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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of
earliest event reported): November 13, 2023
Spirit
AeroSystems Holdings, Inc.
(Exact name of registrant as specified in
its charter)
Delaware |
|
001-33160 |
|
20-2436320 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
3801
South Oliver, Wichita, Kansas 67210
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including
area code: (316) 526-9000
|
Not Applicable |
|
|
(Former name or former address if changed since last
report.) |
|
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of
the Act:
Title of each
class |
|
Trading
Symbol(s) |
|
Name of each
exchange on which registered |
Class A Common Stock, par value $0.01 per share |
|
SPR |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under the heading
“Exchangeable Notes Offering” in Item 8.01 below is incorporated by reference into this Item 2.03.
Common Stock Offering
On November 8, 2023, Spirit AeroSystems Holdings, Inc. (the
“Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Morgan Stanley &
Co. LLC, as representative of the several underwriters named therein, in connection with the registered public offering (the “Common
Stock Offering”) of up to 10,454,545 shares of the Company’s Class A common stock, including the underwriters’
option to purchase 1,363,636 additional shares of Class A common stock, at a price to the public of $22.00 per share of Class A
common stock. On November 13, 2023, the Company issued and sold 10,454,545 shares of its Class A common stock pursuant to the
Underwriting Agreement, which included the exercise in full of the underwriters’ option to purchase additional shares of Class A
common stock. The net proceeds to the Company from the Common Stock Offering, after deducting underwriting discounts and commissions and
offering expenses payable by the Company, were approximately $220.4 million. The Company plans to use the net proceeds from the Common
Stock Offering for general corporate purposes.
The Underwriting Agreement contains customary representations, warranties
and agreements of the Company, conditions to closing, indemnification rights and obligations of the parties and termination provisions.
A copy of the Underwriting Agreement is attached as Exhibit 1.1 to this Current Report on Form 8-K and incorporated by reference
herein.
The Common Stock Offering was made pursuant to an effective shelf registration
statement (the “Registration Statement”) filed with the Securities and Exchange Commission on November 7, 2023 (File
No. 333-275362), a base prospectus, dated November 7, 2023, included as part of the Registration Statement, and a prospectus
supplement, dated November 8, 2023, filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the “Securities Act”). A copy of the opinion of Sullivan & Cromwell LLP relating to the
issuance of the Class A common stock in the Common Stock Offering is attached hereto as Exhibit 5.1 to this Current Report on
Form 8-K. Exhibits 1.1 and 5.1 hereto are hereby incorporated by reference into the Registration Statement.
Exchangeable Notes Offering
On November 13, 2023, in connection with the issuance by Spirit
AeroSystems, Inc. (“Spirit”), a wholly owned subsidiary of the Company, of $230 million aggregate principal amount of
its 3.250% Exchangeable Senior Notes due 2028 (the “Notes”), Spirit entered into an Indenture (the “Indenture”),
by and among Spirit, the Company and Spirit AeroSystems North Carolina, Inc. (“Spirit NC”), as guarantors (Spirit NC
together with the Company, the “Guarantors”), and The Bank of New York Mellon Trust Company, N.A., as trustee. The Notes were
issued and sold in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act. The Notes
are senior, unsecured obligations of Spirit and are fully and unconditionally guaranteed on a senior, unsecured basis by the Guarantors.
The net proceeds from the sale of the Notes were approximately
$223.7 million, after deducting discounts and commissions to the initial purchasers but before other estimated fees and expenses.
Spirit plans to use the net proceeds from the sale of the Notes for general corporate purposes.
The Notes mature on November 1, 2028, unless earlier exchanged,
redeemed or repurchased, and bear interest at a rate of 3.250% per year payable semiannually in cash in arrears on May 1 and November 1
of each year. The first interest payment date is May 1, 2024.
The Notes will be exchangeable at an initial exchange rate of 34.3053
shares of the Company’s Class A common stock per $1,000 principal amount of Notes (equivalent to an initial exchange price
of approximately $29.15 per share of Class A common stock). The initial exchange rate is subject to adjustment, as provided in the
Indenture. Upon exchange of the Notes, Spirit will pay cash, shares of Class A common stock or a combination of cash and shares of
Class A common stock, at Spirit’s election, in respect of its exchange obligations for the Notes. Prior to the close of business
on the business day immediately preceding August 1, 2028, the Notes will be exchangeable at the option of the noteholders only upon
the satisfaction of specified conditions and during certain periods described in the Indenture. On or after August 1, 2028, until
the close of business on the business day immediately preceding the maturity date, the Notes will be exchangeable at the option of the
noteholders at any time regardless of these conditions or periods.
Prior to November 6, 2026, Spirit may not redeem the Notes.
On or after November 6, 2026, Spirit may redeem for cash all or any portion (subject to certain limitations) of the Notes, at
its option, if the last reported sale price of the Company’s Class A common stock has been at least 130% of the exchange
price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period
(including the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which
Spirit provides notice of redemption, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued
and unpaid interest to, but excluding, the redemption date. No “sinking fund” is provided for the Notes.
Subject to certain conditions and exceptions, holders of the Notes will have
the right to require Spirit to repurchase all or a portion of their Notes upon the occurrence of a fundamental change (as defined in
the Indenture) at a repurchase price of 100% of their principal amount plus any accrued and unpaid interest. In connection with
certain corporate events or if Spirit calls any Notes for redemption, Spirit will, under certain circumstances, increase the
exchange rate for noteholders who elect to exchange their Notes in connection with any such corporate event or exchange their Notes
called for redemption during the related redemption period.
The Notes and the guarantee are Spirit’s and the Guarantors’
senior unsecured obligations, respectively, and as applicable, rank senior in right of payment to any of Spirit’s or the Guarantors’
indebtedness that is expressly subordinated in right of payment to the Notes, rank equal in right of payment with any of Spirit’s
or the Guarantors’ liabilities that are not so subordinated, are effectively subordinated in right of payment to any of Spirit’s
or the Guarantors’ secured indebtedness to the extent of the value of the assets securing such indebtedness and are effectively
subordinated to all indebtedness and other liabilities (including trade payables) of Spirit’s or the Guarantors’ respective
subsidiaries (other than Spirit and Spirit NC).
The Indenture provides for customary events of default, all as described
in the Indenture.
With the exception of covenants restricting Spirit’s and the
Guarantors’ ability to merge, consolidate or sell substantially all of their respective assets, the Indenture does not provide for
restrictive covenants.
The description of the Indenture in this Current Report on Form 8-K
does not purport to be complete and is qualified in its entirety by reference to the full text of the Indenture and form of the Notes,
which are filed as Exhibits 4.1 and 4.2 hereto, respectively, and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
Exhibit
Number |
|
Description of Exhibit |
1.1 |
|
Underwriting Agreement, dated November 8, 2023, by and between the Company and Morgan Stanley & Co. LLC, as representative of the several underwriters. |
4.1 |
|
Indenture, dated as of November 13, 2023, among Spirit AeroSystems, Inc., Spirit AeroSystems Holdings, Inc., Spirit AeroSystems North Carolina, Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee. |
4.2 |
|
Form of 3.250% Exchangeable Senior Notes due 2028 (included as Exhibit A to Exhibit 4.1). |
5.1 |
|
Opinion of Sullivan & Cromwell LLP. |
104 |
|
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
SPIRIT AEROSYSTEMS HOLDINGS, INC. |
|
|
Date: November 13, 2023 |
/s/ Mark J. Suchinski |
|
Mark J. Suchinski |
|
Senior Vice President and Chief Financial Officer |
Exhibit 1.1
Execution Version
9,090,909 Shares
SPIRIT AEROSYSTEMS
HOLDINGS, INC.
CLASS A
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING
AGREEMENT
November 8, 2023
November 8, 2023
Morgan Stanley & Co. LLC
as Representative of the several Underwriters named
in Schedule I hereto
| c/o | Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036 |
Ladies and Gentlemen:
Spirit AeroSystems Holdings, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the several Underwriters named in Schedule I hereto
(the “Underwriters”) 9,090,909 shares of its Class A common stock, par value $0.01 per share (the “Firm
Shares”).
The
Company also proposes to issue and sell to the several Underwriters not more than an additional 1,363,636 shares of its Class A common
stock, par value $0.01 per share (the “Additional Shares”), if and to the extent that Morgan Stanley & Co.
LLC (“Morgan Stanley”), as representative of the underwriters (the “Representative”) shall have
determined to exercise, on behalf of the Underwriters, the right to purchase such shares of Class A common stock granted to the Underwriters
in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.”
The shares of Class A common stock, par value $0.01 per share, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-275362), including a prospectus,
relating to the various securities (the “Shelf Securities”), including the Shares, to be issued from time to time by the Company.
The registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the
“Securities Act”), is hereinafter referred to as the “Registration Statement” and the related prospectus
covering the Shelf Securities dated November 7, 2023 in the form first used to confirm sales of the Shares (or in the form first
made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement
specifically relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred
to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the
Prospectus.
For purposes of this Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus”
means the preliminary prospectus together with the documents and pricing information set forth in Schedule II hereto, and “broadly
available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities
Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include
the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,” “amendment”
and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus,
any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference
therein.
1. Representations
and Warranties. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and,
to the knowledge of the Company, no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before
or threatened by the Commission.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection
with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4),
the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (v) each broadly available road show and “issuer free writing prospectus”
(as defined in Rule 433 under the Securities Act), including any set forth on Schedule III hereto, when considered together with
the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus based upon information furnished to the Company in writing by such Underwriter
through Morgan Stanley expressly for use therein.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been,
or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material
respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except
for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to
Morgan Stanley before first use, the Company has not prepared, used or referred to, and will not, without Morgan Stanley’s prior
consent, prepare, use or refer to, any free writing prospectus.
(d) The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its
incorporation, and has corporate power and authority to own, lease and operate its properties and to conduct its business as described
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and to enter into and perform its obligations under
this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing or equivalent status
in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or to be in good standing would not, individually or in the aggregate, reasonably
be expected to result in a material adverse change, or any development that would reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, considered
as one entity (any such change, a “Material Adverse Change”). Each subsidiary of the Company has been duly organized,
is validly existing and, to the extent applicable, is in good standing under the laws of the state or jurisdiction of its organization,
and each has the power and authority under such laws to own, lease and operate its properties and to conduct its business, and is duly
qualified as a foreign entity to transact business and, to the extent applicable, is in good standing or equivalent status in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure to be so organized, existing, in good standing or qualified would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change.
(e) This
Agreement has been duly authorized, executed and delivered by the Company.
(f) The
authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(g) The
shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The
Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of the Shares will not be subject to any preemptive or similar rights.
(i) At
September 28, 2023, on a consolidated basis, on an actual basis and on an “as adjusted” basis as set forth therein, the
Company would have a capitalization as set forth in the Prospectus Supplement under the caption “Capitalization.”
(j) None
of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X under the Exchange
Act (each, a “Significant Subsidiary”)) is (i) in violation of its charter, bylaws or other constitutive document
or (ii) in default (or, with the giving of notice or lapse of time, would be in default) (“Default”) under any
indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company or its Significant
Subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of
its Significant Subsidiaries is subject, except, in the case of clause (ii) above, for such Defaults as would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Change.
(k) The
Company’s execution, delivery and performance of this Agreement, and the issuance and delivery of the Shares, and consummation of
the transactions contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus will not contravene
any provision of the certificate of incorporation or by-laws of the Company, or result in any violation of any law, administrative regulation
or administrative or court decree applicable to the Company or any of its subsidiaries, except for such violations as would not, individually
or in the aggregate, result in a Material Adverse Change. No consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency is required for the Company’s execution, delivery and performance
of this Agreement, or the issuance and delivery of the Shares, or consummation of the transactions contemplated hereby and by the Registration
Statement, the Time of Sale Prospectus and the Prospectus, except such that have been, or will have been by the Closing Date, obtained
or made or as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Shares by
the Underwriters.
(l) Except
as otherwise disclosed in the Time of Sale Prospectus (exclusive of any amendment or supplement thereto), subsequent to the respective
dates as of which information is given in the Time of Sale Prospectus (exclusive of any amendment or supplement thereto), there has been
no material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries, considered as one entity.
(m) Except
as otherwise disclosed in the Time of Sale Prospectus, there are no legal or governmental actions, suits or proceedings pending or, to
the Company’s knowledge, threatened (i) against or affecting the Company or any of its subsidiaries or (ii) which has
as the subject thereof any property owned or leased by the Company or any of its subsidiaries, in the case of each of clause (i) and
(ii) above, which would reasonably be expected to result in a Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement.
(n) Each
preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(o) The
Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, would not be an “investment company”
as such term is defined in the Investment Company Act of 1940, as amended.
(p) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus or as would not, individually or in the aggregate
reasonably be expected to result in a Material Adverse Change (after giving effect to existing agreements with third parties), none of
the Company or any of its subsidiaries: (i) is in violation of any statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign under any Environmental Laws, (ii) owns or operates any real property contaminated
with any substance that is subject to any Environmental Laws, (iii) is liable for any off-site disposal or contamination pursuant
to any Environmental Laws, (iv) is conducting or paying for, in whole or in part, any investigation, response or other corrective
action pursuant to any Environmental Law at any site or facility or (v) is subject to any claim, action or cause of action relating
to any Environmental Laws or is aware of any pending investigation which might lead to such a claim.
For purposes of this Agreement, “Environment” means
ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as
wetlands, flora and fauna. “Environmental Laws” means the common law and all federal, state, local and foreign laws
or regulations, ordinances, codes, orders, decrees, judgments and injunctions issued, promulgated or entered thereunder, relating to pollution
or protection of the Environment or human health to the extent related to exposure to Materials of Environmental Concern, including without
limitation, those relating to (i) the Release or threatened Release of Materials of Environmental Concern; and (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, transport, handling or recycling of Materials of Environmental Concern.
“Materials of Environmental Concern” means any substance, material, pollutant, contaminant, chemical, waste, compound,
or constituent, in any form, including without limitation, petroleum and petroleum products, subject to regulation or which can give rise
to liability under any Environmental Law. “Release” means any release, spill, emission, discharge, deposit, disposal,
leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure
or facility.
(q) There
are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the Registration Statement.
(r) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or controlled affiliate
of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”) or any other similar anti-bribery
or anti-corruption laws applicable to the Company or any of its subsidiaries as a result of its business activities, including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA or any other similar anti-bribery or anti-corruption
laws applicable to the Company or any of its subsidiaries as a result of its business activities; since January 1, 2015, the Company
and its subsidiaries and, to the knowledge of the Company, its controlled affiliates have conducted their businesses in compliance with
the FCPA or any other similar anti-bribery and anti-corruption laws applicable to the Company or any of its subsidiaries as a result of
their business activities and have instituted and maintain policies and procedures designed to provide for, and which are reasonably expected
to provide for, compliance therewith; none of the Company or any of its subsidiaries will use, directly or indirectly, the proceeds of
the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any person in violation of the FCPA or any other similar anti-bribery
or anti-corruption laws applicable to the Company or any of its subsidiaries.
(s) The
operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued,
administered or enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”), and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(t) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or controlled affiliate
of the Company or any of its subsidiaries is an individual or entity (“Person”) currently targeted by any sanctions
administered by or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security
Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company located, organized or resident in a country or territory that is the target of Sanctions; and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other Person, (i) to fund or facilitate any activities of or business with any Person that, at the time
of such funding or facilitation, is the target of Sanctions, or is in Cuba, Iran, North Korea, Crimea, the non-government controlled
areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic or the so-called Luhansk People’s
Republic regions of Ukraine or any other covered region of Ukraine identified pursuant to Executive Order 14065, or Syria or in any other
country or territory, that, at the time of such funding or facilitation, is the target of Sanctions, or (ii) in any other manner
that will result in a violation by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor
or otherwise) of Sanctions.
(u) The
Company and its subsidiaries own, possess, can acquire on reasonable terms or otherwise have the right to use sufficient trademarks, trade
names, patent rights, copyrights, licenses, approvals, trade secrets and other similar rights (collectively, “Intellectual Property
Rights”) reasonably necessary to conduct its businesses substantially as now conducted, other than any failures to own, possess,
acquire or use that would reasonably be expected to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries
has received any notice of infringement or conflict with asserted Intellectual Property Rights of others, which infringement or conflict
would reasonably be expected to result in a Material Adverse Change.
(v) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Change, (i)(x) there has been no security breach or other compromise of or relating
to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data
(including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of
them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries
have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security
breach or other compromise to their IT Systems and Data; and (ii) the Company and its subsidiaries are presently in compliance with
all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection
of such IT Systems and Data from unauthorized use, access, misappropriation or modification. The Company and its subsidiaries have implemented
backup and disaster recovery technology as the Company generally deems reasonably adequate for their businesses.
(w) The
Company and its respective subsidiaries have filed or caused to be filed all tax returns required to be filed by them, and have paid all
taxes (including any related penalties, additions to tax and interest) that are due and payable (whether or not shown on a tax return),
including in the capacity of a withholding agent, except (i) taxes (or any requirement to file tax returns with respect thereto)
that are being contested in good faith by appropriate proceedings and for which the Company or any of its respective subsidiaries, as
applicable, has set aside on its books adequate reserves in accordance with GAAP or (ii) to the extent that the failure to pay taxes
or file tax returns, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change. There
is no tax deficiency, assessment or claim that has been asserted against the Company or any of its respective subsidiaries that would,
individually or in the aggregate, reasonably be expected to, have a Material Adverse Change.
(x) The
financial statements, together with the related schedules and notes, incorporated by reference in each of the Registration Statement,
the Time of Sale Prospectus and the Prospectus present fairly in all material respects the consolidated financial position of the entities
to which they relate as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such
financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. The interactive
data in eXtensible Business Reporting Language incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus fairly present the information called for, in all material respects, and have been prepared, in all material respects,
in accordance with the Commission’s rules and guidelines applicable thereto.
(y) Ernst &
Young LLP, which expressed its opinion with respect to the financial statements (which term as used in this Agreement includes the related
notes thereto) incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an
independent auditor within the meaning of the Securities Act, the Exchange Act and the rules of the Public Company Accounting Oversight
Board.
(z) The
Company (i) has not alone engaged in any Testing-the-Waters Communication with any person and (ii) has not authorized anyone
to engage in Testing-the-Waters Communications. “Testing-the-Waters Communication” means any communication with potential
investors undertaken in reliance on Section 5(d) or Rule 163B of the Securities Act. The Company has not distributed or
approved for distribution any Written Testing-the-Waters Communications. “Written Testing-the-Waters Communication” means
any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.
(aa) As
of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers,
none of (A) the Time of Sale Prospectus and (B) any free writing prospectus, when considered together with the Time of Sale
Prospectus, included, includes or will include any untrue statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(bb) The
Company and each of its subsidiaries possess such valid and current material certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to own, lease and operate their properties and to conduct their respective
businesses, and (ii) neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation
or modification of, or non-compliance with, any such certificate, authorization or permit, in each case of (i) and (ii) which,
singly or in the aggregate, would reasonably be expected to result in a Material Adverse Change.
(cc) The
Company and each of its subsidiaries has good and marketable title to all the properties and assets reflected as owned in the financial
statements referred to in Section (x) hereof (or elsewhere
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus), except for any tooling owned by customers which
is required by GAAP to be shown as owned by the Company or any of its subsidiaries, in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except as disclosed in each of the Registration Statement, the Time
of Sale Prospectus and the Prospectus and except as would not reasonably be expected to result in a Material Adverse Change. Except as
disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, the real property, improvements, equipment
and personal property held under lease by the Company or any of its subsidiaries are held under valid and enforceable leases, with such
exceptions as would not reasonably be expected to result in a Material Adverse Change.
(dd) Each
of the Company and its subsidiaries are insured with policies in such amounts and with such deductibles and covering such risks as the
Company generally deems reasonably adequate for its businesses. The Company has no reason to believe that it or any of its subsidiaries
will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its businesses as now conducted and at a cost that would
not reasonably be expected to result in a Material Adverse Change.
(ee) The
Company has not taken or will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(ff) Except
as disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries maintain
a system of accounting controls that is in compliance with the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations
promulgated in connection therewith, that are applicable to them and are expected to comply with Rule 13a-15 under the Exchange Act
at the time such compliance is required.
(gg) Except
as disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act), and such disclosure
controls and procedures are reasonably effective to perform the functions for which they were established subject to the limitations of
any such control system.
(hh) None
of the Company or any of its subsidiaries nor anyone authorized to act on their behalf has taken, and none of them will take, any action
that causes this Agreement or the issuance or sale of the Shares to violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(ii) The
Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act
of 1974 (as amended, “ERISA,” which term, as used herein, includes the regulations and published interpretations thereunder))
established or maintained by the Company, its subsidiaries or their ERISA Affiliates (as defined below) are in compliance in all material
respects with ERISA. “ERISA Affiliate” means, with respect to the Company or one of its subsidiaries, any member of
any group of organizations described in Section 414 of the Internal Revenue Code of 1986 (as amended, the “Code,”
which term, as used herein, includes the regulations and published interpretations thereunder) of which the Company or such subsidiary
is a member. No “single employer plan” (as defined in Section 4001 of ERISA) established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount
of unfunded benefit liabilities” (as defined under ERISA) which would, individually or in the aggregate, reasonably be likely to
result in a Material Adverse Change. Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee
benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code which, in each case of (i) and (ii) would, individually
or in the aggregate, reasonably be likely to result in a Material Adverse Change.
