under the Existing Warrant Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the Registered Holders thereunder;

 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and

 

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent and the holders of the Warrants; and

 

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent (if a physical certificate is issued), as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

 

1.             Assignment and Assumption; Amendment; Appointment of Warrant Agent.

 

1.1           Assignment and Assumption. SPAC hereby assigns to the Company all of SPAC’s right, title and interest in and to the Existing Warrant Agreement and the Warrants (each as amended hereby) as of the Closing (as defined in the Merger Agreement). The Company hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of SPAC’s liabilities and obligations under the Existing Warrant Agreement and the Warrants (each as amended hereby) arising from and after the Closing (as defined in the Merger Agreement).

 

1.2           Amendment. SPAC and the Warrant Agent hereby amend and restate the Existing Warrant Agreement and the Public Warrants and Private Placement Warrants issued thereunder in accordance with Section 9.8 of the Existing Warrant Agreement, in its entirety in the form of this Agreement as of the Closing (as defined in the Merger Agreement).

 

 

1.3           Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.

 

2.             Warrants.

 

2.1           Form of Warrant. Each Warrant shall initially be issued in registered form only.

 

2.2           Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a certificated Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.

 

2.3           Registration.

 

2.3.1        Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants in book-entry form, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with The Depository Trust Company (the “Depositary”) (such institution, with respect to a Warrant in its account, a “Participant”).

 

If the Depositary subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants, which shall be in the form annexed hereto as Exhibit A.

 

Physical certificates, if issued, shall be signed by, or bear the facsimile signature of, the Chairman, Vice Chairman, Chief Executive Officer or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.

 

 

2.3.2        Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby, for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

 

2.4           [Reserved.]

 

2.5           Fractional Warrants. The Company may issue fractional Warrants.

 

2.6           Private Placement Warrants.

 

2.6.1        The Private Placement Warrants shall be identical to the Public Warrants, except that so long as they are held by the Sponsor or any of its Permitted Transferees (as defined below) the Private Placement Warrants: (i) may be exercised for cash or on a “cashless basis,” pursuant to subsection 3.3.1(c) hereof, (ii) including the Ordinary Shares issuable upon exercise of the Private Placement Warrants, may not be transferred, assigned or sold until thirty (30) days after the Effective Date, (iii) shall not be redeemable by the Company pursuant to Section 6.1 hereof and (iv) shall only be redeemable by the Company pursuant to Section 6.2 if the Reference Value (as defined below) is less than $18.00 per share (subject to adjustment in compliance with Section 4 hereof); provided, however, that in the case of (ii), the Private Placement Warrants and any Ordinary Shares issued upon exercise of the Private Placement Warrants may be transferred by the holders thereof:

 

(a)           to Sponsor’s officers or directors, any affiliates or family members of any of Sponsor’s officers or directors, any members or partners of the Sponsor or their affiliates, any affiliates of the Sponsor, or any employees of such affiliates;

 

(b)           in the case of an individual, by gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such person or to a charitable organization;

 

(c)           in the case of an individual, by virtue of laws of descent and distribution upon death of the individual;

 

(d)           in the case of an individual, pursuant to a qualified domestic relations order;

 

(e)           by private sales or transfers made in connection with any forward purchase agreement or similar arrangement at prices no greater than the price at which the Private Placement Warrants or Ordinary Shares, as applicable, were originally purchased;

 

 

(f)            by virtue of the Sponsor’s organizational documents upon liquidation or dissolution of the Sponsor; or

 

(g)           in the event of the Company’s completion of a liquidation, merger, share exchange or other similar transaction which results in all of the public shareholders having the right to exchange their Ordinary Shares for cash, securities or other property subsequent to the Effective Date; provided, however, that, in the case of clauses (a) through (f), these permitted transferees (the “Permitted Transferees”) must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.

 

3.             Terms and Exercise of Warrants.

 

3.1           Warrant Price. Each whole Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the second to last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share (including in cash or by payment of Warrants pursuant to a “cashless exercise,” to the extent permitted hereunder) described in the prior sentence at which Ordinary Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than fifteen Business Days (unless otherwise required by the Commission, any national securities exchange on which the Warrants are listed or applicable law); provided that the Company shall provide at least five days’ prior written notice of such reduction to Registered Holders of the Warrants; and provided further, that any such reduction shall be identical among all of the Warrants. “Business Day” means a day other than a Saturday, Sunday or federal holiday, on which banks in New York City are generally open for normal business.

 

3.2           Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) (A) commencing on the date that is thirty (30) days after the Effective Date, and (B) terminating at the earliest to occur of (x) 5:00 p.m., New York City time on the date that is five (5) years after the Effective Date, and (y) other than with respect to the Private Placement Warrants then held by the Sponsor or its Permitted Transferees with respect to a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof, 5:00 p.m., New York City time on the Redemption Date (as defined below) as provided in Section 6.3 hereof (the “Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below, with respect to an effective registration statement or a valid exemption therefrom being available. Except with respect to the right to receive the Redemption Price (as defined below) (other than with respect to a Private Placement Warrant then held by the Sponsor or its Permitted Transferees in connection with a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof), in the event of a redemption (as set forth in Section 6 hereof), each Warrant (other than a Private Placement Warrant then held by the Sponsor or its Permitted Transferees in the event of a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided that the Company shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.

 

 

3.3           Exercise of Warrants.

 

3.3.1        Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Warrant represented by a book-entry, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (the “Election to Purchase”) any Ordinary Shares pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) the payment in full of the Warrant Price for each Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Ordinary Shares and the issuance of such Ordinary Shares, as follows:

 

(a)           by wire transfer of immediately available funds, in good certified check or good bank draft payable to the order of the Warrant Agent;

 

(b)           [Reserved];

 

(c)           with respect to any Private Placement Warrant, so long as such Private Placement Warrant is held by the Sponsor or a Permitted Transferee, by surrendering the Warrants for that number of Ordinary Shares equal to (i) if in connection with a redemption of Private Placement Warrants pursuant to Section 6.2 hereof, as provided in Section 6.2 hereof with respect to a Make-Whole Exercise and (ii) in all other scenarios the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the Sponsor Exercise Fair Market Value (as defined in this subsection 3.3.1(c)) over the Warrant Price by (y) the Sponsor Exercise Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Sponsor Exercise Fair Market Value” shall mean the average last reported sale price of the Ordinary Shares for the ten (10) trading days ending on the third (3rd) trading day prior to the date on which notice of exercise of the Private Placement Warrant is sent to the Warrant Agent;

 

 

(d)           as provided in Section 6.2 hereof with respect to a Make-Whole Exercise; or

 

(e)           as provided in Section 7.4 hereof.

 

3.3.2        Issuance of Ordinary Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it on the register of members of the Company, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of Ordinary Shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any Ordinary Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Ordinary Shares underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4 or a valid exemption from registration is available. No Warrant shall be exercisable and the Company shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants. Subject to Section 4.6 of this Agreement, a Registered Holder of Warrants may exercise its Warrants only for a whole number of Ordinary Shares. The Company may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to Section 7.4. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in an Ordinary Share, the Company shall round down to the nearest whole number, the number of Ordinary Shares to be issued to such holder.

 

3.3.3        Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement and the Company’s amended and restated memorandum and articles of association, as amended from time to time shall be validly issued, fully paid and nonassessable.

 

3.3.4        Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Ordinary Shares is issued and who is registered in the register of members of the Company shall for all purposes be deemed to have become the holder of record of such Ordinary Shares on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the register of members of the Company or book-entry system are open.

 

 

3.3.5        Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (or such other amount as a holder may specify) (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Ordinary Shares, the holder may rely on the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent Annual Report on Form 20-F, Current Report on Form 6-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer & Trust Company, as transfer agent (in such capacity, the “Transfer Agent”), setting forth the number of Ordinary Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of Ordinary Shares then outstanding. In any case, the number of issued and outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.

 

 

4.             Adjustments.

 

4.1           Share Capitalizations.

 

4.1.1        Sub-Divisions. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of issued and outstanding Ordinary Shares is increased by a capitalization or share dividend of Ordinary Shares, or by a sub-division of Ordinary Shares or other similar event, then, on the effective date of such share capitalization, sub-division or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding Ordinary Shares. A rights offering made to all or substantially all holders of Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Historical Fair Market Value” (as defined below) shall be deemed a capitalization of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Ordinary Shares) multiplied by (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Historical Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Ordinary Shares, in determining the price payable for Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Historical Fair Market Value” means the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights. No Ordinary Shares shall be issued at less than their par value.

 

4.1.2        Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, pays to all or substantially all of the holders of the Ordinary Shares a dividend or makes a distribution in cash, securities or other assets on account of such Ordinary Shares (or other shares into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, or (b) Ordinary Cash Dividends (as defined below), (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Company’s board of directors (the “Board”), in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution, does not exceed $0.50 per share (which amount shall be adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) but only with respect to the amount of the aggregate cash dividends or cash distributions equal to or less than $0.50.

 

 

4.2           Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or reclassification of Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding Ordinary Shares.

 

4.3           Adjustments in Exercise Price. Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.

 

4.4           [Reserved].

 

 

4.5           Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the issued and outstanding Ordinary Shares (other than a change under Section 4.1 or Section 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another corporation or entity (other than a consolidation or merger in which the Company is the continuing entity and that does not result in any reclassification or reorganization of the issued and outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that (i) if the holders of the Ordinary Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Ordinary Shares in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Ordinary Shares under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the issued and outstanding Ordinary Shares, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Ordinary Shares held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided further that if less than 70% of the consideration receivable by the holders of the Ordinary Shares in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 6-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) (but in no event less than zero) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (assuming zero dividends) (“Bloomberg”). For purposes of calculating such amount, (i) Section 6 of this Agreement shall be taken into account, (ii) the price of each Ordinary Share shall be the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (iii) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event and (iv) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the Ordinary Shares consists exclusively of cash, the amount of such cash per Ordinary Share, and (ii) in all other cases, the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in Ordinary Shares covered by subsection 4.1.1, then such adjustment shall be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event shall the Warrant Price be reduced to less than the par value per share issuable upon exercise of such Warrant.

 

 

4.6           Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of Ordinary Shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of Ordinary Shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

 

4.7           No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to such holder.

 

4.8           Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of Ordinary Shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.

 

5.             Transfer and Exchange of Warrants.

 

5.1           Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, in the case of certificated Warrants, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.

 

5.2           Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or with respect to any Book-Entry Warrant, each Book-Entry Warrant may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Placement Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.

 

 

5.3           [Reserved.]

 

5.4           Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.

 

5.5           Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.

 

6.             Redemption.

 

6.1           Redemption of Warrants for Cash. Subject to Section 6.5 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.3 below, at a Redemption Price of $0.01 per Warrant, provided that (a) the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof) and (b) there is an effective registration statement covering the issuance of the Ordinary Shares issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.3 below).

 

6.2           Redemption of Warrants for Ordinary Shares. Subject to Section 6.5 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.3 below, at a Redemption Price of $0.10 per Warrant, provided that (i) the Reference Value equals or exceeds $10.00 per share (subject to adjustment in compliance with Section 4 hereof) and (ii) if the Reference Value is less than $18.00 per share (subject to adjustment in compliance with Section 4 hereof), the Private Placement Warrants are also concurrently called for redemption on the same terms as the outstanding Public Warrants. During the 30-day Redemption Period in connection with a redemption pursuant to this Section 6.2, Registered Holders of the Warrants may elect to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1 and receive a number of Ordinary Shares determined by reference to the table below, based on the Redemption Date (calculated for purposes of the table as the period to expiration of the Warrants) and the “Redemption Fair Market Value” (as such term is defined in this Section 6.2) (a “Make-Whole Exercise”). Solely for purposes of this Section 6.2, the “Redemption Fair Market Value” shall mean the volume weighted average price of the Ordinary Shares for the ten (10) trading days immediately following the date on which notice of redemption pursuant to this Section 6.2 is sent to the Registered Holders. In connection with any redemption pursuant to this Section 6.2, the Company shall provide the Registered Holders with the Redemption Fair Market Value no later than one (1) Business Day after the ten (10) trading day period described above ends.

 

 

		Redemption Fair Market Value of Ordinary Shares (period to expiration of warrants)
Redemption Date		£ 10.00		11.00		12.00		13.00		14.00		15.00		16.00		17.00		³ 18.00
60 months		0.261		0.281		0.297		0.311		0.324		0.337		0.348		0.358		0.361
57 months		0.257		0.277		0.294		0.310		0.324		0.337		0.348		0.358		0.361
54 months		0.252		0.272		0.291		0.307		0.322		0.335		0.347		0.357		0.361
51 months		0.246		0.268		0.287		0.304		0.320		0.333		0.346		0.357		0.361
48 months		0.241		0.263		0.283		0.301		0.317		0.332		0.344		0.356		0.361
45 months		0.235		0.258		0.279		0.298		0.315		0.330		0.343		0.356		0.361
42 months		0.228		0.252		0.274		0.294		0.312		0.328		0.342		0.355		0.361
39 months		0.221		0.246		0.269		0.290		0.309		0.325		0.340		0.354		0.361
36 months		0.213		0.239		0.263		0.285		0.305		0.323		0.339		0.353		0.361
33 months		0.205		0.232		0.257		0.280		0.301		0.320		0.337		0.352		0.361
30 months		0.196		0.224		0.250		0.274		0.297		0.316		0.335		0.351		0.361
27 months		0.185		0.214		0.242		0.268		0.291		0.313		0.332		0.350		0.361
24 months		0.173		0.204		0.233		0.260		0.285		0.308		0.329		0.348		0.361
21 months		0.161		0.193		0.223		0.252		0.279		0.304		0.326		0.347		0.361
18 months		0.146		0.179		0.211		0.242		0.271		0.298		0.322		0.345		0.361
15 months		0.130		0.164		0.197		0.230		0.262		0.291		0.317		0.342		0.361
12 months		0.111		0.146		0.181		0.216		0.250		0.282		0.312		0.339		0.361
9 months		0.090		0.125		0.162		0.199		0.237		0.272		0.305		0.336		0.361
6 months		0.065		0.099		0.137		0.178		0.219		0.259		0.296		0.331		0.361
3 months		0.034		0.065		0.104		0.150		0.197		0.243		0.286		0.326		0.361
0 months		—		—		0.042		0.115		0.179		0.233		0.281		0.323		0.361

 

The exact Redemption Fair Market Value and Redemption Date may not be set forth in the table above, in which case, if the Redemption Fair Market Value is between two values in the table or the Redemption Date is between two redemption dates in the table, the number of Ordinary Shares to be issued for each Warrant exercised in a Make-Whole Exercise shall be determined by a straight-line interpolation between the number of shares set forth for the higher and lower Redemption Fair Market Values and the earlier and later redemption dates, as applicable, based on a 365- or 366-day year, as applicable.

 

The share prices set forth in the column headings of the table above shall be adjusted as of any date on which the number of Ordinary Shares issuable upon exercise of a Warrant or the Exercise Price is adjusted pursuant to Section 4 hereof. If the number of Ordinary Shares issuable upon exercise of a Warrant is adjusted pursuant to Section 4 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the number of shares deliverable upon exercise of a Warrant immediately prior to such adjustment and the denominator of which is the number of shares deliverable upon exercise of a Warrant as so adjusted. The number of shares in the table above shall be adjusted in the same manner and at the same time as the number of shares issuable upon exercise of a Warrant. If the Exercise Price of a Warrant is adjusted, (a) in the case of an adjustment pursuant to Section 4.4 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment multiplied by a fraction, the numerator of which is the higher of the Market Value and the Newly Issued Price and the denominator of which is $10.00 and (b) in the case of an adjustment pursuant to Section 4.1.2 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment less the decrease in the Exercise Price pursuant to such Exercise Price adjustment. In no event shall the number of shares issued in connection with a Make-Whole Exercise exceed 0.361 Ordinary Shares per Warrant (subject to adjustment).

 

 

6.3           Date Fixed for, and Notice of, Redemption; Redemption Price; Reference Value. In the event that the Company elects to redeem the Warrants pursuant to Sections 6.1 or 6.2, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date (the “30-day Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice. As used in this Agreement, (a) “Redemption Price” shall mean the price per Warrant at which any Warrants are redeemed pursuant to Sections 6.1 or 6.2 and (b) “Reference Value” shall mean the last reported sales price of the Ordinary Shares for any twenty (20) trading days within the thirty (30) trading-day period ending on the third trading day prior to the date on which notice of the redemption is given.

 

6.4           Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 6.2 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.3 hereof and prior to the Redemption Date. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.

 

6.5           Exclusion of Private Placement Warrants. The Company agrees that (a) the redemption rights provided in Section 6.1 hereof shall not apply to the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor or its Permitted Transferees and (b) if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), the redemption rights provided in Section 6.2 hereof shall not apply to the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor or its Permitted Transferees. However, once such Private Placement Warrants are transferred (other than to Permitted Transferees in accordance with Section 2.6 hereof), the Company may redeem the Private Placement Warrants pursuant to Section 6.1 or 6.2 hereof, provided that the criteria for redemption are met, including the opportunity of the holder of such Private Placement Warrants to exercise the Private Placement Warrants prior to redemption pursuant to Section 6.4 hereof. Private Placement Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Private Placement Warrants and shall become Public Warrants under this Agreement, including for purposes of Section 9.8 hereof.

 

7.             Other Provisions Relating to Rights of Holders of Warrants.

 

7.1           No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, to exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.

 

 

7.2           Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.

 

7.3           Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.

 

7.4           Registration of Ordinary Shares; Cashless Exercise at Company’s Option.

 

7.4.1        Registration of the Ordinary Shares. The Company agrees that as soon as practicable, but in no event later than twenty (20) Business Days after the Effective Date, it shall use its commercially reasonable efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants. The Company shall use its commercially reasonable efforts to cause the same to become effective within sixty (60) Business Days following the Effective Date and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration or redemption of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the sixtieth (60th) Business Day following the Effective Date, holders of the Warrants shall have the right, during the period beginning on the sixty-first (61st) Business Day after the Effective Date and ending upon such registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the issuance of the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act or another exemption) for that number of Ordinary Shares equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value” (as defined below) over the Warrant Price by (y) the Fair Market Value and (B) 0.361. Solely for purposes of this subsection 7.4.1, “Fair Market Value” shall mean the volume-weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of “cashless exercise” is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a “cashless basis” in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the Ordinary Shares issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act) of the Company and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of doubt, unless and until all of the Warrants have been exercised or have expired, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1.

 

 

7.4.2        Cashless Exercise at Company’s Option. If the Ordinary Shares are at the time of any exercise of a Public Warrant not listed on a national securities exchange such that they satisfy the definition of a “covered security” under Section 18(b)(1) of the Securities Act, the Company may, at its option, (i) require holders of Public Warrants who exercise Public Warrants to exercise such Public Warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act as described in subsection 7.4.1 and (ii) in the event the Company so elects, the Company shall (x) not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary, and (y) use its commercially reasonable efforts to register or qualify for sale the Ordinary Shares issuable upon exercise of the Public Warrant under applicable blue sky laws to the extent an exemption is not available.

 

8.             Concerning the Warrant Agent and Other Matters.

 

8.1           Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.

 

8.2           Resignation, Consolidation, or Merger of Warrant Agent.

 

8.2.1        Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his, her or its Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation or other entity organized and existing under the laws of the State of New York, in good standing and having its principal office in the United States of America, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.

 

 

8.2.2        Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Ordinary Shares not later than the effective date of any such appointment.

 

8.2.3        Merger or Consolidation of Warrant Agent. Any entity into which the Warrant Agent may be merged or with which it may be consolidated or any entity resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.

 

8.3           Fees and Expenses of Warrant Agent.

 

8.3.1        Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.

 

8.3.2        Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.

 

8.4           Liability of Warrant Agent.

 

8.4.1        Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chairman, Vice Chairman, or Chief Executive Officer of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.

 

 

8.4.2        Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct, fraud or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, out-of-pocket costs and reasonable outside counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct, fraud or bad faith.

 

8.4.3        Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares shall, when issued, be valid and fully paid and nonassessable.

 

8.5           Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of the Warrants.

 

8.6           Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of January 13, 2021, by and between SPAC and Continental Stock Transfer & Trust Company as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.

 

9.             Miscellaneous Provisions.

 

9.1           Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

 

 

9.2           Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:

 

TH International Limited

c/o Cartesian Capital Group LLC

505 5th Avenue, 15th Floor

Attn: Peter Yu, Gregory Armstrong

E-mail: peter.yu@cartesiangroup.com; gregory.armstrong@cartesiangroup.com

 

with a copy to:

 

Kirkland & Ellis

26th Floor, Gloucester Tower, The Landmark

15 Queen’s Road Central, Hong Kong

Attn: Daniel Dusek; Joseph Raymond Casey; Ram Narayan

E-mail: daniel.dusek@kirkland.com; joseph.casey@kirkland.com; ram.narayan@kirkland.com

 

and

 

Kirkland & Ellis LLP

200 Clarendon Street

Boston, MA 02116

United States

Attn: Armand A. Della Monica

Email: armand.dellamonica@kirkland.com

 

Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

 

Continental Stock Transfer & Trust Company

One State Street, 30th Floor

New York, NY 10004

Attention: Compliance Department

 

9.3           Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York. Subject to applicable law, the Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement, including any such action, proceeding or claim under the Securities Act, shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive forum for any such action, proceeding or claim. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.

 

 

Any person or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 9.3. If any action, the subject matter of which is within the scope of the forum provisions above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York or the United States District Court for the Southern District of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.

 

9.4           Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person, corporation or other entity other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.

 

9.5           Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the United States of America, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.

 

9.6           Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

9.7           Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.

 

9.8           Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of (i) curing any ambiguity or correcting any mistake, including to conform the provisions hereof to the description of the terms of the Warrants and this Agreement set forth in the Prospectus, or defective provision contained herein, (ii) amending the definition of “Ordinary Cash Dividend” as contemplated by and in accordance with the second sentence of subsection 4.1.2 or (iii) adding or changing any provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the Registered Holders under this Agreement. All other modifications or amendments, including any modification or amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Private Placement Warrants, shall require the vote or written consent of the Registered Holders of 50% of the then-outstanding Public Warrants and, solely with respect to any amendment to the terms of the Private Placement Warrants or any provision of this Agreement with respect to the Private Placement Warrants, 50% of the then-outstanding Private Placement Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.

 

 

9.9           Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	TH INTERNATIONAL LIMITED
	By:
		Name:
		Title:
	SILVER CREST ACQUISITION CORPORATION
	By:
		Name: Liang (Leon) Meng
		Title: Chairman
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
	By:
		Name: Margaret B. Lloyd
		Title: Vice President

 

[Signature Page to Warrant Agreement]

 

 

EXHIBIT A

Form of Warrant Certificate

[FACE]

Number

Warrants

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW

TH International Limited

Incorporated Under the Laws of the Cayman Islands

 

CUSIP [·]

 

Warrant Certificate

 

This Warrant Certificate certifies that [ ], or registered assigns, is the registered holder of [ ] warrant(s) (the “Warrants” and each, a “Warrant”) to purchase ordinary shares, [·] par value per share (the “Ordinary Shares”), of TH International Limited, a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable Ordinary Shares as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each whole Warrant is initially exercisable for one fully paid and non-assessable Ordinary Share. Fractional shares shall not be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.

 

The initial Exercise Price per one Ordinary Share for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.

 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. The Warrants may be redeemed, subject to certain conditions as set forth in the Warrant Agreement.

 

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.

 

	TH INTERNATIONAL LIMITED
	By:
		Name:
		Title:
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS WARRANT AGENT
	By:
		Name:
		Title:

 

 

[Form of Warrant Certificate]

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive [ ] Ordinary Shares and are issued or to be issued pursuant to an Assignment, Assumption and Amended and Restated Warrant Agreement, dated as of [·], 202[●] (as amended from time to time, the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of Election to Purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof, or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the issuance of the Ordinary Shares to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.

 

 

Election to Purchase

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive [·] Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of TH International Limited (the “Company”) in the amount of $[ ] in accordance with the terms hereof. The undersigned requests that a certificate for such Ordinary Shares be registered in the name of [·], whose address is [·] and that such Ordinary Shares be delivered to [·], whose address is [·]. If said [·] number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [·], whose address is [·] and that such Warrant Certificate be delivered to [·], whose address is [·].

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6.2 of the Warrant Agreement and a holder thereof elects to exercise its Warrant pursuant to a Make-Whole Exercise, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) or Section 6.2 of the Warrant Agreement, as applicable.

 

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.

 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [·], whose address is [·] and that such Warrant Certificate be delivered to [·], whose address is [·].

 

[Signature Page Follows]

 

 

Date [__], 20__
		(Signature)
		(Address)
		(Tax Identification Number)
Signature Guaranteed:

 

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).