(jj) Except
as disclosed each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change, (i) there is (A) no unfair labor practice complaint
against the Company or any of its subsidiaries before the National Labor Relations Board, and no grievance or arbitration proceeding arising
out of or under collective bargaining agreements, against the Company or any of its subsidiaries, and to the knowledge of the Company,
no such complaint, grievance or arbitration proceeding, as the case may be, is pending or threatened, (B) no strike, labor dispute,
slowdown or stoppage against the Company or any of its subsidiaries and to the knowledge of the Company, no such strike, labor dispute,
slowdown or stoppage is pending or threatened and (C) to the Company’s knowledge, no union representation petition or
proceeding existing with respect to the employees of the Company or any of its subsidiaries and, to the Company’s knowledge, no
union organizing activities taking place and (ii) there has been no violation of any federal, state or local law relating to discrimination
in hiring, promotion or pay of employees or of any applicable wage or hour laws.
2. Agreements
to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations
and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective numbers of Firm Shares set forth in Schedule I hereto opposite its name at $21.1750 a share (the “Purchase
Price”).
On
the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up
to 1,363,636 Additional Shares at the Purchase Price, provided, however, that the amount paid by the Underwriters for any Additional
Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable
on such Additional Shares. Morgan Stanley may exercise this right on behalf of the Underwriters in whole or from time to time in part
by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least
one full business day after the written notice is given and may not be earlier than the closing date for the Firm Shares or later than
ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 4 hereof solely
for the purpose of covering sales of shares in excess of the number of the Firm Shares. On each day, if any, that Additional Shares are
to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number
of Additional Shares (subject to such adjustments to eliminate fractional shares as Morgan Stanley may determine) that bears the same
proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth
in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
3. Terms
of Public Offering. The Company is advised by Morgan Stanley that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in Morgan Stanley’s
judgment is advisable. The Company is further advised by Morgan Stanley that the Shares are to be offered to the public initially at $22.00
a share (the “Public Offering Price”) and to certain dealers selected by Morgan Stanley at a price that represents
a concession not in excess of $0.4950 a share under the Public Offering Price.
4. Payment
and Delivery. Payment for the Firm Shares to be sold shall be made to the Company in Federal or other funds immediately available
in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New
York City time, on November 13, 2023, or at such other time on the same or such other date, not later than November 20, 2023,
as shall be agreed in writing by the Company and Morgan Stanley. The time and date of such payment are hereinafter referred to as the
“Closing Date.”
Payment
for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date,
in any event not later than December 28, 2023, as shall be agreed in writing by the Company and Morgan Stanley.
The Firm Shares and Additional Shares shall be
registered in such names and in such denominations as Morgan Stanley shall request not later than one full business day prior to the Closing
Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to Morgan Stanley
on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions
to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement
shall have become effective prior to the execution hereof.
The several obligations of the Underwriters are
subject to the following further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no
order suspending the effectiveness of the Registration Statement shall be in effect, and, to the knowledge of the Company, no proceeding
for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or any public announcement
of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or
any of its debt securities or indebtedness by any “nationally recognized statistical rating organization” registered under
Section 15E of the Exchange Act; and
(iii) in
the judgment of Morgan Stanley there shall not have occurred any Material Adverse Change that makes it impracticable or inadvisable to
proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company,
to the effect set forth in Sections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties
of the Company contained in this Agreement are true and correct as of the Closing Date in all material respects (except where qualified
by materiality, in which case such representations and warranties that are qualified by materiality are true and correct in all respects)
and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion and disclosure letter of Sullivan & Cromwell LLP, counsel for
the Company, dated the Closing Date, the forms of which are attached as Exhibit A-1 and Exhibit A-2 hereto, respectively.
(d) The
Underwriters shall have received on the Closing Date (i) an opinion of Davis Polk & Wardwell LLP, counsel for the Underwriters,
dated the Closing Date, with respect to such matters as may be reasonably requested by the Underwriters and (ii) a negative assurance
letter of Cahill Gordon & Reindel LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as
may be reasonably requested by the Underwriters.
(e) The
Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance reasonably satisfactory to the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the
Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date”
not earlier than two business days prior to the date hereof.
(f) The
“lock-up” agreements, each substantially in the form of Exhibit B hereto, between Morgan Stanley and certain officers
and directors of the Company, delivered to Morgan Stanley on or before the date hereof, shall be in full force and effect on the Closing
Date.
(g) The
several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Underwriters on the
applicable Option Closing Date of the following:
(i) a
certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered
on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an
opinion and disclosure letter of Sullivan & Cromwell LLP, outside counsel for the Company, dated the Option Closing Date, relating
to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof;
(iii) (i) an
opinion of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional
Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof
and (ii) a negative assurance letter of Cahill Gordon & Reindel LLP, counsel for the Underwriters, dated the Option Closing
Date, with respect to such matters as may be reasonably requested by the Underwriters;
(iv) a
letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent
public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(e) hereof;
provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business
days prior to such Option Closing Date; and
(v) such
other documents as Morgan Stanley may reasonably request with respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
6. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) To
furnish to the Underwriters, without charge, a signed copy of the Registration Statement (including exhibits thereto and documents incorporated
by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but
including documents incorporated by reference) and to furnish to the Underwriters in New York City, without charge, prior to 10:00 a.m.,
New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(e) or
6(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement
as the Underwriters may reasonably request.
(b) During
the period mentioned in Section 6(e) or 6(f) below,
before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to Morgan Stanley
a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which Morgan Stanley
reasonably objects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
(c) To
furnish to Morgan Stanley a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by
the Company in connection with the distribution of the Shares, and not to use or refer to any proposed free writing prospectus to which
Morgan Stanley reasonably objects.
(d) Not
to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale
Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters
and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of
Sale Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were made when the Time of
Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented,
will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares, as in the opinion of counsel for the Underwriters, the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses Morgan Stanley will furnish to the Company) to which Shares may have been sold by Morgan Stanley on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances under which they were made when the Prospectus (or in lieu thereof
the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as Morgan Stanley shall
reasonably request.
(h) To
make generally available (which may be satisfied by filing with the Commission on its Electronic Data Gathering, Analysis and Retrieval
System) to the Company’s security holders and to Morgan Stanley as soon as practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses
of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred
to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as
provided in Section 6(g) hereof, including filing fees
and the reasonable and documented fees and disbursements of counsel for the Underwriters in an amount together with clause (iv) below
not to exceed $25,000 in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all
filing fees and the reasonable and documented fees and disbursements of counsel to the Underwriters incurred in connection with the review
and qualification of the offering of the Shares by the Financial Industry Regulatory Authority in an amount together with clause (iii) above
not to exceed $25,000, (v) all costs and expenses incident to listing the Shares on NYSE, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company
and any such consultants, and 50% of the cost of any aircraft chartered in connection with the road show, (ix) the document production
charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 8 entitled “Indemnity
and Contribution” and the last paragraph of Section 10
below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.
The Company also covenants with each Underwriter
that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, and will not publicly disclose an
intention to, during the period ending 60 days after the date of the Prospectus (the “Restricted Period”), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise
or (3) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph
shall not apply to (A) the Shares to be sold hereunder, (B) the Exchangeable Senior Notes due 2028 of Spirit AeroSystems Inc.
(the “Exchangeable Notes”) to be sold pursuant to that certain purchase agreement (the “Exchangeable Notes
Purchase Agreement”) dated on or about the date hereof by and among the Company, Spirit AeroSystems, Inc., Spirit AeroSystems
North Carolina, Inc., and the Representative relating to the sale of the Exchangeable Notes; (C) the issuance of any shares
of Common Stock issuable upon the exchange of the Exchangeable Notes; (D) the issuance by the Company of shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock, the exercise of
warrants or options (including through net exercise) or the settlement of restricted stock units (“RSUs”) (including through
net settlement), in each case pursuant to securities outstanding on the date hereof as described in each of the Time of Sale Prospectus
and Prospectus, (E) grants of stock options, restricted stock, RSUs or other equity-based awards
and the issuance of shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock (whether
upon the exercise of stock options, settlement of RSUs or otherwise) to employees, officers, directors, advisors or consultants of the
Company and its subsidiaries pursuant to the terms of an equity compensation plan in effect as of the date hereof as described
in each of the Time of Sale Prospectus and Prospectus or any assumed benefit plan pursuant to an
acquisition or similar strategic transaction; (F) the filing of any registration statement on Form S-8 relating to securities
granted or to be granted pursuant to any plan in effect on the date hereof as described in each of the Time of Sale Prospectus
and Prospectus or any assumed benefit plan pursuant to an acquisition or similar strategic transaction;
(G) facilitating the establishment of a trading plan on behalf of a shareholder, officer or director of the Company pursuant to Rule 10b5-1
under the Exchange Act for the transfer of shares of Common Stock; provided that (i) such plan does not provide for the transfer
of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any,
is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include
a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period; or (H) the
issuance of, or entry into an agreement to issue, up to 10% of the outstanding shares of Common Stock as of the consummation of the offering
contemplated hereby or any Related Securities (as defined below) in connection with one or more mergers, acquisitions of securities, businesses,
property or other assets or products, joint ventures, commercial relationships or other strategic corporate transactions or alliances.
For purposes of the foregoing, “Related Securities” shall mean any options or warrants or other rights to acquire Common Stock
or any securities exchangeable or exercisable for or convertible into Common Stock, or to acquire other securities or rights ultimately
exchangeable or exercisable for, or convertible into, Common Stock.
7. Covenants
of the Underwriters. Each Underwriter, severally and not jointly, covenants with the Company not to take any action that would result
in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
8. Indemnity
and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate
of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating
any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement
thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that
the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show”
as defined in Rule 433(h) under the Securities Act (a “road show”), the Prospectus or any amendment or supplement
thereto, or any Testing-the-Waters Communication, or arise out of, or are based upon, any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information furnished to the Company in writing by such Underwriter through Morgan Stanley
expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriters through Morgan
Stanley consists of the information described as such in paragraph (b) below.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act and each affiliate of the Company within the meaning of Rule 405 under the Securities Act to the same extent
as the foregoing indemnity from the Company to such Underwriter, but only with reference to information furnished to the Company in writing
by such Underwriter through Morgan Stanley expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto.
(c) In
case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying party”) in writing of the commencement thereof; provided that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have under the preceding paragraphs of this Section 8 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise
than under the preceding paragraphs of this Section 8, and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding,
any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified
party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by Morgan Stanley, in the case of parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) To
the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided
by clause 8(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations referred to in Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8,
no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter, or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
9. Termination.
This Agreement may be terminated by Morgan Stanley by notice given to the Company if at any time: (i) trading or quotation in any
of the Company’s securities shall have been suspended or materially limited by the Commission or by the New York Stock Exchange,
(ii) trading in securities generally on either the New York Stock Exchange or the Nasdaq Stock Market shall have been suspended or
materially limited, or minimum or maximum prices shall have been generally established on any of such quotation system or stock exchange
by the Commission or FINRA; (iii) a material disruption in securities settlement, payment or clearance services in the United States
or other relevant jurisdiction shall have occurred; (iv) a general banking moratorium shall have been declared by federal or New
York authorities; (v) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis
or calamity, or any change in the United States or international financial markets, or any substantial change or development involving
a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment
of Morgan Stanley is material and adverse and which, singly or together with any other event specified in this clause (v), makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Time of Sale
Prospectus or the Prospectus or to enforce contracts for the sale of Shares; or (vi) for the period from and after the date of this
Agreement and prior to the Closing Date or the Option Closing Date, as the case may be, in the judgment of Morgan Stanley there shall
have occurred any Material Adverse Change and that makes it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Shares in the manner and on the terms described in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If,
on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase
Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased
on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 10 by an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares
to be purchased on such date, and arrangements satisfactory to Morgan Stanley and the Company for the purchase of such Firm Shares are
not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either Morgan Stanley or the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus,
in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing
Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated
to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all documented
out-of-pocket expenses (including the documented fees and disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
11. Entire
Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company
and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct
of the offering, and the purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are
not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Underwriters owe the Company only those duties
and obligations set forth in this Agreement, any contemporaneous written agreements and prior written agreements (to the extent not superseded
by this Agreement), if any, (iii) the Underwriters may have interests that differ from those of the Company, and (iv) none of
the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice,
or solicitation of any action by the Underwriters with respect to any entity or natural person. The Company waives to the full extent
permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection
with the offering of the Shares.
12. Recognition
of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For
purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered
FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
13. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement may be
made by telecopier, facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and
Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other electronic transmission
method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be
valid and effective for all purposes. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and
no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.
The section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this
Agreement.
14. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
15. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
16. Notices.
All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed
or sent to Morgan Stanley at Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity
Syndicate Desk, with a copy to the Legal Department; if to the Company shall be delivered, mailed or sent to Spirit AeroSystems, Inc.,
3801 South Oliver, Wichita, KS 67210, Facsimile: (316) 523-4492, Attention: Rhonda Harkins, Treasurer.
|
Very truly yours,
SPIRIT AEROSYSTEMS HOLDINGS, INC. |
|
|
|
By: |
/s/ Mark J. Suchinski |
|
|
Name: |
Mark J. Suchinski |
|
|
Title: |
Senior Vice President and Chief Financial Officer |
Accepted as of the date hereof
MORGAN STANLEY & Co. LLC
Acting severally on behalf of itself and the several Underwriters named in Schedule I hereto |
|
|
|
By: |
Morgan Stanley & Co. LLC |
|
|
|
|
By: |
/s/ Daniel J. F. McCullough |
|
|
Name: |
Daniel J. F. McCullough |
|
|
Title: |
Vice President |
|
Schedule I
Underwriter | |
Number of Firm Shares
To Be Purchased | | |
Number of Additional
Shares To Be Purchased | |
Morgan Stanley & Co. LLC | |
| 4,090,909 | | |
| 613,636 | |
Goldman Sachs & Co. LLC | |
| 2,045,455 | | |
| 306,818 | |
J.P. Morgan Securities LLC | |
| 2,045,455 | | |
| 306,818 | |
BofA Securities, Inc. | |
| 454,545 | | |
| 68,182 | |
Citigroup Global Markets Inc. | |
| 454,545 | | |
| 68,182 | |
Total: | |
| 9,090,909 | | |
| 1,363,636 | |
Schedule II
Time of Sale Prospectus
| 1. | Preliminary Prospectus issued November 7, 2023 |
| 2. | Pricing Information Provided Orally by the Underwriters |
Public Offering Price per Share: $22.00
Number of Firm Shares: 9,090,909
Number of Additional Shares: 1,363,636
| 3. | In the concurrent exchangeable notes offering, the Company priced an aggregate principal amount of $200,000,000 of Exchangeable Senior
Notes |
Option Aggregate Principal Amount: $30,000,000
Initial Exchange Rate: 34.3053
Maximum Exchange Rate Pursuant to the “Make-Whole”
Table: 45.4545
Schedule III
Issuer Free Writing Prospectus
| 1. | Investor Presentation dated November 7, 2023 |
Exhibit A-1
[Intentionally omitted]
Exhibit a-2
[Intentionally omitted]
Exhibit B
FORM OF LOCK-UP AGREEMENT
November 8, 2023
Morgan Stanley & Co. LLC
| c/o | Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036 |
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley &
Co. LLC (“Morgan Stanley”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with Spirit AeroSystems Holdings, Inc., a Delaware corporation (the “Company”), providing for the public offering
(the “Public Offering”) by the several Underwriters, including Morgan Stanley (the “Underwriters”),
of 9,090,909 shares (the “Shares”) of Class A common stock, par value $0.01 per share, of the Company (the “Common
Stock”).
To induce the Underwriters that may participate
in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during
the period commencing on the date hereof and ending 60 days after the date of the final prospectus (the “Restricted Period”)
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible
into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to:
(a) transactions relating to shares of Common
Stock or other securities acquired in open market transactions after the completion of the Public Offering, provided that if any
filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent
sales of Common Stock or other securities acquired in such open market transactions, such filing shall clearly indicate that such filing
relates to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering;
(b) transfers as a bona fide gift or charitable
contribution or for bona fide estate planning purposes;
(c) pursuant to a will or intestacy, including
to any beneficiary of, or estate of a beneficiary pursuant to, a trust, will, other testamentary document or applicable laws of descent;
(d) to any family member or members of the
undersigned or to any trust or other estate planning vehicle for the direct or indirect benefit of the undersigned or the family of the
undersigned, or if the undersigned is a trust or other estate planning vehicle, to a trustor or beneficiary of the trust or other estate
planning vehicle or to the estate of a beneficiary of such trust or other estate planning vehicle (for purposes of this agreement, “family”
shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin);
(e) to a corporation, partnership, limited
liability company or other entity of which the undersigned and the family of the undersigned are the legal and beneficial owner of all
of the outstanding equity securities or similar interests;
(f) to a nominee or custodian of a person
or entity to whom a disposition or transfer would be permissible under clauses (a) through (e) above;
(g) by operation of law, including pursuant
to a qualified domestic order, divorce settlement, divorce decree or separation agreement;
(h) to the Company or to an affiliate of the
Company from an employee of the Company or an affiliate of the Company upon death, disability or termination of employment, in each case,
of such employee, to the Company in connection with the vesting, settlement or exercise of restricted stock, restricted stock units, options
or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise),
including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of
such restricted stock, restricted stock units, options or rights, provided that any such shares of Common Stock received upon such
exercise, vesting or settlement shall be subject to the terms of this agreement, and provided, further, that any such restricted
stock, restricted stock units, options or rights are held by the undersigned pursuant to an agreement or equity awards granted under a
stock incentive plan or other equity award plan, each such agreement or plan which is contemplated by the Registration Statement, the
Pricing Disclosure Package and the Prospectus;
(i) pursuant to a bona fide third-party tender
offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders
of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof, “Change
of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction
or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer,
such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the
surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar transaction is not
completed, the undersigned’s shares of Common Stock shall remain subject to the provisions of this agreement;
provided
that (i) in the case of any transfer or distribution pursuant to clause (b), (c), (d), (e) or (f), each donee or distributee
shall sign and deliver a lock-up agreement substantially in the form of this agreement and (ii) in the case of any transfer or distribution
pursuant to clause (c) or (e), no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial
ownership of shares of Common Stock shall be required or shall be voluntarily made during the Restricted Period;
(j) exercise outstanding options or other
equity awards pursuant to plans contemplated by the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided
that any shares of Common Stock received upon such exercise shall be subject to the terms of this agreement;
(k) facilitating the establishment of a trading
plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such
plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement
or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding
the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may
be made under such plan during the Restricted Period; and
(l) transfers of shares of Common Stock made
pursuant to a written trading plan established prior to the date hereof in accordance with Rule 10b5-1 under the Exchange Act, provided
that, to the extent a public announcement or filing under the Exchange Act is required of or voluntarily made by or on behalf of the undersigned
or the Company regarding a transfer pursuant to such plan, such announcement or filing shall include a statement to the effect that such
transfer was made pursuant to such plan.
In addition, the undersigned agrees that, without
the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the Restricted Period, make any demand
for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s
transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and
the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands
that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
The undersigned understands that, if the Underwriting Agreement does not become effective by November 22, 2023, or if the Underwriting
Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery
of the Common Stock to be sold thereunder, the undersigned shall be released from all obligations under this agreement.
The undersigned acknowledges and agrees that the
foregoing precludes the undersigned from engaging in any hedging or other transaction designed or intended, or which could reasonably
be expected to lead to or result in, a sale or disposition of any shares of Common Stock, or any securities convertible into or exercisable
or exchangeable for Common Stock, even if any such sale or disposition transactions or transactions would be made or executed by or on
behalf of someone other than the undersigned.
The undersigned acknowledges and agrees that the
Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned
with respect to the Public Offering of the Shares, this agreement or the subject matter thereof and the undersigned has consulted their
own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and
agrees that, although the Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation
to you in connection with the Public Offering, the Underwriters are not making a recommendation to you to participate in the Public
Offering or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation
is intended to suggest that any Underwriter is making such a recommendation.