 

 

 

Exhibit 4.9

 

 

TH INTERNATIONAL LIMITED

 

and

 

WILMINGTON SAVINGS FUND SOCIETY, FSB

 

as Trustee

 

 

INDENTURE

 

Dated as of December 30, 2021

 

 

Variable Rate Convertible Senior Notes due 2026

 

 

 

TABLE OF CONTENTS

 

Article 1. DEFINITIONS; RULES OF CONSTRUCTION		1
Section 1.01.	Definitions.	1
Section 1.02.	Other Definitions.	21
Section 1.03.	Rules of Construction.	21
Article 2. THE NOTES		22
Section 2.01.	Form, Dating and Denominations.	22
Section 2.02.	Execution, Authentication and Delivery.	22
Section 2.03.	Initial Notes and Additional Notes.	23
Section 2.04.	Method of Payment.	23
Section 2.05.	Accrual of Interest; When Payment Date Is Not a Business Day.	24
Section 2.06.	Registrar, Paying Agent, Transfer Agent and Conversion Agent.	25
Section 2.07.	Paying Agent and Conversion Agent to Hold Property in Trust.	26
Section 2.08.	Holder Lists.	26
Section 2.09.	Legends.	27
Section 2.10.	Transfer and Exchanges; Certain Transfer Restrictions.	27
Section 2.11.	Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase or Redemption.	32
Section 2.12.	Replacement Notes.	32
Section 2.13.	Registered Holders; Certain Rights with Respect to Global Notes.	33
Section 2.14.	Cancellation.	33
Section 2.15.	Notes Held by the Company or its Affiliates.	33
Section 2.16.	Temporary Notes.	33
Section 2.17.	Outstanding Notes.	34
Section 2.18.	CUSIP and ISIN Numbers.	34
Section 2.19.	Special Transfer Provisions.	35
Section 2.20.	Issuance of PIK Interest; PIK Payments.	35

 

 

Article 3. COVENANTS		36
Section 3.01.	Payment on Notes.	36
Section 3.02.	Compliance and Default Certificates.	36
Section 3.03.	Stay, Extension and Usury Laws.	36
Section 3.04.	Acquisition of Notes by the Company and its Affiliates.	37
Section 3.05.	Indebtedness and Preferred Stock.	37
Section 3.06.	Restricted Payments.	37
Section 3.07.	Negative Pledge.	37
Section 3.08.	Asset Sales.	37
Section 3.09.	Listing of the Notes.	37
Section 3.10.	SEC Filings; Disclosures; Financial Statements and Reports.	38
Section 3.11.	Corporate Existence.	39
Section 3.12.	Compliance with Laws.	39
Section 3.13.	Master Franchise Agreements.	39
Section 3.14.	Maintenance of Assets; Insurance.	40
Section 3.15.	Payment of Taxes.	40
Section 3.16.	Conversion Shares.	40
Section 3.17.	Books, Records and Internal Controls.	40
Section 3.18.	Engage Qualified Auditing Firm.	41
Section 3.19.	Charter Documents.	41
Section 3.20.	Scope of Business.	41
Section 3.21.	Removal of Restrictive Legends.	42
Section 3.22.	Additional Amounts.	42
Article 4. REPURCHASE AND REDEMPTION		44
Section 4.01.	No Sinking Fund.	44
Section 4.02.	Right of Holders to Require the Company to Repurchase Notes.	44
Section 4.03.	Right of the Company to Redeem the Notes.	46
Section 4.04.	Optional Redemption for Changes in the Tax Laws.	48
Section 4.05.	Repurchases at the Option of the Company	49
Article 5. CONVERSION		49
Section 5.01.	Right to Convert.	49
Section 5.02.	Conversion Procedures.	50
Section 5.03.	Settlement upon Conversion.	52
Section 5.04.	Shares to Be Fully Paid.	54
Section 5.05.	Adjustments to the Conversion Price.	54
Section 5.06.	Voluntary Adjustments.	65
Section 5.07.	Reservation of Authorized Shares	66
Section 5.08.	Effect of Share Change Event.	67
Section 5.09.	Responsibility of Trustee and Conversion Agent	67

 

 

Article 6. SUCCESSORS		68
Section 6.01.	When the Company May Merge, Etc.	68
Section 6.02.	Successor Corporation Substituted.	68
Article 7. DEFAULTS AND REMEDIES		68
Section 7.01.	Events of Default.	68
Section 7.02.	Acceleration.	71
Section 7.03.	Other Remedies.	71
Section 7.04.	Waiver of Past Defaults.	72
Section 7.05.	Control by Majority.	72
Section 7.06.	Limitation on Suits.	72
Section 7.07.	Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration.	73
Section 7.08.	Collection Suit by Trustee.	73
Section 7.09.	Trustee May File Proofs of Claim.	73
Section 7.10.	Undertaking for Costs.	74
Article 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS		75
Section 8.01.	Without the Consent of Holders.	75
Section 8.02.	With the Consent of Holders.	75
Section 8.03.	Notice of Amendments, Supplements and Waivers.	76
Section 8.04.	Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.	77
Section 8.05.	Notations and Exchanges.	77
Section 8.06.	Trustee to Execute Supplemental Indentures.	77
Article 9. SATISFACTION AND DISCHARGE		78
Section 9.01.	Termination of Company’s Obligations.	78
Section 9.02.	Repayment to Company.	78
Section 9.03.	Reinstatement.	79
Article 10. TRUSTEE		79
Section 10.01.	Duties of the Trustee.	79
Section 10.02.	Rights of the Trustee.	80
Section 10.03.	Individual Rights of the Trustee.	82
Section 10.04.	Trustee’s Disclaimer.	82
Section 10.05.	Notice of Defaults.	82
Section 10.06.	Compensation and Indemnity.	82
Section 10.07.	Replacement of the Trustee.	83
Section 10.08.	Successor Trustee by Merger, Etc.	84
Section 10.09.	Eligibility; Disqualification.	84

 

 

Article 11. MISCELLANEOUS		85
Section 11.01.	Notices.	85
Section 11.02.	Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.	87
Section 11.03.	Statements Required in Officer’s Certificate and Opinion of Counsel.	87
Section 11.04.	Rules by the Trustee, the Registrar and the Paying Agent.	87
Section 11.05.	No Personal Liability of Directors, Officers, Employees and Stockholders.	87
Section 11.06.	Governing Law; Waiver of Jury Trial.	88
Section 11.07.	Submission to Jurisdiction.	88
Section 11.08.	No Adverse Interpretation of Other Agreements.	88
Section 11.09.	Successors.	88
Section 11.10.	Force Majeure.	88
Section 11.11.	U.S.A. Patriot Act.	89
Section 11.12.	Calculations.	89
Section 11.13.	Severability; Entire Agreement.	89
Section 11.14.	Counterparts.	89
Section 11.15.	Table of Contents, Headings, Etc.	89

 

Exhibits

 

Exhibit A: Form of Note	A-1
Exhibit B-1: Form of Restricted Note Legend	B-1
Exhibit B-2: Form of Global Note Legend	B-2
Exhibit C: Form of Mandatory Conversion Notice	C-1

 

 

INDENTURE, dated as of December 30, 2021, between TH International Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands with registration number 336092, as issuer (the “Company”), and Wilmington Savings Fund Society, FSB, as trustee (the “Trustee”).

 

Each party to this Indenture (as defined below) agrees as follows for the benefit of the other party and for the equal and rateable benefit of the Holders (as defined below) of the Company’s $50,000,000 Variable Rate Convertible Senior Notes due 2026 (and any Notes issued in exchange therefor or in substitution thereof, the “Initial Notes”) and additional securities that may be issued on any later issue date subject to the conditions and in compliance with the covenants set forth herein (the “Additional Notes” and, together with the Initial Notes, the “Notes”). Unless the context otherwise requires, in this Indenture references to the “Notes” include any Additional Notes that are actually issued, including any Additional Notes that are issued as PIK Interest (as defined below). The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture.

 

Article 1. DEFINITIONS; RULES OF CONSTRUCTION

 

Section 1.01.      Definitions.

 

“Affiliate” means, with respect to any Person, any other Person (1) directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person; (2) who is a director or officer of such Person or any Subsidiary of such Person or of any Person referred to in clause (1) of this definition; or (3) who is a spouse or any person cohabiting as a spouse, child or step-child, parent or step-parent, brother, sister, step-brother or step-sister, parent-in-law, grandchild, grandparent, uncle, aunt, nephew or niece of a person described in clause (1) or (2). For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Alternative Stock Exchange” means at any time, in the case of the Shares, if they are not at that time listed and traded on the Principal Market, the principal stock exchange or securities market on which the Shares are then listed or quoted or dealt in.

 

“Anti-Corruption Laws” means the PRC Anti-Unfair Competition Law, the anti-bribery provisions of the PRC Criminal Law, the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the United Kingdom Bribery Act 2010 and any other applicable anti-bribery or anti-corruption laws.

 

“Authorized Denomination” means, with respect to a Note, a principal amount minimum denomination equal to $1,000,000 or any integral multiple of $500,000 in excess thereof; provided that any Additional Notes that are issued as PIK Interest may be issued with a principal amount minimum denomination equal to $1,000 or any integral multiple of $1 in excess thereof.

 

“Authorized Share Failure” shall have the meaning set forth in Section 5.07(B).

 

 

“Average Daily Trading Volume” means, in relation to the Shares on any Trading Day, the average daily trading volume of the Shares on the Principal Market or any Alternative Stock Exchange, measured over a period of sixty (60) consecutive Trading Days ending on the immediately preceding Trading Day as determined by the Company by reference to the relevant Bloomberg page or any successor page, or if such information is not available for whatever reason or is manifestly incorrect, as determined by the Company acting in a commercially reasonable manner.

 

“Bankruptcy Law” means Title 11, United States Code, or any similar U.S. federal or state or non-U.S. law for the relief of debtors.

 

“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.

 

“Business Combination” means the business combination involving the Company, Target and Silver Crest pursuant to the Merger Agreement, whereby (i) Target will merge with and into Silver Crest (such merger, the “First Merger”), with Silver Crest surviving the First Merger as a wholly owned subsidiary of the Company (Silver Crest as the surviving entity of the First Merger, the “Surviving Entity”), and (ii) immediately following consummation of the First Merger and as part of the same overall transaction, the Surviving Entity will merge with and into the Company (such merger, the “Second Merger”), with the Company surviving the Second Merger.

 

“Business Combination Closing Date” means the date of closing of the Business Combination.

 

“Business Combination Reset” means, if the Business Combination Closing Date occurs prior to the Outside Date, the Initial Conversion Price will be reset on the Business Combination Closing Date to the lower of: (I) a price per Share calculated by dividing $1,941,000,000 by the number of Shares on a fully diluted basis (for the avoidance of doubt, after giving effect to the Business Combination); and (II) the Initial Conversion Price (as adjusted).

 

“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York, Hong Kong and London or the city in which the Corporate Trust Office of the Trustee is located are authorized or required by law to remain closed.

 

“Capital Lease Obligation” means an obligation that is required to be classified and accounted for as a capitalized lease (and, for the avoidance of doubt, not a straight-line or operating lease) for financial reporting purposes in accordance with U.S. GAAP.

 

“Capital Stock” means (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

 

“Change of Control” means the occurrence of one or more of the following events:

 

(1)            at any time:

 

(A)            prior to the consummation of the Business Combination, the Permitted Holder (A) fails to beneficially own, in the aggregate, directly or indirectly, more than 50% on a fully diluted basis of the aggregate voting and/or economic interest in the issued share capital of the Company or (B) fails to have the power to elect a majority of the members of the Board of Directors; or

 

(B)            after the Business Combination Closing Date:

 

(i)            any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 of the Exchange Act), directly or indirectly, of total voting power of the voting shares of the Company (I) greater than such total voting power beneficially owned by the Permitted Holder, or (II) greater than or equal to 35% on a fully diluted basis of total voting power of the Company;

 

(ii)            Pangaea XXIIB fails to beneficially own, in the aggregate, directly or indirectly, more than 50% on a fully diluted basis of total voting power of the Company solely as a result of either of the following:

 

(I)

the sale, transfer or other disposal of any Shares, in a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary, in the aggregate, representing more than 20% of the shares or voting power in Pangaea XXIIB (“XXIIB Shares”) owned by Pangaea XXIIA as of the Interest Accrual Date, whether such Shares were acquired by Pangaea XXIIA by way of a redemption of XXIIB Shares in exchange for Shares or in any other manner; or

 

(II)

both the acquisition of Shares from Pangaea XXIIB by any shareholder of Pangaea XXIIB as of the Interest Accrual Date other than Pangaea XXIIA, whether by way of a redemption of XXIIB Shares in exchange for Shares or in any other manner, and Pangaea XXIIA beneficially owning, in the aggregate, directly or indirectly, less than 35% on a fully diluted basis of total voting power of the Company,

 

 

provided, however, that none of the events in clause (A) or (B) above shall be a Change of Control if, (a) such event is the result of the conversion of any Note into Shares, or (b) at such time the Permitted Holder has the power, individually or together with one or more other direct or indirect shareholders of the Company as of the Interest Accrual Date (or any Affiliate of such shareholders) through a voting or similar agreement, to elect a majority of the members of the Board of Directors;

 

(2)            the Company’s consolidation with, or merger with or into, any Person (other than the Permitted Holder), or any Person (other than the Permitted Holder) consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding voting shares of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than (A) the transactions contemplated under the Merger Agreement, and (B) any such transaction where the voting shares of the Company outstanding immediately prior to such transaction is converted into or exchanged for (or continues as) voting stock of the surviving or transferee Person constituting a majority of the outstanding shares of voting stock of such surviving or transferee Person (immediately after giving effect to such issuance) and in substantially the same proportion as before the transaction;

 

(3)            the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to any “person” (within the meaning of Section 13(d) of the Exchange Act) other than the Permitted Holder; or

 

(4)            the adoption of a plan relating to the liquidation or dissolution of the Company.

 

“Charter Documents” means the memorandum and articles of association or other constitutional documents of the Company, each as amended from time to time.

 

“Close of Business” means 5:00 p.m., New York City time.

 

“Company” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.

 

“Company Order” means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.

 

“Conversion Date” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied, subject to Section 5.03(C).

 

“Conversion Price” means the Initial Conversion Price, subject to a Business Combination Reset or an Outside Date Reset, as applicable, and as adjusted pursuant to Section 5.05.

 

 

“Conversion Share” means any Share issued or issuable upon conversion of any Note.

 

“Corporate Trust Office” means, with respect to:

 

(1)            the Trustee, the designated corporate trust office of the Trustee at which at any particular time this Indenture shall be principally administered, which office at the date hereof is located at 500 Delaware Avenue, Wilmington, DE 19801, Attn: WSFS Institutional Services, 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);

 

(2)            the Paying Agent, 500 Delaware Avenue, Wilmington, DE 19801, Attn: WSFS Institutional Services, or such other address as the Paying Agent may designate from time to time by notice to the Holders and the Company;

 

(3)            the Registrar, 500 Delaware Avenue, Wilmington, DE 19801, Attn: WSFS Institutional Services, or such other address as the Registrar may designate from time to time by notice to the Holders and the Company;

 

(4)            the Conversion Agent, 500 Delaware Avenue, Wilmington, DE 19801, Attn: WSFS Institutional Services, or such other address as the Conversion Agent may designate from time to time by notice to the Holders and the Company; and

 

(5)            the Transfer Agent, 500 Delaware Avenue, Wilmington, DE 19801, Attn: WSFS Institutional Services, or such other address as the Transfer Agent may designate from time to time by notice to the Holders and the Company.

 

“Default” means any event that is (or, after notice, passage of time or both, would be) an Event of Default.

 

A “Delisting” occurs when, after the Business Combination Closing Date, the Shares (i) cease to be quoted, listed or admitted to trading on the Principal Market or any Alternative Stock Exchange, or (ii) are suspended from trading on the Principal Market or any Alternative Stock Exchange (as the case may be) for a period of more than 30 consecutive days on which the Principal Market or such Alternative Stock Exchange (as the case may be) is open for business and on which no general suspension of trading on the Principal Market or such Alternative Stock Exchange (as the case may be) has occurred.

 

“Depositary” means The Depository Trust Company or its successor.

 

“Depositary Participant” means any member of, or participant in, the Depositary.

 

“Depositary Procedures” means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.

 

 

“Equity Securities” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). Unless the context otherwise requires, any reference to “Equity Securities” refers to the Equity Securities of the Company.

 

“Ex-Date” means, with respect to a share or stock dividend, subdivision, consolidation, issuance, dividend (including, without limitation, any Spin-Off), distribution, capitalization, grant, offer or other entitlement (“Entitlement”) on the Shares, the first date on which Shares trade on the applicable exchange or in the applicable market, regular way, without the right to such Entitlement (including pursuant to due bills or similar arrangements required by the relevant stock exchange).

 

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Fair Market Value” means the price that would be paid in an arm’s length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined either (i) in good faith by the Board of Directors, whose determination shall be conclusive if evidenced by a written resolution or minutes of meeting of the Board of Directors, or (ii) by an accounting, appraisal or investment banking firm of recognized international standing appointed by the Company.

 

“First Call Date” means December 10, 2024.

 

“Global Note” means a Note that is represented by a certificate in registered form substantially in the form set forth in Exhibit A, registered in the name of the Depositary or Cede & Co., as its nominee, duly executed by the Company and authenticated by an authorized signatory of the Trustee, and deposited with the Trustee, as custodian for the Depositary.

 

“Global Note Legend” means a legend substantially in the form set forth in Exhibit B-2.

 

“Government Official” means any officer or employee of a Governmental Authority or any department, agency or instrumentality thereof, including state-owned entities, or of a public organization or any individual acting in an official capacity for or on behalf of any such Governmental Authority, department, agency, or instrumentality or on behalf of any such public organization.

 

“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, arbitral body (public or private) or tribunal.

 

“Holder” means a Person in whose name a Note is registered on the Registrar’s books.

 

“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.

 

“Incur” means, with respect to any Indebtedness to incur, create, issue, assume, guarantee or otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness; provided that (i) any Indebtedness of a Person existing at the time such Person becomes a Subsidiary will be deemed to be incurred by such Subsidiary at the time it becomes a Subsidiary and (ii) the accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms (including, for the avoidance of doubt, PIK Interest), the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock in the form of additional shares of the same class of preferred stock shall not be considered an Incurrence of Indebtedness. The terms “Incurrence” and “Incurred” have meanings correlative with the foregoing.

 

 

“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses), whether or not contingent:

 

(1)            in respect of borrowed money;

 

(2)            evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)            in respect of banker’s acceptances; or

 

(4)            representing Capital Lease Obligations,

 

if and to the extent any of the preceding items (other than letters of credit) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with U.S. GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person.

 

The amount of Indebtedness of any Person at any time shall be the outstanding balance at such time of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided that:

 

(i)

the amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with U.S. GAAP; and

 

(ii)

money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to prefund the payment of the interest on such Indebtedness shall not be deemed to be “Indebtedness” so long as such money is held to secure the payment of such interest.

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

 

“Initial Conversion Price” means $11.50 per Share, subject to adjustment as provided herein.

 

“Interest Accrual Date” means December 10, 2021.

 

“Interest Payment Date” means, with respect to a Note, each June 10^th and December 10^th of each year, commencing on June 10, 2022 (or commencing on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity Date is an Interest Payment Date.

 

“Interest Rate” means:

 

(1)            subject to paragraph (2):

 

(A)            7.00% per annum if paid entirely in cash pursuant to the Company’s election pursuant to Section 2.05(C); or

 

(B)            9.00% per annum in the form of PIK Interest; and

 

(2)            if the Business Combination is not consummated prior to the Outside Date, on or after the Outside Date:

 

(A)            10.0% per annum if paid entirely in cash pursuant to the Company’s election pursuant to Section 2.05(C); or

 

(B)            12.0% per annum in the form of PIK Interest.

 

“Issue Date” means December 30, 2021.

 

“Last Reported Sale Price” of the Shares for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of the Shares on such Trading Day as reported in composite transactions for the Principal Market or Alternative Stock Exchange, as applicable. If the Shares are not listed on the Principal Market or an Alternative Stock Exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per Share on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. If the Shares are not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per Share on such Trading Day from each of at least three (3) nationally recognized independent investment banking firms selected by the Company. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price. The Last Reported Sale Price will be determined without regard to after-hours trading or any other trading outside of regular trading session hours.

 

“Lien” means (a) any mortgage, pledge, assignment, hypothec, deed of trust, security interest, collateral assignment, charge, encumbrance or other lien or restriction of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, whether based on common law, constitutional provision, statute or contract, and shall include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions, and (b) in the case of securities or Capital Stock, any purchase option, call or similar right of a third party with respect to such securities or Capital Stock.

 

 

“Make-Whole Amount” means an amount equal to:

 

(1)            the principal amount of such Note then outstanding; plus

 

(2)            an amount equal to the higher of:

 

(A)            zero; and

 

(B)            the sum of the present values of each remaining scheduled payment of interest (assuming such interest payments are paid in cash) that would be due on such Notes from (and including) the Redemption Date to the First Call Date (exclusive of interest accrued and unpaid to the Redemption Date), each such nominal amount being discounted from its respective scheduled or deemed due date to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Relevant Rate plus 50 basis points.

 

“Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the Principal Market or Alternative Stock Exchange, as applicable, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.

 

“Master Franchise Agreements” means that (1) certain Company Franchise Agreement, dated as of June 12, 2018, by and between Tim Hortons Restaurants International GmbH and TH Hong Kong International Limited, (2) certain Amended and Restated Company Franchise Agreement, dated as of June 12, 2018, by and among Tim Hortons Restaurants International GmbH, TH Hong Kong International Limited and Tim Hortons (Shanghai) Food and Beverage Management Co., Ltd. (including any joinder agreements entered into from time to time pursuant to the terms and conditions thereof), and (3) certain Master Development Agreement, dated as of June 11, 2018, by and between Tim Hortons Restaurants International GmbH and TH Hong Kong International Limited, each as supplemented, amended, restated or modified in accordance with the terms and conditions thereof from time to time.

 

“Material Adverse Effect” means any change, development, occurrence or event that would or would reasonably be expected to (a) be materially adverse to the business, continuing results of operations or financial condition of the Company and its Subsidiaries, taken as a whole or (b) prevent or materially delay the performance by the Company of its obligations under this Indenture and the Notes.

 

 

“Material Subsidiary” means a Subsidiary of the Company:

 

(1)            whose gross revenue (consolidated in the case of a Subsidiary which itself has Subsidiaries) attributable to the Company, as shown by its latest income statement, are at least 10.0% of the consolidated gross revenue of the Company and its Subsidiaries as shown by the latest published audited consolidated income statement of the Company and its consolidated Subsidiaries, including, for the avoidance of doubt, the Company and its consolidated Subsidiaries’ share of revenue of Subsidiaries not consolidated and of associated entities and after adjustments for minority interests; or

 

(2)            whose gross assets (consolidated in the case of a Subsidiary which itself has Subsidiaries) attributable to the Company, as shown by its latest audited balance sheet, are at least 10.0% of the consolidated gross assets of the Company and its Subsidiaries as shown by the latest published audited consolidated balance sheet of the Company and its consolidated Subsidiaries, including the investment of the Company and its consolidated Subsidiaries in each Subsidiary whose accounts are not consolidated with the consolidated audited accounts of the Company and of associated companies and after adjustment for minority interests; or

 

(3)            whose net assets (consolidated in the case of a Subsidiary which itself has Subsidiaries) attributable to the Company, as shown by its latest audited balance sheet, are at least 10.0% of the consolidated net assets of the Company and its Subsidiaries as shown by the latest published audited consolidated balance sheet of the Company and its consolidated Subsidiaries, including the investment of the Company and its consolidated Subsidiaries in each Subsidiary whose accounts are not consolidated with the consolidated audited accounts of the Company and of associated companies and after adjustment for minority interests,

 

provided that, in relation to paragraphs (1) and (2) above of this definition:

 

(A)            in the case of a corporation or other business entity becoming a Subsidiary after the end of the financial period to which the latest consolidated audited accounts of the Company relate, the reference to the then latest consolidated audited accounts of the Company and its consolidated Subsidiaries for the purposes of the calculation above shall, until consolidated audited accounts of the Company for the financial period in which the relevant corporation or other business entity becomes a Subsidiary are published be deemed to be a reference to the then latest consolidated audited accounts of the Company and its Subsidiaries adjusted to consolidate the latest audited accounts (consolidated in the case of a Subsidiary which itself has Subsidiaries) of such Subsidiary in such accounts;

 

(B)            if at any relevant time in relation to the Company or any Subsidiary which itself has Subsidiaries no consolidated accounts are prepared and audited, gross revenue or gross assets of the Company and/or any such Subsidiary shall be determined on the basis of pro forma consolidated accounts prepared for this purpose by the Company; and

 

(C)            if the accounts of any Subsidiary (not being a Subsidiary referred to in proviso (A) above to this definition) are not consolidated with those of the Company, then the determination of whether or not such Subsidiary is a Material Subsidiary shall be based on a pro forma consolidation of its accounts (consolidated, if appropriate) with the consolidated accounts (determined on the basis of the foregoing) of the Company; or

 

 

(4)            to which is transferred all or substantially all of the business, undertaking and assets of another Subsidiary which immediately prior to such transfer is a Material Subsidiary, whereupon:

 

(A)            the transferor Material Subsidiary shall immediately cease to be a Material Subsidiary; and

 

(B)            the transferee Subsidiary shall immediately become a Material Subsidiary, provided that on or after the date on which the relevant financial statements for the financial period current at the date of such transfer are published, whether such transferor Subsidiary or such transferee Subsidiary is or is not a Material Subsidiary shall be determined pursuant to the provisions of the paragraphs above of this definition.

 

An Officer’s Certificate stating that in the signing Officer’s opinion, a Subsidiary is or is not, or was or was not, a Material Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties.

 

“Maturity Date” means December 10, 2026.

 

“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of August 13, 2021, by and among the Company, Target and Silver Crest, as amended from time to time.

 

“Note Agent” means any Registrar, Paying Agent, Transfer Agent or Conversion Agent.

 

“Officer” means any member of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of the Company.

 

“Officer’s Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements of Section 11.03.

 

“Open of Business” means 9:00 a.m., New York City time.

 

“Opinion of Counsel” means an opinion in writing signed by legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) reasonably acceptable to the Trustee, that meets the requirements of Section 11.03, subject to customary qualifications and exclusions.

 

“Order” means any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.

 

 

 

“Outside Date” means September 30, 2022 or, such later date as may be consented to in writing by the Trustee (acting on the instructions of, or with the consent of, the Holders of a majority in aggregate principal amount of the Notes then outstanding).

 

“Outside Date Reset” means, if the Business Combination has not closed prior to the Outside Date, the Initial Conversion Price shall be reset on the Outside Date to a price per Share calculated by dividing $1,688,000,000 by the number of Shares on a fully diluted basis.

 

“Pangaea XXIIA” means Pangaea Two Acquisition Holdings XXIIA Ltd.

 

“Pangaea XXIIB” means Pangaea Two Acquisition Holdings XXIIB Limited.

 

“Paying Agent” has the meaning ascribed to it in Section 2.06.

 

“Permitted Asset Sale” means:

 

(1)            any sale, lease, transfer or other disposal on arm’s length terms of an asset or assets of the Company or its Subsidiary with a Fair Market Value not exceeding, in the aggregate, 10% of the consolidated total revenues of the Company, as shown by the latest published audited consolidated financial statements of the Company and its consolidated Subsidiaries;

 

(2)            (subject to the Company providing no less than 15 days’ prior written notice to the Trustee, together with an Officer’s Certificate confirming compliance with this paragraph) any sale, lease, transfer or other disposal on arm’s length terms of an asset or assets of the Company or its Subsidiary with a Fair Market Value exceeding, in the aggregate, 10% but not more than 25% of the consolidated total revenues of the Company, as shown by the latest published audited consolidated financial statements of the Company and its consolidated Subsidiaries;

 

(3)            any sale, lease, transfer or other disposal of an asset or assets between or among the Company and its Subsidiaries; or

 

(4)            any sale, lease, transfer or other disposal permitted by Article 3.

 

“Permitted Holder” means (i) Pangaea XXIIA, (ii) Pangaea XXIIB , (iii) other investment fund(s) or vehicle(s) managed or advised by Cartesian Capital Group LLC, (iv) any Affiliate of any of the Persons referred to in clauses (i), (ii) and (iii), and (v) any Person the Capital Stock of which (or in the case of a trust, the beneficial interests in which) are more than 50% owned by one or more of the Persons referred to in clauses (i), (ii), (iii) or (iv).

 

 

“Permitted Indebtedness” means:

 

(1)            Indebtedness existing as of the Interest Accrual Date and disclosed in a document filed with the SEC by or on behalf of the Company and any Indebtedness constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (collectively, “refinance”), then outstanding Indebtedness, in an amount not to exceed the principal amount or liquidation value of the Indebtedness so refinanced, plus premiums, fees and expenses, provided that:

 

(A)           if the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, the new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made pari passu with, or subordinated in right of payment to, the remaining Notes;

 

(B)            if the Indebtedness to be refinanced is contractually subordinated or secured on a junior Lien basis to the Notes (excluding any intercompany Indebtedness between or among the Company and any of its Subsidiaries), the new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes;

 

(C)            the new Indebtedness does not have a Stated Maturity prior to the Stated Maturity of the Indebtedness to be refinanced, and the Weighted Average Life to Maturity of the new Indebtedness is at least equal to the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced;

 

(D)            if the Indebtedness being refinanced is unsecured Indebtedness, such Permitted Indebtedness is unsecured Indebtedness;

 

(E)            in no event may Indebtedness of the Company be refinanced pursuant to this clause by means of any Indebtedness of any of its Subsidiaries.

 

(2)            Permitted Intercompany Loans;

 

(3)            guarantees by Company or any Subsidiary in respect of Indebtedness otherwise permitted hereunder;

 

(4)            Indebtedness constituting letters of credit or reimbursement obligations with respect to letters of credit, in each case issued in the ordinary course of business to the extent that such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the 60 days following receipt by the Company or any of its Subsidiaries, as applicable, of a demand for reimbursement;

 

(5)            Capital Lease Obligations Incurred in the ordinary course of business;

 

(6)            Indebtedness in respect of bankers’ acceptances issued or created in the ordinary course of business; and

 

(7)            Indebtedness Incurred in the ordinary course of business under any agreement between any of the Subsidiaries of the Company and any commercial bank or other financial institution relating to Treasury Management Arrangements.

 

 

“Permitted Intercompany Loans” means intercompany Indebtedness between or among the Company or any of its Subsidiaries or Indebtedness Incurred by the Company from its direct or indirect shareholders by way of shareholder’s loan to the Company, provided that:

 

(1)            if the Company is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all amounts due with respect to this Indenture and the Notes; and

 

(2)            (I) any subsequent issuance or transfer of Equity Securities that results in any such Indebtedness being held by a Person other than the Company or a Subsidiary of the Company and (II) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary of the Company, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by these provisions.

 

“Permitted Liens” means:

 

(1)            Liens granted pursuant to or securing any Permitted Indebtedness;

 

(2)            Liens on property of a Person existing at the time such Person becomes a Subsidiary of the Company or is merged with or into or consolidated with the Company or any Subsidiary; provided, that such Liens were in existence prior to the contemplation of such Person becoming a Subsidiary of the Company or such merger or consolidation and do not extend to any assets other than those of the Person that becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any Subsidiary of the Company (plus improvements and accessions to such property or proceeds or distributions thereof);

 

(3)            Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company (plus improvements and accessions to such property or proceeds or distributions thereof); provided, that such Liens were in existence prior to such acquisition and not incurred in contemplation of such acquisition;

 

(4)            Liens in favor of the Company;

 

(5)            Liens securing Capital Lease Obligations;

 

(6)            Liens (other than Liens imposed by the Employee Retirement Income Security Act of 1974, as amended) in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), insurance, surety, bid, performance, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance bonds and other similar obligations (in each case, exclusive of obligations for the payment of Indebtedness); provided, that, such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or any Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

 

(7)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings; provided, that any reserve or other appropriate provision as is required in conformity with U.S. GAAP has been made therefor;

 

 

(8)            Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and employee health and disability benefits, or casualty-liability insurance or self-insurance; provided, that, such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or any Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

 

(9)            judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made in conformity with U.S. GAAP;

 

(10)          Liens in favor of any collecting or payor bank having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Subsidiary thereof on deposit with or in possession of such bank;

 

(11)          Liens on any amounts held by a trustee in the funds and accounts under an indenture securing any bonds issued for the benefit of the Company or any of its Subsidiaries;

 

(12)          any netting or set-off arrangements entered into by the Company or any of its Subsidiaries in the ordinary course of its banking arrangements (including, for the avoidance of doubt, cash pooling arrangements) for the purposes of netting debit and credit balances of the Company or any of its Subsidiaries; and

 

(13)          Liens imposed by law, which were or are incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business (including customary contractual landlords’ liens under operating leases entered into in the ordinary course of business); and (i) which do not in the aggregate materially detract from the value of the property of the Company and its Subsidiaries, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Company and its Subsidiaries, taken as a whole, and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings timely initiated and for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien.

 

“Person” or “person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or any government or any department or agency thereof.

 

“Physical Note” means a certificated Note (other than a Global Note) registered in the name of the Holder thereof and issued in accordance with Article 2, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

 

“PRC” means the People’s Republic of China and for the purpose of this Indenture shall exclude Hong Kong, Taiwan and the Special Administrative Region of Macau.

 

“Preferred Stock” as applied to the Capital Stock of any Person means Capital Stock of any class or classes that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

 

“Principal Market” means, with respect to the Company, Nasdaq.

 

“Recognized Accounting Firm” means Deloitte Touche Tohmatsu, Ernst & Young, KPMG, PricewaterhouseCoopers, Grant Thornton or another internationally recognized accounting firm.

 

“Redemption” means the redemption of any Note by the Company pursuant to Section 4.03.

 

“Redemption Date” means the date fixed, pursuant to Section 4.03(B), for the settlement of the redemption of any Notes by the Company pursuant to a Redemption.

 

“Redemption Notice Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.03(D).

 

“Redemption Price” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.03(C).

 

“Registrar” has the meaning ascribed to it in Section 2.06.

 

“Registration Statement” means a shelf registration statement filed by the Company with the SEC registering the resale of the Conversion Shares within forty-five (45) calendar days after the earlier of the completion of the Business Combination and the date on which the Company is or becomes subject to the reporting obligations under Section 13 or Section 15(d) of the Exchange Act.

 

“Regular Record Date” with respect to any Interest Payment Date, means May 26 or November 25 (whether or not such day is a Business Day) immediately preceding the applicable June 10 or December 10 Interest Payment Date, respectively.

 

“Relevant Rate” means a rate per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) equal to the rate reasonably determined by the Company on the date falling three (3) Business Days prior to the Redemption Date, equal to the USD LIBOR mid-swap rate for securities having a term equivalent in duration to the term of the Notes, or if such rate is not available, the USD SOFR ICE Swap Rate or other rate generally accepted by the market and selected by the Company, acting reasonably.

 

“Repurchase” means the repurchase of any Note by the Company pursuant to Section 4.02.

 

 

“Repurchase Date” has the meaning ascribed to it in Section 4.02(B).

 

“Repurchase Notice” means a notice (including a notice substantially in the form of the “Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section 4.02(E)(i)  and Section 4.02(E)(ii).

 

“Repurchase Price” means the cash price payable by the Company to repurchase the Notes upon its Repurchase, calculated pursuant to Section 4.02(C).

 

“Repurchase Right” has the meaning ascribed to it in Section 4.02(A).

 

“Responsible Officer” means (A) any officer of the Trustee assigned by the Trustee having direct responsibility for the administration of this Indenture; and (B) with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of, and familiarity with, the particular subject.

 

“Resale Restriction Termination Date” means the date which is one year after the later of the Issue Date and the last date on which the Company or any Affiliate of the Company was the owner of the Notes (or any predecessor of the Notes).

 

“Restricted Note Legend” means a legend substantially in the form set forth in Exhibit B-1.

 

“Restricted Payment” means:

 

(1)            the declaration or payment of any dividend or the making of any distribution on or with respect to the Company’s Capital Stock (other than dividends or distributions payable or paid solely in shares of the Company’s or any of its Subsidiaries’ Capital Stock (other than Preferred Stock) or in options, warrants or other rights to acquire shares of such Capital Stock) held by Persons other than the Company or any of its Subsidiaries; and

 

(2)            the purchase, call for redemption or redemption, retirement or other acquisition for value of any Equity Securities of the Company or any direct or indirect parent of the Company held by any Persons other than the Company or any of its Subsidiaries,

 

but does not include:

 

(A)            the repurchase, redemption or other acquisition or retirement for value of any Equity Securities of the Company held by any current or former officer, director or employee of the Company pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Securities may not exceed $3.0 million in any twelve-month period, provided, further, that the Company may carry over and make in any subsequent twelve-month period, in addition to the amount permitted for such twelve-month period, unutilized capacity under this clause (A) attributable to the immediately preceding twelve-month period;

 

 

(B)            the repurchase of Equity Securities of the Company deemed to occur upon the exercise of stock options to the extent such Equity Securities represent a portion of the exercise price of those stock options; or

 

(C)            cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company (including, for the avoidance of doubt, pursuant to Section 5.03(B)(iii)); provided, however, that any such cash payment shall not be for the purpose of evading the limitation hereunder.

 

“Restricted Stock Legend” means, with respect to any Conversion Share, a legend substantially to the effect that the offer and sale of such Conversion Share have not been registered under the Securities Act and that such Conversion Share cannot be sold or otherwise transferred except pursuant to a transaction that is registered under the Securities Act or that is exempt from, or not subject to, the registration requirements of the Securities Act.

 

“Rule 144” means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

 

“Rule 144A” means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

 

“Sanctions” means all applicable provisions of any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of Treasury, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, including sanctions issued under the authority of the U.S. Trading with the Enemy Act, the U.S. International Emergency Economic Powers Act, the U.S. United Nations Participation Act, the U.S. Syrian Accountability and Lebanese Sovereignty Restoration Act and the Iran Threat Reduction and Syria Human Rights Act of 2012 and Executive Order 13622 of July 30, 2012.

 

“SEC” means the U.S. Securities and Exchange Commission.

 

“Second Call Date” means December 10, 2025.

 

“Securities Act” means the U.S. Securities Act of 1933, as amended.

 

“Security” means any Note or Conversion Share.

 

“SGX-ST” means the Singapore Exchange Securities Trading Limited.

 

“Shares” means the ordinary shares of the Company.

 

“Silver Crest” means Silver Crest Acquisition Corporation, an exempted company with limited liability incorporated under the laws of the Cayman Islands with registration number 365811.

 

 

“Stated Maturity” means, (1) with respect to any Indebtedness, the date specified in such debt security as the fixed date on which the final installment of principal of such Indebtedness is due and payable as set forth in the documentation governing or evidencing such Indebtedness and (2) with respect to any scheduled installment of principal of or interest on any Indebtedness, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing or evidencing such Indebtedness.

 

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or other form of legal entity of which (or in which) (a) more than 50% of (i) the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (ii) the interest in the capital or profits of such partnership, joint venture or limited liability company or (iii) the beneficial interest in such trust is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries, or (b) such Person has the power to direct the management or policies, whether through ownership or voting proxy of the voting power of such legal entity, through the power to appoint a majority of the members of the board of directors or similar governing body of such legal entity, through contractual arrangements or otherwise. Unless the context otherwise requires, any reference to “Subsidiary” refers to a Subsidiary of the Company.

 

“Target” means Miami Swan Ltd, an exempted company with limited liability incorporated under the laws of the Cayman Islands with registration number 376960 and a wholly owned subsidiary of the Company.

 

“Tax Redemption” has the meaning ascribed to it in Section 4.04(B).

 

“Tax Redemption Date” has the meaning ascribed to it in Section 4.04(B).

 

“Tax Redemption Price” has the meaning ascribed to it in Section 4.04(A).

 

“Trading Commencement Date” means the first day on which Shares are traded on the Principal Market or any Alternative Stock Exchange.

 

“Trading Day” means any day on which (i) the Shares are traded on the Principal Market, or, as the case may be, the Alternative Stock Exchange, and (ii) there is no Market Disruption Event; provided that “Trading Day” shall not include any day on which the Shares are scheduled to trade on such exchange or market for less than four hours or any day that the Shares are suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00 p.m., The City of New York time, or such other time as such exchange or market publicly announces shall be the closing time of trading).

 

“Transfer Agent” has the meaning ascribed to it in Section 2.06.

 

 

“Transfer-Restricted Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided, however, that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:

 

(A)            such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such sale or transfer;

 

(B)            such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security” (as defined in Rule 144); and

 

(C)            such Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale, availability of current public information or notice.

 

The Trustee is under no obligation to determine whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s Certificate with respect thereto.

 

“Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including, without limitation, deposit accounts, overdraft, overnight draft, credit cards, debit cards, p-cards (including purchasing cards, employee credit card programs and commercial cards), funds transfer, automated clearinghouse, direct debit, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services, netting services, cash pooling arrangements, credit and debit card acceptance or merchant services and other treasury or cash management services.

 

“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.

 

“Trustee” means the Person named as such in the first paragraph of this Indenture in its capacity as such until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means such successor.

 

“U.S. GAAP” means generally accepted accounting principles as applied in the United States.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

(1)            the sum of the products obtained by multiplying (a) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of such Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

(2)            the then-outstanding principal amount of such Indebtedness.

 

 

Section 1.02.      Other Definitions.

 

Term		Defined in Section
“Business Combination Event”		6.01
“Conversion Agent”		2.06(A)
“Conversion Consideration”		5.03(B)
“Event of Default”		7.01(A)
“Expiration Date”		5.05(A)(vi)
“Expiration Time”		5.05(A)(vi)
“Mandatory Conversion Notice Date”		5.01(B)
“Notice of Conversion”		5.02(A)(ii)
“PIK Interest”		2.05(C)
“Redemption Notice”		4.03(D)
“Reference Property”		5.08(A)1
“Reference Property Unit”		5.08(A)1
“Register”		2.06(B)
“Relevant Taxing Jurisdiction”		3.23(A)
“Share Change Event”		5.08(A)1
“Specified Courts”		11.07
“Spin-Off”		5.05(A)(iv)(2)
“Spin-Off Valuation Period”		5.05(A)(iv)(2)
“Stated Interest”		2.05(A)
“Successor Corporation”		6.01(A)
“Successor Person”		5.08(A)
“Tender/Exchange Offer Valuation Period”		5.05(A)(vi)

 

Section 1.03.        Rules of Construction.

 

For purposes of this Indenture:

 

(A)          “or” is not exclusive;

 

(B)           “including” means “including without limitation”;

 

(C)           “will” expresses a command;

 

(D)           the “average” of a set of numerical values refers to the arithmetic average of such numerical values;

 

(E)           a merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding of any such division or allocation;

 

¹ Cross reference is correct as is.

 

 

(F)            words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;

 

(G)           “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;

 

(H)           references to currency mean the lawful currency of the United States of America, unless the context requires otherwise; and

 

(I)            the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture.

 

Article 2. THE NOTES

 

Section 2.01.        Form, Dating and Denominations.

 

The Notes and the Trustee’s certificate of authentication will be substantially in the respective form set forth in Exhibit A. The Notes will bear the legends required by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage of the Depositary. Each Note will be dated as of the date of its authentication.

 

The Notes will be issued initially in the form of one or more Global Notes. The Global Notes may be exchanged for Physical Notes and Physical Notes may be exchanged for Global Notes, only as provided in Section 2.10.

 

The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.

 

Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.

 

The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.

 

Section 2.02.        Execution, Authentication and Delivery.

 

(A)          Due Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual, electronic (e.g., “.pdf”) or facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.

 

 

(B)          Authentication by the Trustee and Delivery.

 

(i)            No Note will be valid until it is authenticated by an authorized signatory of the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually or electronically signs the certificate of authentication of such Note.

 

(ii)           The Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually or electronically sign the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated. If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly deliver such Note in accordance with such Company Order.

 

(iii)           The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication agent was validly appointed to undertake.

 

Section 2.03.        Initial Notes and Additional Notes.

 

(A)          Initial Notes. On the Issue Date, there will be originally issued fifty million dollars ($50,000,000) aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section 2.02).

 

(B)          Additional Notes. Without the consent of any Holder, the Company may, subject to the provisions of this Indenture (including Section 2.02), issue Additional Notes with the same terms as the Initial Notes (except, to the extent applicable, with respect to the date as of which interest begins to accrue on such Additional Notes and the first Interest Payment Date of such additional Notes), which Additional Notes will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture; provided, however, that if any such Additional Notes are not fungible with other Notes issued under this Indenture for U.S. federal income tax or U.S. federal securities laws purposes, then such Additional Notes will be identified by a separate CUSIP or ISIN number or by no CUSIP or ISIN number. Unless the context otherwise requires, in this Indenture references to “Notes” include the Initial Notes and any Additional Notes that are actually issued, including any Additional Notes that are issued as PIK Interest.

 

Section 2.04.        Method of Payment.

 

(A)            Global Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date, Tax Redemption on Tax Redemption Date or Repurchase on a Repurchase Date or otherwise) of, and interest on, any Global Note to the Depositary or its nominee as the registered Holder of such Global Note, by wire transfer of immediately available funds no later than the time the same is due as provided in this Indenture.

 

 

(B)          Physical Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or Repurchase on a Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration due upon conversion of, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company (or the Paying Agent) make such payment by wire transfer to an account of such Holder, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date; and (y) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.

 

Section 2.05.        Accrual of Interest; When Payment Date Is Not a Business Day.

 

(A)          Accrual of Interest. Each Note will accrue interest at a rate per annum equal to the Interest Rate (the “Stated Interest”). Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, December 10, 2021) to, but excluding, the date of payment of such Stated Interest; and (ii) be, subject to Section 4.02(C), Section 4.03(C) and Section 5.02(E) (but without duplication of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date. Stated Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

(B)          Delay of Payment when Payment Date is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is not a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for purposes of the immediately preceding sentence, a day on which commercial banks in the applicable place of payment are authorized or obligated by law, regulation or executive order to close or be closed will be deemed not to be a “Business Day.”

 

 

(C)          PIK Interest. On each Interest Payment Date accrued and unpaid interest shall be paid, at the election of the Company, (i) entirely in cash or (ii) by capitalizing on the applicable Interest Payment Date any accrued and unpaid interest (all such accrued and unpaid interest capitalized from time to time is referred to herein as “PIK Interest”) and by the issuance of PIK Notes in accordance with Section 2.20. For each Interest Payment Date, the Company shall be deemed to have elected to pay accrued and unpaid interest entirely as PIK Interest, unless at least five Business Days prior to the applicable Interest Payment Date, Company has provided written notice to the Holders of its election to pay the entirety of the accrued and unpaid interest in cash (a “Cash Pay Election”). At the expense of the Company, the Trustee shall promptly deliver the same notice to the Holders. Following the provision of a Cash Pay Election with respect to any Interest Payment Date, accrued and unpaid interest shall be paid on such Interest Payment Date entirely in cash. On the Maturity Date, all accrued and unpaid interest shall be paid in cash. If the Company has not delivered a Cash Pay Election with respect to an Interest Payment Date on or before five Business Days immediately prior to the applicable Interest Payment Date, the Company shall issue PIK Notes in accordance with Section 2.20. PIK Notes issued shall bear interest in accordance with this Section 2.05 and shall otherwise be treated as principal of such Notes for purposes of this Indenture, including being payable in cash in full on the Maturity Date and with respect to the accrual of interest on the PIK Interest amounts.

 

Section 2.06.        Registrar, Paying Agent, Transfer Agent and Conversion Agent.

 

(A)          Generally. The Company will maintain (i) an office or agency in the United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”); (ii) an office or agency in the United States where Notes may be presented for payment (the “Paying Agent”); (iii) an office or agency in the United States where Notes may be presented for conversion (the “Conversion Agent”); and (iv) an office or agency in the United States to act as transfer agent (the “Transfer Agent”). If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or Transfer Agent, then the Trustee will act as such. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.

 

(B)          Duties of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders, the Notes held by each Holder and the transfer, exchange, Repurchase, Redemption and conversion of Notes. Absent manifest error, the entries in the Register will be conclusive and the Company and the Trustee may conclusively treat each Person whose name is recorded as a Holder in the Register as a Holder and the absolute owner for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably promptly.

 

(C)          Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents, Transfer Agents and Conversion Agents. The Company may appoint one or more co-Registrars, co-Paying Agents, co-Transfer Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent, Transfer Agent or Conversion Agent, as applicable, under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar, Paying Agent, Transfer Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent.

 

(D)            Initial Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar, the initial Transfer Agent and the initial Conversion Agent, and the Trustee accepts such appointments. In acting in such capacities under this Indenture and in connection with the Notes, the Trustee in such capacities will act solely as an agent of the Company and will not thereby assume any obligations towards, or relationship of agency or trust for or with, any Holder.

 

 

Section 2.07.        Paying Agent and Conversion Agent to Hold Property in Trust.

 

The Notes may be presented or surrendered for payment and notices and demands in respect of such Notes and this Indenture may be served at the designated corporate trust office of the Paying Agent. If Physical Notes are issued, (a) the Physical Notes may be presented or surrendered for registration of transfer or for exchange, (b) the Physical Notes may be presented or surrendered for payment and (c) notices and demands in respect of the Physical Notes and this Indenture may be served at the Corporate Trust Office of the Paying Agent in the United States or the designated corporate trust office of the Registrar in the United States.

 

The satisfaction by the Company of any obligation or requirement hereunder to, or with respect to, the Paying Agent (including, without limitation, the obligation to deposit moneys) shall be deemed to constitute satisfaction of such obligation or requirement with respect to all Paying Agents hereunder.

 

The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee in writing of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holder or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the occurrence of any event pursuant to clause (xi) or (xiii) of Section 7.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.

 

Section 2.08.        Holder Lists.

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date and at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the names and addresses of the Holders.

 

 

Section 2.09.        Legends.

 

(A)            Global Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required by the Depositary for such Global Note).

 

(B)            Restricted Note Legend.

 

(i)            Each Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and

 

(ii)            if a Note is issued in exchange for, in substitution of, another Note (such other Note being referred to as the “old Note” for purposes of this Section 2.09(B)(ii)), including pursuant to Section 2.10(B), Section 2.10(C), Section 2.11 or Section 2.12, then such Note will bear the Restricted Note Legend if such old Note bore the Restricted Note Legend at the time of such exchange or substitution, as applicable; provided, however, that such Note need not bear the Restricted Note Legend if such Note does not constitute a Transfer-Restricted Security immediately after such exchange or substitution, as applicable.

 

(C)            Other Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such Note is traded or quoted.

 

(D)            Acknowledgment and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09 will constitute such Holder’s acknowledgment of, and agreement to comply with, the restrictions set forth in such legend.

 

Section 2.10.        Transfer and Exchanges; Certain Transfer Restrictions.

 

(A)          Provisions Applicable to All Transfers and Exchanges.

 

(i)            Subject to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time. The Registrar will record each such transfer or exchange of Physical Notes in the Register.

 

(ii)            Each Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes of this Section 2.10(A)(ii) or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.

 

(iii)            The Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Section 2.11, Section 4.05 or Section 8.05 not involving any transfer.

 

 

 

(iv)           Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination.

 

(v)           The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to form with the requirements of this Indenture.

 

(vi)           The Trustee will have no responsibility or obligation to any beneficial owner of 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 or 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 (including any notice of Redemption or Repurchase) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All payments to be made to Holders in respect of the Notes will be given or made only to or upon the order of the registered Holders (which is the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note will be exercised only through the Depositary subject to the applicable Depositary Procedures. The Trustee may rely and will be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.

 

(vii)          Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.

 

(viii)         Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of such satisfaction.

 

(ix)           For the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section 2.10, an “exchange” of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend affixed to such Global Note or Physical Note; and (y) if such Global Note or Physical Note is identified by a “restricted” CUSIP number, an exchange effected for the sole purpose of causing such Global Note or Physical Note to be identified by an “unrestricted” CUSIP number.

 

(B)          Transfer and Exchange of Global Notes.

 

(i)           Subject to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by the Depositary to a nominee of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

 

 

No Global Note (or any portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:

 

(1)            (x) the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;

 

(2)            an Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest, as applicable, for one or more Physical Notes; or

 

(3)            the Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest.

 

(ii)            Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):

 

(1)            the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal amount of zero, the Company may (but is not required to) instruct the Trustee in writing to cancel such Global Note pursuant to Section 2.14);

 

(2)            if required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note;

 

(3)           if required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.09; and

 

(4)           if such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Global Note to be so exchanged; (y) are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant to customary procedures); and (z) bear each legend, if any, required by Section 2.09.

 

 

(iii)            Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.

 

(C)          Transfers and Exchanges of Physical Notes

 

(i)           Subject to this Section 2.10, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must:

 

(1)            surrender such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar; and

 

(2)            deliver such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).

 

(ii)            Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion of such old Physical Note in an Authorized Denomination):

 

(1)            such old Physical Note will be promptly cancelled pursuant toSection 2.14;

 

(2)           if such old Physical Note is to be so transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be so transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;

 

 

(3)            in the case of a transfer:

 

(a)           to the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global Note(s) bear each legend, if any, required by Section 2.09; provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section 2.09; and

 

(b)            to a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section 2.09; and

 

(4)            in the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section 2.09.

 

(D)          Requirement to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP number or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:

 

(i)            cause such Note to be identified by an “unrestricted” CUSIP number;

 

(ii)           remove such Restricted Note Legend; or

 

(iii)         register the transfer of such Note to the name of another Person, then the Company, the Trustee and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Trustee and the Registrar such certificates or other documentation or evidence as the Company, the Trustee and the Registrar may reasonably require to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable securities laws.

 

 

(E)          Transfers of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Trustee and the Registrar may refuse to register the transfer of or exchange any Note that (i) has been surrendered for conversion; or (ii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that the Company fails to pay the applicable Redemption Price when due.

 

Section 2.11.        Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase or Redemption.

 

(A)          Cancellation of Notes that Are Converted and Notes that Are Repurchased Pursuant to a Repurchase or Redemption.

 

(i)            Physical Notes. If a Physical Note of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase or Redemption, then, promptly after the later of the time such Physical Note is deemed to cease to be outstanding pursuant to Section 2.17 and the time such Physical Note is surrendered for such conversion, Repurchase or Redemption, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.14.

 

(ii)           Global Notes. If a Global Note is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase or Redemption, then, promptly after the time such Note is deemed to cease to be outstanding pursuant to Section 2.17, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted or repurchased, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section 2.14).

 

Section 2.12.        Replacement Notes.

 

If a Holder of any Note claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the Holder thereof to provide such security or indemnity that is satisfactory to the Company and the Trustee to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced. The Company may charge for its and the Trustee’s expenses in replacing a Note.

 

Every replacement Note issued pursuant to this Section 2.12 will be an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and ratably with all other Notes issued under this Indenture.

 

 

Section 2.13.        Registered Holders; Certain Rights with Respect to Global Notes.

 

Only the Holder of a Note will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants and Persons that hold interests in Notes through Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Trustee and the Note Agents, and their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or other authorization furnished by the Depositary.

 

Section 2.14.        Cancellation.

 

The Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent, the Transfer Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment or conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures. Without limiting the generality of Section 2.03(B), the Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.

 

Section 2.15.        Notes Held by the Company or its Affiliates.

 

Without limiting the generality of Section 2.17, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes (if any) owned by the Company or any of its Affiliates will be deemed not to be outstanding; provided, however, that, for purposes of determining whether the Trustee is protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.

 

Section 2.16.        Temporary Notes.

 

Until definitive Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.

 

 

Section 2.17.        Outstanding Notes.

 

(A)           Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.14; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full (including upon conversion) in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B), (C) or (D) of this Section 2.17.

 

(B)            Replaced Notes. If a Note is replaced pursuant to Section 2.12, then such Note will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “bona fide purchaser” under applicable law.

 

(C)          Maturing Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Repurchase Date, a Tax Redemption Date or the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest in each case due on such date, then (unless there occurs a Default in the payment of any such amount) (i) the Notes to be redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Section 4.02(C), Section 4.03(C) or Section 5.02(E); and (ii) the rights of the Holders of such Notes, as such, will terminate with respect to such Notes, other than the right to receive the Redemption Price, Repurchase Price or principal amount, as applicable, of, and accrued and unpaid interest on, such Notes, in each case as provided in this Indenture.