Whether or not the Public Offering actually occurs
depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
[Signature page follows]
[Signature Page to Lock-Up Agreement]
Exhibit 4.1
SPIRIT AEROSYSTEMS, INC., as Issuer,
SPIRIT AEROSYSTEMS HOLDINGS, INC. and SPIRIT
AEROSYSTEMS NORTH CAROLINA, INC. as Guarantors,
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
INDENTURE
Dated as of November 13, 2023
3.250% Exchangeable Senior Notes due 2028
TABLE OF CONTENTS
Page
Article
1
Definitions |
|
Section 1.01. |
Definitions |
1 |
Section 1.02. |
References to Interest |
15 |
|
|
|
Article
2
Issue, Description, Execution, Registration and Exchange of Notes |
|
Section 2.01. |
Designation and Amount |
16 |
Section 2.02. |
Form of Notes |
16 |
Section 2.03. |
Date and Denomination of Notes; Payments of Interest
and Defaulted Amounts |
17 |
Section 2.04. |
Execution, Authentication and Delivery of Notes |
18 |
Section 2.05. |
Exchange and Registration of Transfer of Notes; Restrictions
on Transfer; Depositary |
19 |
Section 2.06. |
Mutilated, Destroyed, Lost or Stolen Notes |
26 |
Section 2.07. |
Temporary Notes |
27 |
Section 2.08. |
Cancellation of Notes Paid, Exchanged, Etc. |
28 |
Section 2.09. |
CUSIP Numbers |
28 |
Section 2.10. |
Additional Notes; Repurchases |
28 |
|
|
|
Article
3
Satisfaction and Discharge |
|
Section 3.01. |
Satisfaction and Discharge |
29 |
|
|
|
Article
4
Particular Covenants of the Company and the Guarantors |
|
Section 4.01. |
Payment of Principal and Interest |
30 |
Section 4.02. |
Maintenance of Office or Agency |
30 |
Section 4.03. |
Appointments to Fill Vacancies in Trustee’s Office |
31 |
Section 4.04. |
Provisions as to Paying Agent |
31 |
Section 4.05. |
Existence |
32 |
Section 4.06. |
Rule 144A Information Requirement and Annual Reports |
32 |
Section 4.07. |
Stay, Extension and Usury Laws |
34 |
Section 4.08. |
Compliance Certificate; Statements as to Defaults |
35 |
Section 4.09. |
Further Instruments and Acts |
35 |
|
|
|
Article
5
Lists of Holders and Reports by the Company and the Trustee |
|
Section 5.01. |
Lists of Holders |
35 |
Section 5.02. |
Preservation and Disclosure of Lists |
36 |
|
|
|
Article
6
Defaults and Remedies |
|
Section 6.01. |
Events of Default |
36 |
Section 6.02. |
Acceleration; Rescission and Annulment |
37 |
Section 6.03. |
Additional Interest |
38 |
Section 6.04. |
Payments of Notes on Default; Suit Therefor |
39 |
Section 6.05. |
Application of Monies Collected by Trustee |
41 |
Section 6.06. |
Proceedings by Holders |
42 |
Section 6.07. |
Proceedings by Trustee |
43 |
Section 6.08. |
Remedies Cumulative and Continuing |
43 |
Section 6.09. |
Direction of Proceedings and Waiver of Defaults by
Majority of Holders |
43 |
Section 6.10. |
Notice of Defaults |
44 |
Section 6.11. |
Undertaking to Pay Costs |
44 |
|
|
|
Article
7
Concerning the Trustee |
|
Section 7.01. |
Duties and Responsibilities of Trustee |
45 |
Section 7.02. |
Reliance on Documents, Opinions, Etc. |
46 |
Section 7.03. |
No Responsibility for Recitals, Etc. |
48 |
Section 7.04. |
Trustee, Paying Agents, Exchange Agents, Bid Solicitation
Agent or Note Registrar May Own Notes |
48 |
Section 7.05. |
Monies and Shares of Common Stock to Be Held in Trust |
48 |
Section 7.06. |
Compensation and Expenses of Trustee |
49 |
Section 7.07. |
Officer’s Certificate as Evidence |
49 |
Section 7.08. |
Eligibility of Trustee |
50 |
Section 7.09. |
Resignation or Removal of Trustee |
50 |
Section 7.10. |
Acceptance by Successor Trustee |
51 |
Section 7.11. |
Succession by Merger, Etc. |
52 |
Section 7.12. |
Trustee’s Application for Instructions from the
Company |
52 |
Article
8
Concerning the Holders |
|
Section 8.01. |
Action by Holders |
53 |
Section 8.02. |
Proof of Execution by Holders |
53 |
Section 8.03. |
Who Are Deemed Absolute Owners |
53 |
Section 8.04. |
Company-Owned Notes Disregarded |
54 |
Section 8.05. |
Revocation of Consents; Future Holders Bound |
54 |
|
|
|
Article
9
Holders’ Meetings |
|
Section 9.01. |
Purpose of Meetings |
55 |
Section 9.02. |
Call of Meetings by Trustee |
55 |
Section 9.03. |
Call of Meetings by Company or Holders |
56 |
Section 9.04. |
Qualifications for Voting |
56 |
Section 9.05. |
Regulations |
56 |
Section 9.06. |
Voting |
57 |
Section 9.07. |
No Delay of Rights by Meeting |
57 |
|
|
|
Article
10
Supplemental Indentures |
|
Section 10.01. |
Supplemental Indentures Without Consent of Holders |
57 |
Section 10.02. |
Supplemental Indentures with Consent of Holders |
59 |
Section 10.03. |
Effect of Supplemental Indentures |
60 |
Section 10.04. |
Notation on Notes |
60 |
Section 10.05. |
Evidence of Compliance of Supplemental Indenture to
Be Furnished Trustee |
60 |
|
|
|
Article
11
Consolidation, Merger, Sale, Conveyance and Lease |
|
Section 11.01. |
Company or any Guarantor May Consolidate, Etc. on Certain Terms |
61 |
Section 11.02. |
Successor Corporation to Be Substituted |
61 |
|
|
|
Article
12
Immunity of Incorporators, Stockholders, Officers and Directors |
|
Section 12.01. |
Indenture, Notes and Guarantees Solely Corporate Obligations |
62 |
|
|
|
Article
13
Guarantees of Notes |
|
Section 13.01. |
Guarantees |
62 |
Section 13.02. |
Execution and Delivery of Guarantees |
64 |
Section 13.03. |
Severability |
64 |
Section 13.04. |
Limitation of Guarantors’ Liability |
64 |
Section 13.05. |
Releases of Guarantors |
65 |
Section 13.06. |
Benefits Acknowledged |
65 |
|
|
|
Article
14
Exchange of Notes |
|
Section 14.01. |
Exchange Privilege |
66 |
Section 14.02. |
Exchange Procedure; Settlement Upon Exchange |
70 |
Section 14.03. |
Increased Exchange Rate Applicable to Certain Notes
Surrendered in Connection with Make-Whole Fundamental Changes or a Notice of Redemption |
76 |
Section 14.04. |
Adjustment of Exchange Rate |
78 |
Section 14.05. |
Adjustments of Prices |
89 |
Section 14.06. |
Shares to Be Fully Paid |
89 |
Section 14.07. |
Effect of Recapitalizations, Reclassifications and
Changes of the Common Stock |
89 |
Section 14.08. |
Certain Covenants |
91 |
Section 14.09. |
Responsibility of Trustee |
92 |
Section 14.10. |
Notice to Holders Prior to Certain Actions |
93 |
Section 14.11. |
Stockholder Rights Plans |
93 |
Section 14.12. |
Third-Party Exchange in Lieu of Issuer Exchange |
94 |
|
|
|
Article
15
Repurchase of Notes at Option of Holders |
|
Section 15.01. |
Repurchase at Option of Holders Upon a Fundamental Change |
95 |
Section 15.02. |
Withdrawal of Fundamental Change Repurchase Notice |
98 |
Section 15.03. |
Deposit of Fundamental Change Repurchase Price |
98 |
Section 15.04. |
Covenant to Comply with Applicable Laws Upon Repurchase
of Notes |
99 |
|
|
|
Article
16
Optional Redemption |
|
Section 16.01. |
Optional Redemption |
100 |
Section 16.02. |
Notice of Optional Redemption; Selection of Notes |
100 |
Section 16.03. |
Payment of Notes Called for Redemption |
101 |
Article
17
Miscellaneous Provisions |
|
Section 17.01. |
Provisions Binding on Company’s and the Guarantors’ Successors |
102 |
Section 17.02. |
Official Acts by Successor Corporation |
102 |
Section 17.03. |
Addresses for Notices, Etc. |
102 |
Section 17.04. |
Governing Law; Jurisdiction |
104 |
Section 17.05. |
Evidence of Compliance with Conditions Precedent; Certificates
and Opinions of Counsel to Trustee |
105 |
Section 17.06. |
Legal Holidays |
105 |
Section 17.07. |
No Security Interest Created |
106 |
Section 17.08. |
Benefits of Indenture |
106 |
Section 17.09. |
Table of Contents, Headings, Etc. |
106 |
Section 17.10. |
Authenticating Agent |
106 |
Section 17.11. |
Execution in Counterparts |
107 |
Section 17.12. |
Severability |
108 |
Section 17.13. |
Waiver of Jury Trial |
108 |
Section 17.14. |
Force Majeure |
108 |
Section 17.15. |
Calculations |
108 |
Section 17.16. |
USA PATRIOT Act |
109 |
Section 17.17. |
Electronic Signatures |
109 |
Section 17.18. |
Tax Matters |
109 |
|
|
|
EXHIBIT |
|
|
Exhibit A |
Form of Note |
A-1 |
INDENTURE dated as of November 13,
2023 among SPIRIT AEROSYSTEMS, INC., a Delaware corporation, as issuer (the “Company,” as more fully set forth
in Section 1.01), SPIRIT AEROSYSTEMS HOLDINGS, INC., a Delaware corporation, as guarantor (the “Parent,”
as more fully set forth in Section 1.01) and SPIRIT AEROSYSTEMS NORTH CAROLINA, INC., a North Carolina Corporation, as guarantor
(each of the Parent and Spirit AeroSystems North Carolina, Inc., a “Guarantor” and, collectively, the “Guarantors,”
as more fully set forth in Section 1.01), and The Bank of New York Mellon Trust Company, N.A., a national banking association organized
under the laws of the United States of America, as trustee (the “Trustee,” as more fully set forth in Section 1.01).
W I T N E S S E T H:
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the issuance of its 3.250% Exchangeable Senior Notes due 2028 (the “Notes”),
initially in an aggregate principal amount not to exceed $230,000,000, and in order to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company and each of the Guarantors has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, the Form of
Note, the certificate of authentication to be borne by each Note, the Form of Notice of Exchange, the Form of Fundamental Change
Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter
provided; and
WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating
agent, as in this Indenture provided, the valid, binding and legal obligations of the Company and the Guarantors, and this Indenture
a valid agreement of the Company and the Guarantors, have been done and performed, and the execution of this Indenture and the issuance
hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
That in order to declare
the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises
and of the purchase and acceptance of the Notes by the Holders thereof, the Company and each of the Guarantors covenants and agrees with
the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided
below), as follows:
Article 1
Definitions
Section 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01.
The words “herein,” “hereof,” “hereunder” and words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural
as well as the singular.
“Acceleration Event”
shall have the meaning specified in Section 6.01(i).
“Additional Interest”
means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03, as applicable.
“Additional Shares”
shall have the meaning specified in Section 14.03(a).
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified
Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. Notwithstanding anything to the contrary herein, the determination of whether one Person
is an “Affiliate” of another Person for purposes of this Indenture shall be made based on the facts at the time such
determination is made or required to be made, as the case may be, hereunder.
“Authorized Officers”
shall have the meaning specified in Section 17.03.
“Bid Solicitation
Agent” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance
with Section 14.01(b)(i). The Company shall initially act as the Bid Solicitation Agent.
“Board of Directors”
means, with respect to the Company or any Guarantor, the board of directors of the Company or such Guarantor, as the case may be, or
a committee of such board duly authorized to act for it hereunder.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or any Guarantor, as the case may be,
to have been duly adopted by the applicable Board of Directors, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
“Business Day”
means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized
or required by law or executive order to close or be closed.
“Called Notes”
means Notes called for redemption pursuant to Article 16 or subject to a Deemed Redemption.
“Capital Stock”
means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that entity, but shall not include any debt securities convertible into or exchangeable
for any securities otherwise constituting Capital Stock pursuant to this definition.
“Cash Settlement”
shall have the meaning specified in Section 14.02(a).
“Clause A Distribution”
shall have the meaning specified in Section 14.04(c).
“Clause B Distribution”
shall have the meaning specified in Section 14.04(c).
“Clause C Distribution”
shall have the meaning specified in Section 14.04(c).
“close of business”
means 5:00 p.m. (New York City time).
“Code”
shall have the meaning specified in Section 17.18.
“Combination Settlement”
shall have the meaning specified in Section 14.02(a).
“Commission”
means the U.S. Securities and Exchange Commission.
“Common Equity”
of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person
or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers
or others that will control the management or policies of such Person.
“Common Stock”
means the Class A common stock of the Parent, par value $0.01 per share, at the date of this Indenture, subject to Section 14.07.
“Company”
shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include
its successors and assigns.
“Company Order”
means a written order of the Company, signed by any of its Officers, and delivered to the Trustee.
“Corporate Event”
shall have the meaning specified in Section 14.01(b)(iii).
“Corporate Trust
Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 311 S. Wacker Drive, Suite 6200B, Mailbox #44, Chicago, IL 60606, Attention:
Corporate Trust Department – Corporate Finance Unit, or such other address as the Trustee may designate from time to time by notice
to the Holders, the Company and the Guarantors, or the principal 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, the Company and the Guarantors).
“Custodian”
means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.
“Daily Exchange
Value” means, for each of the 30 consecutive Trading Days during the relevant Observation Period, one-thirtieth (1/30th) of
the product of (a) the Exchange Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.
“Daily Measurement
Value” means the Specified Dollar Amount (if any), divided by 30.
“Daily Settlement
Amount,” for each of the 30 consecutive Trading Days during the relevant Observation Period, shall consist of:
(a) cash
in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Exchange Value on such Trading Day;
and
(b) if
the Daily Exchange Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the
difference between the Daily Exchange Value for such Trading Day and the Daily Measurement Value, divided by (ii) the Daily
VWAP for such Trading Day.
“Daily VWAP”
means, for each of the 30 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price
as displayed under the heading “Bloomberg VWAP” on Bloomberg page “SPR <equity> AQR” (or its equivalent
successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of
trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value
of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent
investment banking firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard
to after-hours trading or any other trading outside of the regular trading session trading hours.
“Deemed Redemption”
shall have the meaning specified in Section 14.01(b)(v).
“Default”
means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Default Settlement
Method” means, initially, Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000.
“Defaulted Amounts”
means any amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change Repurchase Price, principal
and interest) that are payable but are not punctually paid or duly provided for.
“Depositary”
means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter,
“Depositary” shall mean or include such successor.
“Designated Financial
Institution” shall have the meaning specified in Section 14.12(a).
“Distributed Property”
shall have the meaning specified in Section 14.04(c).
“Effective Date”
shall have the meaning specified in Section 14.03(c), except that, as used in Section 14.04 and Section 14.05, “Effective
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market,
regular way, reflecting the relevant share split or share combination, as applicable. For the avoidance of doubt, any alternative trading
convention on the applicable exchange or market in respect of shares of the Common Stock under a separate ticker symbol or CUSIP number
will not be considered “regular way” for this purpose.
“Electronic Means”
shall have the meaning specified in Section 17.03.
“Event of Default”
shall have the meaning specified in Section 6.01.
“Ex-Dividend Date”
means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without
the right to receive the issuance, dividend or distribution in question, from the Parent or, if applicable, from the seller of Common
Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market. For the avoidance
of doubt, any alternative trading convention on the applicable exchange or market in respect of shares of the Common Stock under a separate
ticker symbol or CUSIP number will not be considered “regular way” for this purpose.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Agent”
shall have the meaning specified in Section 4.02.
“Exchange Consideration”
shall have the meaning specified in Section 14.12(a).
“Exchange Date”
shall have the meaning specified in Section 14.02(c).
“Exchange Election”
shall have the meaning specified in Section 14.12(a).
“Exchange Obligation”
shall have the meaning specified in Section 14.01(a).
“Exchange Price”
means as of any time, $1,000, divided by the Exchange Rate as of such time.
“Exchange Rate”
shall have the meaning specified in Section 14.01(a).
“Exempted Fundamental
Change” shall have the meaning specified in Section 15.01(f).
“FATCA”
shall have the meaning specified in Section 17.18.
“Federal Bankruptcy
Code” means Title 11, United States Code.
“Form of Assignment
and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note
attached hereto as Exhibit A.
“Form of Fundamental
Change Repurchase Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment
2 to the Form of Note attached hereto as Exhibit A.
“Form of Note”
means the “Form of Note” attached hereto as Exhibit A.
“Form of Notice
of Exchange” means the “Form of Notice of Exchange” attached as Attachment 1 to the Form of Note attached
hereto as Exhibit A.
“Fundamental Change”
shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a) except
in connection with transactions described in clause (b) below, a “person” or “group” within the meaning
of Section 13(d) of the Exchange Act, other than the Parent, its direct or indirect Wholly Owned Subsidiaries and the employee
benefit plans of the Parent and its Wholly Owned Subsidiaries, has become, and files a Schedule TO (or any successor schedule, form or
report) or any schedule, form or report under the Exchange Act that discloses that such “person” or “group” has
become, the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares of the
Common Stock representing more than 50% of the voting power of the Common Stock, unless such beneficial ownership arises solely as a
result of a revocable proxy delivered in response to a public proxy or consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act and is not also then reportable on Schedule 13D or Schedule 13G (or any successor schedule) under
the Exchange Act regardless of whether such a filing has actually been made; provided that no “person” or “group”
shall be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of
such “person” or “group” until such tendered securities are accepted for purchase or exchange under such offer;
(b) the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from
par value to no par value, or changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted
into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the
Parent pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (C) any sale,
lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the
Parent and its Subsidiaries, taken as a whole, to any Person other than one or more of the Parent’s direct or indirect Wholly Owned
Subsidiaries; provided that a transaction described in clause (A) or clause (B) in which the holders of all classes
of the Parent’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of
Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially
the same proportions (relative to each other) as such ownership immediately prior to such transaction shall not be a Fundamental Change
pursuant to this clause (b);
(c) the
stockholders of the Parent or the Company, as the case may be, approve any plan or proposal for the liquidation or dissolution of the
Parent or the Company, as applicable; or
(d) the
Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The Nasdaq
Global Select Market or The Nasdaq Global Market (or any of their respective successors) (each, a “Permitted Exchange”),
unless the Common Stock (or other common stock underlying the Notes) has been accepted for listing or quotation on another Permitted
Exchange concurrently with or prior to such event;
provided,
however, that a transaction or transactions described in clause (b) above shall not constitute a Fundamental Change, if at
least 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional
shares and cash payments made in respect of dissenters’ appraisal rights, in connection with such transaction or transactions consists
of shares of common stock that are listed or quoted on any of The New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq
Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such
transaction or transactions and as a result of such transaction or transactions the Notes become exchangeable into such consideration,
excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights (subject to the
provisions of Section 14.02(a)). If any transaction in which the Common Stock is replaced by the common stock or other Common Equity
of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction
that would have been a Fundamental Change or a Make-Whole Fundamental Change but for the proviso immediately following clause (d) of
this definition, following the effective date of such transaction), references to the Parent in this definition shall instead be references
to such other entity.
“Fundamental Change
Company Notice” shall have the meaning specified in Section 15.01(c).
“Fundamental Change
Repurchase Date” shall have the meaning specified in Section 15.01(a).
“Fundamental Change
Repurchase Notice” shall have the meaning specified in Section 15.01(b)(i).
“Fundamental Change
Repurchase Price” shall have the meaning specified in Section 15.01(a).
The terms “given”,
“mailed”, “notify” or “sent” with respect to any notice to be given to a Holder
pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions
from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary
(in the case of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on
the Note Register (in the case of a Physical Note), in each case, in accordance with Section 17.03. Notice so “given”
shall be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“Global Note”
shall have the meaning specified in Section 2.05(b).
“Guarantees”
means the full and unconditional guarantees provided by the Guarantors in respect of the Notes as set forth in, and pursuant to, Article 13
hereof.
“Guarantor”
shall have the meaning specified in the first paragraph of this Indenture, and, subject to the provisions of Article 11, shall include
its successors and assigns.
“Holder,”
as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name
at the time a particular Note is registered on the Note Register.
“Indenture”
means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“Initial Purchasers”
means Morgan Stanley & Co. LLC, Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, BofA Securities, Inc. and
Citigroup Global Markets Inc.
“Instructions”
shall have the meaning specified in Section 17.03.
“Interest Payment
Date” means each May 1 and November 1 of each year, beginning on May 1, 2024.
“last date of original
issuance” means (a) with respect to any Notes issued pursuant to the Purchase Agreement, and any Notes issued in exchange
therefor or in substitution thereof, the date the Company first issues such Notes; and (b) with respect to any additional Notes
issued pursuant to Section 2.10, and any Notes issued in exchange therefor or in substitution thereof, either (i) the later
of (x) the date such Notes are originally issued and (y) the last date any Notes are originally issued as part of the same
offering pursuant to the exercise of an option granted to the initial purchasers of such Notes to purchase additional Notes; or (ii) such
other date as is specified in an Officer’s Certificate delivered to the Trustee before the original issuance of such Notes.
“Last Reported Sale
Price” of the Common Stock (or any other security for which a closing sale price must be determined) on any date means the
closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal
U.S. national or regional securities exchange on which the Common Stock (or such other security) is traded. If the Common Stock (or such
other security) is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last
Reported Sale Price” shall be the last quoted bid price for the Common Stock (or such other security) in the over-the-counter
market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock (or such other security)
is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices
for the Common Stock (or such other security) on the relevant date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without
regard to after-hours trading or any other trading outside of regular trading session hours.
“Make-Whole Fundamental
Change” means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving
effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition
thereof).
“Make-Whole Fundamental
Change Period” shall have the meaning specified in Section 14.03(a).
“Market Disruption
Event” means, for the purposes of determining amounts due upon exchange (a) a failure by the primary U.S. national or
regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular
trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the
Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed
on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock
or in any options contracts or futures contracts relating to the Common Stock.
“Maturity Date”
means November 1, 2028.
“Measurement Period”
shall have the meaning specified in Section 14.01(b)(i).
“Note”
or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“Note Register”
shall have the meaning specified in Section 2.05(a).
“Note Registrar”
shall have the meaning specified in Section 2.05(a).
“Notice of Exchange”
shall have the meaning specified in Section 14.02(b).
“Notice of Redemption”
shall have the meaning specified in Section 16.02(a).
“Observation Period”
with respect to any Note surrendered for exchange means: (i) subject to clause (ii), if the relevant Exchange Date occurs prior
to August 1, 2028, the 30 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding
such Exchange Date; (ii) with respect to any Called Notes, if the relevant Exchange Date occurs during the related Redemption Period,
the 30 consecutive Trading Days beginning on, and including, the 31st Scheduled Trading Day immediately preceding the relevant Redemption
Date; and (iii) subject to clause (ii), if the relevant Exchange Date occurs on or after August 1, 2028, the 30 consecutive
Trading Days beginning on, and including, the 31st Scheduled Trading Day immediately preceding the Maturity Date.
“Offering Memorandum”
means the preliminary offering memorandum dated November 7, 2023, as supplemented by the related pricing term sheet dated November 8,
2023, relating to the offering and sale of the Notes.
“Officer”
means, with respect to the Company and/or any Guarantor, the President, the Chief Financial Officer, the Chief Accounting Officer, the
Chief Legal Officer, the Chief Executive Officer, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary, any
Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after
the title “Vice President”) of the Company or such Guarantor, as applicable.
“Officer’s
Certificate,” when used with respect to the Company or any Guarantor, means a certificate that is delivered to the Trustee
and that is signed by any Officer of the Company or such Guarantor, as applicable. Each such certificate shall include the statements
provided for in Section 17.05 if and to the extent required by the provisions of such Section. The Officer giving an Officer’s
Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the Company.
“open of business”
means 9:00 a.m. (New York City time).
“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company or the applicable Guarantor,
or other counsel who is reasonably acceptable to the Trustee, which opinion may contain customary exceptions and qualifications as to
the matters set forth therein, that is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 17.05
if and to the extent required by the provisions of such Section 17.05.
“Optional Redemption”
shall have the meaning specified in Section 16.01.
“outstanding,”
when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes
theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes,
or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company or any Guarantor) or shall have been set aside and segregated
in trust by the Company or any Guarantor (if the Company or such Guarantor shall act as its own Paying Agent);
(c) Notes
that have been paid pursuant to the second paragraph of Section 2.06 or Notes in lieu of which, or in substitution for which, other
Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee
is presented that any such Notes are held by protected purchasers in due course;
(d) Notes
exchanged pursuant to Article 14 and required to be cancelled pursuant to Section 2.08; and
(e) Notes
redeemed pursuant to Article 16.
“Parent”
shall have the meaning specified in the first paragraph of this Indenture, and, subject to the provisions of Article 11 and Section 14.07,
shall include its successors and assigns.
“Partial Redemption
Limitation” shall have the meaning specified in Section 16.02(d).
“Paying Agent”
shall have the meaning specified in Section 4.02.
“Payment Default”
shall have the meaning specified in Section 6.01(i).
“Permitted Exchange”
shall have the meaning specified in the definition of “Fundamental Change.”
“Person”
means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company,
a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
“Physical Notes”
means permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.
“Physical Settlement”
shall have the meaning specified in Section 14.02(a).
“Predecessor Note”
of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note;
and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note
that it replaces.
“Purchase Agreement”
means that certain Purchase Agreement, dated as of November 8, 2023, among the Company, the Guarantors and Morgan Stanley &
Co. LLC, as the representative of the Initial Purchasers.
“Record Date”
means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable
security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged
for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common
Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Parent’s
Board of Directors, by statute, by contract or otherwise).
“Redemption
Date” shall have the meaning specified in Section 16.02(a).
“Redemption Period”
means, with respect to any Optional Redemption, the period from, and including, the date on which the Company delivers a Notice of Redemption
for such Optional Redemption until the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date
(or, if the Company defaults in the payment of the Redemption Price, until the Redemption Price has been paid or duly provided for).
“Redemption Price”
means, for any Notes to be redeemed pursuant to Section 16.01, 100% of the principal amount of such Notes, plus accrued and
unpaid interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on
or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid
by the Company to Holders of record of such Notes as of the close of business on such Regular Record Date, and the Redemption Price will
be equal to 100% of the principal amount of such Notes).
“Reference Property”
shall have the meaning specified in Section 14.07(a).
“Regular Record
Date,” with respect to any Interest Payment Date, means the April 15 or October 15 (whether or not such day is a
Business Day) immediately preceding the applicable Interest Payment Date.
“Resale Restriction
Termination Date” shall have the meaning specified in Section 2.05(c).
“Responsible Officer”
means, when used with respect to the Trustee, any officer assigned to the Corporate Trust Division - Corporate Finance Unit (or any successor
division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration
of this Indenture, and for the purposes of Section 7.01(c)(ii) shall also include any other officer of the Trustee to whom
any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Securities”
shall have the meaning specified in Section 2.05(c).
“Restrictive
Notes Legend” shall have the meaning specified in Section 2.05(c).
“Rule 144”
means Rule 144 as promulgated under the Securities Act.
“Rule 144A”
means Rule 144A as promulgated under the Securities Act.
“Scheduled Trading
Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market
on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled
Trading Day” means a Business Day.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Settlement Amount”
shall have the meaning specified in Section 14.02(a)(iv).
“Settlement Method”
means, with respect to any exchange of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to
have been elected) by the Company.
“Settlement Notice”
shall have the meaning specified in Section 14.02(a)(iii).
“Share Exchange
Event” shall have the meaning specified in Section 14.07(a).
“Specified Dollar
Amount” means the maximum cash amount per $1,000 principal amount of Notes to be received upon exchange as specified in the
Settlement Notice (or deemed specified as provided in Section 14.02(a)(iii)) related to any exchanged Notes.
“Spin-Off”
shall have the meaning specified in Section 14.04(c).
“Stock Price”
shall have the meaning specified in Section 14.03(c).
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one
or more Subsidiaries of such Person.
“Successor Company”
shall have the meaning specified in Section 11.01(a).
“Trading Day”
means, except for determining amounts due upon exchange, a day on which (i) trading in the Common Stock (or other security for which
a closing sale price must be determined) generally occurs on The New York Stock Exchange or, if the Common Stock (or such other security)
is not then listed on The New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the
Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national
or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and
(ii) a Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities
exchange or market; provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day”
means a Business Day; and provided further that, for purposes of determining amounts due upon exchange only, “Trading
Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs
on The New York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange, on the principal other U.S.
national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S.
national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading,
except that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.
“Trading Price”
of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent
for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent
nationally recognized securities dealers the Company selects for this purpose; provided that if three such bids cannot reasonably
be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only
one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If, on any determination date, the
Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of Notes from a nationally recognized
securities dealer, then the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less
than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate.
“transfer”
shall have the meaning specified in Section 2.05(c).
“Trigger Event”
shall have the meaning specified in Section 14.04(c).
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act”
shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include
each Person who is then a Trustee hereunder.
“unit of Reference
Property” shall have the meaning specified in Section 14.07(a).
“Valuation Period”
shall have the meaning specified in Section 14.04(c).
“Wholly Owned Subsidiary”
means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference
to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%,”
the calculation of which shall exclude nominal amounts of the voting power of shares of Capital Stock or other interests in the relevant
Subsidiary not held by such Person to the extent required to satisfy local minority interest requirements outside of the United States
of America.
Section 1.02. References
to Interest. Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture shall
be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.06(d),
Section 4.06(e) and Section 6.03. Unless the context otherwise requires, any express mention of Additional Interest in
any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is
not made.
Article 2
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01. Designation
and Amount. The Notes shall be designated as the “3.250% Exchangeable Senior Notes due 2028.” The aggregate principal
amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $230,000,000, subject to Section 2.10
and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the
extent expressly permitted hereunder.
Section 2.02. Form of
Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective
forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made
a part of this Indenture. To the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture and
a Note, the provisions of this Indenture shall control and govern to the extent of such conflict.
Any Global Note may be endorsed
with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture
as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder
or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or
traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions
to which any particular Notes are subject.
Any of the Notes may have
such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer executing the same
may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to
usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall represent
such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, transfers or exchanges
for other Notes or exchanges for cash, shares of Common Stock or a combination thereof permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee
or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance
with this Indenture. Payment of principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable)
of, and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record
date or other means of determining Holders eligible to receive payment is provided for herein.
Section 2.03. Date
and Denomination of Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without
coupons in minimum denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its
authentication and shall bear interest from the date specified on the face of such Note. Accrued interest on the Notes shall be computed
on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of days actually
elapsed in a 30-day month.
(b) The
Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record
Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The principal
amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company maintained by the
Company for such purposes in the continental United States, which shall initially be the Corporate Trust Office and (y) in the case
of any Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary or its nominee.
The Company shall pay, or cause the Paying Agent to pay, interest (i) on any Physical Notes (A) to Holders holding Physical
Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it
appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000,
either by check mailed to each such Holder or, upon written application by such a Holder to the Note Registrar not later than the relevant
Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States of America
if such Holder has provided the Company, the Trustee or the Paying Agent (if other than the Trustee) with the requisite information necessary
to make such wire transfer, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the
contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.
(c) Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum
at the interest rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant
payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case,
as provided in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes)
are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each
Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless
the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment
of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and
not less than 10 days after the receipt by the Trustee of the notice of the proposed payment (unless the Trustee shall consent to an
earlier date). The Company shall promptly notify the Trustee in writing of such special record date and the Trustee, in the name and
at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor
to be delivered to each Holder not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted
Amounts and the special record date therefor having been so delivered, such Defaulted Amounts shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer
be payable pursuant to the following clause (ii) of this Section 2.03(c).
(ii) The
Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(iii) The
Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Defaulted Amounts, or with
respect to the nature, extent, or calculation of the amount of Defaulted Amounts owed, or with respect to the method employed in such
calculation of the Defaulted Amounts.
Section 2.04. Execution,
Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual, electronic
or facsimile signature of its Chief Executive Officer, President, Chief Financial Officer, Chief Legal Officer, Chief Accounting Officer,
Treasurer, Assistant Treasurer, Secretary, or any of its Senior Vice Presidents.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order (such Company Order to include the terms of the Notes) for the authentication and delivery
of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action
by the Company hereunder; provided that, subject to Section 17.05, the Trustee shall receive an Officer’s Certificate
and an Opinion of Counsel of the Company with respect to the issuance, authentication and delivery of such Notes.
Only such Notes as shall
bear thereon a certificate of authentication substantially in the form set forth on the Form of Note attached as Exhibit A
hereto, executed manually or electronically by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee
as provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that
the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
In case any Officer of the
Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of
the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the
date of the execution of this Indenture any such person was not such an Officer.
Section 2.05. Exchange
and Registration of Transfer of Notes; Restrictions on Transfer; Depositary.
(a) The
Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office
or agency of the Company designated pursuant to Section 4.02, the “Note Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register
shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee
is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon surrender for registration
of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth
in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture.
Notes may be exchanged for
other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at
any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled
to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered
for registration of transfer, repurchase or exchange for other Notes or exchange for cash, shares of Common Stock or a combination thereof
shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its attorney-in-fact
duly authorized in writing.
No service charge shall be
imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of
transfer of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of
transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company, the
Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange for other Notes or register a transfer of (i) any
Notes surrendered for exchange for cash, shares of Common Stock or a combination thereof or, if a portion of any Note is surrendered
for exchange for cash, shares of Common Stock or a combination thereof, such portion thereof surrendered for exchange for cash, shares
of Common Stock or a combination thereof (ii) any Notes, or a portion of any Note, surrendered for required repurchase upon a Fundamental
Change (and not withdrawn) in accordance with Article 15 or (iii) any Notes selected for redemption in accordance with Article 16,
except the unredeemed portion of any Note being redeemed in part.
All Notes issued upon any
registration of transfer or exchange for other Notes in accordance with this Indenture shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer
or exchange for other Notes.
(b) So
long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth
paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global
Note”) registered in the name of the Depositary or the nominee of the Depositary. Each Global Note shall bear the legend required
on a Global Note set forth in Exhibit A hereto. The transfer and exchange of beneficial interests in a Global Note that does not
involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance
with this Indenture (including the restrictions on transfer set forth herein) and the applicable procedures of the Depositary therefor.
(c) Every
Note that bears or is required under this Section 2.05(c) to bear the Restrictive Notes Legend (together with any Common Stock
delivered upon exchange of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including the Restrictive
Notes Legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the
Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions
on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any
sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
Until
the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year after
the last date of original issuance of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision
thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof, other than Common Stock, if any, delivered upon exchange thereof, which shall bear
the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (the “Restrictive
Notes Legend”) (unless such Notes have been transferred pursuant to a registration statement that has become or been declared
effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption
from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed
by the Company in writing, with notice thereof to the Trustee):
THIS SECURITY AND THE COMMON
STOCK, IF ANY, DELIVERABLE UPON EXCHANGE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES
FOR THE BENEFIT OF SPIRIT AEROSYSTEMS, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE
DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO
SPIRIT AEROSYSTEMS HOLDINGS, INC. OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO
A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY, SPIRIT AEROSYSTEMS HOLDINGS, INC. AND THE TRUSTEE RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER
TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No transfer of any Note prior
to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment
and Transfer has been checked.
Any Note (or security issued
in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their
terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective
under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to
the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon
surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for
a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Restrictive Notes Legend required by this
Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian
in writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately
preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and
any new Global Note so exchanged therefor shall not bear the Restrictive Notes Legend specified in this Section 2.05(c) and
shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee in writing upon the occurrence of the
Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Notes or any Common Stock
delivered upon exchange of the Notes has been declared effective under the Securities Act.
Notwithstanding any other
provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred
as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second
immediately succeeding paragraph.
The Depositary shall be a
clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with
respect to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede &
Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.
If (i) the Depositary
notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor
depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange
Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred
and is continuing and, subject to the Depositary’s applicable procedures, a beneficial owner of any Note requests that its beneficial
interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s Certificate
and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii),
a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial
owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the
related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes
in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in
exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the
case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee in writing.
Upon execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are
so registered.
At such time as all interests
in a Global Note have been exchanged for cash, shares of Common Stock or a combination thereof, canceled, repurchased upon a Fundamental
Change, redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing
procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation, if any interest
in a Global Note is exchanged for Physical Notes, exchanged for cash, shares of Common Stock or a combination thereof, canceled, repurchased
upon a Fundamental Change, redeemed or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged
or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures
and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an
endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction
or increase.
None of the Company, the
Guarantors, the Trustee or any agent of the Company, the Guarantors or the Trustee shall have any responsibility or liability for any
act or omission of the Depositary or for the payment of amounts to owners of beneficial interests in a Global Note, for any aspect of
the records relating to or payments made on account of those interests by the Depositary, or for maintaining, supervising or reviewing
any records of the Depositary relating to those interests.
(d) Until
the Resale Restriction Termination Date, any stock certificate representing Common Stock delivered upon exchange of a Note shall bear
a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement that
has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant
to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such
Common Stock has been delivered upon exchange of a Note that has been transferred pursuant to a registration statement that has become
or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise
agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):
THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:
(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES
FOR THE BENEFIT OF SPIRIT AEROSYSTEMS HOLDINGS, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE OF THE SERIES OF NOTES UPON THE EXCHANGE OF WHICH THIS SECURITY WAS DELIVERED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW, EXCEPT:
(A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO
A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK
RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED
IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Any such Common Stock (i) as
to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant
to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at
the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any
similar provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common
Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or
certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants
or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof.
(e) Any
Note or Common Stock delivered upon the exchange of a Note that is repurchased or owned by the Company, any Guarantor or any Affiliate
of the Company or such Guarantor (or any Person who was an Affiliate of the Company or any Guarantor at any time during the three months
immediately preceding) may not be resold by the Company, such Guarantor or such Affiliate (or such Person, as the case may be) unless
registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a
transaction that results in such Note or Common Stock, as the case may be, no longer being a “restricted security” (as defined
under Rule 144). For the avoidance of doubt, the failure by any Affiliate of either the Company or any Guarantor, but not including
the Company or the Guarantors, or any Person who was an Affiliate of either the Company or any Guarantor at any time during the three
months immediately preceding, in each case, that is not controlled by the Company, to comply with the covenant in the immediately preceding
sentence shall not constitute or give rise to a Default or an Event of Default under this Indenture.
Section 2.06. Mutilated,
Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion
may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver,
a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or
in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, to the Trustee and, if applicable, to such authenticating agent such security and/or indemnity as may be required by
them to save each of them harmless from any loss, claim, liability, cost or expense caused by or connected with such substitution, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating
agent may authenticate any such substituted Note and deliver the same upon the receipt of such security and/or indemnity as the Trustee,
the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee,
the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a
Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a
result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated
or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase
upon a Fundamental Change or is about to be exchanged in accordance with Article 14 shall become mutilated or be destroyed, lost
or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or exchange
or authorize the exchange of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or exchange shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent
such security and/or indemnity as may be required by them to save each of them harmless for any loss, claim, liability, cost or expense
caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company,
the Trustee and, if applicable, any Paying Agent or Exchange Agent evidence of their satisfaction of the destruction, loss or theft of
such Note and of the ownership thereof.
Every substitute Note issued
pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute
an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and
shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately
with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement, payment, redemption, exchange or repurchase of
mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement, payment, redemption, exchange or repurchase of negotiable
instruments or other securities without their surrender.
Section 2.07. Temporary
Notes. Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by
the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions,
insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note
shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially
the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to
the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other
than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02
and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal
amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged,
the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as
Physical Notes authenticated and delivered hereunder.
Section 2.08. Cancellation
of Notes Paid, Exchanged, Etc. The Company shall cause all Notes surrendered for the purpose of payment at maturity, repurchase upon
a Fundamental Change, redemption, registration of transfer or exchange for other Notes or exchange for cash, shares of Common Stock or
a combination thereof (other than any Notes exchanged pursuant to Section 14.12), if surrendered to the Company or any of its agents
or Subsidiaries, to be surrendered to the Trustee for cancellation and such Notes shall no longer be considered outstanding under this
Indenture upon the payment at maturity, repurchase upon a Fundamental Change, redemption, registration of transfer or exchange for other
Notes or exchange for cash, shares of Common Stock or a combination thereof (other than any Notes exchanged pursuant to Section 14.12).
All Notes delivered to the Trustee shall be canceled by it in accordance with its customary procedures. Except for any Notes surrendered
for registration of transfer or exchange for other Notes, or as otherwise expressly permitted by any of the provisions of this Indenture,
no Notes shall be authenticated in exchange for any Notes surrendered to the Trustee for cancellation. The Trustee shall dispose of canceled
Notes in accordance with its customary procedures and, after such disposition, shall deliver evidence of such disposition to the Company,
at the Company’s written request in a Company Order.
Section 2.09. CUSIP
Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided that the Trustee
shall have no liability for any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and, provided,
further, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on
the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company
shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
Section 2.10. Additional
Notes; Repurchases. The Company may, without the consent of, or notice to, the Holders and notwithstanding Section 2.01, reopen
this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences
in the issue date, the issue price, interest accrued prior to the issue date of such additional Notes and, if applicable, restrictions
on transfer in respect of such additional Notes) in an unlimited aggregate principal amount; provided that if any such additional
Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax or securities law purposes, such additional
Notes shall have one or more separate CUSIP numbers. Prior to the issuance of any such additional Notes, the Company shall deliver to
the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of
Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request. In addition,
the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the
Company), repurchase Notes in the open market or otherwise, whether by the Company, any Guarantor or the Company’s or such Guarantor’s
other Subsidiaries or through a privately negotiated transaction or public tender or exchange offer or through counterparties to private
agreements, including by cash-settled swaps or other derivatives, in each case, without the consent of or notice to the Holders of the
Notes. The Company may, at its option and to the extent permitted by applicable law, reissue, resell or surrender to the Trustee for
cancellation any Notes that it may repurchase, in the case of a reissuance or resale, so long as such Notes do not constitute “restricted
securities” (as defined under Rule 144) upon such reissuance or resale; provided that if any such reissued or resold
Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax or securities law purposes, such reissued
or resold Notes shall have one or more separate CUSIP numbers. Any Notes that the Company may repurchase (other than in connection with
a Fundamental Change or upon redemption) shall be considered outstanding for all purposes under this Indenture (other than, at any time
when such Notes are owned by (i) the Company or any Guarantor, (ii) any Subsidiary of the Company or any Guarantor, (iii) any
Affiliate of the Company or any Guarantor or (iv) any Subsidiary of any Affiliate of the Company or any Guarantor, as set forth
in Section 8.04) unless and until such time as the Company surrenders them to the Trustee for cancellation and, upon receipt of
a Company Order, the Trustee shall cancel all Notes so surrendered.