 

(D)          Notes to Be Converted. At the Close of Business on the Conversion Date or Mandatory Conversion Notice Date for any Note to be converted, such Note will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(C) or Section 5.02(E), upon such conversion) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(E).

 

(E)            Cessation of Accrual of Interest. Except as provided in Section 4.02(C), Section 4.03(C) or Section 5.02(E), interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section 2.17, to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other property due on such Note.

 

Section 2.18.        CUSIP and ISIN Numbers.

 

The Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such CUSIP or ISIN number(s) in notices to Holders as applicable; provided, however, that (i) the Trustee makes no representation as to the correctness or accuracy of any such CUSIP or ISIN number; (ii) the effectiveness of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number; and (iii) the Trustee shall have no liability for any defect in the CUSIP or ISIN numbers as they appear on any Note, notice or elsewhere. The Company will promptly notify the Trustee, in writing, of any change in the CUSIP or ISIN number(s) identifying any Notes.

 

 

Section 2.19.        Special Transfer Provisions.

 

(A)            Restricted Note Legend. Upon the transfer, exchange or replacement of Notes not bearing the Restricted Note Legend, the Registrar shall deliver Notes that do not bear the Restricted Note Legend. Upon the transfer, exchange or replacement of Notes bearing the Restricted Note Legend, the Registrar shall deliver only Notes that bear the Restricted Note Legend unless such Note does not constitute a Transfer-Restricted Security immediately after such transfer, exchange or replacement, including to the extent the requested transfer is after the Resale Restriction Termination Date, or if such Note has been sold pursuant to an effective registration statement under the Securities Act. The Trustee or the Company may reasonably require the delivery of an opinion of counsel reasonably satisfactory to the Company and to the Trustee and addressed to the Company and to the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

 

(B)            General. By its acceptance of any Note bearing the Restricted Note Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Restricted Note Legend and agrees that it will transfer such Note only as provided in this Indenture and as permitted by applicable law.

 

(C)          The Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.19. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(D)            Transfers of Notes Held by Affiliates. Any certificate (i) evidencing a Note that has been transferred to an Affiliate within two (2) years after the Issue Date, as evidenced by a notation on the assignment form for such transfer or in the representation letter delivered in respect thereof or (ii) evidencing a Note that has been acquired from an Affiliate (other than by an Affiliate) in a transaction or a chain of transactions not involving any public offering, shall, until two (2) years after the last date on which the Company or any Affiliate was an owner of such Note (or such longer period of time as may be required under the Securities Act or applicable state securities laws), in each case, bear the Restricted Note Legend, unless otherwise agreed by the Company (with written notice thereof to the Trustee).

 

Section 2.20.        Issuance of PIK Interest; PIK Payments.

 

In connection with the payment of PIK Interest on the Notes, the Company is entitled, without the consent of the Holders, to issue Additional Notes having the same terms and conditions as the Notes (the “PIK Notes”). PIK Interest on the Global Notes will be payable by the Company delivering an order to issue additional PIK Notes by increasing the principal amount of any such Global Note by the relevant amount (rounded up to the nearest whole dollar) or, if necessary, by issuing a new Global Note executed by the Company and an order to the Trustee (or its authenticating agent) to authenticate such new Global Note and in accordance with Section 2.02 of this Indenture. PIK Interest on any Physical Notes will be payable by the Company delivering to the Trustee and Paying Agent such PIK Notes in the relevant amount (rounded up to the nearest whole dollar) as Physical Notes and an order to the Trustee (or its authenticating agent) to authenticate, in accordance with Section 2.02, and deliver such PIK Notes to the Holders on the relevant record date. Following an increase in the principal amount of the outstanding Global Notes as a result of a payment as PIK Interest, the Notes will bear interest on such increased principal amount from and after the date of such payment. Any PIK Notes issued as Physical Notes will be dated as of the applicable Interest Payment Date and will bear interest from and after such date.

 

 

Article 3. COVENANTS

 

Section 3.01.        Payment on Notes.

 

(A)            Generally. The Company will pay or cause to be paid all the principal of, the Repurchase Price and Redemption Price for, interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.

 

(B)            Deposit of Funds. Before 10:00 A.M., New York City time, on each Redemption Date, Tax Redemption Date, Repurchase Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.

 

Section 3.02.        Compliance and Default Certificates.

 

(A)            Annual Compliance Certificate. Within 120 days after December 31, 2021 and each fiscal year of the Company ending thereafter, the Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred and is continuing (and, if so, describing all such Defaults or Events of Default and what action the Company is taking or proposes to take with respect thereto).

 

(B)            Default Certificate. If a Default or Event of Default occurs, then the Company will promptly deliver an Officer’s Certificate to the Trustee describing the same and what action the Company is taking or proposes to take with respect thereto; provided, however, that the Company will not be required to deliver such notice if such Default or Event of Default, as applicable, has been cured within the applicable grace period, if any, provided herein.

 

Section 3.03.        Stay, Extension and Usury Laws.

 

To the extent that it may lawfully do so, the Company (A) agrees that it will 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 (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

 

Section 3.04.        Acquisition of Notes by the Company and its Affiliates.

 

Without limiting the generality of Section 2.17, Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired will be deemed to remain outstanding (except to the extent provided in Section 2.15) until such time as such Notes are delivered to the Trustee for cancellation.

 

Section 3.05.        Indebtedness and Preferred Stock.

 

(A)          The Company shall not, and shall not permit any of its Subsidiaries to, Incur any Indebtedness, other than the Incurrence by the Company of Indebtedness represented by the Notes, and the Company shall not permit any of its Subsidiaries to issue Preferred Stock.

 

(B)          Notwithstanding the foregoing, the Company may Incur Permitted Indebtedness under clauses (1), (2) and (3) of the definition thereof, provided that such Permitted Indebtedness is unsecured, and any Subsidiary of the Company may Incur Permitted Indebtedness.

 

Section 3.06.        Restricted Payments.

 

The Company shall not, directly or indirectly, make any Restricted Payment.

 

Section 3.07.        Negative Pledge.

 

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, incur, assume or permit to exist any Lien securing Indebtedness, except Permitted Liens, unless the Notes are secured equally and ratably with (or, if the Indebtedness to be secured by such Lien is subordinated in right of payment to the Notes, prior to) the Indebtedness secured by such Lien, for so long as such Indebtedness is secured by such Lien.

 

Section 3.08.        Asset Sales.

 

The Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, transfer or otherwise dispose of any asset, in a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary, other than a Permitted Asset Sale.

 

Section 3.09.        Listing of the Notes.

 

The Company shall procure and maintain the listing and quotation of the Notes on the SGX-ST or other internationally recognized stock exchange.

 

 

Section 3.10.        SEC Filings; Disclosures; Financial Statements and Reports.

 

(A)            To the extent that the Company is subject to any SEC reporting requirements, the Company shall (i) timely file with the SEC, within the time periods specified in the SEC’s rules and regulations, all financial information and other reports required to be filed with the SEC, and any other information required to be filed with the SEC, (ii) deliver to the Holders (I) copies of all such filings with the SEC within two (2) Business Days after the filing thereof with the SEC and (II) electronic copies of all press releases issued by the Company or any of its Subsidiaries on the same day as the release thereof, in each case, unless the foregoing are filed with the SEC through EDGAR or posted on the Company’s website and are immediately available to the public through EDGAR or on the Company’s website.

 

(B)            To the extent that the Company is subject to any reporting requirements of the Alternative Stock Exchange, the Company (i) shall timely file with or disclose to the Alternative Stock Exchange, within the time periods specified in the relevant rules and regulations, all financial information, other reports and other information required to be filed or disclosed, and (ii) deliver to the Holder (I) copies of all such filings or disclosures within two (2) Business Days after the filing or disclosure thereof and (II) electronic copies of all press releases issued by the Company or any of its Subsidiaries on the same day as the release thereof, in each case, unless the foregoing are posted on the Alternative Stock Exchange’s website or the Company’s website and are immediately available to the public on the Alternative Stock Exchange’s website or the Company’s website.

 

(C)            Unless the Company has filed with (or furnished to) the SEC or the Principal Market or the Alternative Stock Exchange the financial information listed below and complied with paragraph (A) above, the Company will provide to the Holders:

 

(i)            as soon as practicable, but in any event within 120 calendar days after the end of the fiscal year of the Company, copies of its financial statements (on a consolidated basis and in the English language) in respect of such financial year (including a statement of income, balance sheet and cash flow statement) prepared in accordance with U.S. GAAP and audited by a Recognized Accounting Firm; and

 

(ii)            as soon as practicable, but in any event within 60 calendar days after the end of each of the first, second and third fiscal quarters of the Company, copies of its unaudited financial statements (on a consolidated basis and in the English language), including a statement of income, balance sheet and cash flow statement prepared in accordance with U.S. GAAP, and prepared on a basis consistent with the audited financial statements of the Company together with a certificate signed by the Person then authorized to sign financial statements on behalf of the Company to the effect that such financial statements are true in all material respects and present fairly in all material respects the financial position of the Company as at the end of, and the results of its operations for, the relevant quarterly period,

 

provided, that the foregoing obligations in this Section 3.10(C) shall not apply if the Company is subject to or voluntarily complying with the periodic reporting requirements of Section 13(a) of the Exchange Act and also continues to publicly release condensed consolidated financial statements prepared in accordance with U.S. GAAP.

 

 

Section 3.11.        Corporate Existence.

 

The Company shall, and shall cause each of its Subsidiaries (other than Subsidiaries that do not have any material assets or operations) to, maintain its corporate existence, excluding in connection with the consummation of the Business Combination, mergers and consolidations among Subsidiaries of the Company, mergers and consolidations between the Company and its Subsidiaries and transactions permitted by Article 6.

 

Section 3.12.        Compliance with Laws.

 

(A)            The Company shall, and shall cause each of its Subsidiaries to, (i) comply with all applicable laws, ordinances, rules, regulations and requirements of any Governmental Authorities, including, without limitation, the requirements of all Sanctions, and (ii) obtain, possess and maintain in full force and effect all certificates, consents, rights, authorizations, licenses and permits issued by each Governmental Authority necessary to conduct its business and preserve and maintain good and valid title to its properties and assets (including, without limitation, land-use rights) free and clear of any Liens (other than Permitted Liens), in each case except to the extent the failure to so comply, obtain, possess, maintain and preserve would not reasonably be expected to have a Material Adverse Effect.

 

(B)            Neither the Company nor any of its Subsidiaries shall violate applicable Anti-Corruption Laws, including corruptly offering, receiving, paying, promising to pay or authoring the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value (1) to or for the use of any Government Official, (2) to any other Person either for an advance or reimbursement, if it knows or has reason to know that any part of such payment will be directly or indirectly given or paid by such other Person, or will reimburse such other Person for payments previously made, to any Government Official; or (3) to any other Person or entity, to obtain or keep business or to secure some other improper advantage in relation to the Company, the payment of which would violate applicable Anti-Corruption Laws.

 

(C)            The Company shall maintain a Company-wide anti-bribery and anti-corruption policy and training program. The Company shall also maintain effective disclosure controls and procedures and an internal accounting controls system that is sufficient to provide reasonable assurances that violations of Anti-Corruption Laws will be prevented, detected, and deterred.

 

Section 3.13.        Master Franchise Agreements.

 

(A)             Except as permitted under clause (B) below, the Company shall, and shall cause each of its Subsidiaries to, maintain in full force and effect the Master Franchise Agreements and comply in all material respects with the terms of the Master Franchise Agreements.

 

(B)            The Company shall not, and shall cause each of its Subsidiaries not to, amend, fail to renew, provide any consent under, assign, novate, terminate or allow to let lapse the Master Franchise Agreements, except (i) as required by the terms of such Master Franchise Agreement, (ii) in the ordinary course of business, if such amendment, non-renewal, consent, assignment, novation, termination or lapse would not have a Material Adverse Effect or (iii) with the Trustee’s prior written consent (acting on the instructions of, or with the consent of, the Holders of a majority in aggregate principal amount of the Notes then outstanding).

 

 

Section 3.14.        Maintenance of Assets; Insurance.

 

The Company shall, and shall cause each of its Subsidiaries to, (i) maintain its assets in good working order and condition, ordinary wear and tear excepted; and (ii) have insurance policies of the type, and that provide coverage, that is in compliance with applicable law in all material respects and is reasonable and appropriate considering the business of the Company and its Subsidiaries, and the Company and its Subsidiaries are in compliance in all respects thereunder, including with respect to the payment of premiums.

 

Section 3.15.        Payment of Taxes.

 

The Company shall, and shall cause each of its Subsidiaries to, pay and discharge, before the same shall become delinquent, all material taxes, assessments and other material governmental charges or levies imposed upon them or any of their properties or assets or in respect of their businesses or incomes except for those being contested in good faith by proper proceedings diligently conducted and against which adequate reserves, in accordance with U.S. GAAP, have been established.

 

Section 3.16.        Conversion Shares.

 

The Company shall ensure that all Shares issued upon conversion of the Notes shall represent newly issued shares or shares held in treasury by the Company, shall have been duly authorized and validly issued and shall be fully paid and non-assessable, and shall be free from preemptive rights and free of any Lien or adverse claim (except to the extent of any Lien or adverse claim created by the action or inaction of the Holder of the relevant Note or the Person to whom such Share will be delivered). The Company shall make all filings and reports relating to the offer and sale of the Conversion Shares by the Company required under applicable foreign or U.S. securities or “blue sky” laws (or to obtain an exemption from such requirements), provided, however, that the Company shall not be required to (i) qualify generally to do business as a foreign entity in any jurisdiction where it would not otherwise be required to qualify but for this Article 3, or (ii) consent to general service of process in any such jurisdiction.

 

Section 3.17.        Books, Records and Internal Controls.

 

(A)            The Company shall, and shall cause each of its Subsidiaries to, make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect their transactions and dispositions of assets.

 

(B)            The Company shall, and shall cause each of its Subsidiaries to, devise and maintain a system of internal accounting controls sufficient to provide reasonable assurance that:

 

(i)            transactions are executed and access to assets is permitted only in accordance with management’s general or specific authorization;

 

(ii)          transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP or any other criteria applicable to such statements and to maintain accountability for assets; and

 

 

(iii)          the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

Section 3.18.        Engage Qualified Auditing Firm.

 

The Company shall maintain the appointment of a Recognized Accounting Firm as auditor of the Company to audit the Company’s consolidated annual financial statement in accordance with:

 

(A)           on or after the Business Combination Closing Date, Regulation S-X, the Public Company Accounting Oversight Board (“PCAOB”) standards, and any other applicable SEC rules or generally accepted auditing standards; and

 

(B)            before the Business Combination Closing Date or if the Business Combination is not consummated, the applicable required standards to which the Company is subject and any other applicable generally accepted auditing standards.

 

To the extent that the Company is required to do so under applicable law, the Company shall also engage its auditor to perform quarterly procedures on its unaudited interim financial information using standards consistent with those established by the PCAOB.

 

Section 3.19.        Charter Documents.

 

Except as is reasonably necessary to implement the Business Combination, the Agreed Business Plan (as defined in the Merger Agreement), or any consolidation or merger not prohibited by this Indenture and the Notes, the Company shall not, and shall use commercially reasonable efforts to cause its shareholders not to amend, alter, waiver or repeal any provision of its Charter Documents, and shall cause its Subsidiaries not to, amend, alter, waive or repeal any provision of their certificates of incorporation, memorandum and articles of association or any other of their organizational or constitutional documents, in each case, in a way that is materially adverse to the interests of the Holders without the prior written consent of the Trustee (acting on the instructions of, or with the consent of, the Holders of a majority in aggregate principal amount of the Notes then outstanding).

 

Section 3.20.        Scope of Business.

 

The Company shall not, and shall cause its Subsidiaries not to, materially change the scope of the principal business of the Company and its Subsidiaries from that carried on as at the date of this Indenture or any business reasonably related, ancillary or complementary thereto; or enter into any business other than such principal business or any business that is reasonably related, ancillary or complementary thereto that will materially and adversely affect the ability of the Company to carry out its obligations under this Indenture and the Notes.

 

 

Section 3.21.        Removal of Restrictive Legends.

 

The Company agrees to cause the Transfer Agent or the transfer agent for the Shares, as applicable, to remove the restrictive legends on the Notes and/or the Conversion Shares, as applicable, when such securities are sold pursuant to Rule 144 under the Securities Act or an effective registration statement or may be sold without restriction under Rule 144. In connection therewith, if required by the Transfer Agent, the Company will promptly cause an opinion of counsel to be delivered to and maintained with the Transfer Agent, together with any other authorizations, certificates and directions required by the Transfer Agent that authorize and direct the Transfer Agent to transfer such securities without any such legends.

 

Section 3.22.        Additional Amounts.

 

(A)            All payments and deliveries made by or on behalf of the Company or any successor to the Company under or with respect to this Indenture and the Notes shall be made free and clear of and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments, or governmental charges of whatever nature imposed or levied (including any interest and penalties related thereto (“Taxes”) unless such withholding or deduction of such Taxes is then required by law. If any such withholding or deduction is so required by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or resident for tax purposes or through which payment is made or deemed made (each, a “Relevant Taxing Jurisdiction”, and in each case, any political subdivision or taxing authority thereof or therein), the Company or any successor to the Company shall pay or deliver to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owners of the Notes after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owners had no such withholding or deduction been required; provided that no Additional Amounts shall be payable for or on account of:

 

(i)            any Taxes, to the extent such Taxes would not have been so imposed but for the existence of any present or former connection between the relevant Holder (or beneficial owner) and the Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Note, the receipt of any Conversion Shares or the exercise or enforcement of rights under such Note or this Indenture;

 

(ii)            any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a reasonable written request of the Company or any successor to the Company addressed to the Holder or beneficial owner, after reasonable notice (at least 30 days before any such withholding or deduction would be payable), to provide certification, information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or to make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, which is required by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes, but, only to the extent the Holder or beneficial owner is legally entitled to provide such certification, information, documentation or other evidence;

 

 

(iii)            any Taxes, to the extent that such Taxes are imposed as a result of the presentation of the Note (where presentation is required) more than 30 days after the later of the applicable payment date, the date on which the relevant payment is first made available for payment to the Holder or the date of the delivery of Conversion Shares (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30 day period);

 

(iv)            any Taxes that are payable otherwise than by deduction or withholding from a payment on the Notes;

 

(v)            any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;

 

(vi)            any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Taxes by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent in a different jurisdiction;

 

(vii)          any applicable withholding Tax or deduction required by Section 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (“FATCA”), any current or future treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or

 

(viii)         any combination of the applicable Taxes referred to in the preceding clauses (i) through (vii).

 

(B)            In addition, no Additional Amounts shall be paid with respect to a Holder who is a fiduciary or a partnership or any Person other than the beneficial owner of the Notes, to the extent that the beneficiary or settlor with respect to such fiduciary, the member of such partnership or the beneficial owner would not have been entitled to Additional Amounts had such beneficiary, settlor, member or beneficial owner held such Notes directly.

 

(C)            The Company and any successor to the Company will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Company and any successor to the Company will provide certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, or if such tax receipts are not available, certified copies or other reasonable evidence of such payments as soon as reasonably practicable to the Trustee. Such copies shall be made available to the Holders upon reasonable request and will be made available during office hours at the offices of the Paying Agent.

 

(D)            Notwithstanding anything to the contrary herein, the Company shall pay any and all transfer, documentary, stamp, registration and other similar Taxes and fees incurred in connection with the issuance of the Notes.

 

 

 

(E)            Any reference in this Indenture or the Notes in any context to the payment of principal or interest on any Note and/or the delivery of Conversion Shares upon conversion of any Note or any other amount payable on or with respect to the Notes shall be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable with respect to that amount pursuant to this Section 3.22.

 

Article 4. REPURCHASE AND REDEMPTION

 

Section 4.01.          No Sinking Fund.

 

No sinking fund is required to be provided for the Notes.

 

Section 4.02.          Right of Holders to Require the Company to Repurchase Notes.

 

(A)            Right of Holders to Require the Company to Repurchase Notes. Each Holder will have the right, after June 10, 2025 (being the date falling 42 months after the Interest Accrual Date), at its election, to require the Company to repurchase all of such Holder’s Notes on the Repurchase Date for a Repurchase Price set out in Section 4.02(C) (the “Repurchase Right”).

 

(B)            Repurchase Date. The “Repurchase Date” will be a Business Day of the Holder’s choosing that is no earlier than the date falling 42 months after the Interest Accrual Date, nor less than six months after the date the Company sends the related Repurchase Notice pursuant to Section 4.02(D).

 

(C)            Repurchase Price. The Repurchase Price for any Note to be repurchased upon a Repurchase is an amount in cash equal to the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Repurchase Date; provided, however, that if such Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of record of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Repurchase Date is before such Interest Payment Date); and (ii) the Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Repurchase Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(B) and such Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(B), on the next Business Day to Holders as of the Close of Business on the immediately preceding Regular Record Date; and (y) the Repurchase Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date to, but excluding, the Repurchase Date.

 

(D)            Repurchase Notice. To require the Company to Repurchase the Notes pursuant to this Section 4.02, a Holder must, at any time after December 10, 2024 (being the day falling on the third anniversary of the Interest Accrual Date), but at least six months before the Repurchase Date, send to the Company, the Trustee, the Conversion Agent and the Paying Agent a Repurchase Notice.

 

 

No defect in a Repurchase Notice will limit the Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase.

 

(E)            Procedures to Exercise the Repurchase Right.

 

(i)            Delivery of Repurchase Notice and Notes to Be Repurchased. To exercise its Repurchase Right for a Note, the Holder thereof must deliver to the Paying Agent:

 

(1)            at any time after December 10, 2024 (being the day falling on the third anniversary of the Interest Accrual Date) and at least six months before the proposed Repurchase Date, a duly completed, written Repurchase Notice with respect to such Note; and

 

(2)            such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).

 

The Paying Agent will promptly deliver to the Company a copy of each Repurchase Notice that it receives.

 

(ii)            Contents of Repurchase Notices. Each Repurchase Notice with respect to a Note must state:

 

(1)            that the Company is required to Repurchase the Notes, briefly describing the right of the relevant Holder to require Repurchase under this Indenture;

 

(2)            the Repurchase Date;

 

(3)            the Repurchase Price (and, if such Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.02(C));

 

(4)            the name and address of the Paying Agent and the Conversion Agent;

 

(5)            that such Note must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Repurchase Price;

 

(6)            that immediately upon being called for Repurchase, such Note may not be converted at any time after the date of the Repurchase Notice;

 

(7)            the CUSIP or ISIN numbers, if any, of such Note;

 

(8)            if such Note is a Physical Note, the certificate number of such Note;

 

(9)            the principal amount of such Note, which must be an Authorized Denomination; and

 

 

(10)          that such Holder is exercising its Repurchase Right with respect to all of the principal amount of such Note,

 

provided, however, that if such Note is a Global Note, then such Repurchase Notice must comply with the Depositary Procedures (and any such Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(E)).

 

(iii)           No Withdrawal of Repurchase Notice. Once delivered, a Repurchase Notice with respect to a Note is irrevocable and the relevant Holder may not withdraw such Repurchase Notice.

 

(F)            Payment of the Repurchase Price. Without limiting the Company’s obligation to deposit the Repurchase Price within the time proscribed by Section 3.01(B), the Company will cause the Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase to be paid to the Holder thereof on or before the later of (i) the Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be repurchased are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(C) on any Note to be repurchased pursuant to a Repurchase must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(F).

 

(G)            Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply in all material respects with all federal and state securities laws in connection with a Repurchase so as to permit effecting such Repurchase in the manner set forth in this Indenture; provided, however, that, to the extent that the Company’s obligations to offer to repurchase and to repurchase Notes pursuant to this Section 4.02 conflict with any federal and/or state securities law or regulation that is applicable to the Company, the Company’s compliance with such law or regulation will not be considered to be a Default of those obligations.

 

(H)            No Repurchase in Part. Subject to the terms of this Section 4.02, Notes may not be repurchased pursuant to a Repurchase in part.

 

Section 4.03.          Right of the Company to Redeem the Notes.

 

(A)            Right of the Company to Redeem the Notes. Subject to the terms of this Section 4.03, at any time before the Second Call Date, the Company has the right, at its election, to redeem all of the Notes, together with all accrued and unpaid interest, on a Redemption Date on or after the Issue Date and on or before the Second Call Date, for a cash purchase price equal to the Redemption Price.

 

(B)            Redemption Date. The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that is before the Second Call Date and no less than one month after the Redemption Notice Date for such Redemption.

 

 

(C)            Redemption Price. The Redemption Price is an amount in cash equal to:

 

(i)             if the Redemption Date falls in the period from (and including) the Issue Date to (but excluding) the First Call Date, the Make-Whole Amount; and

 

(ii)            if the Redemption Date falls in the period from (and including) the First Call Date to (but excluding) the Second Call Date, 104.0% of the aggregate principal amount of the Notes then outstanding plus accrued and unpaid interest on such Notes to, but excluding, the Redemption Date for such Redemption;

 

provided, however, that for the purposes of calculating the Redemption Price above, if the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Redemption Price will be calculated by reference to the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date; and (ii) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(B) and such Redemption Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be included in the calculation of the Redemption Price; and (y) the Redemption Price will include interest on Notes to be redeemed from, and including, such Interest Payment Date to, but excluding, such Redemption Date.

 

(D)            Redemption Notice. To call any Notes for Redemption, the Company must send to each Holder of such Notes, the Trustee and the Paying Agent a written notice of such Redemption (a “Redemption Notice”).

 

Such Redemption Notice must state:

 

(i)             that such Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;

 

(ii)            the Redemption Date for such Redemption;

 

(iii)           the applicable Redemption Price;

 

(iv)           the name and address of the Paying Agent and the Conversion Agent;

 

(v)            that upon being called for Redemption, such Notes may be converted in whole, but not in part, at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full), into Shares pursuant to Article 5; and

 

(vi)           the CUSIP or ISIN numbers, if any, of such Notes.

 

On or before the Redemption Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.

 

 

(E)            Payment of the Redemption Price. Without limiting the Company’s obligation to deposit the Redemption Price by the time proscribed by Section 3.01(B), the Company will cause the Redemption Price for a Note subject to Redemption to be paid to the Holder thereof on or before the applicable Redemption Date. For the avoidance of doubt, any interest payable pursuant to the proviso to Section 4.02(D) on any Note subject to Redemption must be paid pursuant to such proviso.

 

(F)            Right to Convert after Issuance of Redemption Notice. After the issuance of the Redemption Notice by the Company, each Holder shall, at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, before the Close of Business on the fifth (5th) Business Day after the Redemption Date), have the option to convert its Notes into Conversion Consideration in accordance with Article 5.

 

Section 4.04.          Optional Redemption for Changes in the Tax Laws.