Article 3
Satisfaction and Discharge
Section 3.01. Satisfaction
and Discharge. (a) This Indenture and the Notes shall cease to be of further effect when (i) all Notes theretofore authenticated
and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced, paid or exchanged as
provided in Section 2.06 and (y) Notes for whose payment money has heretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.04(d)) have
been delivered to the Trustee for cancellation; or (ii) the Company or any Guarantor has deposited with the Trustee or delivered
to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental
Change Repurchase Date, upon exchange or otherwise, cash or cash, shares of Common Stock or a combination thereof, as applicable, solely
to satisfy the Company’s Exchange Obligation, sufficient to pay all of the outstanding Notes and all other sums due and payable
under this Indenture or the Notes by the Company and the Guarantors; and (b) the Trustee upon request of the Company contained in
an Officer’s Certificate and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture and the Notes, when the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture and the Notes
have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantors
to the Trustee under Section 7.06 shall survive.
Article 4
Particular Covenants of the Company and the Guarantors
Section 4.01. Payment
of Principal and Interest. The Company covenants and agrees that it will pay or cause to be paid the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places,
at the respective times and in the manner provided herein and in the Notes.
Section 4.02. Maintenance
of Office or Agency. The Company and the Guarantors will maintain in the continental United States an office or agency where the
Notes may be surrendered for registration of transfer or exchange for other Notes or for presentation for payment or repurchase (“Paying
Agent”) or for exchange for cash, shares of Common Stock or a combination thereof (“Exchange Agent”) and
where notices and demands to or upon the Company or any Guarantor in respect of the Notes, the Guarantees and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency
of the Trustee in the continental United States.
The Company may also from
time to time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in the continental United States for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency. The terms “Paying Agent” and “Exchange Agent” include any such
additional or other offices or agencies, as applicable.
The Company hereby initially
designates the Trustee as the Paying Agent, Note Registrar, Custodian and Exchange Agent and the Corporate Trust Office as the office
or agency in the continental United States where Notes may be surrendered for registration of transfer or exchange for other Notes or
for presentation for payment or repurchase or for exchange for cash, shares of Common Stock or a combination thereof, and where notices
and demands to or upon the Company or any Guarantor in respect of the Notes, the Guarantees and this Indenture may be served; provided
that the Corporate Trust Office shall not be a place for service of legal process for the Company.
Section 4.03. Appointments
to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.04. Provisions
as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section 4.04:
(i) that
it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders;
(ii) that
it will give the Trustee prompt written notice of any failure by the Company to make any payment of the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall
be due and payable; and
(iii) that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or
before each due date of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of,
or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action; provided that if such deposit
is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.
(b) If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price and
the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold
in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing
of any failure to take such action and of any failure by the Company to make any payment of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become
due and payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in
trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee
upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or
such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.
(d) Subject
to applicable escheatment laws, any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, accrued and unpaid interest on and the consideration due upon exchange of any Note and remaining unclaimed for two years
after such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration
due upon exchange has become due and payable shall be paid to the Company on request of the Company contained in an Officer’s Certificate,
or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money and shares of Common Stock, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 4.05. Existence.
Subject to Article 11, the Company and each of the Guarantors shall do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, corporate or otherwise.
Section 4.06. Rule 144A
Information Requirement and Annual Reports. (a) At any time the Company is not or any Guarantor is not subject to Section 13
or 15(d) of the Exchange Act, the Company or such Guarantor shall, so long as any of the Notes or any shares of Common Stock deliverable
upon exchange thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under
the Securities Act, provide, upon written request, to any Holder, beneficial owner or prospective purchaser of such Notes or any shares
of Common Stock deliverable upon exchange of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A.
(b) The
Company or the Parent shall file with the Trustee, within 15 days after the same are required to be filed with the Commission, copies
of any annual or quarterly reports (on Form 10-K or Form 10-Q or any respective successor form) that the Parent is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents
or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission, and giving effect to any
grace period provided by Rule 12b-25 under the Exchange Act (or any successor thereto)). Any such document or report that the Parent
files with the Commission via the Commission’s EDGAR system (or any successor system) shall be deemed to be filed with the Trustee
for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system (or such successor), it being
understood that the Trustee shall not be responsible for determining whether such filings have been made.
(c) Delivery
of the reports, information and documents described in subsection (b) above to the Trustee is for informational purposes only, and
the information and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information
contained therein or determinable from information contained therein, including the Company’s or the Guarantors’ compliance
with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).
(d) If,
at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance
of the Notes, the Parent fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports
on Form 8-K), or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s
or any Guarantor’s Affiliates or Holders that were the Company’s or any Guarantor’s Affiliates at any time during the
three months immediately preceding (as a result of restrictions pursuant to U.S. federal securities laws or the terms of this Indenture
or the Notes; it being understood and agreed that the assignment of a restricted CUSIP number shall not constitute a restriction pursuant
to U.S. federal securities laws or the terms of this Indenture or the Notes, solely for purposes of this Section 4.06(d)), the Company
shall pay Additional Interest on the Notes. Such Additional Interest shall accrue on the Notes at the rate of 0.50% per annum of the
principal amount of the Notes outstanding for each day during such period for which the Parent’s failure to file has occurred and
is continuing or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s or any
Guarantor’s Affiliates (or Holders that were the Company’s or any Guarantor’s Affiliates at any time during the three
months immediately preceding) without restrictions pursuant to U.S. federal securities laws or the terms of this Indenture or the Notes.
As used in this Section 4.06(d), documents or reports that the Parent is required to “file” with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Parent furnishes to the Commission
pursuant to Section 13 or 15(d) of the Exchange Act. For purposes of this Section 4.06(d), the phrase “restrictions
pursuant to U.S. federal securities laws or the terms of this Indenture or the Notes” shall not include, for the avoidance of doubt,
the assignment of a restricted CUSIP number or the existence of the Restrictive Notes Legend on Notes in compliance with Section 2.05(c),
in either case, during the six-month period described in this Section 4.06(d).
(e) If,
and for so long as, the Restrictive Notes Legend on the Notes specified in Section 2.05(c) has not been removed, the Notes
are assigned a restricted CUSIP number or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than
the Company’s or any Guarantor’s Affiliates or Holders that were the Company’s or any Guarantor’s Affiliates
at any time during the three months immediately preceding (without restrictions pursuant to U.S. federal securities laws or the terms
of this Indenture or the Notes) as of the 380th day after the last date of original issuance of the Notes issued pursuant to the Purchase
Agreement or any additional Notes issued pursuant to Section 2.10, as the case may be, the Company shall pay Additional Interest
on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until the Restrictive Notes Legend on the
Notes has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP number and the Notes are
freely tradable pursuant to Rule 144 by Holders other than the Company’s or any Guarantor’s Affiliates (or Holders that
were the Company’s or any Guarantor’s Affiliates at any time during the three months immediately preceding) without restrictions
pursuant to U.S. federal securities laws or the terms of this Indenture or the Notes.
(f) Additional
Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes.
(g) Subject
to the immediately succeeding sentence, the Additional Interest that is payable in accordance with Section 4.06(d) or Section 4.06(e) shall
be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant
to Section 6.03. However, in no event shall Additional Interest payable for the Parent’s failure to comply with its obligations
to timely file any document or report that the Parent is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K),
as set forth in Section 4.06(d), together with any Additional Interest that may accrue at the Company’s election as a result
of the Parent’s failure to comply with its reporting obligations pursuant to Section 6.03, accrue at a rate in excess of 0.50%
per annum pursuant to this Indenture, regardless of the number of events or circumstances giving rise to the requirement to pay such
Additional Interest.
(h) If
Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver
to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable
and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at
the Corporate Trust Office such Officer’s Certificate, the Trustee may conclusively assume without inquiry that no such Additional
Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to
the Trustee an Officer’s Certificate setting forth the particulars of such payment.
Section 4.07. Stay,
Extension and Usury Laws. The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury
law or other law that would prohibit or forgive the Company or any Guarantor from paying all or any portion of the principal of or interest
on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the
performance of this Indenture; and the Company and each of the Guarantors (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been
enacted.
Section 4.08. Compliance
Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Parent (beginning with the fiscal year ending on December 31, 2023) an Officer’s Certificate stating whether the signers
thereof have knowledge of any Event of Default that occurred during the previous year and, if so, specifying each such Event of Default
and the nature thereof.
In addition, the Company
shall deliver to the Trustee, within 30 days after the Company obtains knowledge of the occurrence of any Event of Default or Default,
an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company
is taking or proposing to take in respect thereof; provided that the Company is not required to deliver such notice if such Event
of Default or Default has been cured.
Section 4.09. Further
Instruments and Acts. Upon request of the Trustee, the Company and each of the Guarantors will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
Article 5
Lists of Holders and Reports by the Company and the Trustee
Section 5.01. Lists
of Holders. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more
than 15 days after each April 15 and October 15 in each year beginning with April 15, 2024, and at such other times as
the Trustee may request in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee
may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the
Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that
no such list need be furnished so long as the Trustee is acting as Note Registrar.
Section 5.02. Preservation
and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the
names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by
the Trustee in its capacity as Note Registrar, if so acting. The Trustee may dispose of any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
Article 6
Defaults and Remedies
Section 6.01. Events
of Default. Each of the following events shall be an “Event of Default” with respect to the Notes:
(a) default
in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;
(b) default
in the payment of principal of any Note when due and payable on the Maturity Date, upon Optional Redemption, upon any required repurchase,
upon declaration of acceleration or otherwise;
(c) failure
by the Company to comply with its obligation to exchange the Notes in accordance with this Indenture upon exercise of a Holder’s
exchange right and such failure continues for three Business Days;
(d) failure
by the Company to give (i) a Fundamental Change Company Notice in accordance with Section 15.01(c) or notice of a Make-Whole
Fundamental Change in accordance with Section 14.03(b), in either case when due and such failure continues for two Business Days,
or (ii) notice of a specified corporate transaction in accordance with Section 14.01(b)(ii) or 14.01(b)(iii) when
due and such failure continues for one Business Day;
(e) failure
by the Company or any Guarantor for 90 days after written notice from the Trustee or the Holders of at least 30% in principal amount
of the Notes then outstanding has been received by the Company or such Guarantor, as applicable, to comply with any other agreements
contained in the Notes, the Guarantees or this Indenture; provided that a notice of default may not be given with respect to any
action taken, and reported publicly or to Holders of the Notes, more than two years prior to such notice of default;
(f) the
Company or any Guarantor commences a voluntary case under applicable bankruptcy, insolvency or other similar law; consents to the entry
of an order for relief against it in an involuntary bankruptcy case; applies for or consents to the appointment of any custodian, receiver,
trustee, sequestrator, conservator, liquidator, rehabilitator or similar officer of it or for all or substantially all of its property
and assets; makes a general assignment for the benefit of its creditors; or generally is unable to pay its debts as they become due;
(g) an
involuntary case or other proceeding is commenced against the Company or any Guarantor with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and
unstayed for a period of 60 consecutive days; or an order for relief is entered against the Company or any Guarantor under the federal
bankruptcy laws as now or hereafter in effect;
(h) either
the Parent’s Guarantee or Spirit AeroSystems North Carolina, Inc.’s Guarantee ceases to be in full force and effect
in all material respects (except as contemplated by the terms of this Indenture) or is declared null and void in a judicial proceeding
or the Parent or Spirit AeroSystems North Carolina, Inc., as applicable, denies or disaffirms in writing its obligations under this
Indenture or its Guarantee; or
(i) default
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Parent or any of its Subsidiaries (or the payment of which is guaranteed by the Parent or any of its Subsidiaries),
whether such indebtedness or guarantee now exists, or is created after November 8, 2023, if that default (i) is caused by a
failure to pay principal on such indebtedness at its stated final maturity (after giving effect to any applicable grace periods provided
in such indebtedness) (a “Payment Default”) or (ii) results in the acceleration of such indebtedness prior to
its express maturity (an “Acceleration Event”) and (A) in each case, the principal amount of any such indebtedness,
together with the principal amount of any other such indebtedness under which there has been a Payment Default or an Acceleration Event,
aggregates $125.0 million or more and (B) in the case of a Payment Default, such indebtedness is not discharged and, in the case
of an Acceleration Event, such acceleration is not rescinded or annulled, within 10 days after there has been given, by registered or
certified mail, to Trustee by the Holders of at least 30% in principal amount of the outstanding Notes, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a “notice of default” under this Indenture.
Section 6.02. Acceleration;
Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing, then, and in each and every such
case (other than an Event of Default specified in Section 6.01(f) or Section 6.01(g)), unless the principal of all of
the Notes shall have already become due and payable, either the Trustee or the Holders of at least 30% in aggregate principal amount
of the Notes then outstanding determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee
if given by Holders), may (and the Trustee, at the written request of such Holders, shall) declare 100% of the principal of, and accrued
and unpaid interest, if any, on, all the outstanding Notes to be due and payable immediately, and upon any such declaration the same
shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary
notwithstanding. If an Event of Default specified in Section 6.01(f) or Section 6.01(g) occurs and is continuing,
100% of the principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately
due and payable.
The immediately preceding
paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due
and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided,
and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all
existing Events of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any,
on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09, then
and in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal amount
of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with
respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon.
Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default
or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required
or (iii) a failure to pay or deliver, as the case may be, the consideration due upon exchange of the Notes.
Section 6.03. Additional
Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole
remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) shall,
for the first 365 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest
on the Notes at a rate equal to (x) 0.25% per annum of the principal amount of the Notes outstanding for each day during the first
180 days after the occurrence of such Event of Default and (y) 0.50% per annum of the principal amount of the Notes outstanding
from the 181st day to, and including, the 365th day following the occurrence of such Event of Default, as long as such Event of Default
is continuing. Subject to the last paragraph of this Section 6.03, Additional Interest payable pursuant to this Section 6.03
shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e).
If the Company so elects, such Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable
on the Notes. On the 366th day after such Event of Default (if the Event of Default relating to the Company’s failure to comply
with its obligations as set forth in Section 4.06(b) is not cured or waived prior to such 366th day), such Additional
Interest shall cease to accrue and the Notes shall be immediately subject to acceleration as provided in Section 6.02. The provisions
of this paragraph will not affect the rights of Holders in the event of the occurrence of any Event of Default other than the Company’s
failure to comply with its obligations as set forth in Section 4.06(b). In the event the Company does not elect to pay Additional
Interest following an Event of Default in accordance with this Section 6.03 or the Company elected to make such payment but does
not pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
In order to elect to pay
Additional Interest as the sole remedy during the first 365 days after the occurrence of any Event of Default relating to the Company’s
failure to comply with its obligations as set forth in Section 4.06(b) in accordance with the immediately preceding paragraph,
the Company must notify all Holders of the Notes, the Trustee and the Paying Agent in writing of such election prior to the beginning
of such 365-day period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as provided
in Section 6.02.
In no event shall Additional
Interest payable at the Company’s election for failure to comply with its obligations as set forth in Section 4.06(b) as
set forth in this Section 6.03, together with any Additional Interest that may accrue as a result of the Parent’s failure
to timely file any document or report that the Parent is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K),
pursuant to Section 4.06(d), accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number
of events or circumstances giving rise to the requirement to pay such Additional Interest.
Section 6.04. Payments
of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have
occurred and be continuing, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the
Notes, the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal
and interest, if any, at the interest rate borne by the Notes at such time and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company,
any Guarantor or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, any Guarantor or any other obligor upon the Notes, wherever situated.
In the event there shall
be pending proceedings for the bankruptcy or for the reorganization of the Company, any Guarantor or any other obligor on the Notes under
Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company, such Guarantor or such
other obligor, the property of the Company, such Guarantor or such other obligor, or in the event of any other judicial proceedings relative
to the Company, such Guarantor or such other obligor upon the Notes, or to the creditors or property of the Company, such Guarantor or
such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims
for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company, any Guarantor or any other obligor
on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each
of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances
and disbursements, including the reasonable fees and expenses of its agents and counsel fees and expenses, and including any other amounts
due to the Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment
of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other
property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
All rights of action and
of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of
the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, and the reasonable compensation, expenses,
disbursements and advances of its agents and counsel, be for the ratable benefit of the Holders of the Notes.
In any proceedings brought
by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the
Notes parties to any such proceedings.
In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any
waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the Company, the Guarantors, the Holders and the Trustee shall,
subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Guarantors, the Holders and the Trustee shall continue as though no such proceeding had been
instituted.
Section 6.05. Application
of Monies Collected by Trustee. Any monies collected by the Trustee pursuant to this Article 6 or, after an Event of Default,
any monies or other property distributable in respect of the Company’s or any Guarantor’s obligations under this Indenture
with respect to the Notes or the Guarantees shall be applied in the following order, at the date or dates fixed by the Trustee for the
distribution of such monies or other property, upon presentation of the several Notes, and, with respect to any Physical Notes, stamping
thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First,
to the payment of all amounts due the Trustee (including any predecessor trustee) in all of its capacities under this Indenture;
Second,
in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due
upon exchange of, the Notes in default in the order of the date due of the payments of such interest and cash due upon exchange, as the
case may be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate
of interest borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;
Third,
in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid, to the payment of the
whole amount (including, if applicable, the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash
due upon exchange) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal and,
to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate of interest borne
by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the
Notes, then to the payment of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price
and any cash due upon exchange) and interest without preference or priority of principal over interest, or of interest over principal
or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate
of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon exchange)
and accrued and unpaid interest; and
Fourth,
to the payment of the remainder, if any, to the Company.
Section 6.06. Proceedings
by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price and the Fundamental
Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon exchange, no
Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture or the Notes to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a) such
Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;
(b) Holders
of at least 30% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder;
(c) such
Holders shall have offered to the Trustee such security and/or indemnity satisfactory to it against any loss, claim, liability or expense
to be incurred therein or thereby;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of such security and/or indemnity, shall have neglected or refused
to institute any such action, suit or proceeding; and
(e) no
direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the
Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,
it being understood and intended, and being expressly
covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall
have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder (it being understood
that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holder), or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common
benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.06, each and
every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other
provision of this Indenture and any provision of any Note, each Holder shall have the right to receive payment or delivery, as the case
may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued
and unpaid interest, if any, on, and (z) the consideration due upon exchange of, such Note, on or after the respective due dates
expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery,
as the case may be.
Section 6.07. Proceedings
by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit
in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 6.08. Remedies
Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6
to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any
other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of
any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right
or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the
provisions of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.09. Direction
of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of the
Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect
to the Notes or the Guarantees; provided, however, that (a) such direction shall not be in conflict with any rule of
law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee and that is not inconsistent
with such direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other
Holder (it being understood that the Trustee is under no duty to make such determination) or that would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with
Section 8.04 may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences
except any continuing defaults relating to (i) a default in the payment of accrued and unpaid interest, if any, on, or the principal
(including any Redemption Price and any Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant
to the provisions of Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be, the consideration due
upon exchange of the Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot be
modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the Guarantors,
the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the
Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 6.10. Notice
of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of a Default, deliver to all Holders notice of
all Defaults known to the Trustee, unless such Defaults shall have been cured or waived before the giving of such notice; provided
that, except in the case of a Default in the payment of the principal of (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the
consideration due upon exchange, the Trustee shall be protected in withholding such notice if and so long as it determines that the withholding
of such notice is in the interests of the Holders.
Section 6.11. Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have
agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by law)
shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including,
but not limited to, the Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed
or provided for in such Note or to any suit for the enforcement of the right to exchange any Note, or receive the consideration due upon
exchange, in accordance with the provisions of Article 14.
Article 7
Concerning the Trustee
Section 7.01. Duties
and Responsibilities of Trustee.
(a) Except
during the continuance of an Event of Default,
(i) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may, as to the truth of the statements and the
correctness of the opinions expressed therein, conclusively rely upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts
stated therein).
(b) In
the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders
unless such Holders have offered to the Trustee indemnity and/or security satisfactory to it against any loss, claim, liability or expense
that might be incurred by it in compliance with such request or direction.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that:
(i) this
subsection (c) shall not be construed to limit the effect of subsections (a) or (d) of this Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided
in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) Whether
or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section 7.01.
(e) The
Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating
to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to
the Notes.
(f) If
any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to
the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred.
(g) The
Trustee shall not be responsible for the application of any money by any Paying Agent other than the Trustee.
(h) None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers.
Section 7.02. Reliance
on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith
to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the Company or the Guarantors, as applicable;
(c) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated,
reimbursed, and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed by the Trustee to act in such capacities hereunder in accordance with the terms and provisions
of this Indenture;
(d) the
Trustee may consult with counsel of its selection, and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(e) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or any Guarantor,
personally or by agent or attorney at the expense of the Company or such Guarantor and shall incur no liability of any kind by reason
of such inquiry or investigation;
(f) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians,
nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian,
nominee or attorney appointed by it with due care hereunder;
(g) the
permissive rights of the Trustee enumerated herein shall not be construed as duties;
(h) the
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals and/or titles
of officers authorized at such times to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed
by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded;
(i) neither
the Trustee nor any of its directors, officers, employees, agents, or affiliates shall be responsible for nor have any duty to monitor
the performance or any action of the Company, or any of their respective directors, members, officers, agents, affiliates, or employees,
nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee shall not be responsible
for any inaccuracy in the information obtained from the Company or for any inaccuracy or omission in the records which may result from
such information or any failure by the Trustee to perform its duties or set forth herein as a result of any inaccuracy or incompleteness;
(j) the
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) in
no event shall the Trustee be liable for any special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the
form of action; and
(l) the
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless written notice of any
event which is in fact such a Default or Event of Default, as the case may be, is received by a Responsible Officer of the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
Section 7.03. No
Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication)
shall be taken as the statements of the Company and the Guarantors, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture, of the Guarantees or of the Notes.