 

(A)            Right of the Company to Redeem the Note for Taxation Reasons. The Company may redeem the Notes, in whole but not in part (except in respect of Holders that elect otherwise as described below), at the Company’s option (a “Tax Redemption”) at a redemption price equal to 102% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date fixed by the Company for redemption (“Tax Redemption Price”) if, on the next date on which any amount would be payable or delivery owed in respect of the Notes (or, in the case of any Additional Amounts with respect to Conversion Consideration, the next date on which a Holder may exercise its conversion rights), the Company would be required to pay any Additional Amounts, and the Company cannot avoid any such payment obligation by taking reasonable measures available to the Company (provided that changing the Company’s jurisdiction is not, a reasonable measure for purposes of this Section 4.04(A)), as a result of:

 

(i)             any amendment to, or change in, the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction that is not announced before and becomes effective after December 9, 2021 (or, if the applicable Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after December 9, 2021, such later date); or

 

(ii)            any amendment to, or change in, an official interpretation or application regarding such laws, regulations or rulings, including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in administrative practice that is not announced before, and becomes effective after December 9, 2021 (or, if the applicable Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after December 9, 2021, such later date); or

 

(iii)           any amendment to, or change in the laws or any regulations or rulings promulgated thereunder, or any amendment to, or change in, an official interpretation or application regarding such laws, regulations or rulings, including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in administrative practice, in each case, of the PRC, which is not announced before and becomes effective after December 9, 2021 (any such amendment or change described in clauses (i), (ii), or (iii), a “Change in Tax Law”).

 

 

(B)            Notices of Tax Redemption. If the Company exercises its Tax Redemption right pursuant to Section 4.04(A), it shall fix a date for Tax Redemption (each, a “Tax Redemption Date”) and it shall provide notice of the Tax Redemption in accordance with the procedures described in Section 4.03(D) (such notice, a “Notice of Tax Redemption”). Notwithstanding the foregoing, no such Notice of Tax Redemption will be given more than sixty (60) days prior to the Tax Redemption Date to the Trustee, the Paying Agent, the Conversion Agent and each Holder of Notes (the date such notice is delivered, the “Tax Redemption Notice Date”). The Tax Redemption Date must be a Business Day.

 

(C)            Payments of Notes Called for Tax Redemption. If any Notice of Tax Redemption has been given in respect of the Notes in accordance with Section 4.04(B), the Notes shall become due and payable on the Tax Redemption Date at the place or places stated in the Notice of Tax Redemption and at the applicable Tax Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Notice of Tax Redemption, the Notes shall be paid and redeemed by the Company at the applicable Tax Redemption Price.

 

Section 4.05.          Repurchases at the Option of the Company

 

The Company or any of its Subsidiaries may at any time and from time to time, directly or indirectly repurchase Notes in open market purchases or otherwise, whether through private or public tender or exchange offers, cash-settled swaps or other cash-settled derivatives, or in other negotiated transactions, in each case without notice to, or consent of, the Trustee, any Note Agent or any Holder, provided that the Company or any of its Subsidiaries shall surrender to the Trustee for cancellation in accordance with Section 2.14 any Notes that the Company or any of its Subsidiaries repurchases. In connection with any such repurchase, the Company may appoint a tender agent, in which case such tender agent shall be the Paying Agent in connection with such repurchase.

 

Article 5. CONVERSION

 

Section 5.01.          Right to Convert.

 

(A)            Holder’s Right to Convert. Subject to the provisions of this Article 5, at any time from (and including) the earlier of (i) the Outside Date and (ii) the Business Combination Closing Date until the Maturity Date, each Holder may, in its sole discretion, convert all of such Holder’s Notes into Conversion Consideration in accordance with this Article 5.

 

(B)            Mandatory Conversion at the Company’s Option. Subject to the terms of this Indenture, and provided that the Business Combination Closing Date has occurred, at any time from (and including) the later of (X) the date falling 24 months from the Interest Accrual Date and (Y) the effective date of the Registration Statement, until the Maturity Date, the Company has the right, at its option, to convert all of the Notes outstanding into Conversion Consideration in accordance with this Article 5, but only if:

 

(i)            the Last Reported Sale Price per Share is equal to or greater than one hundred and thirty percent (130%) of the Conversion Price on each of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately before the Mandatory Conversion Notice Date; and

 

 

(ii)            the Average Daily Trading Volume in dollars of the Shares is more than $5,000,000,

 

(such day on which the conditions in (1) and (2) above are met, a “Mandatory Conversion Notice Date”).

 

(C)            Conversions in Whole. Notes may only be converted in whole and not in part.

 

(D)            Limitations and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes:

 

(i)             Notes may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business Day;

 

(ii)            in no event may any Note be converted after the Close of Business on the second (2nd) Business Day immediately before the Maturity Date;

 

(iii)           if the Company calls any Note for Redemption pursuant to Section 4.03, then the Holder of such Note may not convert such Note after the Close of Business on the Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture; and

 

(iv)           if a Repurchase Notice is validly delivered pursuant to Section 4.02(D) with respect to any Note, then such Note may not be converted, except to the extent the Company fails to pay the Repurchase Price for such Note in accordance with this Indenture.

 

Section 5.02.         Conversion Procedures.

 

(A)          Conversion at the Holder’s Option.

 

(i)            Global Notes. To convert a beneficial interest in a Global Note that is convertible at the option of the Holder thereof pursuant to Section 5.01, the owner of such beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(F).

 

(ii)            Physical Notes. To convert a Physical Note that is convertible at the option of the Holder thereof pursuant to Section 5.01, the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the notice of conversion attached to such Physical Note (a notice of conversion attached to a Physical Note as set forth in this Section 5.02(A), a “Notice of Conversion”); (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section 5.02(F).

 

 

(B)            Mandatory Conversion

 

(i)            Global Notes. To mandatorily convert a beneficial interest in a Global Note that is convertible at the option of the Company pursuant to Section 5.01(B), the Company must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(F).

 

(ii)            Physical Notes.

 

(1)            To mandatorily convert a Physical Note that is convertible at the option of the Company pursuant to Section 5.01(B), the Company of such Note must complete, manually sign and deliver to the Conversion Agent the mandatory conversion notice substantially in the form set out in Exhibit C (a “Mandatory Conversion Notice”) (at which time such Mandatory Conversion Notice will become irrevocable).

 

(2)            Upon receipt by a Holder of the Mandatory Conversion Notice, such Holder must immediately deliver such Physical Note to the Conversion Agent; furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and pay any amounts due pursuant to Section 5.02(F).

 

(C)            Effect of Converting a Note. At the Close of Business on the Conversion Date or Mandatory Conversion Notice Date (as applicable), such Note will (unless there occurs a Default in the delivery of the Conversion Consideration and cash in lieu of fractional Shares due, pursuant to Section 5.03(C) or Section 5.02(E), upon such conversion) be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.02(E).

 

(D)            Holder of Record of Conversion Shares. The Person in whose name any Share is issuable upon conversion of any Note will be deemed to become the holder of record of such share as of the Close of Business on the Conversion Date for such conversion.

 

 

(E)            Interest Payable upon Conversion in Certain Circumstances. If the Conversion Date of a Note is after a Regular Record Date and before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such conversion (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence), to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) the Holder surrendering such Note for conversion must deliver to the Conversion Agent, at the time of such surrender, an amount of cash equal to the amount of such interest referred to in clause (i) above; provided, however, that the Holder surrendering such Note for conversion need not deliver such cash (w) if the Company has specified a Redemption Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; (x) if such Conversion Date occurs after the Regular Record Date immediately before the Maturity Date; (y) if the Company has specified a Repurchase Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; or (z) to the extent of any overdue interest or interest that has accrued on any overdue interest. For the avoidance of doubt, as a result of, and without limiting the generality of, the foregoing, if a Note is converted with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, any Redemption Date described in clause (w) above and any Repurchase Date described in clause (y) above, then the Company will pay, as provided above, the interest that would have accrued on such Note to, but excluding, the Maturity Date or other applicable Interest Payment Date to Holders as of the Close of Business on the Regular Record Date immediately before the Maturity Date. For the avoidance of doubt, if the Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder of such Note at the Close of Business on the Regular Record Date immediately before such Interest Payment Date will be entitled to receive, on such Interest Payment Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date, and such Note, when surrendered for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 5.02(E).

 

(F)            Taxes and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any Share upon such conversion; provided, however, that if any tax or duty is due because such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder will pay such tax or duty.

 

(G)            Conversion Agent to Notify Company of Conversions. If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent receives any written notice of conversion with respect to a Note, then the Conversion Agent will promptly (and, in any event, no later than the Business Day following the date the Conversion Agent receives such Note or notice) notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion Date for such Note.

 

Section 5.03.         Settlement upon Conversion.

 

(A)           Settlement Method. Upon the conversion of any Note, the Company will settle such conversion by delivering Shares.

 

 

(B)           Conversion Consideration.

 

(i)            Generally. Subject to Section 5.03(B)(iii) and Section 5.03(B)(iv), the type and amount of consideration (the “Conversion Consideration”) due in respect of a Note to be converted will be:

 

(1)            subject to paragraph (3) below, if the Business Combination Closing Date occurs prior to the Outside Date, at any time after the Business Combination Closing Date, a number of fully paid, validly issued and non-assessable Shares determined by dividing (x) the principal of such Note then outstanding (including capitalized PIK Interest) and all accrued and unpaid interest by (y) the applicable Conversion Price.

 

(2)            subject to paragraph (3) below, if the Business Combination has not closed prior to the Outside Date, on or after the Outside Date, a number of fully paid, validly issued and non-assessable Shares determined by dividing:

 

(a)            (x) the sum of the principal of such Note and all accrued and unpaid interest, multiplied by (y) the quotient of the Make-Whole Amount, calculated as if such Note was redeemed on the Interest Accrual Date, divided by the principal of such Note on the Issue Date; by

 

(b)            the applicable Conversion Price.

 

(3)            if the Company calls any Note for Redemption pursuant to Section 4.03 and the Holder thereof elects to convert all of such Note into Shares at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, on the Redemption Date), a number of fully paid, validly issued and non-assessable Shares determined by dividing the Redemption Price by the applicable Conversion Price.

 

(ii)            Reset of Conversion Price. If the Business Combination Closing Date occurs before the Outside Date, the Conversion Price shall on the Business Combination Closing Date be reset pursuant to the Business Combination Reset. If the Business Combination has not closed prior to the Outside Date, the Conversion Price shall on the Outside Date be reset pursuant to the Outside Date Reset.

 

(iii)            Cash in Lieu of Fractional Shares. The Company shall not issue any fraction of a Share upon any conversion. If the number of Shares deliverable upon any conversion is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such conversion, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) (x) on or after the Trading Commencement Date, the Last Reported Sale Price on the Conversion Date for such conversion (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), or (y) prior to the Trading Commencement Date, the applicable Conversion Price.

 

(iv)            Conversion of Multiple Notes by a Single Holder. If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion Consideration due in respect of such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the Depositary Procedures) be computed based on the total principal amount of Notes converted on such Conversion Date by such Holder.

 

 

(C)            Delivery of the Conversion Consideration. Except as set forth in Section 5.05 and Section 5.08, the Company will deliver the Conversion Consideration due upon the conversion of any Note to the Holder thereof: on the second (2nd) Business Day immediately after the Conversion Date for such conversion; provided, however, that if the Conversion Date in respect of the conversion of any Note is after the Regular Record Date immediately before the Maturity Date, then, solely for purposes of such conversion, (x) the Company will deliver the Conversion Consideration due upon such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day); and (y) the Conversion Date will instead be deemed to be the second (2nd) Business Day immediately before the Maturity Date.

 

Section 5.04.          Shares to Be Fully Paid.

 

Each Conversion Share, if any, delivered upon conversion of any Note will be duly and validly issued, fully paid, non-assessable and free of any pre-emptive rights, Lien or adverse claim (except to the extent of any Lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered). If the Shares are then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system.

 

Section 5.05.          Adjustments to the Conversion Price.

 

(A)           Events Requiring an Adjustment to the Conversion Price. The Conversion Price will be adjusted from time to time as follows:

 

(i)            Share Dividends, Subdivisions and Consolidations. If the Company issues solely Shares as a dividend or distribution on all or substantially all Shares, or if the Company effects a share subdivision or share consolidation of the Shares (in each case excluding an issuance solely pursuant to a Share Change Event, as to which Section 5.08 will apply), then the Conversion Price will be adjusted based on the following formula:

 

 

 

where:

 

CP0	=	the Conversion Price in effect immediately before the Open of Business on the Ex-Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such share subdivision or share consolidation, as applicable;
CP1	=	the Conversion Price in effect immediately after the Open of Business on such Ex-Date or effective date, as applicable;

 

 

OS0	=	the aggregate number of Shares outstanding immediately before the Open of Business on such Ex-Date or effective date, as applicable, without giving effect to such dividend, distribution, share subdivision or share consolidation; and
OS1	=	the aggregate number of Shares outstanding immediately after giving effect to such dividend, distribution, share subdivision or share consolidation.

 

If any dividend, distribution, share subdivision or share consolidation of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid or made, then the Conversion Price will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such share subdivision or share consolidation, to the Conversion Price that would then be in effect had such dividend, distribution, share subdivision or share consolidation not been declared or announced.

 

(ii)            Rights, Options and Warrants. If the Company (A) distributes, to all or substantially all holders of Shares, or (B) grants, to certain Persons who may or may not be existing holders of Shares, rights, options or warrants (other than rights issued or otherwise distributed pursuant to a shareholder rights plan, as to which Section 5.05(A)(iv)(1) and Section 5.05(E) will apply) entitling such holders, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase Shares at a price per share that is less than (I) on or before the day falling ten Trading Days after the Trading Commencement Date, the Conversion Price, and (II) at any time after the tenth (10th) Trading Day after the Trading Commencement Date, the average of the Last Reported Sale Prices per Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Price will be reduced based on the following formula:

 

 

 

where:

 

CP0	=	the Conversion Price in effect immediately before the Open of Business on the Ex-Date for such distribution;
CP1	=	the Conversion Price in effect immediately after the Open of Business on such Ex-Date;
OS	=	the number of Shares outstanding immediately before the Open of Business on such Ex-Date;
X	=	the total maximum number of Shares issuable pursuant to such rights, options or warrants; and
Y	=	a number of Shares obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) (I) on or before the day falling ten Trading Days after the Trading Commencement Date, the Conversion Price, and (II) at any time after the tenth (10th) Trading Day after the Trading Commencement Date, the average of the Last Reported Sale Prices per Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.

 

 

To the extent such rights, options or warrants are not so distributed, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the reduction in the Conversion Price for such distribution been made on the basis of only the rights, options or warrants, if any, actually distributed. In addition, to the extent that Shares are not issued after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the reduction in the Conversion Price for such distribution been made on the basis of delivery of only the number of Shares actually issued upon exercise of such rights, option or warrants.

 

For purposes of this Section 5.05(A)(ii), in determining whether any rights, options or warrants entitle holders of Shares to subscribe for or purchase Shares at a price per share that is less than (I) on or before the day falling ten Trading Days after the Trading Commencement Date, the Conversion Price, and (II) at any time after the tenth (10th) Trading Day after the Trading Commencement Date, the average of the Last Reported Sale Prices per Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.

 

(iii)            Shares, rights, options, warrants or other Equity Securities Issued below Conversion Price. If the Company sells, issues, grants or distributes any Shares, rights, options, warrants or other Equity Securities entitling such holders to subscribe for, purchase or acquire Shares, at a price per share that is less than the Conversion Price, then the Conversion Price will be reduced based on the following formula:

 

 

 

where:

 

CP0	=	the Conversion Price in effect immediately before the Open of Business on the Ex-Date for such distribution;
CP1	=	the Conversion Price in effect immediately after the Open of Business on such Ex-Date;
OS	=	the number of Shares outstanding immediately before the Open of Business on such Ex-Date;

 

 

X	=	the total number of Shares issuable pursuant to such issuance; and
Y	=	a number of Shares obtained by dividing (x) the aggregate price payable to such issuance or to exercise such rights, options or warrants or other Equity Securities by (y) the Conversion Price.

 

To the extent such Shares or Equity Securities are not so sold, issued, granted or distributed, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the reduction in the Conversion Price for such sale, issuance, grant or distribution been made on the basis of only the shares, rights, options, warrants or other Equity Securities, if any, actually distributed. In addition, to the extent that Shares are not delivered after the expiration of such rights, options, warrants or other Equity Securities (including as a result of such rights, options, warrants or Equity Securities not being exercised), the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the reduction in the Conversion Price for such sale, issuance, grant or distribution been made on the basis of delivery of only the number of Shares actually delivered upon exercise of such rights, option or warrants.

 

For purposes of this Section 5.05(A)(iii), in determining whether any rights, options, warrants or Equity Securities entitle holders of Shares to subscribe for or purchase Shares at a price per share that is less than the Conversion Price, and in determining the aggregate price payable to exercise such rights, options, warrants or Equity Securities, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.

 

(iv)          Spin-Offs and Other Distributed Property.

 

(1)            Distributions Other than Spin-Offs. If the Company distributes shares, evidences of its Indebtedness or other assets or property of the Company, or rights, options or warrants to acquire shares of the Company or other securities, to all or substantially all holders of the Shares, excluding:

 

(a)            dividends, distributions, rights, options or warrants for which an adjustment to the Conversion Price is required pursuant to Section 5.05(A)(i) or Section 5.05(A)(ii);

 

(b)            dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Price is required pursuant to Section 5.05(A)(iv);

 

(c)            rights issued or otherwise distributed pursuant to a shareholder rights plan, except to the extent provided in Section 5.05(E);

 

(d)            Spin-Offs for which an adjustment to the Conversion Price is required pursuant to Section 5.05(A)(iii)(2);

 

 

(e)            a distribution solely pursuant to a tender offer or exchange offer for Shares, as to which Section 5.05(A)(vi) will apply; and

 

(f)            a distribution solely pursuant to a Share Change Event, as to which Section 5.08 will apply,

 

then the Conversion Price will be reduced based on the following formula:

 

 

 

where:

 

CP0	=	the Conversion Price in effect immediately before the Open of Business on the Ex-Date for such distribution;
CP1	=	the Conversion Price in effect immediately after the Open of Business on such Ex-Date;
SP	=	(I) on or before the day falling ten Trading Days after the Trading Commencement Date, the Conversion Price, and (II) at any time after the tenth (10th) Trading Day after the Trading Commencement Date, the average of the Last Reported Sale Prices per Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Date; and
FMV	=	the Fair Market Value, as of such Ex-Date, of the shares, evidences of Indebtedness, assets, property, rights, options or warrants distributed per Share pursuant to such distribution;

 

provided, however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Price, each Holder will receive, for the principal amount of Notes held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Shares, the amount and kind of shares, evidences of Indebtedness, assets, property, rights, options or warrants that such Holder would have received if such Holder had owned, on such record date, a number of Shares equal to the Conversion Consideration calculated with the Conversion Price in effect on such record date.

 

To the extent such distribution is not so paid or made, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid.

 

 

(2)            Spin-Offs. If the Company distributes or dividends shares of any class or series, or similar equity interests, of or relating to an Affiliate, a Subsidiary or other business unit of the Company to all or substantially all holders of the Shares (other than solely pursuant to (x) a Share Change Event, as to which Section 5.08 will apply; or (y) a tender offer or exchange offer for Shares, as to which Section 5.05(A)(vi) will apply), and such shares or equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “Spin-Off”), then the Conversion Price will be reduced based on the following formula:

 

 

 

where:

 

CP0	=	the Conversion Price in effect immediately before the Close of Business on the last Trading Day of the Spin-Off Valuation Period for such Spin-Off;
CP1	=	the Conversion Price in effect immediately after the Close of Business on the last Trading Day of the Spin-Off Valuation Period;
FMV	=	the product of (x) (I) on or before the day falling ten Trading Days after the Trading Commencement Date, the Conversion Price, or (II) at any time after the tenth (10th) Trading Day after the Trading Commencement Date, the average of the Last Reported Sale Prices per share or unit of the shares or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, the Ex-Date for such Spin-Off (such average to be determined as if references to Shares in the definitions of Last Reported Sale Price, Trading Day and Market Disruption Event were instead references to such shares or equity interests); and (y) the number of shares or equity interests distributed per Share in such Spin-Off; and
SP	=	(I) where the Spin-Off Valuation Period falls on or before the Trading Commencement Date, the Conversion Price, and (II) where the Spin-Off Valuation Period falls after the Trading Commencement Date, the average of the Last Reported Sale Prices per Share for each Trading Day in the Spin-Off Valuation Period.

 

Notwithstanding anything to the contrary in this Section 5.05(A)(iv)(2), if the Conversion Date for a Note occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the Conversion Consideration for such conversion, such Spin-Off Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Ex-Date for such Spin-Off to, and including, such Conversion Date.

 

To the extent any dividend or distribution of the type set forth in this Section 5.05(A)(iv)(2) is declared but not made or paid, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

 

 

 

(v)           Cash Dividends or Distributions. If any cash dividend or distribution is made to all or substantially all holders of Shares, then the Conversion Price will be reduced based on the following formula:

 

 

where:

 

	CP0	=	the Conversion Price in effect immediately before the Open of Business on the Ex-Date for such dividend or distribution;
	CP1	=	the Conversion Price in effect immediately after the Open of Business on such Ex-Date;
	SP	=	(I) on or before the Trading Commencement Date, the Conversion Price, and (II) at any time after the Trading Commencement Date, the Last Reported Sale Price per Share on the Trading Day immediately before such Ex-Date; and
	D	=	the cash amount distributed per Share in such dividend or distribution;

 

provided, however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Price, each Holder will receive, for the principal amount of Notes held by such Holder on the record date for such dividend or distribution, at the same time and on the same terms as holders of Shares, the amount of cash that such Holder would have received if such Holder had owned, on such record date, a number of Shares equal to the Conversion Consideration calculated with the Conversion Price in effect on such record date.

 

To the extent such dividend or distribution is declared but not made or paid, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

 

(vi)          Tender Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Shares (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act), and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per Share in such tender or exchange offer exceeds (I) on or before the Trading Commencement Date, the Conversion Price, and (II) at any time after the Trading Commencement Date, the Last Reported Sale Price per Share on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Price will be reduced based on the following formula:

 

 

 

where:

 

	CP0	=	the Conversion Price in effect immediately before the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period for such tender or exchange offer;
	CP1	=	the Conversion Price in effect immediately after the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period;
	AC	=	the aggregate value (determined as of the time (the “Expiration Time”) such tender or exchange offer expires by the Board of Directors) of all cash and other consideration paid for Shares purchased or exchanged in such tender or exchange offer;
	OS0	=	the number of Shares outstanding immediately before the Expiration Time (including all Shares accepted for purchase or exchange in such tender or exchange offer);
	OS1	=	the number of Shares outstanding immediately after the Expiration Time (excluding all Shares accepted for purchase or exchange in such tender or exchange offer); and
	SP	=	(I) on or before the day falling ten Trading Days after the Trading Commencement Date, the Conversion Price, and (II) at any time after the tenth (10th) Trading Day after the Trading Commencement Date, the average of the Last Reported Sale Prices per Share over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;

 

provided, however, that the Conversion Price will in no event be adjusted up pursuant to this Section 5.05(A)(vi), except to the extent provided in the immediately following paragraph. Notwithstanding anything to the contrary in this Section 5.05(A)(vi), if the Conversion Date for a Note occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining the Conversion Consideration for such conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Trading Day immediately after the Expiration Date to, and including, such Conversion Date.

 

To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Shares in such tender or exchange offer are rescinded, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of Shares, if any, actually made, and not rescinded, in such tender or exchange offer.

 

 

(vii)         Other Events. In addition to and not in substitution for any other rights hereunder, if the Company (or any of its Subsidiaries) takes any action to which the provisions hereof are not strictly applicable or if any event occurs of the type contemplated by the provisions of this Section 5.05 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom share rights or other rights with equity features), which has the direct or indirect effect of adversely affecting a Holder’s proportionate interest in the equity of the Company, then, to the extent that such Holder’s proportionate interest in the equity of the Company is so adversely affected thereby, an appropriate adjustment in the Conversion Price shall be made so as to protect the rights of such Holder under this Indenture and the Notes.

 

(B)          No Adjustments in Certain Cases.

 

(i)            Where Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in Section 5.05(A), the Company will not be obligated to adjust the Conversion Price on account of a transaction or other event otherwise requiring an adjustment pursuant to Section 5.05(A) (other than a share subdivision or consolidation of the type set forth in Section 5.05(A)(i) or a tender or exchange offer of the type set forth in Section 5.05(A)(vi)) if each Holder participates, at the same time and on the same terms as holders of Shares, and solely by virtue of being a Holder of Notes, in such transaction or event without having to convert such Holder’s Notes and as if such Holder held a number of Shares equal to the quotient of (i) the aggregate principal amount of Notes held by such Holder on such date; divided by (ii) the Conversion Price in effect on the related record date.

 

(C)           Adjustments Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if:

 

(i)             the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Price pursuant to Section 5.05(A) has occurred on or before the Conversion Date for such conversion, but an adjustment to the Conversion Price for such event has not yet become effective as of such Conversion Date;

 

(ii)            the Conversion Consideration due upon such conversion includes any whole Shares; and

 

(iii)           such shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),

 

then, solely for purposes of such conversion, the Company will, without duplication, give effect to such adjustment on such Conversion Date. In such case, if the date on which the Company is otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined, then the Company will delay the settlement of such conversion until the second (2nd) Business Day after such first date.

 

(D)           Conversion Price Adjustments where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the contrary in this Indenture or the Notes, if:

 

 

(i)             a Conversion Price adjustment for any dividend or distribution becomes effective on any Ex-Date pursuant to Section 5.05(A);

 

(ii)            the Conversion Date for such conversion occurs on or after such Ex-Date and on or before the related record date;

 

(iii)           the Conversion Consideration due upon such conversion includes any whole Shares, based on a Conversion Price that is adjusted for such dividend or distribution; and

 

(iv)          such shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(D)),

 

then such Conversion Price adjustment will not be given effect for such conversion and the Shares issuable upon such conversion based on such unadjusted Conversion Price will not be entitled to participate in such dividend or distribution, but there will be added, to the Conversion Consideration otherwise due upon such conversion, the same kind and amount of consideration that would have been delivered in such dividend or distribution with respect to such Shares had such shares been entitled to participate in such dividend or distribution.

 

(E)           Shareholder Rights Plans. If any Shares are to be issued upon conversion of any Note and, at the time of such conversion, the Company has in effect any shareholder rights plan, then the Holder of such Note will be entitled to receive, in addition to, and concurrently with the delivery of, the Conversion Consideration otherwise payable under this Indenture upon such conversion, the rights set forth in such shareholder rights plan, unless such rights have separated from the Shares at such time, in which case, and only in such case, the Conversion Price will be adjusted pursuant to Section 5.05(A)(iv)(1) on account of such separation as if, at the time of such separation, the Company had made a distribution of the type referred to in such Section to all holders of the Shares, subject to potential readjustment in accordance with the last paragraph of Section 5.05(A)(iv)(1).

 

(F)           Limitation on Effecting Transactions Resulting in Certain Adjustments. The Company will not engage in or be a party to any transaction or event that would require the Conversion Price to be adjusted pursuant to Section 5.05(A) to an amount that would result in the Conversion Price per Share being less than the par value per Share.

 

(G)           Equitable Adjustments to Prices. Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported Sale Prices, or any function thereof, over a period of multiple days (including to calculate an adjustment to the Conversion Price), the Company will make proportionate adjustments, if any, to such calculations to account for any adjustment to the Conversion Price pursuant to Section 5.05(A)(i) that becomes effective, or any event requiring such an adjustment to the Conversion Price where the Ex-Date or effective date, as applicable, of such event occurs, at any time during such period.

 

(H)           Calculation of Number of Outstanding Shares. For purposes of Section 5.05(A), the number of Shares outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of Shares; and (ii) exclude Shares held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on Shares held in its treasury).

 

 

(I)            Calculations. All calculations with respect to the Conversion Price and adjustments thereto will be made to the nearest 1/10,000th of a Share (with 5/100,000ths rounded upward).

 

(J)           Notice of Conversion Price Adjustments. Upon the effectiveness of any adjustment to the Conversion Price pursuant to Section 5.05(A), the Company will promptly send written notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Price in effect immediately after such adjustment; and (iii) the effective time of such adjustment.

 

(K)          Notwithstanding anything to the contrary in this Indenture and the Notes, the Company shall not be required to adjust the Conversion Price pursuant to Section 5.05(A) unless such adjustment would result in a change of at least 1% of the Conversion Price. However, the Company shall carry forward any adjustments that are less than 1% of the Conversion Price and make such carried forward adjustments with respect to the Notes (1) when the cumulative net effect of all adjustments not yet made will result in a change of 1% to the Conversion Price and (2) regardless of whether the adjustment (or such cumulative net effect) is less than 1% of the Conversion Price, on the Conversion Date.

 

(L)           Except as stated in this Indenture and the Notes, the Company shall not adjust the Conversion Price for the issuance of Shares or any securities convertible into or exchangeable for Shares or the right to purchase Shares or such convertible or exchangeable securities.

 

(M)         The Conversion Price shall not be adjusted:

 

(i)             upon the issuance of any Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in Shares under any plan;

 

(ii)            upon the issuance of any Shares pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the Interest Accrual Date;

 

(iii)           upon the repurchase of any Shares pursuant to an open market share repurchase program or other buy-back transaction, including structured or derivative transactions, that is not a tender or exchange offer of the nature described in Section 5.05(A)(vi);

 

(iv)          solely for a change in the par value (or lack of par value) of the Shares; or

 

(v)           for accrued and unpaid interest, if any.

 

 

Section 5.06.      Voluntary Adjustments.

 

(A)          Generally. To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) reduce the Conversion Price by any amount if (i) the Board of Directors determines that such reduction is either (x) in the best interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Shares or rights to purchase Shares as a result of any dividend or distribution of Shares (or rights to acquire Shares) or any similar event; (ii) such reduction is in effect for a period of at least twenty (20) Business Days; and (iii) such reduction is irrevocable during such period.

 

(B)          Notice of Voluntary Reductions. If the Board of Directors determines to reduce the Conversion Price pursuant to Section 5.06, then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 5.06(A), the Company will send notice to each Holder, the Trustee and the Conversion Agent of such reduction, the amount thereof and the period during which such reduction will be in effect.

 

Section 5.07.       Reservation of Authorized Shares

 

(A)          Reservation. The Company shall initially reserve out of its authorized and unissued share capital a number of Shares for each of the Notes equal to 125% of the number of Shares as shall be necessary to effect the conversion of each such Note (as may be capitalized by PIK Interest) as of the Interest Accrual Date. So long as any of the Notes are outstanding, the Company shall take all action necessary to reserve and keep available out of its authorized and unissued share capital, solely for the purpose of effecting the conversion of the Notes, 125% of the number of Shares as shall from time to time be necessary to effect the conversion of all of the Notes then outstanding, free from any Lien or pre-emptive rights; provided that at no time shall the number of Shares so reserved be less than the number of Shares required to be reserved by the previous sentence (without regard to any limitations on conversions) (the “Required Reserve Amount”).

 

(B)           Insufficient Authorized Shares. If at any time when any Note remains outstanding, the Company does not have a sufficient number of authorized and unreserved Shares to satisfy its obligation to reserve for issuance upon conversion of the Notes at least a number of Shares equal to the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall promptly use commercially reasonable efforts (including but not limited to requesting the shareholders of the Company to pass necessary resolutions) to increase the Company’s authorized share capital to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting the generality of the foregoing sentence, if required pursuant to the Charter Documents or applicable law, as soon as practicable after the date of an Authorized Share Failure, but in no event later than forty-five (45) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its holders of Shares for the approval of an increase in the share capital. In connection with such meeting, the Company shall provide each holder of Shares with a proxy statement and shall use its best efforts to solicit such holders’ approval of such increase in authorized share capital and to cause the Board of Directors to recommend to the holders of Shares that they approve such proposal.

 

 

Section 5.08.      Effect of Share Change Event.

 

(A)          Generally. If there occurs any:

 

(i)             recapitalization, reclassification or change of the Shares (other than (x) changes solely resulting from a share subdivision or consolidation of the Shares (as to which Section 5.05(A)(i) will apply), (y) a change only in par value or from par value to no par value or no par value to par value and (z) share subdivisions or consolidations that do not involve the issuance of any other series or class of securities);

 

(ii)            consolidation, merger, combination or binding or statutory share exchange involving the Company;

 

(iii)           sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or

 

(iv)          other similar event,

 

and, as a result of which, the Shares are converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing (such an event, a “Share Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) Share would be entitled to receive on account of such Share Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Indenture or the Notes,

 

(1)            from and after the effective time of such Share Change Event, (I) the Conversion Consideration due upon conversion of any Note, and the conditions to any such conversion, will be determined in the same manner as if each reference to any number of Shares in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; and (II) for purposes of Section 5.03, each reference to any number of Shares in such Section (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; and

 

(2)            if such Reference Property Unit consists entirely of cash, then the Company will pay the cash due upon such conversions no later than the second (2nd) Business Day after the relevant Conversion Date.

 

If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of shareholder election, then the composition of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received, per Share, by the holders of Shares. The Company will notify 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.

 

 

At or before the effective time of such Share Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Share Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 8.01(F), which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner set forth in this Section 5.08; (y) provide for subsequent adjustments to the Conversion Price pursuant to Section 5.05(A) in a manner consistent with this Section 5.08; and (z) contain such other provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.08(A). If the Reference Property includes shares of stock or other securities or assets (other than cash) of a Person other than the Successor Person, then such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders.

 

(B)           Notice of Share Change Events. The Company will provide notice of each Share Change Event in the manner provided in Section 5.08.

 

(C)           Compliance Covenant. The Company will not become a party to any Share Change Event unless its terms are consistent with this Section 5.08.

 

Section 5.09.      Responsibility of Trustee and Conversion Agent

 

The Trustee and Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Price (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Price, 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 Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Shares, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible, nor incur any liability, for any failure of the Company to issue, transfer or deliver any Shares or share 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 (a) determine whether a supplemental indenture needs to be entered into or (b) determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 5.08 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 5.08 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 10.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be fully protected in conclusively relying upon, the Officer’s Certificate (which the Company will be obligated to deliver to the Trustee and the Conversion Agent 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 5.01 has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company or a Holder has delivered to the Trustee and the Conversion Agent the notices referred to in Section 5.02 with respect to the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely.

 

 

Article 6. SUCCESSORS

 

Section 6.01.      When the Company May Merge, Etc.

 

Generally. The Company will not consolidate with or merge with or into, or (directly, or indirectly through one or more of its Subsidiaries) sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to another Person (a “Business Combination Event”, which does not include the Business Combination), unless:

 

(A)          the resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “Successor Corporation”) that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination Event, a supplemental indenture pursuant to Section 8.01(E)) all of the Company’s obligations under this Indenture and the Notes;

 

(B)           immediately after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing; and

 

(C)            the Company or the Successor Corporation, if not the Company, shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (a) such Business Combination Event (and, if applicable, the execution and delivery of the related supplemental indenture) complies with Section 6.01(A); (b) such supplemental indenture is the legal, valid and binding obligation of the Company or such Successor Corporation; (c) such Business Combination Event is authorized or permitted by this Indenture; and (d) all conditions precedent relating to such Business Combination Event provided in this Indenture have been satisfied.

 

Section 6.02.      Successor Corporation Substituted.

 

At the effective time of any Business Combination Event that complies with Section 6.01, the Successor Corporation (if not the Company) will succeed to, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Corporation had been named as the Company in this Indenture and the Notes, and, except in the case of a lease, the predecessor Company will automatically be irrevocably and unconditionally discharged from its obligations under this Indenture and the Notes.

 

Article 7. DEFAULTS AND REMEDIES

 

Section 7.01.      Events of Default.

 

(A)          Definition of Events of Default. “Event of Default” means the occurrence of any of the following:

 

(i)             a default in the payment when due (whether at maturity, upon Redemption or Repurchase or otherwise) of the principal of, or the Redemption Price or Repurchase Price for, any Note;

 

 

(ii)            a default for seven (7) consecutive days in the payment when due of interest on any Note;

 

(iii)           a default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion right with respect thereto, if such default is not cured within three (3) Business Days after its occurrence;

 

(iv)          a default in the Company’s obligations under Section 6.01;

 

(v)           a default in any of the Company’s obligations or agreements under this Indenture or the Notes (other than a default set forth in clause (i), (ii), (iii) or (iv) of this Section 7.01(A)) where such default is not cured or waived within thirty (30) days after written notice to the Company by the Trustee, or to the Company and the Trustee by Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and state that such notice is a “Notice of Default”;

 

(vi)          a default by the Company or any of the Company’s Subsidiaries with respect to any one or more mortgages, agreements or other instruments under which there is outstanding, or by which there is secured or evidenced, any Indebtedness for money borrowed of at least five million dollars ($5,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of the Company’s Subsidiaries, whether such Indebtedness exists as of the Interest Accrual Date or is thereafter created, where such default:

 

(1)            constitutes a failure to pay the principal, or premium or interest on, any of such Indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise; or

 

(2)            results in such Indebtedness becoming or being declared due and payable before its stated maturity,

 

in each case where such default is not cured or waived, within thirty (30) days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and state that such notice is a “Notice of Default”;

 

(vii)         a franchisor delivers a written notice of a default (howsoever described) by the Company or any of its Subsidiaries under any Master Franchise Agreement which is not cured or remedied within the applicable cure or remedy period (if any) under the relevant Master Franchise Agreement or, if a period is specified, in such written notice;

 

 

(viii)        any Master Franchise Agreement ceasing to be in full force and effect, resulting in a Material Adverse Effect;

 

(ix)           it is or becomes unlawful for a party to a Master Franchise Agreement to perform any of its obligations under that Master Franchise Agreement to which it is a party, or any Master Franchise Agreement is or becomes unenforceable in accordance with its terms, in each case resulting in a Material Adverse Effect, unless a substitute Master Franchise Agreement or similar arrangement is entered into within 30 days after the occurrence of such illegality or unenforceability;

 

(x)            the occurrence of a Change of Control or a Delisting;

 

(xi)           one or more final judgments being rendered against the Company or any of the Company’s Subsidiaries for the payment of at least fifteen million dollars ($15,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered by insurance), where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired, if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished;

 

(xii)          the Company or any of its Material Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either:

 

(1)            commences a voluntary case or proceeding;

 

(2)            consents to the entry of an order for relief against it in an involuntary case or proceeding;

 

(3)            consents to the appointment of a custodian of it or for any substantial part of its property;

 

(4)            makes a general assignment for the benefit of its creditors;

 

(5)            takes any comparable action under any foreign Bankruptcy Law; or

 

(6)            generally is not paying its debts as they become due; or

 

(xiii)         a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either:

 

(1)            is for relief against the Company or any of its Material Subsidiaries in an involuntary case or proceeding;

 

(2)            appoints a custodian of the Company or any of its Material Subsidiaries, or for any substantial part of the property of the Company or any of its Material Subsidiaries;

 

(3)            orders the winding up or liquidation of the Company or any of its Material Subsidiaries; or

 

 

(4)            grants any similar relief under any foreign Bankruptcy Law,

 

and, in each case under this Section 7.01(A)(xiii), such order or decree remains unstayed and in effect for at least sixty (60) days.

 

(B)           Cause Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause thereof or whether voluntary or involuntary or 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.

 

Section 7.02.     Acceleration.

 

(A)          Automatic Acceleration in Certain Circumstances. If an Event of Default set forth in Section 7.01(A)(xii) or Section 7.01(A)(xiii) occurs with respect to the Company (and not solely with respect to a Subsidiary of the Company), then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding will immediately become due and payable without any further action or notice by any Person.

 

(B)          Optional Acceleration. If an Event of Default (other than an Event of Default set forth in Section 7.01(A)(xii) or Section 7.01(A)(xiii) with respect to the Company and not solely with respect to a Subsidiary of the Company) occurs and is continuing, then the Trustee, by notice to the Company, or Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding to become due and payable immediately.

 

(C)           Rescission of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate principal amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of principal of, or interest on, the Notes that has become due solely because of such acceleration) have been cured or waived. No such rescission will affect any subsequent Default or impair any right consequent thereto.

 

Section 7.03.      Other Remedies.

 

(A)          Trustee May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee may pursue any available remedy to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture or the Notes.

 

(B)          Procedural Matters. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies will be cumulative to the extent permitted by law.

 

 

Section 7.04.      Waiver of Past Defaults.

 

An Event of Default pursuant to clause (i), (ii), (iii), (iv) or (v) of Section 7.01(A) (that, in the case of clause (v) only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default that could lead to such an Event of Default, can be waived only with the consent of each affected Holder. Each other Default or Event of Default may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes then outstanding. If an Event of Default is so waived, then it will cease to exist. If a Default is so waived, then it will be deemed to be cured and any Event of Default arising therefrom will be deemed not to occur. However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom.

 

Section 7.05.      Control by Majority.

 

Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow (and shall incur no liability for so forbearing) any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 10.01, the Trustee determines may be unduly prejudicial to the rights of other Holders (it being expressly understood that the Trustee does not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any Holders) or may involve the Trustee in liability, unless the Trustee is offered security and indemnity satisfactory to the Trustee against any losses, liabilities, claims, costs and expenses (including, but not limited to, attorneys’ fees and expenses) to the Trustee that may result from the Trustee’s following such direction.

 

Section 7.06.      Limitation on Suits.

 

No Holder may pursue any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Redemption Price or Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant to Article 5), unless:

 

(A)          such Holder has previously delivered to the Trustee notice that an Event of Default is continuing;

 

(B)           Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a written request to the Trustee to pursue such remedy;

 

(C)           such Holder or Holders offer and, if requested, provide to the Trustee security and indemnity satisfactory to the Trustee against any losses, liabilities, claims, costs and expenses (including, but not limited to, attorneys’ fees and expenses) to the Trustee that may result from the Trustee’s following such request;

 

(D)           the Trustee does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity; and

 

 

(E)           during such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding do not deliver to the Trustee a direction that is inconsistent with such request.

 

A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. The Trustee will have no duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.

 

Section 7.07.     Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration.

 

Notwithstanding anything to the contrary in this Indenture or the Notes (but without limiting Section 8.01 or Section 8.02), the contractual right of each Holder of a Note expressly set forth in this Indenture or such Note to bring suit for the enforcement of any payment or delivery, as applicable, of the principal of, or the Redemption Price or Repurchase Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on or after the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the consent of such Holder.

 

Section 7.08.      Collection Suit by Trustee.

 

The Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iii) of Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the total unpaid or undelivered principal of, or Redemption Price or Repurchase Price for, or interest on, or Conversion Consideration due pursuant to Article 5 upon conversion of, the Notes, as applicable, and such further amounts sufficient to cover the costs and expenses of collection, including compensation provided for in Section 10.06.

 

Section 7.09.     Trustee May File Proofs of Claim.

 

The Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any such claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable compensation, expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to the Trustee pursuant to Section 10.06. To the extent that the payment of any such compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a Lien (senior to the rights of Holders) on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise). Nothing in this Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

 

Section 7.11.      Priorities.

 

The Trustee will pay or deliver in the following order any money or other property that it collects pursuant to this Article 7:

 

First:           to the Trustee and the Note Agents and their respective agents and attorneys for amounts due under this Indenture, including payment of all fees, compensation, expenses (including, but not limited to, attorneys’ fees and expenses) and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second:      to Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Redemption Price or Repurchase Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference or priority of any kind, according to such amounts or other property due and payable on all of the Notes; and

 

Third:          to the Company or such other Person as a court of competent jurisdiction directs.

 

The Trustee may fix a record date and payment date for any payment or delivery to the Holders pursuant to this Section 7.10, in which case the Trustee will instruct the Company to, and the Company will deliver in writing, at least fifteen (15) calendar days before such record date, to each Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery, as applicable.

 

Section 7.10.      Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court, in its discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay the costs of such suit, and (B) assess reasonable costs and expenses (including reasonable attorneys’ fees and expenses) against any litigant party in such suit, having due regard to the merits and good faith of the claims or defenses made by such litigant party; provided, however, that this Section 7.10 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section 7.07 or any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding.

 

 

Article 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

Section 8.01.      Without the Consent of Holders.

 

Notwithstanding anything to the contrary in Section 8.02, the Company and the Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder to:

 

(A)          cure any ambiguity or correct any omission, defect or inconsistency in this Indenture or the Notes;

 

(B)           add guarantees with respect to the Company’s obligations under this Indenture or the Notes;

 

(C)           secure the Notes;

 

(D)           add to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company;

 

(E)           provide for the assumption of the Company’s obligations under this Indenture and the Notes pursuant to, and in compliance with, Article 6;

 

(F)           enter into supplemental indentures pursuant to, and in accordance with, Section 5.08 in connection with a Share Change Event;

 

(G)           evidence or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee;

 

(H)           provide for or confirm the issuance of additional Notes pursuant to Section 2.03(B);

 

(I)            decrease the Conversion Price;

 

(J)            comply with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the Trust Indenture Act, as then in effect;

 

(K)           comply with the rules of the Depositary in a manner that does not adversely affect the rights of any Holder; or

 

(L)           make any other change to this Indenture or the Notes that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as such, in any material respect.

 

Section 8.02.      With the Consent of Holders.

 

(A)          Generally. Subject to Section 8.01, Section 7.04 and Section 7.07 and the immediately following sentence, the Company and the Trustee may, with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, amend or supplement this Indenture or the Notes or waive compliance with any provision of this Indenture or the Notes. Notwithstanding anything to the contrary in the foregoing sentence, but subject to Section 8.01 and as permitted in the definition of “Outside Date”, Section 3.13(B) and Section 3.19, without the consent of each affected Holder, no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may:

 

(i)             reduce the principal, or change the stated maturity, of any Note;

 

 

 

(ii)           reduce the Redemption Price or Repurchase Price for any Note or change the times at which, or the circumstances under which, the Notes may or will be redeemed or repurchased by the Company;

 

(iii)          reduce the rate, or extend the time for the payment, of interest on any Note;

 

(iv)          make any change that adversely affects the conversion rights of any Note;

 

(v)           impair the absolute rights of any Holder set forth in Section 7.07 (as such section is in effect on the Issue Date);

 

(vi)          change the ranking of the Notes;

 

(vii)          make any Note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;

 

(viii)         reduce the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or

 

(ix)            make any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that requires the consent of each affected Holder.

 

For the avoidance of doubt, pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 8.02(A), no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may change the amount or type of consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Tax Redemption Date, Repurchase Date or the Maturity Date or upon conversion, or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder (except as permitted in the definition of “Outside Date”, Section 3.13(B) and Section 3.19).

 

(B)          Holders Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 8.02 need to approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.

 

Section 8.03.    Notice of Amendments, Supplements and Waivers.

 

As soon as reasonably practicable after any amendment, supplement or waiver pursuant to Section 8.01 or Section 8.02 becomes effective, the Company will send to the Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states the effective date thereof; provided, however, that the Company will not be required to provide such notice to the Holders if such amendment, supplement or waiver is included in a periodic report filed with (or furnished to) the SEC by the Company within four (4) Business Days of its effectiveness. The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such amendment, supplement or waiver.

 

 

Section 8.04.      Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.

 

(A)          Revocation and Effect of Consents. The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same Indebtedness as the consenting Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B)) any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective (or before such earlier time as may be provided by the terms of any request for consent).

 

(B)          Special Record Dates. The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to consent or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8. If a record date is fixed, then, notwithstanding anything to the contrary in Section 8.04(A), only Persons who are Holders as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke any consent previously given or to take any such action, regardless of whether such Persons continue to be Holders after such record date; provided, however, that no such consent will be valid or effective for more than one hundred and twenty (120) calendar days after such record date.

 

(C)          Solicitation of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.

 

(D)          Effectiveness and Binding Effect. Each amendment, supplement or waiver pursuant to this Article 8 will become effective in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such Note (or such portion).

 

Section 8.05.      Notations and Exchanges.

 

If any amendment, supplement or waiver changes the terms of a Note, then the Trustee (at the direction of the Company) or the Company may, in its discretion, require the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Note that reflects the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.05 will not impair or affect the validity of such amendment, supplement or waiver.

 

Section 8.06.      Trustee to Execute Supplemental Indentures.

 

The Trustee will execute and deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however, that the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that the Trustee concludes adversely affects the Trustee’s rights, duties, liabilities or immunities. In executing any amendment or supplemental indenture, the Trustee will receive, and (subject to Section 10.01 and Section 10.02) will be fully protected in relying on, in addition to the documents required by Section 11.02, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of such amendment or supplemental indenture is authorized or permitted by this Indenture; (B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company in accordance with its terms; and (C) all conditions precedent relating to such supplemental indenture have been satisfied

 

 

Article 9. SATISFACTION AND DISCHARGE

 

Section 9.01.      Termination of Company’s Obligations.

 

This Indenture will be discharged, and will cease to be of further effect as to all Notes issued under this Indenture, when:

 

(A)          all Notes then outstanding (other than Notes replaced pursuant to Section 2.12) have (i) been delivered to the Trustee for cancellation; or (ii) become due and payable (whether on a Redemption Date, a Tax Redemption Date, a Repurchase Date, the Maturity Date, upon conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;

 

(B)          the Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration, the Conversion Agent), in each case for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or other property due on all Notes then outstanding (other than Notes replaced pursuant to Section 2.12);

 

(C)          the Company has paid all other amounts payable by it under this Indenture; and

 

(D)          the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have been satisfied;

 

provided, however, that Article 10 and Section 11.01 will survive such discharge and, until no Notes remain outstanding, Section 2.14 and the obligations of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property deposited with them will survive such discharge.

 

At the Company’s written request, the Trustee will acknowledge the satisfaction and discharge of this Indenture.

 

Section 9.02.      Repayment to Company.

 

Subject to applicable unclaimed property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s written request, promptly deliver to the Company) any cash, Conversion Consideration or other property held by any of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such delivery to the Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash, Conversion Consideration or other property, and Holders entitled to the payment or delivery of such cash, Conversion Consideration or other property must look to the Company for payment as a general creditor of the Company.

 

 

Section 9.03.      Reinstatement.

 

If the Trustee, the Paying Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 9.01 because of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits such application, then the discharge of this Indenture pursuant to Section 9.01 will be rescinded; provided, however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof, then the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if any, held by the Trustee, the Paying Agent or the Conversion Agent, as applicable.

 

Article 10. TRUSTEE

 

Section 10.01.      Duties of the Trustee.

 

(A)            If an Event of Default has occurred and is continuing, the Trustee will 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.

 

(B)            Except during the continuance of an Event of Default:

 

(i)            the duties of the Trustee will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee; and

 

(ii)            in the absence of gross negligence or wilful misconduct on its part, as determined by a court of competent jurisdiction in a final, non-appealable order, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are provided to the Trustee and conform, on their face, to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, but shall have no affirmative duty to verify the contents thereof.

 

(C)            The Trustee may not be relieved from liabilities for its gross negligence or wilful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, except that:

 

(i)            this paragraph will not limit the effect of Section 10.01(B);

 

 

(ii)            the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and

 

 

(iii)          the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 7.05.

 

(D)            Each provision of this Indenture that in any way relates to the Trustee is subject to this Section 10.01 and Section 10.02, regardless of whether such provision so expressly provides.

 

(E)            No provision of this Indenture will require the Trustee to expend or risk its own funds, incur any liability or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.

 

(F)           The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.

 

Section 10.02.      Rights of the Trustee.

 

(A)            The Trustee may conclusively rely on any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, other evidence of Indebtedness or other paper or document that it believes to be genuine and signed or presented by the proper Person or Persons, and the Trustee need not investigate any fact or matter stated in such document.

 

(B)            Before the Trustee acts or refrains from acting, it may require and, if requested, shall receive an Officer’s Certificate, an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection, the costs and expenses of which shall be borne by the Company; and the advice of such counsel, or any Opinion of Counsel, will constitute full and complete authorization of the Trustee to take or omit to take any action in good faith in reliance thereon without liability.

 

(C)            The Trustee may act through its attorneys and agents and will not be responsible for the acts, omissions, misconduct or negligence of any such agent appointed with due care.

 

(D)            The Trustee will not be liable for any action it takes or omits to take in good faith and that it believes to be authorized or within the rights or powers vested in it by this Indenture.

 

(E)            Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.

 

(F)            The Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless such Holder has offered the Trustee security or indemnity satisfactory to the Trustee against any losses, liabilities, costs and expenses (including, but not limited to, attorneys’ fees and expenses) that it may incur in complying with such request or direction.

 

 

(G)            The Trustee will not be responsible or liable for any punitive, special, indirect, incidental or consequential loss or damage (including 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 will not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and will incur no liability of any kind by reason of such inquiry or investigation.

 

(I)            The Trustee will not be required to give any bond or surety in respect of the execution of the trusts, powers, and duties under this Indenture.

 

(J)            The permissive rights of the Trustee enumerated herein will not be construed as duties. The Trustee undertakes to perform such duties and only such duties as are specifically and expressly set forth in this Indenture.

 

(K)            The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and 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.

 

(L)            The Trustee will not be deemed to have notice of any Default or Event of Default (except in the case of a Default or Event of Default in payment of scheduled principal of, or the Redemption Price or Repurchase Price for, or interest on, any Note) unless written notice of any event that is in fact such a Default or Event of Default (and stating the occurrence of a Default or Event of Default) is actually received by the 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 states that it is a notice of Default or Event of Default.

 

(M)          It shall not be the duty of the Trustee to see that any duties or obligations imposed herein upon the Company or other Persons are performed, and the Trustee shall not be liable or responsible for the failure of the Company or such other Persons to perform any act required of them by this Indenture.

 

 

Section 10.03.      Individual Rights of the Trustee.

 

The Trustee, in its individual or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company or any of its Affiliates with the same rights that it would have if it were not Trustee; provided, however, that if the Trustee acquires a “conflicting interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then it must eliminate such conflict within ninety (90) days or resign as Trustee. The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be compensated, reimbursed and indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture and each Note Agent, custodian and other Person retained to act under this Indenture.

 

Section 10.04.      Trustee’s Disclaimer.

 

The Trustee will not be (A) responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible for any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other than the Trustee’s certificate of authentication.

 

Section 10.05.      Notice of Defaults.

 

If a Default or Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee (in accordance with Section 10.02(L)), then the Trustee will send Holders a notice of such Default or Event of Default within ninety (90) days after it occurs or, if it is not actually known to a Responsible Officer of the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes actually known to a Responsible Officer (in accordance with Section 10.02(L)); provided, however, that, except in the case of a Default or Event of Default in the payment of the principal of, or interest, if any, on, any Note, the Trustee may withhold such notice if and for so long as it in good faith determines that withholding such notice is in the interests of the Holders.