The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated
and delivered by the Trustee in conformity with the provisions of this Indenture. The Trustee shall not be responsible to make any calculation
with respect to any matter under this Indenture. The Trustee shall have no duty to monitor or investigate the Company’s or any
Guarantor’s compliance with or the breach of, or cause to be performed or observed, any representation, warranty, or covenant,
or agreement of any Person, other than the Trustee, made in this Indenture.
Section 7.04. Trustee,
Paying Agents, Exchange Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Exchange
Agent, Bid Solicitation Agent (if other than the Company or any Affiliate thereof) or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Exchange
Agent, Bid Solicitation Agent or Note Registrar.
Section 7.05. Monies
and Shares of Common Stock to Be Held in Trust. All monies and shares of Common Stock received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were received. Money and shares of Common Stock held by
the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money or shares of Common Stock received by it hereunder except as may be agreed in writing from time
to time by the Company and the Trustee.
Section 7.06. Compensation
and Expenses of Trustee. The Company and the Guarantors, jointly and severally, covenant and agree to pay to the Trustee from time
to time and the Trustee shall receive such compensation for all services rendered by it hereunder in any capacity (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an express trust) as previously and mutually agreed to
in writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable
and documented expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions
of this Indenture in any capacity thereunder (including the reasonable and documented compensation and the expenses and disbursements
of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have
been caused by its gross negligence or willful misconduct. The Company and the Guarantors, jointly and severally, covenant to indemnify
the Trustee or any predecessor Trustee in any capacity under this Indenture and any other document or transaction entered into in connection
herewith and its agents and any authenticating agent for, and to hold them harmless against, any and all loss, claim, damage, liability
or expense, including reasonable and documented compensation and expenses and disbursements of counsel, incurred without gross negligence
or willful misconduct on the part of the Trustee, its officers, directors, agents and employees, and such agent or authenticating agent,
as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture and the trust or trusts
hereunder, or in any other capacity hereunder and the enforcement of this Indenture (including this Section 7.06), including the
costs and expenses of defending themselves against any claim (whether asserted by the Company, any Guarantor, any Holder or any other
Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the
Company and the Guarantors under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or
property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit
of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall
not be subordinate to any other liability or indebtedness of the Company or any Guarantor. The obligation of the Company and the Guarantors
under this Section 7.06 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal of
the Trustee. The Company or any Guarantor, as applicable, need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents
and employees of the Trustee.
Without prejudice to any
other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in Section 6.01(f) or Section 6.01(g) occurs, the expenses
and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar
laws.
Section 7.07. Officer’s
Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting
to take any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence
of gross negligence, willful misconduct or bad faith on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate or Opinion of Counsel delivered to the Trustee, and such Officer’s Certificate, in the absence
of gross negligence, willful misconduct or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Eligibility
of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture
Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000.
If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section 7.08, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 7.08, it shall resign promptly in the manner and with the effect
hereinafter specified in this Article.
Section 7.09. Resignation
or Removal of Trustee.
(a) The
Trustee may at any time resign by giving written notice of such resignation to the Company and by delivering notice thereof to the Holders.
Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Company’s Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 45 days
after the giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to the
Company and the Holders, petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor
trustee, or the Holders of at least 10.0% in aggregate principal amount of the then outstanding Notes may, subject to the provisions
of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In
case at any time any of the following shall occur:
(i) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(ii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in either case, the Company may by a Board
Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Company’s
Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 6.11, the Holders of at least 10.0% in aggregate principal amount of the then outstanding
Notes may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with Section 8.04,
may at any time remove the Trustee and, with the consent of the Company, nominate a successor trustee. Otherwise, if the Trustee is so
removed, the Company will promptly nominate a successor trustee. If a successor trustee does not take office within 45 days after the
retiring trustee is removed, the retiring trustee, the Company or the Holders of at least 10.0% in aggregate principal amount of the
then outstanding Notes, upon the terms and conditions and otherwise as provided in Section 7.09(a), may petition any court of competent
jurisdiction for an appointment of a successor trustee.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10. Acceptance
by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company
shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all
such rights and powers. Any trustee ceasing to act shall, nevertheless, retain the lien provided for in Section 7.06 to which the
Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust
for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee shall
accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 7.08.
Upon acceptance of appointment
by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction
and at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders.
If the Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be delivered at the expense of the Company.
Section 7.11. Succession
by Merger, Etc. Any corporation, national association or other entity into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation, national association or other entity resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation, national association or other entity succeeding to all or substantially all
of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee
hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that
in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee
such corporation or other entity shall be eligible under the provisions of Section 7.08.
In case at the time such
successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating
agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate
such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or
to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 7.12. Trustee’s
Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than
with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes
under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee
under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall
not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less than three Business Days after the date any Officer
that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such Officer
shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any
omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying
the action to be taken or omitted.
Article 8
Concerning the Holders
Section 8.01. Action
by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount
of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or
proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and
held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes,
the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining
Holders entitled to take such action. The record date, if one is selected, shall be not more than fifteen days prior to the date of commencement
of solicitation of such action.
Section 8.02. Proof
of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution
of any instrument or writing by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall
be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in
the manner provided in Section 9.06.
Section 8.03. Who
Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Exchange Agent and any Note
Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal
(including any Redemption Price and any Fundamental Change Repurchase Price) of and (subject to Section 2.03) accrued and unpaid
interest on such Note, for exchange of such Note and for all other purposes under this Indenture; and neither the Company nor the Trustee
nor any Paying Agent nor any Exchange Agent nor any Note Registrar shall be affected nor incur any liability by any notice to the contrary.
The sole registered Holder of a Global Note shall be the Depositary or its nominee. All such payments or deliveries so made to any Holder
for the time being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered,
effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything
to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may
directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or
any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the
provisions of this Indenture.
Section 8.04. Company-Owned
Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any
direction, consent, waiver or other action under this Indenture, Notes that are owned by (i) the Company or any Guarantor, (ii) any
Subsidiary of the Company or any Guarantor, (iii) any Affiliate of the Company or any Guarantor or (iv) any Subsidiary of any
Affiliate of the Company or any Guarantor shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent,
waiver or other action only Notes that a Responsible Officer actually knows are so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not (i) the
Company or any Guarantor, (ii) any Subsidiary of the Company or any Guarantor, (iii) any Affiliate of the Company or any Guarantor
or (iv) any Subsidiary of any Affiliate of the Company or any Guarantor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be
owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled
to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed
therein are outstanding for the purpose of any such determination.
Section 8.05. Revocation
of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01,
of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture
in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have
consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided
in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any
Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in
exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
Article 9
Holders’ Meetings
Section 9.01. Purpose
of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9
for any of the following purposes:
(a) to
give any notice to the Company, to any Guarantor or to the Trustee or to give any directions to the Trustee permitted under this Indenture,
or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences,
or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;
(b) to
remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
(c) to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to
take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes
under any other provision of this Indenture or under applicable law.
Section 9.02. Call
of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01,
to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record
date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company.
Such notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall
be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before
or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 9.03. Call
of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10%
of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the
notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the
place for such meeting and may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof as
provided in Section 9.02.
Section 9.04. Qualifications
for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record
date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes
on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an
instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders
as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of
a majority in aggregate principal amount of the outstanding Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions
of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount
of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating
it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02
or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented
at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures
of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was delivered as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting
in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
Section 9.07. No
Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay
in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Notes.
Article 10
Supplemental Indentures
Section 10.01. Supplemental
Indentures Without Consent of Holders. The Company, the Guarantors and the Trustee, at the Company’s expense, may from time
to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to
cure any ambiguity, omission, defect or inconsistency;
(b) to
provide for the assumption by a Successor Company of the obligations of the Company or any Guarantor, as the case may be, under this
Indenture pursuant to Article 11;
(c) to
add additional guarantees with respect to the Notes;
(d) to
secure the Notes;
(e) to
add to the covenants or Events of Default of the Company or any Guarantor for the benefit of the Holders or surrender any right or power
conferred upon the Company or any Guarantor;
(f) to
make any change that does not adversely affect the rights of any Holder;
(g) in
connection with any Share Exchange Event, to provide that the Notes are exchangeable for Reference Property, subject to the provisions
of Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required by Section 14.07;
(h) to
conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Offering Memorandum;
(i) to
comply with the rules of any applicable Depositary, including The Depository Trust Company, so long as such amendment does not adversely
affect the rights of any Holder in any material respect;
(j) to
appoint a successor Trustee with respect to the Notes;
(k) to
increase the Exchange Rate as provided in this Indenture;
(l) to
provide for the acceptance of appointment by a successor Trustee, Note Registrar, Paying Agent, Bid Solicitation Agent or Exchange Agent
to facilitate the administration of the trusts under this Indenture by more than one trustee; or
(m) to
irrevocably elect a Settlement Method or a Specified Dollar Amount, or eliminate the Company’s right to elect a Settlement Method;
provided that no such election or elimination shall affect any Settlement Method theretofore elected (or deemed to be elected)
with respect to any Note pursuant to the provisions of Article 14.
Upon the written request
of the Company, the Trustee is hereby authorized to join with the Company and the Guarantors in the execution of any such supplemental
indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
In addition, the Company,
the Guarantors and the Trustee, at the Company’s expense, may enter into an indenture or indentures supplemental hereto to reflect
the release and discharge of a Guarantor in the circumstances described in Section 13.05 hereof.
Any supplemental indenture
authorized by the provisions of this Section 10.01 may be executed by the Company, the Guarantors and the Trustee without the consent
of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02. Supplemental
Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of at least a majority
of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company, the Guarantors
and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture,
the Guarantees, the Notes or any supplemental indenture or of modifying in any manner the rights of the Holders; provided, however,
that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:
(a) reduce
the principal amount of Notes whose Holders must consent to an amendment;
(b) reduce
the rate of or extend the stated time for payment of interest on any Note;
(c) reduce
the principal of or extend the Maturity Date of any Note;
(d) except
as required by this Indenture, make any change that adversely affects the exchange rights of any Notes;
(e) reduce
the Redemption Price or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the
Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions
or otherwise;
(f) make
any Note payable in a currency, or at a place of payment, other than that stated in the Note;
(g) change
the ranking of the Notes;
(h) make
any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or Section 6.09;
or
(i) except
as permitted in this Indenture, release any Guarantor from its obligations under its Guarantee or this Indenture.
Upon the written request
of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05,
the Trustee shall join with the Company and the Guarantors in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental indenture.
Holders do not need under
this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders
approve the substance thereof. After any such supplemental indenture becomes effective, the Company shall deliver to the Holders a notice
briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in the notice,
will not impair or affect the validity of the supplemental indenture.
Section 10.03. Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10,
this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties, indemnities, privileges and immunities under this Indenture of the Trustee, the Company, the Guarantors and the
Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 10.04. Notation
on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this
Article 10 may, at the Company’s expense, bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Company, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s
expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee
pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 10.05. Evidence
of Compliance of Supplemental Indenture to Be Furnished Trustee. In addition to the documents required by Section 17.05, the
Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence, and stating to the effect, that
any supplemental indenture executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized
by this Indenture; provided that such Opinion of Counsel shall include a customary legal opinion stating that such supplemental
indenture is the legal, valid and binding obligation of the Company and each Guarantor, subject to customary exceptions and qualifications.
The Trustee shall have no responsibility for determining whether any amendment or supplemental indenture will or may have an adverse
effect on any Holder.
Article 11
Consolidation, Merger, Sale, Conveyance and Lease
Section 11.01. Company
or any Guarantor May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02, neither the Company
nor any Guarantor shall consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated
properties and assets of the Company or such Guarantor, as the case may be, taken as a whole, to another Person unless:
(a) the
resulting, surviving or transferee Person (the “Successor Company”), if not the Company or such Guarantor, as applicable,
shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia,
and the Successor Company (if not the Company or such Guarantor, as applicable) shall expressly assume, by supplemental indenture all
of the obligations of the Company or such Guarantor under the Notes or the relevant Guarantee, as applicable, and this Indenture; and
(b) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture.
For purposes of this Section 11.01,
the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company
or any Guarantor, as applicable, to another Person, which properties and assets, if held by the Company or such Guarantor, as applicable,
instead of such Subsidiaries, would constitute all or substantially all of the consolidated properties and assets of the Company and
its Subsidiaries or of such Guarantor and its Subsidiaries, as applicable, taken as a whole, shall be deemed to be the sale, conveyance,
transfer or lease of all or substantially all of the consolidated properties and assets of the Company or such Guarantor, as applicable,
taken as a whole, to another Person.
Section 11.02. Successor
Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption
by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of
the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or
payment, as the case may be, of any consideration due upon exchange of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture, the Notes and/or the Guarantees to be performed by the Company or the relevant Guarantor, as applicable,
such Successor Company (if not the Company or such Guarantor, as the case may be) shall succeed to and, except in the case of a lease
of all or substantially all of the consolidated properties and assets of the Company or such Guarantor, as applicable, taken as a whole,
shall be substituted for the Company or such Guarantor, as applicable, with the same effect as if it had been named herein as the party
of the first part, and may thereafter exercise every right and power of the Company or such Guarantor, as applicable, under this Indenture.
Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all
of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the
order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been
signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as
though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance
or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company”
or a “Guarantor”, as applicable, in the first paragraph of this Indenture (or any successor that shall thereafter have become
such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in
the case of a lease, such Person shall be released from its liabilities as obligor or Guarantor and (in the case of the Company) maker
of the Notes and from its obligations under this Indenture and the Notes and/or the relevant Guarantee, as the case may be.
In case of any such consolidation,
merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter
to be issued as may be appropriate.
Article 12
Immunity of Incorporators, Stockholders, Officers and Directors
Section 12.01. Indenture,
Notes and Guarantees Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest
on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant
or agreement of the Company or any Guarantor in this Indenture or in any supplemental indenture or in any Note or any Guarantee, nor
because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent,
Officer or director or Subsidiary (other than, for the avoidance of doubt, the Company or the Guarantors), as such, past, present or
future, of the Company or any Guarantor or of any of the Company’s or any Guarantor’s respective successor corporations,
either directly or through the Company, any Guarantor or any such successor corporation, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue
of the Notes and the Guarantees.
Article 13
Guarantees of Notes
Section 13.01. Guarantees.
(a) Each
Guarantor hereby, jointly and severally, fully, unconditionally and irrevocably guarantees the Notes and obligations of the Company hereunder
and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that: (i) all payments and deliveries under or with respect to the Notes, including, but not limited to, payments of principal
of (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price), payments of interest on, and payments
of cash and/or deliveries of shares of Common Stock (together with payments of cash in lieu of fractional shares) due upon exchange of,
the Notes, and the full and punctual performance within applicable grace periods of all other obligations of the Company, whether
for fees, expenses, indemnification or otherwise under this Indenture and the Notes, to the Holders or the Trustee hereunder or thereunder
shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time
of payment or renewal of the Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at the Maturity Date, by acceleration or otherwise. Each of the Guarantees shall
be a guarantee of payment and not of collection.
(b) Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(c) Each
Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company or any other Person, protest, notice and all
demands whatsoever and covenants that the Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Guarantee or as provided for in this Indenture. Each of the Guarantors hereby agrees
that, in the event of a default in payments and deliveries under or with respect to the Notes (including, but not limited to, payments
of principal of (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price), payments of interest on,
and payments of cash and/or deliveries of shares of Common Stock (together with payments of cash in lieu of fractional shares) due upon
exchange of the Notes), legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the
terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Guarantee
without first proceeding against the Company or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy
with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(d) If
any Holder or the Trustee is required by any court or otherwise to return to the Company or any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by any of them to the Trustee
or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and
effect. This Section 13.01(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee
or any Holder in reliance upon such amount required to be returned. This Section 13.01(d) shall survive the termination of
this Indenture.
(e) Each
Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 for the purposes of the Guarantee of
such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Section 6.02, such obligations
(whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Guarantee of such Guarantor.
Section 13.02. Execution
and Delivery of Guarantees.
(a) To
evidence its Guarantee set forth in Section 13.01, each Guarantor agrees that this Indenture shall be signed on behalf of such Guarantor
by an Officer of such Guarantor (or, if an Officer is not available, by a board member or director or another authorized Person) on behalf
of such Guarantor by manual, electronic or facsimile signature. In case the Officer, board member or director of such Guarantor who shall
have signed this Indenture shall cease to be such Officer, board member or director before the Notes shall have been authenticated and
delivered by the Trustee, such Notes nevertheless may be authenticated and delivered as though the Person who signed this Indenture had
not ceased to be such Officer, board member or director.
(b) Each
Guarantor agrees that, except as otherwise provided in this Indenture, its Guarantee set forth in Section 13.01 shall remain in
full force and effect and shall apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such Guarantee.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set
forth in this Indenture on behalf of the Guarantors. The failure to endorse a Guarantee shall not affect or impair the validity thereof.
Section 13.03. Severability.
In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 13.04. Limitation
of Guarantors’ Liability. Each Guarantor and, by its acceptance of Notes, each Holder, confirms that it is the intention of
all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law relating
to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders and Guarantors hereby irrevocably
agree that the obligations of such Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect
to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee,
result in the obligations of such Guarantor under its Guarantee constituting a fraudulent transfer or conveyance.
Section 13.05. Releases
of Guarantors. Each Guarantor shall be deemed automatically and unconditionally released and discharged from any obligations under
its Guarantee of the Notes in support thereof, without any further action on the part of the Trustee or any Holder of Notes:
(a) upon
the sale or other disposition (including by way of merger or consolidation) of all of the Capital Stock of such Guarantor to a Person
that is not the Company or the Parent; provided such sale or disposition is not prohibited by this Indenture;
(b) upon
the sale or disposition of all or substantially all the assets of such Guarantor (including by way of merger or consolidation) to a Person
that is not the Company or the Parent; provided such sale or disposition is not prohibited by this Indenture;
(c) upon
the liquidation or dissolution of such Guarantor;
(d) upon
satisfaction and discharge of this Indenture with respect to the Notes in compliance with Article 3;
(e) upon
receipt of the consent of Holders of the requisite percentage of Notes in accordance with Section 10.02; or
(f) with
respect to Spirit AeroSystems North Carolina, Inc., to the extent such Guarantor no longer guarantees any capital markets indebtedness
of the Company or Parent.
The Trustee shall execute
and deliver such documents (including one or more supplemental indentures) as the Company shall request to reflect such release and discharge.
Section 13.06. Benefits
Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated
by this Indenture and that its guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Article 14
Exchange of Notes
Section 14.01. Exchange
Privilege.
(a) Subject
to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s
option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of
such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business
on the Business Day immediately preceding August 1, 2028 under the circumstances and during the periods set forth in Section 14.01(b),
and (ii) regardless of the conditions described in Section 14.01(b), on or after August 1, 2028 and prior to the close
of business on the Business Day immediately preceding the Maturity Date, in each case, at an initial exchange rate of 34.3053 shares
of Common Stock (subject to adjustment as provided in this Article 14, the “Exchange Rate”) per $1,000 principal
amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”).
(b) (i)
Prior to the close of business on the Business Day immediately preceding August 1, 2028, a Holder may surrender all or any portion
of its Notes for exchange at any time during the five Business Day period immediately after any ten consecutive Trading Day period (the
“Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request
by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the
product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Exchange Rate on each such Trading Day.
The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading
Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company)
of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price,
along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation
to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company
shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation
to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $5,000,000 principal amount
of Notes in the aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of
Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day
and the Exchange Rate on such Trading Day, at which time the Company shall instruct the Bid Solicitation Agent (if other than the Company)
to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal
amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount
of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate. If
(x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is required to, instruct the
Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding
sentence, or if the Company gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination,
or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided
in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to
be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such
failure. If the Trading Price condition set forth above has been met, the Company shall so notify the Holders, the Trustee and the Exchange
Agent (if other than the Trustee) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after
the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal
to 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate for such date, the Company shall so notify
the Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid
Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set
forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(ii) If,
prior to the close of business on the Business Day immediately preceding August 1, 2028, the Parent elects to:
(A) distribute
to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder
rights plan prior to the separation of such rights from the Common Stock) entitling them, for a period of not more than 60 calendar days
after the announcement date of such distribution, to subscribe for or purchase shares of the Common Stock at a price per share that is
less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the date of announcement of such distribution; or
(B) distribute
to all or substantially all holders of the Common Stock assets, securities or rights to purchase the Parent’s securities (other
than in connection with a stockholder rights plan prior to separation of such rights from the Common Stock), which distribution has a
per share value, as reasonably determined by the Parent in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock
on the Trading Day preceding the date of announcement for such distribution,
then, in either case, the Company shall notify
all Holders of the Notes, the Trustee and the Exchange Agent (if other than the Trustee) in writing at least 36 Scheduled Trading Days
prior to the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder
rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred
or will occur). Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for exchange at any time
until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution
and (2) the Parent’s announcement that such distribution will not take place (or, if later, in the case of a separation or
triggering event pursuant to a stockholder rights plan, until the 20th Trading Day following date of the Company’s notice), in
each case, even if the Notes are not otherwise exchangeable at such time; provided that Holders may not exchange their Notes pursuant
to this subsection (b)(ii) if they participate, at the same time and upon the same terms as holders of the Common Stock and solely
as a result of holding the Notes, in any of the transactions described in clause (A) or (B) of this subsection (b)(ii) without
having to exchange their Notes as if they held a number of shares of Common Stock equal to the Exchange Rate multiplied by the
principal amount (expressed in thousands) of Notes held by such Holder.
(iii) If
(A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of
business on the Business Day immediately preceding August 1, 2028, regardless of whether a Holder has the right to require the Company
to repurchase the Notes pursuant to Section 15.01, or (B) if the Parent is a party to a Share Exchange Event (other than a
Share Exchange Event that is solely for the purpose of changing the Parent’s jurisdiction of organization that (x) does not
constitute a Fundamental Change or a Make-Whole Fundamental Change and (y) results in a reclassification, conversion or exchange
of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference
Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 1, 2028 (each
such Fundamental Change, Make-Whole Fundamental Change or Share Exchange Event, a “Corporate Event”), all or any portion
of a Holder’s Notes may be surrendered for exchange at any time from or after the effective date of such Corporate Event until
the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective
date of such Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such Corporate
Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business
Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the Business Day immediately
preceding the Maturity Date. The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing
as promptly as practicable following the effective date of such Corporate Event, but in no event later than one Business Day after the
effective date of such Corporate Event.
(iv) Prior
to the close of business on the Business Day immediately preceding August 1, 2028, a Holder may surrender all or any portion of
its Notes for exchange at any time during any calendar quarter commencing after the calendar quarter ending on December 31, 2023
(and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or
not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding
calendar quarter is greater than or equal to 130% of the Exchange Price on each applicable Trading Day.
(v) If
the Company calls any Notes for redemption pursuant to Article 16, then a Holder may surrender all or any portion of its Called
Notes for exchange at any time prior to the close of business on the Scheduled Trading Day immediately preceding the Redemption Date,
even if the Called Notes are not otherwise exchangeable at such time. After that time, the right to exchange such Called Notes on account
of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption
Price, in which case a Holder of Called Notes may exchange all or a portion of its Called Notes until the Redemption Price has been paid
or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16,
and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the
close of business on the 34th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial
interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable, shall be entitled to
exchange such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled Trading Day immediately
preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner,
as applicable, shall be entitled to exchange such Note or beneficial interest, as applicable, until the Redemption Price has been paid
or duly provided for, and each such exchange will be deemed to be of a Note called for redemption, and such Note or beneficial interest
shall be deemed called for redemption solely for the purposes of such exchange (“Deemed Redemption”). If a Holder
elects to exchange Called Notes during the related Redemption Period, the Company shall, under certain circumstances, increase the Exchange
Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects
to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the
Notes that are not Called Notes will not be entitled to exchange such Notes pursuant to this Section 14.01(b)(v) and
will not be entitled to an increase in the Exchange Rate on account of the Notice of Redemption for exchanges of such Notes during the
related Redemption Period if such Notes are otherwise exchangeable pursuant to any other provision of this Section 14.01.
Each owner of a beneficial interest
in any Global Note shall be deemed to have acknowledged that (x) the exercise of the right to exchange such beneficial interest
during the related Redemption Period in connection with any partial redemption pursuant to this Section 14.01(b)(v) shall be
subject to the Depositary’s applicable procedures, and (y) each owner must rely solely on the Depositary’s applicable
procedures in order to exercise such right pursuant to this Section 14.01(b)(v).
Neither the Trustee nor the Exchange
Agent shall have any responsibility to determine whether or when any Holder of a Note or any owner of a beneficial interest in any Global
Note was reasonably not able to make the determination referred to in the first paragraph of this Section 14.01(b)(v), and the Trustee
and the Exchange Agent shall be entitled to rely exclusively on a Notice of Exchange and the exchange procedures set forth in Section 14.02
in connection with any exchange of a Note or of any beneficial interest in any Global Note.
Section 14.02. Exchange
Procedure; Settlement Upon Exchange.
(a) Subject
to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon exchange of any Note, the Company shall satisfy
its Exchange Obligations by paying, paying and delivering, or delivering (or causing to be delivered), as the case may be, to the exchanging
Holder, in respect of each $1,000 principal amount of Notes being exchanged, either solely cash (“Cash Settlement”),
shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with
subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common
Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of
this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All
exchanges of Called Notes for which the relevant Exchange Date occurs during the related Redemption Period, and all exchanges for which
the relevant Exchange Date occurs on or after August 1, 2028, shall be settled using the same Settlement Method (including the same
Specified Dollar Amount).
(ii) Except
for any exchanges of Called Notes for which the relevant Exchange Date occurs during the related Redemption Period, and any exchanges
for which the relevant Exchange Date occurs on or after August 1, 2028, the Company shall use the same Settlement Method (including
the same Specified Dollar Amount) for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use
the same Settlement Method (or the same Specified Dollar Amount) with respect to exchanges with different Exchange Dates.
(iii) If,
in respect of any Exchange Date (or any exchanges of Called Notes for which the relevant Exchange Date occurs during the related Redemption
Period, or any exchanges for which the relevant Exchange Date occurs on or after August 1, 2028), the Company elects to deliver
a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period,
as the case may be), the Company shall deliver such Settlement Notice to exchanging Holders, the Trustee and the Exchange Agent (if other
than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Exchange Date (or, in the
case of (A) any exchanges of Called Notes for which the relevant Exchange Date occurs during the related Redemption Period, in the
related Notice of Redemption or (B) any exchanges of Notes for which the relevant Exchange Date occurs on or after August 1,
2028, no later than August 1, 2028). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately
preceding sentence, the Company shall no longer have the right to elect a Settlement Method with respect to any exchange on such Exchange
Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method with respect to such exchange.
Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant
Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement
Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Exchange Obligation, but
does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be exchanged in such Settlement Notice, the Specified
Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure
to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute or give rise to a Default
or an Event of Default under this Indenture.
By written notice
to Holders, the Trustee and the Exchange Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement
Method prior to August 1, 2028. In addition, by written notice to all Holders, the Company may, prior to August 1, 2028, at
its option, irrevocably elect to satisfy its Exchange Obligation with respect to the Notes through any Settlement Method that the Company
is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000
or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount
set forth in such election notice. If the Company changes the Default Settlement Method or the Company irrevocably elects to fix the
Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000
principal amount of Notes at or above a specific amount, the Company shall, promptly after the date of such change or election, as the
case may be, inform Holders exchanging their Notes, the Trustee and the Exchange Agent (if other than the Trustee) of such Specified
Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding
paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the
election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000
principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all exchanges of Notes
with Exchange Dates occurring subsequent to delivery of such notice; provided that no such change or election will affect any
Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable
election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m).
However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement
Method or if the Company irrevocably fixes the Settlement Method pursuant to this paragraph, then, concurrently with providing written
notice to Holders of such change or election, the Parent shall either post the Default Settlement Method or fixed Settlement Method,
as the case may be, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with
the Commission.
(iv) The
cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any exchange of Notes (the “Settlement
Amount”) shall be computed as follows:
(A) if
the Company elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall deliver (or
cause to be delivered) to the exchanging Holder in respect of each $1,000 principal amount of Notes being exchanged a number of shares
of Common Stock equal to the Exchange Rate in effect on the Exchange Date;
(B) if
the Company elects to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay to the exchanging
Holder in respect of each $1,000 principal amount of Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values
for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if
the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement,
the Company shall pay or deliver (or cause to be delivered), as the case may be, to the exchanging Holder in respect of each $1,000 principal
amount of Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 consecutive
Trading Days during the related Observation Period.
(v) The
Daily Settlement Amounts (if applicable) and the Daily Exchange Values (if applicable) shall be determined by the Company promptly following
the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Exchange Values,
as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify
the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case
may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Exchange Agent
(if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject
to Section 14.02(e), before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in
the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds
equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and
(ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as
set forth in the Form of Notice of Exchange (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to
the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Exchange, a “Notice of Exchange”)
at the office of the Exchange Agent and state in writing therein the principal amount of Notes to be exchange and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement
of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied
by appropriate endorsement and transfer documents), at the office of the Exchange Agent, (3) if required under Section 14.02(e),
pay all transfer and similar taxes, (4) if required, furnish appropriate endorsements and transfer documents and (5) if required,
pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h).
The Trustee (and if different, the Exchange Agent) shall notify the Company of any exchange pursuant to this Article 14 on the Exchange
Date for such exchange. No Notes may be surrendered for exchange by a Holder thereof if such Holder has also delivered a Fundamental
Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice
in accordance with Section 15.02.
If more than one Note shall
be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A
Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”)
that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and
Section 14.07(a), the Company shall pay or deliver (or cause to be delivered), as the case may be, the consideration due in respect
of the Exchange Obligation on the second Business Day immediately following the relevant Exchange Date, if the Company elects Physical
Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other
Settlement Method. If any shares of Common Stock are due to an exchanging Holder, the Company shall deliver (or cause to be delivered)
to the exchanging Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder
shall be entitled, in book-entry format through the Depositary, in satisfaction of the Exchange Obligation.
(d) In
case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to
or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but,
if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder
of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(e) If
a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue
of any shares of Common Stock upon exchange, unless the tax is due because the Holder requests such shares to be issued in a name other
than the Holder’s name, in which case the Holder shall pay that tax. The Exchange Agent may refuse to deliver the certificates
representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient
to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except
as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock delivered upon the exchange
of any Note as provided in this Article 14.
(g) Upon
the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on
such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of
any exchange of Notes effected through any Exchange Agent other than the Trustee.
(h) Upon
exchange, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The
Company’s settlement of the full Exchange Obligation shall be deemed to satisfy in full its obligation to pay the principal amount
of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date. As a result, accrued and unpaid
interest, if any, to, but not including, the relevant Exchange Date shall be deemed to be paid in full rather than cancelled, extinguished
or forfeited. Upon an exchange of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed
to be paid first out of the cash paid upon such exchange. Notwithstanding the foregoing, if Notes are exchanged after the close of business
on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount
of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the exchange. Notes surrendered for exchange
during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest
Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so exchanged; provided that no
such payment shall be required (1) for exchanges following the Regular Record Date immediately preceding the Maturity Date; (2) if
the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following
the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular
Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent
of any Defaulted Amounts, if any Defaulted Amounts exist at the time of exchange with respect to such Note. Therefore, for the avoidance
of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment
due on the Maturity Date in cash regardless of whether their Notes have been exchanged following such Regular Record Date.
(i) If
the Company elects (or is deemed to have elected) to satisfy the related Exchange Obligation by Combination Settlement or Physical Settlement,
the Person in whose name the shares of Common Stock shall be deliverable upon exchange shall be treated as a stockholder of record as
of the close of business on the relevant Exchange Date (if the Company elects to satisfy the related Exchange Obligation by Physical
Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation
by Combination Settlement). Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(j) The
Company shall not deliver (or cause to be delivered) any fractional share of Common Stock upon exchange of the Notes and shall instead
pay cash in lieu of delivering (or causing to be delivered) any fractional share of Common Stock deliverable upon exchange based on the
Daily VWAP for the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of
the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected
(or is deemed to have elected) Combination Settlement, the full number of shares that shall be delivered upon exchange thereof shall
be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining
after such computation shall be paid in cash.
Section 14.03. Increased
Exchange Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Notice of Redemption.
(a) If
(i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to exchange its
Notes in connection with such Make-Whole Fundamental Change or (ii) the Company delivers a Notice of Redemption as provided under
Section 16.02 and a Holder elects to exchange its Called Notes in connection with such Notice of Redemption, as the case may be,
the Company shall, under the circumstances described below, increase the Exchange Rate for the Notes so surrendered for exchange by a
number of additional shares of Common Stock (the “Additional Shares”), as described below. An exchange of Notes shall
be deemed for these purposes to be “in connection with” a Make-Whole Fundamental Change if the relevant Exchange Date occurs
during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day
immediately prior to the related Fundamental Change Repurchase Date (or, in the case of an Exempted Fundamental Change or a Make-Whole
Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof,
the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole
Fundamental Change Period”). An exchange of Notes shall be deemed for these purposes to be “in connection with”
a Notice of Redemption if such Notes are Called Notes with respect to such Notice of Redemption and the relevant Exchange Date occurs
during the related Redemption Period. For the avoidance of doubt, if the Company elects to redeem fewer than all of the outstanding Notes
pursuant to Article 16, Holders of the Notes
that are not Called Notes will not be entitled to exchange such Notes pursuant to
Section 14.01(b)(v) and will not be entitled to an increase in the Exchange Rate for exchanges
of such Notes (on account of the Notice of Redemption) during the applicable Redemption Period if such Notes are otherwise exchangeable
pursuant to Section 14.01.
(b) Upon
surrender of Notes for exchange in connection with a Make-Whole Fundamental Change or a Notice of Redemption, the Company shall, at its
option, satisfy the related Exchange Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with
Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause
(b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely
of cash, for any exchange of Notes following the Effective Date of such Make-Whole Fundamental Change, the Exchange Obligation shall
be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount
of exchanged Notes equal to the Exchange Rate (including any increase to reflect the Additional Shares), multiplied by such Stock
Price. In such event, the Exchange Obligation shall be paid to Holders in cash on the second Business Day following the Exchange Date.
The Company shall notify the Holders and the Trustee in writing of the Effective Date of any Make-Whole Fundamental Change as promptly
as practicable following the Effective Date of such Make-Whole Fundamental Change, but in no event later than five Business Days after
such Effective Date.
(c) The
number of Additional Shares, if any, by which the Exchange Rate shall be increased for exchanges in connection with a Make-Whole Fundamental
Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental
Change occurs or becomes effective or the date the Company delivers the Notice of Redemption, as the case may be (in each case, the “Effective
Date”), and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the
Make-Whole Fundamental Change or determined with respect to the Notice of Redemption, as the case may be. If the holders of the Common
Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition
of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the
Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the applicable Effective Date. If an exchange of Called Notes during a Redemption Period would also be deemed to
be in connection with a Make-Whole Fundamental Change, a Holder of any such Notes to be exchanged will be entitled to a single increase
to the Exchange Rate with respect to the first to occur of the Effective Date of the Notice of Redemption or the Make-Whole Fundamental
Change, as applicable, and the later event shall be deemed not to have occurred for purposes of such exchange for purposes of this Section 14.03.
The Company shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to
the Exchange Rate that becomes effective, or any event requiring an adjustment to the Exchange Rate where the Ex-Dividend Date, Effective
Date (as such term is used in Section 14.04) or expiration date of the event occurs during such five consecutive Trading Day period.
(d) The
Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Exchange Rate of the Notes
is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied
by a fraction, the numerator of which is the Exchange Rate immediately prior to such adjustment giving rise to the Stock Price adjustment
and the denominator of which is the Exchange Rate as so adjusted. The number of Additional Shares set forth in the table below shall
be adjusted in the same manner and at the same time as the Exchange Rate as set forth in Section 14.04.
(e) The
following table sets forth the number of Additional Shares by which the Exchange Rate shall be increased per $1,000 principal amount
of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:
| |
Stock
Price | |
Effective Date | |
$22.00 | | |
$25.00 | | |
$29.15 | | |
$33.00 | | |
$37.90 | | |
$50.00 | | |
$75.00 | | |
$100.00 | | |
$150.00 | | |
$250.00 | | |
$350.00 | | |
$500.00 | |
November 13, 2023 | |
| 11.1492 | | |
| 9.0096 | | |
| 6.9561 | | |
| 5.6409 | | |
| 4.4691 | | |
| 2.8296 | | |
| 1.4907 | | |
| 0.9523 | | |
| 0.4831 | | |
| 0.1601 | | |
| 0.0483 | | |
| 0.0000 | |
November 1, 2024 | |
| 11.1492 | | |
| 8.9140 | | |
| 6.6858 | | |
| 5.2939 | | |
| 4.0873 | | |
| 2.4780 | | |
| 1.2641 | | |
| 0.8055 | | |
| 0.4123 | | |
| 0.1370 | | |
| 0.0404 | | |
| 0.0000 | |
November 1, 2025 | |
| 11.1492 | | |
| 8.5704 | | |
| 6.1588 | | |
| 4.7036 | | |
| 3.4926 | | |
| 1.9880 | | |
| 0.9788 | | |
| 0.6261 | | |
| 0.3251 | | |
| 0.1073 | | |
| 0.0297 | | |
| 0.0000 | |
November 1, 2026 | |
| 11.1492 | | |
| 7.9772 | | |
| 5.3355 | | |
| 3.8285 | | |
| 2.6575 | | |
| 1.3726 | | |
| 0.6593 | | |
| 0.4293 | | |
| 0.2272 | | |
| 0.0742 | | |
| 0.0183 | | |
| 0.0000 | |
November 1, 2027 | |
| 11.1492 | | |
| 7.0388 | | |
| 4.0233 | | |
| 2.4964 | | |
| 1.4894 | | |
| 0.6594 | | |
| 0.3299 | | |
| 0.2219 | | |
| 0.1195 | | |
| 0.0386 | | |
| 0.0077 | | |
| 0.0000 | |
November 1, 2028 | |
| 11.1492 | | |
| 5.6947 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | |
The exact Stock Price and Effective Date may
not be set forth in the table above, in which case:
(i) if
the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the table, the
number of Additional Shares by which the Exchange Rate shall be increased shall be determined by a straight-line interpolation between
the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable,
based on a 365-day year or 366-day year, as applicable;
(ii) if
the Stock Price is greater than $500.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Exchange Rate; and
(iii) if
the Stock Price is less than $22.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings
of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Exchange Rate.
Notwithstanding the foregoing,
in no event shall the Exchange Rate per $1,000 principal amount of Notes exceed 45.4545 shares of Common Stock, subject to adjustment
in the same manner as the Exchange Rate pursuant to Section 14.04.
(f) Nothing
in this Section 14.03 shall prevent an adjustment to the Exchange Rate that would otherwise be required pursuant to Section 14.04
in respect of a Make-Whole Fundamental Change.
Section 14.04. Adjustment
of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Company if any of the following events occurs, except
that the Company shall not make any adjustments to the Exchange Rate if Holders of the Notes participate (other than in the case of (x) a
share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the
Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having
to exchange their Notes, as if they held a number of shares of Common Stock equal to the Exchange Rate, multiplied by the principal
amount (expressed in thousands) of Notes held by such Holder.
(a) If
the Parent exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Parent effects
a share split or share combination, the Exchange Rate shall be adjusted based on the following formula:
where,
ER0 = the
Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately
prior to the open of business on the Effective Date of such share split or share combination, as applicable;
ER1 = the
Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
OS0 = the
number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before
giving effect to any such dividend, distribution, split or combination); and
OS1 = the
number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.
Any adjustment made under this Section 14.04(a) shall
become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after
the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution
of the type described in this Section 14.04(a) is declared but not so paid or made, the Exchange Rate shall be immediately
readjusted, effective as of the date the Parent’s Board of Directors determines not to pay such dividend or distribution, to the
Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If
the Parent distributes to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant to
a stockholder rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such distribution,
to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale
Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the date of announcement of such distribution, the Exchange Rate shall be increased based on the following formula:
ER1 = ER0 x |
OS0
+ X |
OS0
+ Y |
where,
ER0 = the
Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
ER1 = the
Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS0 = the
number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X = the
total number of shares of Common Stock distributable pursuant to such rights, options or warrants; and
Y = the
number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the date of announcement of the distribution of such rights, options or warrants.
Any increase made under this Section 14.04(b) shall
be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the open
of business on the Ex-Dividend Date for such distribution. To the extent that shares of the Common Stock are not delivered after the
expiration of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect
had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Exchange Rate shall
be decreased to the Exchange Rate that would then be in effect if such Ex-Dividend Date for such distribution had not occurred.
For purposes of this Section 14.04(b) and
for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders of Common
Stock to subscribe for or purchase shares of the Common Stock at a price per share that is less than such average of the Last Reported
Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the date of announcement of such distribution, and in determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Parent for such rights, options or warrants and any amount payable on exercise
or conversion thereof, the value of such consideration, if other than cash, to be determined by the Parent in good faith.
(c) If
the Parent distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Parent or rights,
options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding
(i)dividends, distributions or issuances (including share splits) as to which an adjustment was effected pursuant to Section 14.04(a) or
Section 14.04(b), (ii) except as otherwise provided in Section 14.11, rights issued pursuant to any stockholder rights
plan of the Parent then in effect, (iii) distributions of Reference Property in exchange for, or upon conversion of, Common Stock
in a Share Exchange Event, (iv) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 14.04(d) shall
apply, and (v) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of such
shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock
or other securities, the “Distributed Property”), then the Exchange Rate shall be increased based on the following
formula:
ER1 = ER0 x |
SP0 |
SP0 – FMV |
where,
ER0 = the
Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
ER1 = the
Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP0 = the
average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV = the
fair market value (as determined by the Parent in good faith) of the Distributed Property with respect to each outstanding share of the
Common Stock on the Ex-Dividend Date for such distribution.