 

Section 10.06.      Compensation and Indemnity.

 

(A)            The Company will, from time to time, pay the Trustee (acting in any capacity hereunder) reasonable compensation, as shall have been agreed to in writing, for its acceptance of this Indenture and services under this Indenture. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

(B)            The Company will indemnify and hold harmless the Trustee (acting in any capacity hereunder) against any and all losses, liabilities or expenses (including, without limitation, attorneys’ fees and expenses) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture (including, without limitation, attorneys’ fees and expenses) against the Company (including this Section 10.06) and defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties under this Indenture, except to the extent any such loss, liability or expense may be attributable to its gross negligence or wilful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. The Trustee will promptly notify the Company of any claim for which it may seek indemnity (other than any claim brought by the Company), but the Trustee’s failure to so notify the Company will not relieve the Company of its obligations under this Section 10.06(B). The Company will defend such claim, and the Trustee will cooperate in such defense at the expense of the Company. If the Trustee is advised by counsel that it may have defenses available to it that are in conflict with the defenses available to the Company, or that there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company will pay the reasonable fees and expenses of such counsel (including the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether such a conflict exists). The Company need not pay for any settlement of any such claim made without its consent, which consent will not be unreasonably withheld, conditioned or delayed. The indemnification provided in this Section 10.06 will extend to the officers, directors, agents (selected with due care) and employees of the Trustee and any successor Trustee under this Indenture.

 

 

(C)            The obligations of the Company under this Section 10.06 will survive the earlier resignation or removal of the Trustee and the discharge of this Indenture.

 

(D)           To secure the Company’s payment obligations in this Section 10.06, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular Notes, which Lien will survive the discharge of this Indenture.

 

(E)            If the Trustee incurs expenses or renders services after an Event of Default pursuant to clause (xi) or (xiii) of Section 7.01(A) occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and counsel) are intended to constitute administrative expenses for purposes of priority under any Bankruptcy Law.

 

Section 10.07.      Replacement of the Trustee.

 

(A)            Notwithstanding anything to the contrary in this Section 10.07, a resignation or removal of the Trustee, and the appointment of a successor Trustee, will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section 10.07.

 

(B)            The Trustee may resign at any time and be discharged from its duties and obligations hereunder at any time by giving no less than thirty (30) calendar days’ prior written notice of such resignation to the Company. The Holders of a majority in aggregate principal amount of the Notes then outstanding may remove the Trustee by providing no less than thirty (30) calendar days’ prior written notice to the Trustee and the Company. The Company may remove the Trustee if:

 

(i)            the Trustee fails to comply with Section 10.09;

 

(ii)          the Trustee is adjudged to be bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(iii)         a custodian or public officer takes charge of the Trustee or its property; or

 

(iv)         the Trustee becomes incapable of acting.

 

 

(C)           If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, then (i) the Company will promptly appoint a successor Trustee; and (ii) at any time within one (1) year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the Notes then outstanding may appoint a successor Trustee to replace such successor Trustee appointed by the Company.

 

(D)            If a successor Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, then the retiring Trustee (at the Company’s expense), the Company or the Holders of at least ten percent (10%) in aggregate principal amount of the Notes then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(E)            If the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section 10.09, then such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(F)            A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the resignation or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring Trustee will, upon payment of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee to the successor Trustee, which property will, for the avoidance of doubt, be subject to the Lien provided for in Section 10.06(D).

 

Section 10.08.      Successor Trustee by Merger, Etc.

 

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another entity, then such entity will become the successor Trustee under this Indenture and will have and succeed to the rights, powers, duties, immunities and privileges of its predecessor without any further act or the execution or filing of any instrument or paper, provided that the Trustee and such other entity have provided written notice thereof to the Company and the Holders.

 

Section 10.09.      Eligibility; Disqualification.

 

There will at all times be a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of any state thereof, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.

 

 

Article 11. MISCELLANEOUS

 

Section 11.01.      Notices.

 

Any notice or communication by the Company or the Trustee (including in its capacity as any Note Agent) to the other will be deemed to have been duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, electronic transmission or other similar means of electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address, which initially is as follows:

 

If to the Company:

 

TH International Limited

2501 Central Plaza

227 Huangpi North Road

Shanghai

People’s Republic of China 200003

c/o Cartesian Capital Group LLC

505 5th Avenue, 15th Floor

New York, NY 10017

United States

Attn: Peter Yu; Gregory Armstrong

E-mail: peter.yu@cartesiangroup.com; gregory.armstrong@cartesiangroup.com

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis

26th Floor, Gloucester Tower, The Landmark

15 Queen’s Road Central, Hong Kong

Attn: Daniel Dusek; Joseph Raymond Casey; Ram Narayan; Louis Rabinowitz

E-mail:

daniel.dusek@kirkland.com; joseph.casey@kirkland.com; ram.narayan@kirkland.com; louis.rabinowitz@kirkland.com

 

If to the Trustee:

 

Wilmington Savings Fund Society, FSB

500 Delaware, Ave.

Wilmington, DE

19801

United States

Attn: WSFS Institutional Services

 

The Company or the Trustee, by notice to the other, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted by facsimile, electronic transmission or other similar means of electronic communication; and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

 

 

All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its address shown on the Register; provided, however, that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given in writing). The failure to send a notice or communication to a Holder, or any defect in such notice or communication, will not affect its sufficiency with respect to any other Holder. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature), in English, and signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) will constitute effective execution and delivery of this Indenture as to the other parties hereto and will be deemed to be their original signatures for all purposes; provided, notwithstanding anything to the contrary set forth herein, the Trustee is under no obligation to agree to accept electronic signatures in any form or format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee. The Company and the Holders agree to assume all risks arising out of the use of digital signatures and electronic methods to submit communications to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.

 

If the Trustee is then acting as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee, the Trustee will cause any notice prepared by the Company to be sent to any Holder(s) pursuant to the Depositary Procedures, provided such request is evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least two (2) Business Days before the date such notice is to be so sent. For the avoidance of doubt, such Company Order need not be accompanied by an Officer’s Certificate or Opinion of Counsel. The Trustee will not have any liability relating to the contents of any notice that it sends to any Holder pursuant to any such Company Order.

 

If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the addressee receives it.

 

Notwithstanding anything to the contrary in this Indenture or the Notes, (A) whenever any provision of this Indenture requires a party to send notice to another party, no such notice need be sent if the sending party and the recipient are the same Person acting in different capacities; and (B) whenever any provision of this Indenture requires a party to send notice to more than one receiving party, and each receiving party is the same Person acting in different capacities, then only one such notice need be sent to such Person.

 

 

Section 11.02.      Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.

 

Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company will furnish to the Trustee:

 

(A)            an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee that complies with Section 11.03 and states that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this Indenture relating to such action have been satisfied; and

 

(B)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee that complies with Section 11.03 and states that, in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied; provided that no such Opinion of Counsel shall be required in connection with the initial authentication of Notes under this Indenture and the authentication of PIK Notes.

 

Section 11.03.      Statements Required in Officer’s Certificate and Opinion of Counsel.

 

Each Officer’s Certificate (other than an Officer’s Certificate pursuant to Section 3.02) or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture will include:

 

(A)            a statement that the signatory thereto has read such covenant or condition;

 

(B)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained therein are based;

 

(C)            a statement that, in the opinion of such signatory, he, she or it has made such examination or investigation as is necessary to enable him, her or it to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

 

(D)            a statement as to whether, in the opinion of such signatory, such covenant or condition has been satisfied.

 

Section 11.04.      Rules by the Trustee, the Registrar and the Paying Agent.

 

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 11.05.      No Personal Liability of Directors, Officers, Employees and Stockholders.

 

No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under this Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.

 

 

Section 11.06.      Governing Law; Waiver of Jury Trial.

 

THIS INDENTURE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE AND THE HOLDERS OF THE NOTES BY THEIR ACCEPTANCE THEREOF 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 BY THIS INDENTURE OR THE NOTES.

 

Section 11.07.      Submission to Jurisdiction.

 

Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal courts of the United States of America located in The City of New York or the courts of the State of New York, in each case located in The City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 11.01 will be effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, the Trustee and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.

 

Section 11.08.      No Adverse Interpretation of Other Agreements.

 

Neither this Indenture nor the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.

 

Section 11.09.      Successors.

 

All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors.

 

Section 11.10.      Force Majeure.

 

The Trustee and each Note Agent will not incur any liability for not performing or for any delay in performing any act or fulfilling any duty, obligation or responsibility under this Indenture or the Notes by reason of any occurrence beyond its control (including, without limitation, any act or provision of any present or future law or regulation or Governmental Authority, act of God, earthquakes, fires, floods, sabotage, epidemics, pandemics, recognized public emergencies, quarantine restrictions, riots, interruptions loss or malfunction of utilities, computer (hardware or software) or communications service, use or infiltration of the Trustee’s or such Note Agent’s technological infrastructure exceeding authorized access, accidents, acts of war, civil or military unrest, labor disputes, acts of civil or military authority or governmental actions, local or national disturbance or disaster, act of terrorism or unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

 

 

Section 11.11.      U.S.A. Patriot Act.

 

The Company acknowledges that, in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions, in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each Person that establishes a relationship or opens an account with the Trustee. The Company agrees to provide the Trustee with such information as it may request to enable the Trustee to comply with the U.S.A. PATRIOT Act.

 

Section 11.12.      Calculations.

 

Except as otherwise provided in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including determinations of the Last Reported Sale Price, accrued interest on the Notes and the Conversion Price. Neither the Trustee nor any Note Agent will have any liability or responsibility for any calculation under this Indenture or in connection with the Notes, any information used in connection with such calculation or any determination made in connection with a conversion.

 

The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide a schedule of its calculations in writing to the Trustee and the Conversion Agent, and each of the Trustee and the Conversion Agent may rely conclusively on the accuracy of the Company’s calculations without independent verification. The Trustee will promptly forward a copy of each such schedule to a Holder upon its written request therefor.

 

Section 11.13.      Severability; Entire Agreement.

 

If a court of competent jurisdiction declares any provision of this Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of this Indenture or the Notes will not in any way be affected or impaired thereby. This Indenture and the exhibits hereto set forth the entire agreement and understanding of the parties related to this transaction and supersede all prior agreements and understandings, written or oral.

 

Section 11.14.      Counterparts.

 

The parties may sign any number of copies of this Indenture. Each signed copy will be an original, and all of them together represent the same agreement. Delivery of an executed counterpart of this Indenture by facsimile, electronically in portable document format or in any other format will be effective as delivery of a manually executed counterpart. The exchange of copies of this Indenture and of signature pages by facsimile 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 and signature pages for all purposes.

 

Section 11.15.      Table of Contents, Headings, Etc.

 

The table of contents and the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.

 

 

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties to this Indenture have caused this Indenture to be duly executed as of the date first written above.

 

	TH INTERNATIONAL LIMITED
	By:
		Name:
		Title:
	WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE
	By:
		Name:
		Title:

 

[Signature Page to Indenture]

 

 

 

EXHIBIT A

 

FORM OF NOTE

 

[Insert Global Note Legend, if applicable]

 

[Insert Restricted Note Legend, if applicable]

 

TH INTERNATIONAL LIMITED

 

Variable Rate Convertible Senior Note due 2026

 

 

ISIN:     [              ]

Certificate No. [               ]

 

CUSIP:

 

TH International Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands with registration number 336092, for value received, promises to pay to [Cede & Co]. or its registered assigns the principal sum of [              ] dollars ($[              ]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)]^* on December 10, 2026 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.

 

Interest Payment Dates:	June 10 and December 10 of each year, commencing on [●].
Regular Record Dates:	May 26 and November 25 (whether or not a Business Day).

 

Additional provisions of this Note are set forth on the other side of this Note.

 

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

 

^* Insert bracketed language for Global Notes only.

 

 

 

IN WITNESS WHEREOF, TH International Limited has caused this instrument to be duly executed as of the date set forth below.

 

	TH INTERNATIONAL LIMITED
	By:
		Name:
		Title:

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

Wilmington Savings Fund Society, FSB, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.

 

Date:				By:
				Authorized Signatory

 

 

TH INTERNATIONAL LIMITED

 

Variable Rate Convertible Senior Note due 2026

 

This Note is one of a duly authorized issue of notes of TH International Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands with registration number 336092 (the “Company”), designated as its Variable Rate Convertible Senior Notes due 2026 (the “Notes”), all issued or to be issued pursuant to an indenture, dated as of December 30, 2021 (as the same may be amended from time to time, the “Indenture”), between the Company and Wilmington Savings Fund Society, FSB, as trustee (the “Trustee”). Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.

 

The Indenture sets forth the rights and obligations of the Company, the Trustee and the Holders and the terms of the Notes. Notwithstanding anything to the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture will control.

 

1.           Interest. This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture. Stated Interest on this Note will begin to accrue from, and including, December 10, 2021.

 

2.           Maturity. This Note will mature on December 10, 2026, unless earlier repurchased, redeemed or converted.

 

3.           Method of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.

 

4.           Persons Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.

 

5.           Denominations; Transfers and Exchanges. All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and delivering any required documentation or other materials.

 

6.           Right of Holders to Require the Company to Repurchase Notes. Each Holder will have the right, on or after June 10, 2025, at its election, to require the Company to repurchase all of such Holder’s Notes on the Repurchase Date for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture.

 

7.           Right of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner, and subject to the terms, set forth in Section 4.03 of the Indenture.

 

8.           Conversion. Each of the Holder of this Note and the Company may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in Article 5 of the Indenture.

 

 

9.           When the Company May Merge, Etc. Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to a Business Combination Event.

 

10.          Defaults and Remedies. If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7 of the Indenture.

 

11.          Amendments, Supplements and Waivers. The Company and the Trustee may amend or supplement the Indenture or the Notes or waive compliance with any provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Section 7.04 and Article 8 of the Indenture.

 

12.          No Personal Liability of Directors, Officers, Employees and Shareholders. No past, present or future director, officer, employee, incorporator or shareholder of the Company, as such, will have any liability for any obligations of the Company under the Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.

 

13.         Authentication. No Note will be valid until it is authenticated by an authorized signatory of the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually or electronically signs the certificate of authentication of such Note.

 

14.          Abbreviations. Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act).

 

15.          Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

* * *

 

To request a copy of the Indenture, which will be provided to any Holder at no charge, please send a written request to the Trustee at Wilmington Savings Fund Society, FSB, 500 Delaware Avenue, Wilmington, DE19801, Attn: WSFS Institutional Services.

 

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTES^*

 

INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[             ]

 

The following exchanges, transfers or cancellations of this Global Note have been made:

 

Date		Amount of Increase (Decrease) in Principal Amount of this Global Note		Principal Amount of this Global Note After Such Increase (Decrease)		Signature of Authorized Signatory of Trustee

 

^* Insert for Global Notes only.

 

 

NOTICE OF CONVERSION

 

TH INTERNATIONAL LIMITED

 

Variable Rate Convertible Senior Notes due 2026

 

Subject to the terms of the Indenture, by executing and delivering this Notice of Conversion, the undersigned Holder of the Note identified below directs the Company to convert the entire principal amount of the Note identified by

 

ISIN

 

CUSIP

 

and Certificate No.

.

 

The undersigned acknowledges that if the Conversion Date of a Note to be converted is after a Regular Record Date and before the next Interest Payment Date, then such Note, when surrendered for conversion, must, in certain circumstances, be accompanied with an amount of cash equal to the interest that would have accrued on such Note to, but excluding, such Interest Payment Date.

 

Date:			By:
			(Legal Name of Holder)
			By:
				Name:
				Title:

 

	Signature Guaranteed:
	Participant in a Recognized Signature
	Guarantee Medallion Program
	By:
	Authorized Signatory

 

 

REPURCHASE NOTICE

 

TH INTERNATIONAL LIMITED

 

Variable Rate Convertible Senior Notes due 2026

 

Subject to the terms of the Indenture, by executing and delivering this Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Repurchase Right with respect to the entire principal amount of the Note identified by

 

ISIN

 

CUSIP

 

and Certificate No.

.

 

The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Repurchase Price will be paid.

 

Date:			By:
			(Legal Name of Holder)
			By:
				Name:
				Title:

 

	Signature Guaranteed:
	Participant in a Recognized Signature
	Guarantee Medallion Program
	By:
	Authorized Signatory

 

 

ASSIGNMENT FORM

 

TH INTERNATIONAL LIMITED

 

Variable Rate Convertible Senior Notes due 2026

 

Subject to the terms of the Indenture, the undersigned Holder of the within Note assigns to:

 

Name:
Address:
Social security or tax identification number:

 

the within Note and all rights thereunder irrevocably appoints:

 

as agent to transfer the within Note on the books of the Company. The agent may substitute another to act for him/her.

 

Date:			By:
			(Legal Name of Holder)
			By:
				Name:
				Title:

 

	Signature Guaranteed:
	Participant in a Recognized Signature
	Guarantee Medallion Program
	By:
	Authorized Signatory

 

 

TRANSFEROR ACKNOWLEDGMENT

 

If the within Note bears a Restricted Note Legend, the undersigned further certifies that (check one):

 

1.	¨	Such Transfer is being made to the Company or a Subsidiary of the Company.
2.	¨	Such Transfer is being made pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer.
3.	¨	Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities Act, and, accordingly, the undersigned further certifies that the within Note is being transferred to a Person that the undersigned reasonably believes is purchasing the within Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act in a transaction meeting the requirements of Rule 144A. If this item is checked, then the transferee must complete and execute the acknowledgment contained on the next page.
4.	¨	Such Transfer is being made pursuant to, and in accordance with, any other available exemption from the registration requirements of the Securities Act (including, if available, the exemption provided by Rule 144 under the Securities Act).

 

 

Dated:			By:
			(Legal Name of Holder)
			By:
				Name:
				Title:

 

	Signature Guaranteed:
	Participant in a Recognized Signature
	Guarantee Medallion Program
	By:
	Authorized Signatory

 

 

 

TRANSFEREE ACKNOWLEDGMENT

 

The undersigned represents that it is purchasing the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment discretion, and that and the undersigned and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act. The undersigned acknowledges that the transferor is relying, in transferring the within Note on the exemption from the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided by Rule 144A and that the undersigned has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A.

 

Dated:
(Name of Transferee)
By:
	Name:
	Title:

 

 

EXHIBIT B-1

 

FORM OF RESTRICTED NOTE LEGEND

 

THIS NOTE AND THE SHARES OF STOCK ISSUABLE UPON THE CONVERSION THEREOF 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 (I) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, OR (II) 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 THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR THE SHARES OF STOCK ISSUABLE UPON CONVERSION THEREOF, OR ANY BENEFICIAL INTEREST HEREIN OR THEREIN, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT UNLESS SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS MADE:

 

(A)

TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

(B)

PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

 

(C)

TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR

 

(D)

TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR

 

(E)

PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,

 

 

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C), (D) OR (E) 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.

 

 

EXHIBIT B-2

 

FORM OF GLOBAL NOTE LEGEND

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENTS 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 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.

 

TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE HEREINAFTER REFERRED TO.

 

EXHIBIT C

 

FORM OF MANDATORY CONVERSION NOTICE

 

TH INTERNATIONAL LIMITED

 

Variable Rate Convertible Senior Notes due 2026

 

Subject to the terms of the Indenture, by executing and delivering this Notice of Conversion, the Company hereby elects to convert the entire principal amount of the Note identified by

 

ISIN

 

CUSIP

 

and Certificate No.

.

 

Unless otherwise instructed by you in writing on or before [●], we shall issue the above indicated number of Shares to your account as set forth herein on the Conversion Date.

 

Name and address of Holder:
[Account details to be inserted]

 

Date:

 

	On behalf of the Company:
	By:
		Name:
		Title:

 

  

Exhibit 8.1

 

250 West 55th Street New York, NY 10019-9601 U.S.A.   Telephone: 212.468.8000 Facsimile: 212.468.7900   www.mofo.com

morrison & foerster llp   beijing, berlin, boston, brussels, denver, hong kong, london, los angeles, new york, palo alto, san diego, san francisco, shanghai, singapore, tokyo, washington, d.c.

 

January 28, 2022

 

Silver Crest Acquisition Corporation
Suite 3501, 35/F, Jardine House,
1 Connaught Place, Central, Hong Kong
Telephone: +852-2165-9000

 

Ladies and Gentlemen:

 

We have acted as United States counsel to Silver Crest Acquisition Corporation, a Cayman Islands exempted company (“Silver Crest”), in connection with the preparation of the registration statement on Form F-4 (and together with the Proxy Statement/Prospectus filed therewith, and as amended, the “Registration Statement”) (Registration No. 333-259743) originally filed with the Securities and Exchange Commission on September 23, 2021, under the Securities Act of 1933, as amended, by TH International Limited, a Cayman Islands exempted company (“THIL”).

 

The Registration Statement is being filed in connection with transactions contemplated by the Agreement and Plan of Merger, dated as of August 13, 2021 (the “Merger Agreement”), by and among Silver Crest, THIL, and Miami Swan Ltd, a Cayman Islands exempted company and a wholly-owned subsidiary of THIL (“Merger Sub”) (such transactions, collectively, the “Business Combination”).

 

Capitalized terms not otherwise defined herein shall have the same meanings attributed to such terms in the Registration Statement.

 

In rendering our opinion set forth below:

 

a)

We have examined (i) the Merger Agreement, (ii) the Registration Statement, and (iii) such other documents as we have deemed necessary or appropriate for purposes to enable us to render the opinion set forth below (such Merger Agreement, Registration Statement, and other documents, collectively, the “Combination Documents”). We have not, however, undertaken any independent investigation of any factual matter set forth in any of the foregoing.

 

 

 

January 28, 2022

Page Two

 

b)

We have assumed, with your permission and without any independent investigation or review thereof, that:

 

i.

All original documents submitted to us (including signatures thereto) are authentic, all documents submitted to us as copies conform to the original documents, all such documents have been duly and validly executed and delivered where due execution and delivery are a prerequisite to the effectiveness thereof, and all parties to such documents had or will have, as applicable, the requisite corporate powers and authority to enter into such documents and to undertake and consummate the Business Combination;

 

ii.

All statements regarding factual matters, representations, warranties, and covenants contained in the Combination Documents are true, complete and correct and will remain true, complete and correct at all times up to and including the Second Effective Time;

 

iii.

Any representations made in the Combination Documents “to the knowledge of” or based on the “belief” or “intent” of any person, or that are similarly qualified, are true, complete and correct and will remain true, complete and correct at all times up to and including the Second Effective Time, in each case without such qualification;

 

iv.

There are no understandings between any of the parties that would alter, or are inconsistent with, the terms and representations set forth in the Combination Documents, and none of the material terms and conditions of the Combination Documents have been or will be waived or modified; and

 

v.

The Business Combination will be effected in accordance with the Combination Documents, the parties have complied with and, if applicable, will continue to comply with, the covenants contained in the Combination Documents, and all applicable reporting requirements have been or will be satisfied;

 

c)

We have based our opinion on the current provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the U.S. Treasury Regulations promulgated thereunder, and the interpretation of the Code and such regulations by the courts and the U.S. Internal Revenue Service, in each case, as they are in effect and exist at the date hereof. The foregoing authorities may be repealed, revoked or modified, and any such change may have retroactive effect. Any change in applicable laws or facts and circumstances surrounding the Business Combination, or any inaccuracy in the statements, facts, assumptions and representations on which we have relied may affect the validity of our opinion. We assume no responsibility to inform Silver Crest of any such change or inaccuracy that may occur or come to our attention or to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof. In addition, our opinion is being delivered prior to the consummation of the Business Combination and therefore is prospective and dependent on future events.

 

 

 

January 28, 2022

Page Three

 

Based upon the foregoing and subject to the further assumptions, qualifications and limitations set forth herein and in the Registration Statement, the statements set forth in the Registration Statement under the section entitled “Taxation — Certain Material U.S. Federal Income Tax Considerations” (the “Tax Disclosure”), insofar as such statements summarize U.S. federal income tax law or legal conclusions with respect thereto, constitute our opinion regarding such material U.S. federal income tax consequences of the Business Combination.

 

We express no opinion on any transactions other than the Business Combination, or any matter other than those specifically covered by this opinion. In particular, this opinion is limited to the U.S. federal income tax matters discussed in the Tax Disclosure, and does not address (a) the U.S. federal income tax treatment of any shareholder subject to special rules under the Code or the Treasury Regulations, as further described in the Tax Disclosure, (b) any matter arising in connection with Section 367 of the Code, or (c) any matter arising in connection with Section 7874 of the Code.

 

The U.S. federal income tax consequences of the Business Combination are complex and are subject to varying interpretations. Our opinion is not binding on the U.S. Internal Revenue Service or any court, and there can be no assurance or guarantee that either will agree with our conclusions. The U.S. Internal Revenue Service may challenge one or more of the conclusions contained herein and the U.S. Internal Revenue Service may take a position that is inconsistent with the views expressed herein. There can be no assurance or guarantee that a court would, if presented with the issues addressed herein, reach the same or similar conclusions as we have reached.

 

This opinion is furnished to you solely for use in connection with the Registration Statement. This opinion is based on facts and circumstances existing on the date hereof. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and also to the references to Morrison & Foerster LLP in the Registration Statement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

[Signature continued on next page]

 

 

 

January 28, 2022

Page Four

 

Sincerely,

 

/s/ Morrison & Foerster LLP

Morrison & Foerster LLP

 

 

 

Exhibit 10.10

 

Business Cooperation Agreement

 

This Business Cooperation Agreement (this “Agreement”) is made and entered into by and between the following parties on December 2, 2021, in Shanghai, the People’s Republic of China (“China” or the “PRC”, only for the purpose of this Agreement, excluding the Hong Kong Special Administrative Region, the Macau Special Administrative Region and Taiwan).

 

Party A:

Pangaea Data Tech (Shanghai) Co., Ltd (盘古大陆数据科技（上海）有限公司)

 

Address:

47th Floor, Hong Kong New World Plaza, No. 300 Middle Huaihai Road, Huangpu District, Shanghai, China

 

Party B:

Tim Hortons (China) Holdings Co., Ltd. (天好（中国）投资有限公司)

 

Address:

Room 02, 25th Floor, No. 227 Huangpi North Road, Huangpu District, Shanghai, China

 

In this Agreement, each of Party A and Party B shall be hereinafter referred to as a “Party” individually, and as the “Parties” collectively.

 

WHEREAS,

 

A.

Party A is a limited liability company incorporated in China, whose principal business is providing the management and maintenance services for the data generated in the PRC (the “Principal Business”);

 

B.

Party B is a wholly foreign-owned enterprise incorporated in China, running the Tim Hortons brand in the PRC; and

 

C.

Party A is willing to provide Party B as well as its affiliates with certain data maintenance and management services on a non-exclusive basis during the term of this Agreement, and Party B is willing to subscribe for and accept such services provided by Party A according to the terms and conditions set forth herein.

 

Now, therefore, through mutual discussion, the Parties have reached the following agreements:

 

1.

Services

 

1.1

The Parties hereby agree that Party A shall provide Party B with the following data maintenance and management services, technical support, and consulting services (collectively, the “Services”) during the term of this Agreement, in support of the operation of Party B’s customer loyalty program implemented in the PRC (as amended, “TH China Data Operations”), in accordance with the terms and conditions of this Agreement:

 

(1)

assuming Party B’s and /or its affiliates’ rights and obligations under their existing customer data contracts, online terms of use, online privacy policies, and other terms and conditions with or for Party B’s and its affiliates’ customers in the PRC (“TH China Customers”) in connection with TH China Data Operations after the date hereof, upon the effective transfer of such rights and obligation to Party A pursuant to applicable PRC laws and regulations;

 

 

(2)

collecting and processing personal data (including membership data) from TH China Customers in connection with TH China Data Operations in accordance with applicable PRC laws and regulations on data privacy;

 

(3)

instituting any required customer data contracts, online terms of use, online privacy policies, and other terms and conditions with or for TH China Customers in connection with TH China Data Operations;

 

(4)

using reasonable effort to maintain procedures designed to protect the confidentiality of such personal data of TH China Customers in compliance with applicable PRC laws and regulations, including but not limited to by obtaining and maintaining throughout the term of this Agreement the Graded Protection Level 3 qualification;

 

(5)

storing the collected personal data of TH China Customers in the PRC pursuant to the applicable PRC laws and regulations;

 

(6)

assisting Party B in collecting and researching market information relating to TH China Data Operations;

 

(7)

responding in a timely manner to enquiries from TH China Customers, Party B and governmental authorities concerning processing or protection of personal data of TH China Customers, or cooperating with Party B to the extent Party B elects to directly respond to any such enquiries;

 

(8)

designing, installing, and undertaking daily management, maintenance and updating of related network systems used for the collection and processing of personal data of TH China Customers, and maintaining in effect a service contract and account with Tencent Cloud or a similar service provider that is reasonably acceptable to Party B (the “Cloud Service Provider”);

 

(9)

providing technical support and training for employees of Party B for the purpose of carrying out this Agreement;

 

(10)

engaging and providing professionals to support the Services, including, without limitation, dealing with the Cloud Service Provider and addressing technical issues encountered in the collection and processing of personal data of TH China Customers in connection with TH China Data Operations; and

 

(11)

to the extent permitted under PRC laws and regulations, other related services reasonably requested by Party B in connection with TH China Data Operations from time to time.

 

 

1.2

Notwithstanding anything to the contrary herein, Party A shall use TH China Data (as defined below) and other confidential information of Party B for the sole purpose of performing the Services pursuant to this Agreement. Without limiting the generality of the foregoing, Party A shall not use any TH China Data or any other confidential information of Party B in the provision of services to any third party.

 

1.3

To the extent permitted by applicable PRC laws and regulations, Party A shall have the right to subcontract to any third party the performance of all or any part of the Services. Party A shall use reasonable efforts to require its subcontractors to comply with applicable terms and conditions of this Agreement, including, without limitation, storing all TH China Data in the PRC pursuant to applicable PRC laws and regulations, and using all TH China Data for the sole purpose of performing the Services pursuant to this Agreement. Party A shall remain responsible for the performance of any Services by its subcontractors pursuant to this Agreement.

 

1.4

Notwithstanding anything to the contrary herein, the Services do not include, and Party A shall not be obligated to perform, any services or activities that are not in compliance with applicable PRC laws and regulations.

 

2.

Data Assignment and Transfer

 

2.1

Party B hereby assigns, conveys and transfers and shall cause its affiliates to assign, convey and transfer, to Party A, without additional consideration, all rights, title and interests in and to all personal data of TH China Customers used or held for use in TH China Data Operations, whether collected through customer registration with the WeChat mini program, Ele.me, Alipay, Meituan, or Dianping.com or otherwise, prior to the date of this Agreement or during the term of this Agreement (if any), together with all intellectual property in and to such data, and all tangible embodiments of such data in any form and in any media and all records and documentation relating thereto, as well as copies of any of the foregoing (collectively, “TH China Personal Data”), together with all other TH China Data (as defined below).

 

2.2

Party B will deliver and transfer to Party A all copies (including but not limited to digital copies) of all TH China Personal Data existing as of the date of this Agreement as soon as reasonably practicable, in any event within 60 days from the execution date of this Agreement, by transferring to Party A, among others, the possession and control of the applicable account holding such data in the format and manner reasonably requested by Party A. To the extent permitted by applicable PRC laws and regulations, and commercially practicable, Party A shall be the direct recipient of all TH China Personal Data after the date of this Agreement. To the extent any such TH China Personal Data is received by Party B or its affiliates incidentally after the date hereof, Party B shall within one (1) business day, or otherwise as reasonably practicable, deliver and transfer all copies (including but not limited to digital copies) of all such TH China Personal Data to Party A in the format and manner reasonably requested by Party A. Upon the delivery and transfer of such TH China Personal Data to Party A, Party B shall, and shall cause its affiliates to, delete any such data in its and their possession.

 

 

2.3

Neither Party B nor its affiliates shall possess any copy of TH China Personal Data or any aggregated, processed or other data arising from Party A’s performance of the Services under this Agreement (TH China Personal Data and such data, together with all intellectual property therein and thereto, collectively, “TH China Data”) during the term of the Agreement. For clarification, and notwithstanding the above, Party B and its affiliates may access TH China Data pursuant to Party A’s provision of the Services under this Agreement, and then only on an aggregated or de-identified basis and solely for purposes of TH China Data Operations during the term of this Agreement in accordance with Section 4.

 

2.4

To the extent required by applicable PRC laws and regulations, each of Party A and Party B shall include on its online platforms notices to TH China Customers of the transfer of the TH China Personal Data from Party B to Party A, which shall be substantially in the form set forth on Exhibit A.

 

3.

Covenants and Undertakings

 

3.1

Party B shall, and shall cause its affiliates to, provide Party A with all support, assistance and cooperation necessary for, or reasonably requested by Party A in connection with, the performance of the Services, including, without limitation:

 

(1)

taking all actions necessary to effectuate the transfer of the TH China Personal Data and the transfer of collection of the TH China Personal Data in accordance with Section 2 and in compliance with applicable PRC laws and regulations;

 

(2)

appointing a Party B employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Party B with respect to matters pertaining to this Agreement;

 

(3)

providing Party A with access to Party B’s premises, systems, platforms and networks in connection with TH China Data Operations;

 

(4)

making personnel of Party B and its affiliates available to Party A; and

 

(5)

responding promptly to any Party A request to provide information, approvals, authorizations, direction or decisions relating to TH China Data Operations.

 

3.2

Party A hereby agrees and undertakes to Party B that, during the term of this Agreement and twelve (12) months thereafter, Party A shall not, and shall cause its affiliates not to, directly or indirectly: (i) provide any services with or without consideration, to a Competitor (as defined below); (ii) form or engage in any business that competes with the business of Party B or any of its affiliates; or (iii) invest in in any Competitor. For the purpose of this Agreement, “Competitor” means any person which engages in a business that competes with Party B or any of its affiliates as reasonably determined in good faith by Party A, which shall include without limitation each of the legal entities operating under the following brands: (a) Yum! China, (b) McDonald’s, (c) Starbucks, (d) Luckin, (e) Costa Coffee, (f) Coffee Bean & Tea Leaf, (g) Coffee Box, (h) COFFii & JOY, (i) Dunkin’ Donuts, (j) Krispy Kreme, (k) J.CO Donuts & Coffee, (l) Manner Coffee, (m) Pacific Coffee, (n) Paris Baguette, (o) UBC Café, (p) Wagas; and (q) Zoo Coffee.

 

 

4.

TH China Data License

 

4.1

Party A hereby grants to Party B a non-exclusive, non-assignable, non-sublicensable (except as provided in Section 4.2), fully paid-up, royalty-free license to access, use, reproduce, modify, and prepare derivative works based upon, the TH China Data solely on an aggregated or de-identified basis, and solely for purposes of TH China Data Operations in the PRC during the term of the Agreement.

 

4.2

Party B may sublicense any rights granted under Section 4.1 to any of its affiliates or contractors solely for purposes of the TH China Operations. Party B shall cause each sublicensee to comply with the terms and conditions of this Agreement. Party B shall, and shall cause each sublicensee to, store all TH China Data licensed under this Section 4 in the PRC pursuant to applicable PRC laws and regulations.

 

5.

Payment of the Service Fees

 

5.1

In consideration for the Services provided by Party A hereunder, Party B shall pay a service fee to Party A on annual basis (or at any time agreed by the Parties). The service fees for each year (or for any other period agreed by the Parties) shall consist of a fixed management fee (the “Management Fees”) and a services fee (the “Services Fees,” together with the Management Fees, collectively, the “Fees”) charged for the Services provided which shall be reasonably determined by Party A based on the following factors:

 

(1)

complexity and difficulty of the Services provided by Party A;

 

(2)

seniority of and time consumed by the employees of Party A providing the Services;

 

(3)

specific contents, scope and value of the Services provided by Party A; and

 

(4)

market price of the services similar to the Services.

 

 

5.2

Party A may provide separate confirmation letter and/or invoice to Party B to indicate the amount of the Fees due for the relevant service period of the Services.

 

5.3

Party B shall be entitled to deduct and withhold from amounts payable to Party A under this Agreement any taxes that are required to be deducted or withheld under applicable laws and regulations (the “Withholding Taxes”) and shall pay to Party A the remaining net amount after performing such deduction or withholding. The Party B shall timely remit, and provide Party A with evidence that Party B have remitted, any Withholding Taxes to the appropriate taxing authority. Any Withholding Taxes Party B remits to the taxing authority shall be treated for all purposes under this Agreement as having been paid to Party A and Party B shall not reimburse Party A for any such Withholding Taxes. If the Party A provides Party B with valid documentation evidencing qualification for a lower rate of the Withholding Taxes to be applied in respect of any amounts payable hereunder, Party B shall apply such lower rate in respect of such amounts. For the avoidance of doubt, each Party shall be responsible for its own respective income taxes or taxes based on gross revenues or gross receipts incurred in connection with the arrangements contemplated by this Agreement.

 

6.

Intellectual Property Rights and Confidentiality

 

6.1

To the extent permitted by applicable PRC laws and regulations, Party B shall have sole and exclusive ownership of all rights, title and interests in any and all intellectual property arising out of or created or developed during the performance of this Agreement by the Parties, including but not limited to copyrights, patents, patent applications, software, technical secrets, and trade secrets, excluding any TH China Data (such intellectual property (excluding TH China Data), “Developed IP”). Party A hereby assigns, conveys and transfers to Party B, without additional consideration, all of its rights, title and interests in and to the Developed IP.

 

6.2

Party B hereby grants Party A a non-exclusive, non-assignable, non-sublicensable (except as provided in this Section 6.2), fully paid-up, royalty-free, license to use, and if applicable, to access, reproduce, modify, and create derivative works based upon, any Developed IP and other Party B IP solely for purposes of performing the Services during the term of this Agreement. Party A may sublicense any rights granted under this Section 6.2 to any of its affiliates and subcontractors solely for purposes of performing the Services. “Party B IP” means (i) the trademarks, service marks, logos, domain names, social media handles, and other indicators of source or affiliation listed on Exhibit B (collectively, “Party B Marks”), and (ii) any other intellectual property owned or licensed (and sublicensable) by Party B or its affiliates and related to the Services. Party A’s use of the Party B Marks shall be in accordance with Party B’s then current quality control, usage and other guidelines, each of which as Party B may be updated and provided to Party A in writing from time to time. All uses of the Party B Marks, and all goodwill associated therewith, shall inure solely to the benefit of Party B.

 

 

6.3

The Parties acknowledge and agree that (i) the terms of this Agreement are regarded as confidential information of each Party, (ii) the TH China Data shall be regarded as the confidential information of Party B, and (iii) any oral or written information exchanged between the Parties in connection with the preparation and performance of this Agreement are regarded as confidential information of the disclosing Party. For the purpose of this Agreement, the confidential information includes, without limitation, all confidential and proprietary information of each Party or any of its affiliates, including, but without limitation, the marketing and business information, marketing strategy, any personal data or transaction data of all users / fans / followers of Tim Hortons brand or the loyalty membership data, and all other information obtained by either Party through the business cooperation or the performance or receipt of Services contemplated under this Agreement.

 

6.4

Each Party shall maintain confidentiality of all confidential information of the other Party during the term of this Agreement and following the termination or expiration of this Agreement, using the same or greater degree of care it uses with its own similarly most sensitive information (but in no event less than a reasonable degree of care) and not to use any such information for any purposes whatsoever other than the performance or receipt of Services or as expressly permitted by this Agreement. Without obtaining the written consent of the disclosing Party, each receiving Party shall not disclose any confidential information of the disclosing Party to any third party, except for any information that (if and to the extent the receiving Party can demonstrate that such information): (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; (c) is independently developed by the receiving Party outside of this Agreement and without reference to or use of any confidential information of the disclosing Party; or (d) is rightfully obtained by the receiving Party from a third party with a duty of confidentiality, and except that the receiving Party may disclose confidential information of the disclosing Party to its affiliates, shareholders, directors, officers, employees, members, securities holders (including the respective direct or indirect beneficiary owners), contractors, legal counsels or financial, tax or other advisors (collectively, “Receiving Party Personnel”), provided that (i) the receiving Party shall advise its Receiving Party Personnel who may be exposed to confidential information of the disclosing Party of their obligations, and (ii) such Receiving Party Personnel shall be bound by the confidentiality obligations similar to those set forth in this Section 6.4. Without prejudice to the general principal set forth in the first and the second sentence in this Section 6.4, Party A agrees that it shall and shall cause its and its affiliates’ Receiving Party Personnel, to not leak, share, present, mix, combine or otherwise make the TH China Data, the Developed IP or any other confidential information received in connection with TH China Data Operations (in each case, whether the actual data/information received or in the form of aggregated, de-identified, or other derivative of such received data/information) available to any third party, including without limitation, the other clients of and the suppliers engaged by Party A from time to time, unless expressly approved by Party B in writing. Disclosure of any confidential information by the Receiving Party Personnel of a Party in breach of this Section 6.4 shall be deemed disclosure of such confidential information by such Party and such Party shall be held liable for breach of this Section 6.4.

 

 

6.5

Each Party acknowledges that, in the event the other Party breaches, or threatens to breach, its obligation under Section 1.2 or Section 6,4, then the non-breaching Party shall be entitled to seek an injunction, order of specific performance, or other equitable relief in any court of competent jurisdiction, without waiving any other remedies available to it at law or in equity.

 

7.

Representations and Warranties

 

7.1

Each Party hereby represents, warrants and covenants as follows:

 

(1)

It is a company legally established and validly existing in accordance with the laws of China;

 

(2)

It has taken all necessary corporate actions, obtained all necessary authorizations as well as all consents and approvals from third parties and government agencies (if required) for the execution, delivery and performance of this Agreement;

 

(3)

This Agreement constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms; and

 

(4)

It will comply with all applicable laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.

 

7.2

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, (I) THE TH CHINA DATA AND THE SERVICES ARE PROVIDED BY PARTY A ON AN “AS-IS” BASIS AND PARTY A MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TH CHINA DATA OR ANY INFORMATION CONTAINED THEREIN, THE SERVICES OR ANY OTHER SUBJECT MATTER CONTEMPLATED BY THIS AGREEMENT, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PARTY A SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WITH RESPECT TO ANY SUCH MATTERS, AND (II) EACH PARTY ACKNOWLEDGES AND AGREES THAT PARTY A HAS NOT EVALUATED WHETHER THE ARRANGEMENTS CONTEMPLATED BY THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES COMPLIES WITH APPLICABLE LAW AND PARTY B SHALL BE SOLELY RESPONSIBLE FOR THE COMPLIANCE WITH APPLICABLE LAW BY THE ARRANGEMENTS CONTEMPLATED BY THIS AGREEMENT AND THE PERFORMANCE OF THE SERVICES.

 

 

8.

Term of Agreement

 

8.1

This Agreement shall become effective upon the execution by the Parties. Save for any early termination in accordance with the provisions of this Agreement or other agreements separately executed by the Parties, the term of this Agreement shall be five (5) years. Unless otherwise notified by either Party in writing no later than three (3) months prior to the expiration of the term, the term of this Agreement shall be automatically extended for another one (1) year upon expiration date.

 

8.2

This Agreement may be terminated by the mutual agreement by the Parties.

 

8.3

Party A may suspend the performance of the Services in the event that Party B fails to make payments in accordance with Section 5.

 

8.4

To the extent permitted by applicable PRC laws and regulations, upon the expiration or termination of this Agreement each Party shall return copies of all confidential information of the other Party to such other Party (except for TH China Data. Prior to the expiration or termination of this Agreement, the Parties will discuss in good faith to address ownership of TH China Data and delivery and transfer of copies of TH China Data in a manner that complies with applicable PRC laws and regulations. To the extent permitted by applicable PRC laws and regulations, within such time period as may be agreed by the Parties, Party A (i) shall transfer and deliver copies of TH China Data in the format agreed by the Parties and assign and transfer ownership of TH China Data to a third party in the PRC designated by Party B, and (ii) upon the completion of such transfer, delivery and assignment, shall no longer have any ownership of, or any right to use, any TH China Date. Party B shall, and shall cause it affiliates to, provide all support, assistance and cooperation necessary to facilitate, or reasonably requested by Party A in connection with, the completion of such transfer, delivery and assignment.

 

8.5

The rights and obligations of the Parties under Sections 6.1, 6.3, 6.4, 6.5, 8.4, 9, 10, 11, 12 and this Section 8.5 shall survive the termination of this Agreement.

 

9.

Governing Law and Resolution of Disputes

 

9.1

The execution, effectiveness, interpretation, performance, amendment and termination of this Agreement and the resolution of disputes hereunder shall be governed by the laws of PRC.

 

9.2

The Parties hereto agree that any dispute or controversy arising from or relating to the execution and performance of this Agreement shall be resolved by consultation between the Parties. If the dispute fails to be resolved within thirty (30) days of the notice from one Party requesting the consultation, the dispute shall be submitted by such Party to Shanghai International Economic and Trade Arbitration Commission for the confidential binding arbitration in Shanghai in accordance with its arbitration rules in force at the date of applying for arbitration. The Parties further agree that each Party in the arbitration shall bear its own costs and expenses for arbitration (including without limitation attorney fees).

 

 

The arbitral tribunal will have three (3) members. One (1) arbitrator shall be appointed by the claimant and one (1) arbitrator shall be appointed by the respondent. The two arbitrators appointed pursuant to the first sentence of this paragraph shall jointly select the third arbitrator. All proceedings in the arbitration shall be conducted in English. The Parties hereby agree that such arbitration awards shall be final and binding on all the Parties.

 

9.3

Upon the occurrence of any disputes arising from the interpretation and performance of this Agreement or during the pending arbitration of any dispute, except for the matters under dispute, the Parties shall continue to exercise their respective rights under this Agreement and perform their respective obligations under this Agreement.

 

10.

Indemnification and Limitation of Liability

 

10.1

Each Party shall defend, indemnify and hold harmless the other Party and its affiliates, shareholders and their affiliates and its and their respective officers, directors, employees, agents and representatives, from and against any third party claims, including, without limitation, suits, losses, damages, fees, expenses and costs (including attorneys’ fees) resulting from any such claims, to the extent arising out of or relating to its or its affiliates’ gross negligence or willful misconduct or fraud in connection with the performance of obligations or exercise of rights under this Agreement.

 

10.2

The Parties agree that Party B shall remain liable for all liabilities to TH China Customers relating to any TH China Data, the Services, TH China Data Operations or this Agreement, except to the extent arising out of or relating to gross negligence, willful misconduct or fraud of Party A. Party B shall defend, indemnify and hold harmless Party A and its affiliates, shareholders and their affiliates and its and their respective officers, directors, employees, agents and representatives, from and against any claims of TH China Customers or other third party claims, including, without limitation, suits, losses, damages, fees, expenses and costs (including attorneys’ fees) resulting from any such claims, to the extent arising out of or relating to any TH China Data, the Services, TH China Data Operations or this Agreement, except to the extent arising out of or relating to gross negligence, willful misconduct or fraud of Party A.

 

10.3

Except to the extent arising out of or relating to any gross negligence, willful misconduct or fraud of Party A, in no event shall Party A or its affiliates be liable to Party B, its affiliates or any third party for any special, indirect, punitive, exemplary, incidental or consequential damages whatsoever (including any loss of profits, revenues or savings) arising from any claim relating to TH China Data, the Services, TH China Data Operations or this Agreement, whether such claim is based upon warranty, contract, tort or otherwise, even if Party A has been advised, knows or should have known of the possibility of the same. Except to the extent arising out of or relating to any gross negligence, willful misconduct or fraud of Party A, in no event shall Party A’s aggregate liability arising out of or relating to this Agreement exceed the total of the Fees paid by Party B to Party A pursuant to this Agreement in the period preceding the event giving rise to the claim.

 

 

11.

Force Majeure

 

11.1

In the case of any force majeure events (“Force Majeure”) such as earthquakes, typhoons, floods, fires, flu, wars, terrorism, riots, strikes, epidemic, pandemic (except COVID-19), extraordinary elements of nature, quarantines, embargoes, or other similar governmental action, or any other events outside the reasonable control of a Party, which causes the failure of either Party to perform or completely perform this Agreement or perform this Agreement on time, the Party affected by such Force Majeure shall not be liable for such failure or delay (except for payment obligations). However, the Party affected by such Force Majeure shall give the other Party written notices without any delay, and shall provide details and related documents evidencing such event within fifteen (15) days after sending out such notice, explaining the reasons for such failure or delay of performance.

 

11.2

The Party so affected by the event of Force Majeure shall use reasonable efforts to minimize the consequences of such Force Majeure and to promptly resume performance hereunder whenever the causes of such excuse are cured. Should the Party so affected by the event of Force Majeure fail to resume performance hereunder when the causes of such excuse are cured, such Party shall be liable to the other Party.

 

11.3

In the event of Force Majeure, the Parties shall immediately consult with each other to find an equitable solution and shall use all reasonable endeavours to minimize the consequences of such Force Majeure.

 

12.

Notices

 

12.1

All notices and other communications required to be given pursuant to this Agreement or otherwise given in connection with this Agreement shall be delivered personally, or sent by registered mail, prepaid postage, a commercial courier service or email to the address of such Party set forth below. The dates on which notices shall be deemed to have been effectively given shall be determined as follows:

 

(1)

Notices given by personal delivery shall be deemed effectively given on the date of receipt at the address set forth below, or the date on which such notices are placed at the address set forth below;

 

(2)

Notices given by courier service, registered mail or prepaid postage shall be deemed effectively given on the date of receipt, refusal or return for any reason at the address set forth below;

 

 

(3)

Notices given by email shall be deemed effectively given on the date of successful transmission, provided that the sending Party has received a system message indicating successful transmission or has not received a system message within 24 hours indicating failure of delivery or return of email.

 

12.2

For the purpose of notices, the addresses of the Parties are as follows:

 

Party A: Pangaea Data Tech (Shanghai) Co., Ltd (盘古大陆数据科技（上海）有限公司)
Address:	47th Floor, Hong Kong New World Plaza, No. 300 Middle Huaihai Road, Huangpu District, Shanghai, China
Attn:	Peng Zhang
Email:	Canada_zp@hotmail.com
Party B: Tim Hortons (China) Holdings Co., Ltd. (天好（中国）投资有限公司)
Address:	Room 02, 25th Floor, No. 227 Huangpi North Road, Huangpu District, Shanghai, China
Attn:	Meng Wang
Email:	Meng.wang@timschina.com

 

12.3

A Party may at any time change its address for notices by a notice delivered to the other Party in accordance with the terms of this Section 12.

 

13.

Assignment

 

Without the other Party's prior written consent, neither Party shall assign its rights and obligations under this Agreement to any third party.

 

14.

Severability

 

In the event that one or several of the provisions of this Agreement are held to be invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or compromised in any aspect. The Parties shall negotiate in good faith to replace such invalid, illegal or unenforceable provisions with effective provisions that accomplish to the greatest extent permitted by laws and regulations and the intentions of the Parties, and the economic effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.

 

15.

Amendments and Supplements

 

Any amendment, change and supplement to this Agreement shall be made in writing by both Parties. Any amendment agreement and supplementary agreement duly executed by the Parties hereto with regard to this Agreement shall constitute an integral part of this Agreement, and shall have equal legal validity as this Agreement.

 

 

16.

Waiver

 

No waiver or consent, express or implied, by a Party to or of any breach or default by the other Party in the performance by such other Party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other Party of the same or any other obligations of such other Party hereunder. No single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce any right or power, shall preclude any other or further exercise thereof or the exercise of any other right or power.

 

17.

Successors

 

The terms of this Agreement shall be binding on the Parties hereto and their respective successors and permitted assigns, and shall be valid with respect to the Parties and each of their successors and permitted assigns.

 

18.

Remedies Cumulative

 

Unless expressly stated otherwise in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to a party hereto at law, in equity or otherwise.

 

19.

Entire Agreement

 

This Agreement (together with any other documents referred to herein or therein) constitutes the entire agreement between the Parties relating to the subject matters of this Agreement as of the date hereof, and supersedes any prior agreements, arrangement or understandings, whether oral or written, relating to such subject matters. The Parties may make revisions or supplement to this Agreement by mutual agreement.

 

20.

Further Assurance

 

Each Party shall, upon reasonable request of the other Party, provide all assistance and cooperation to the other Party to achieve the purposes of this Agreement, including by executing instruments and documents, assisting with recording and filing instruments and documents, providing reasonable information, and taking other actions in connection therewith.

 

21.

Language and Counterparts

 

This Agreement is written in English and Chinese, and the English version shall prevail if any discrepancy or inconsistency. This Agreement is made in two (2) copies and each Party shall have one (1) copy.

 

(Below is left blank intentionally)

 

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Business Cooperation Agreement as of the date first above written.

 

Party A:

Pangaea Data Tech (Shanghai) Co., Ltd (盘古大陆数据科技（上海）有限公司) (Company Seal)

 

By:

/s/ ZHANG Peng

 

Name:

ZHANG Peng

 

Title:

Legal Representative

 

[Signature Page to Business Cooperation Agreement]

 

 

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Business Cooperation Agreement as of the date first above written.

 

Party B:

Tim Hortons (China) Holdings Co., Ltd. (天好（中国）投资有限公司) (Company Seal)

 

By:

/s/ LU Yongchen

 

Name:

LU Yongchen

 

Title:

Legal Representative

 

 

[Signature Page to Business Cooperation Agreement]

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated September 23, 2021, with respect to the consolidated financial statements of TH International Limited, included herein and to the reference to our firm under the heading “Experts” in the prospectus.

 

/s/ KPMG Huazhen LLP

 

Shanghai, China

January 28, 2022

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use in the Proxy Statement/Prospectus constituting a part of this Registration Statement on Form F-4 Amendment No.2 of our report dated March 29, 2021, relating to the financial statements of Silver Crest Acquisition Corporation which is contained in that Proxy Statement/Prospectus. We also consent to the reference to us under the caption “Experts” in the Proxy Statement/Prospectus.

 

/s/ WithumSmith+Brown, PC

 

New York, New York

January 27, 2022