Any increase made under the
portion of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date
for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased to the Exchange Rate that would
then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above)
is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note
shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common
Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned
a number of shares of Common Stock equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution.
With respect to an adjustment
pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of
shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of
the Parent, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”),
the Exchange Rate shall be increased based on the following formula:
ER1 = ER0 x |
FMV0
+ MP0 |
MP0 |
where,
ER0 = the
Exchange Rate in effect immediately prior to the end of the Valuation Period;
ER1 = the
Exchange Rate in effect immediately after the end of the Valuation Period;
FMV0 = the
average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable
to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01
as if references therein to the Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading
Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0 = the
average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
The increase to the Exchange Rate under the preceding
paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that (x) in respect
of any exchange of Notes for which Physical Settlement is applicable, if the relevant Exchange Date occurs during the Valuation Period,
references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have
elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and, including, such Exchange Date in determining the Exchange
Rate and (y) in respect of any exchange of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading
Day that falls within the relevant Observation Period for such exchange and within the Valuation Period, the reference to “10”
in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including,
the Ex-Dividend Date of such Spin-Off to, and including, such Trading Day in determining the Exchange Rate as of such Trading Day. If
any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Exchange Rate shall be immediately
decreased, effective as of the date the Parent’s Board of Directors determines not to pay or make such dividend or distribution,
to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared or announced.
For purposes of this Section 14.04(c) (and
subject in all respects to Section 14.11), rights, options or warrants distributed by the Parent to all holders of the Common Stock
entitling them to subscribe for or purchase shares of the Parent’s Capital Stock, including Common Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued
in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and
no adjustment to the Exchange Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger
Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required)
to the Exchange Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the
date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to
new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate
and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution)
of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under
this Section 14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed
or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted
as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect
to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per
share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming
such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or
purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by
any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued.
For purposes of Section 14.04(a),
Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) is
applicable also includes one or both of:
(A) a
dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”);
or
(B) a
dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause B Distribution”),
then, in either case, (1) such dividend
or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution
to which this Section 14.04(c) is applicable (the “Clause C Distribution”) and any Exchange Rate adjustment
required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A
Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment
required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined
by the Parent (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed
to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution
or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date
or Effective Date” within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of business
on such Ex-Dividend Date” within the meaning of Section 14.04(b).
(d) If
the Parent makes any cash dividend or distribution to all or substantially all holders of the Common Stock, the Exchange Rate shall be
adjusted based on the following formula:
where,
ER0 = the
Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
ER1 = the
Exchange Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP0 = the
Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution;
and
C = the
amount in cash per share distributed to all or substantially all holders of the Common Stock.
Any increase pursuant to this Section 14.04(d) shall
become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or
distribution is not so paid, the Exchange Rate shall be decreased, effective as of the date the Parent’s Board of Directors determines
not to make or pay such dividend or distribution, to be the Exchange Rate that would then be in effect if such dividend or distribution
had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0”
(as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes
it holds, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would
have received if such Holder owned a number of shares of Common Stock equal to the Exchange Rate on the Ex-Dividend Date for such cash
dividend or distribution.
(e) If
the Parent or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock that is subject to
the then applicable tender offer rules under the Exchange Act (other than any odd-lot tender offer), to the extent that the cash
and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale
Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the
last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exchange Rate shall be increased based
on the following formula:
ER1 = ER0 x |
AC
+ (SP1 x OS1) |
OS0 x SP1 |
where,
ER0 = the
Exchange Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the
Trading Day next succeeding the date such tender or exchange offer expires;
ER1 = the
Exchange Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading
Day next succeeding the date such tender or exchange offer expires;
AC = the
aggregate value of all cash and any other consideration (as determined by the Parent in good faith) paid or payable for shares of Common
Stock purchased in such tender or exchange offer;
OS0 = the
number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect
to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS1 = the
number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to
the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP1 = the
average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including,
the Trading Day next succeeding the date such tender or exchange offer expires.
The increase to the Exchange Rate under this
Section 14.04(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading
Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any exchange of Notes
for which Physical Settlement is applicable, if the relevant Exchange Date occurs during the 10 Trading Days immediately following, and
including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th”
in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the
Trading Day next succeeding the date that such tender or exchange offer expires to, and including, the Exchange Date in determining the
Exchange Rate and (y) in respect of any exchange of Notes for which Cash Settlement or Combination Settlement is applicable, for
any Trading Day that falls within the relevant Observation Period for such exchange and within the 10 Trading Days immediately following,
and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or
“10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from,
and including, the Trading Day next succeeding the expiration date of such tender or exchange offer to, and including, such Trading Day
in determining the Exchange Rate as of such Trading Day.
If the Parent or any of its Subsidiaries is obligated
to purchase shares of Common Stock pursuant to any such tender or exchange offer described in this Section 14.04(e) but the
Parent or such Subsidiary is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded,
the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been
made or had been made only in respect of the purchases that have been made.
(f) Notwithstanding
this Section 14.04 or any other provision of this Indenture or the Notes, if an Exchange Rate adjustment becomes effective on any
Ex-Dividend Date, and a Holder that has exchanged its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date
would be treated as the record holder of the shares of Common Stock as of the related Exchange Date as described under Section 14.02(i) based
on an adjusted Exchange Rate for such Ex-Dividend Date, then, notwithstanding the Exchange Rate adjustment provisions in this Section 14.04,
the Exchange Rate adjustment relating to such Ex-Dividend Date shall not be made for such exchanging Holder. Instead, such Holder shall
be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related
dividend, distribution or other event giving rise to such adjustment.
(g) Except
as stated herein, the Company shall not adjust the Exchange Rate for the issuance of shares of the Common Stock or any securities convertible
into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable
securities.
(h) In
addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04, and subject to applicable
exchange listing rules, the Company from time to time may increase the Exchange Rate by any amount for a period of at least 20 Business
Days if the Company determines that such increase would be in the Company’s best interest. In addition, subject to applicable exchange
listing rules, the Company may (but is not required to) increase the Exchange Rate to avoid or diminish any income tax to holders of
Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares of Common Stock (or
rights to acquire shares of Common Stock) or similar event.
(i) Notwithstanding
anything to the contrary in this Article 14, the Exchange Rate shall not be adjusted:
(i) upon
the issuance of any shares of Common Stock at a price below the Exchange Price or otherwise, other than any such issuance described in
clause (a), (b) or (c) of this Section 14.04;
(ii) upon
the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on the Parent’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;
(iii) upon
the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee,
director or consultant benefit or incentive plan or program (including pursuant to any evergreen plan) of or assumed by the Parent or
any of the Parent’s Subsidiaries;
(iv) upon
the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
not described in clause (iii) of this subsection and outstanding as of the date the Notes were first issued;
(v) for
a third-party tender offer by any party other than a tender offer by the Company or one or more of the Company’s or the Parent’s
Subsidiaries (other than the Company) as described in clause (e) of this Section 14.04;
(vi) upon
the repurchase of any shares of Common Stock pursuant to an open market share purchase program or other buy-back transaction, including
structured or derivative transactions such as accelerated share repurchase transactions or similar forward derivatives, or other buy-back
transaction, that is not a tender offer or exchange offer of the kind described under clause (e) of this Section 14.04;
(vii) solely
for a change in the par value (or lack of par value) of the Common Stock; or
(viii) for
accrued and unpaid interest, if any.
(j) All
calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten
thousandth (1/10,000th) of a share.
(k) If
an adjustment to the Exchange Rate otherwise required by this Section 14.04 would result in a change of less than 1% to the Exchange
Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry forward such adjustment, except that all
such deferred adjustments must be given effect immediately upon the earliest to occur of the following: (i) when all such deferred
adjustments would result in an aggregate change of at least 1% to the Exchange Rate, (ii) upon exchange of any Note (x) if
Cash Settlement or Combination Settlement is applicable to such exchange, on each Trading Day in the Observation Period for such exchange
and (y) if Physical Settlement is applicable to such exchange, on the relevant Exchange Date; (iii) August 1, 2028, (iv) on
any date on which the Company delivers a Notice of Redemption; and (v) on the effective date of any Fundamental Change and/or Make-Whole
Fundamental Change, in each case, unless the adjustment has already been made.
(l) Whenever
the Exchange Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Exchange Agent if not the
Trustee) an Officer’s Certificate setting forth the Exchange Rate after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate,
the Trustee shall not be deemed to have knowledge of any adjustment of the Exchange Rate and may assume without inquiry that the last
Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a
notice of such adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes
effective and shall deliver such notice of such adjustment of the Exchange Rate to each Holder. Failure to deliver such notice shall
not affect the legality or validity of any such adjustment.
(m) For
purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common
Stock held in the treasury of the Parent so long as the Parent does not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Parent, but shall include shares of Common Stock deliverable in respect of scrip certificates issued
in lieu of fractions of shares of Common Stock.
Section 14.05. Adjustments
of Prices. Whenever any provision of this Indenture requires the Parent to calculate the Last Reported Sale Prices, the Daily VWAPs,
the Daily Exchange Values or the Daily Settlement Amounts over a span of multiple days (including, without limitation, an Observation
Period and the period, if any, for determining the Stock Price for purposes of a Make-Whole Fundamental Change or a Notice of Redemption),
the Parent shall, in good faith, make appropriate adjustments (without duplication in respect of any adjustment made pursuant to Section 14.04)
to each to account for any adjustment to the Exchange Rate that becomes effective, or any event requiring an adjustment to the Exchange
Rate where the Ex-Dividend Date, Effective Date or expiration date, as the case may be, of the event occurs at any time during the period
when the Last Reported Sale Prices, the Daily VWAPs, the Daily Exchange Values or the Daily Settlement Amounts are to be calculated.
Section 14.06. Shares
to Be Fully Paid. The Parent shall reserve, free from preemptive rights, out of its authorized but unissued shares or shares held
in treasury, sufficient shares of Common Stock to provide for exchange of the Notes from time to time as such Notes are presented for
exchange (assuming delivery of the maximum number of Additional Shares pursuant to Section 14.03 and that at the time of computation
of such number of shares, all such Notes would be exchanged by a single Holder and that Physical Settlement were applicable).
Section 14.07. Effect
of Recapitalizations, Reclassifications and Changes of the Common Stock.
(a) In
the case of:
(i) any
recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value,
or changes resulting from a subdivision or combination),
(ii) any
consolidation, merger, combination or similar transaction involving the Parent,
(iii) any
sale, lease or other transfer to a third party of the consolidated assets of the Parent and the Parent’s Subsidiaries substantially
as an entirety or
(iv) any
statutory share exchange,
in each case, as a result of which the Common
Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination
thereof) (any such event, a “Share Exchange Event”), then, at and after the effective time of such Share Exchange
Event, the right to exchange each $1,000 principal amount of Notes shall be changed into a right to exchange such principal amount of
Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof)
that a holder of a number of shares of Common Stock equal to the Exchange Rate immediately prior to such Share Exchange Event would have
owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property”
meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Share
Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company and the Parent or the successor or acquiring
Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing
for such change in the right to exchange each $1,000 principal amount of Notes; provided, however, that at and after the
effective time of the Share Exchange Event (A) the Company shall continue to have the right to elect the form of consideration to
be paid or delivered, as the case may be, upon exchange of the Notes as set forth in Section 14.02; and (B)(x) any amount payable
in cash upon exchange of the Notes in accordance with Section 14.02 will continue to be payable in cash and (y) the number
of shares of Common Stock, if any, otherwise deliverable upon exchange of the Notes in accordance with Section 14.02 shall instead
be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received
in such Share Exchange Event; and (C) the Daily VWAP shall be calculated based on the value of a unit of Reference Property that
a holder of one share of Common Stock would have received in such Share Exchange Event.
If the Share Exchange Event
causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined
based in part upon any form of stockholder election), then (i) the Reference Property for which the Notes will be exchangeable shall
be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and
(ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred
to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Share Exchange
Event, then for all exchanges for which the relevant Exchange Date occurs after the effective date of such Share Exchange Event (x) the
consideration due upon exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Exchange Rate
in effect on the Exchange Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the
price paid per share of Common Stock in such Share Exchange Event and (y) the Company shall satisfy the Exchange Obligation by paying
cash to exchanging Holders on the second Business Day immediately following the relevant Exchange Date. The Company shall notify Holders,
the Trustee and the Exchange Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such
determination is made.
If the Reference Property
in respect of any such Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or
other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide
for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14
with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests)
in respect thereof. If, in the case of any Share Exchange Event, the Reference Property includes shares of stock, securities or other
property or assets, or any combination thereof (other than cash and/or cash equivalents) of a Person other than the Company, any Guarantor
or the successor or acquiring Person, as the case may be, in such Share Exchange Event, then such supplemental indenture shall also be
executed by such other Person, if such Person is an Affiliate of the Company, any Guarantor or the successor or acquiring Person, and
shall contain such additional provisions to protect the interests of the Holders as the Parent shall in good faith reasonably consider
necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) When
the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly
file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or
property or asset that will comprise a unit of Reference Property after any such Share Exchange Event, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with, and shall promptly deliver or cause to be delivered notice
thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be delivered to each Holder
within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture.
(c) Neither
the Company nor any Guarantor shall become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07.
None of the foregoing provisions shall affect the right of a Holder of Notes to exchange its Notes into cash, shares of Common Stock
or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to
the effective date of such Share Exchange Event.
(d) The
above provisions of this Section 14.07 shall similarly apply to successive Share Exchange Events.
Section 14.08. Certain
Covenants. (a) Each of the Company and the Parent covenants that all shares of Common Stock delivered upon exchange of Notes
will be fully paid and non-assessable by the Parent and free from all taxes, liens and charges with respect to the issue thereof.
(b) Each
of the Company and the Parent covenants that, if any shares of Common Stock to be provided for the purpose of exchange of Notes hereunder
require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock
may be validly issued upon exchange, the Company and/or the Parent will, to the extent then permitted by the rules and interpretations
of the Commission, secure such registration or approval, as the case may be.
(c) Each
of the Company and the Parent further covenants that, if at any time the Common Stock shall be listed on any national securities exchange
or automated quotation system, the Parent will list and keep listed, so long as the Common Stock shall be so listed on such exchange
or automated quotation system, any Common Stock deliverable upon exchange of the Notes.
Section 14.09. Responsibility
of Trustee. The Trustee and any other Exchange Agent shall not at any time be under any duty or responsibility to any Holder to determine
the Exchange Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of
the Exchange Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Exchange
Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
securities, property or cash that may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any other
Exchange Agent make no representations with respect thereto. Neither the Trustee nor any Exchange Agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Note for the purpose of exchange or to comply with any of the duties, responsibilities or covenants
of the Company or any Guarantor contained in this Article. Without limiting the generality of the foregoing, neither the Trustee nor
any Exchange Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 14.07 relating either to the kind or amount of shares of stock or securities or property (including
cash) receivable by Holders upon the exchange of their Notes after any event referred to in such Section 14.07 or to any adjustment
to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept (without any independent investigation)
as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate
(which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto. Neither the Trustee nor the Exchange Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has
occurred that makes the Notes eligible for exchange or no longer eligible therefor and shall not be deemed to have notice of any such
event until the Company has delivered to the Trustee and the Exchange Agent the written notices referred to in Section 14.01(b) with
respect to the commencement or termination of such exchange rights, on which notices the Trustee and the Exchange Agent may conclusively
rely, and the Company agrees to deliver such notices to the Trustee and the Exchange Agent immediately after the occurrence of any such
event or at such other times as shall be provided for in Section 14.01(b).
Section 14.10. Notice
to Holders Prior to Certain Actions. In case of any:
(a) action
by the Parent or one of its Subsidiaries that would require an adjustment in the Exchange Rate pursuant to Section 14.04 or Section 14.11;
or
(b) voluntary
or involuntary dissolution, liquidation or winding-up of the Company or Guarantor;
then, in each case (unless notice of such event
is otherwise required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the
Exchange Agent (if other than the Trustee) and to be delivered to each Holder, as promptly as possible but in any event at least 10 days
prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose
of such action by the Parent or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common
Stock of record are to be determined for the purposes of such action by the Parent or one of its Subsidiaries, or (ii) the date
on which such dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable
upon such dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or
validity of such action by the Parent or one of its Subsidiaries.
Section 14.11. Stockholder
Rights Plans. If the Parent has a stockholder rights plan in effect upon exchange of the Notes, each share of Common Stock, if any,
delivered upon such exchange shall be entitled to receive the appropriate number of rights, if any, and the certificates representing
the Common Stock delivered upon such exchange shall bear such legends, if any, in each case as may be provided by the terms of any such
stockholder rights plan, as the same may be amended from time to time. However, if, prior to any exchange of Notes, the rights have separated
from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Exchange Rate shall
be adjusted at the time of separation as if the Parent distributed to all or substantially all holders of the Common Stock Distributed
Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such
rights.
Section 14.12. Third-Party
Exchange in Lieu of Issuer Exchange.
(a) When
a Holder surrenders its Notes for exchange, the Company may, at its election (an “Exchange Election”), direct the
Exchange Agent in writing to deliver, on or prior to the Trading Day immediately following the Exchange Date, such Notes to one or more
financial institutions designated by the Company (each, a “Designated Financial Institution”) for third-party exchange
in lieu of issuer exchange. In order to accept any Notes surrendered for exchange, the Designated Financial Institution(s) must
agree in writing with the Company (and the Exchange Agent and the Trustee shall have no obligation to determine whether any such Designated
Financial Institution has so agreed or to monitor such Designated Financial Institution’s compliance with such agreement) to timely
pay and/or deliver, as the case may be, in exchange for such Notes, cash, shares of Common Stock or a combination of cash and shares
of Common Stock that would otherwise be due upon exchange pursuant to Section 14.02, as elected (or deemed to have been elected)
by the Company, or such other amount agreed to in writing by the Holder and the Designated Financial Institution(s) (the “Exchange
Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of business on the Trading Day
following the relevant Exchange Date, notify in writing the Trustee, the Exchange Agent (if other than the Trustee) and the Holder surrendering
its Notes for exchange that the Company has made the Exchange Election, and the Company shall promptly notify the Designated Financial
Institution(s) of the relevant deadline for delivery of the Exchange Consideration and the type of Exchange Consideration to be
paid and/or delivered, as the case may be.
(b) Any
Notes delivered to the Designated Financial Institution(s) shall remain outstanding. If the Designated Financial Institution(s) agree(s) to
accept any Notes for exchange but does not timely pay and/or deliver, as the case may be, the related Exchange Consideration, or if such
Designated Financial Institution(s) does not accept the Notes for exchange, the Company shall pay and/or deliver (or cause to be
delivered), as the case may be, the relevant Exchange Consideration, as, and at the time, required pursuant to this Indenture as if the
Company had not made the Exchange Election.
(c) The
Company’s designation of any Designated Financial Institution(s) to which the Notes may be submitted for exchange does not
require such Designated Financial Institution(s) to accept any Notes. If any such Designated Financial Institution does not accept
the Notes so submitted for exchange, such Notes shall be subject to exchange by the Company pursuant to the terms of this Indenture without
regard to the provisions in this Section 14.12.
(d) With
respect to any Global Notes held by the Depositary, the provisions in this Section 14.12 shall, in all respects, be subject to the
Depositary’s applicable procedures.
Article 15
Repurchase of Notes at Option of Holders
Section 15.01. Repurchase
at Option of Holders Upon a Fundamental Change.
(a) Subject
to Section 15.01(f), if a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option,
to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly
surrendered and not validly withdrawn pursuant to Section 15.02
that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change
Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to,
but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental
Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date
relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of the close
of business on such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of
Notes to be repurchased pursuant to this Article 15.
(b) Repurchases
of Notes under this Section 15.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery
to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form
set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance
with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each
case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery
of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice
(together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of
the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case, such delivery
or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase
Notice in respect of any Physical Notes to be repurchased shall state:
(i) the
certificate numbers of the Notes to be delivered for repurchase;
(ii) the
portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that
the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture.
If the Notes are Global Notes,
to exercise the Fundamental Change repurchase right, Holders must surrender their Notes in accordance with applicable Depositary procedures.
Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.01
shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business
on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 15.02.
The Paying Agent shall promptly
notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On
or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all
Holders and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right
at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or,
in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously
with providing such notice, the Parent shall publish such information on the Parent’s website or through such other public medium
as the Parent may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the
events causing the Fundamental Change;
(ii) the
effective date of the Fundamental Change;
(iii) the
last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the
Fundamental Change Repurchase Price;
(v) the
Fundamental Change Repurchase Date;
(vi) the
name and address of the Paying Agent and the Exchange Agent, if applicable;
(vii) if
applicable, the Exchange Rate and any adjustments to the Exchange Rate as a result of the Fundamental Change (or related Make-Whole Fundamental
Change);
(viii) that
the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be exchanged only if the Holder
withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the
procedures that Holders must follow to require the Company to repurchase their Notes.
No failure of the Company
to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings
for the repurchase of the Notes pursuant to this Section 15.01.
At the Company’s written
request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however,
that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding
anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase,
the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance
with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes
properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with
the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding
the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal
amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case
of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to
such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration
of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change
Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable
procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental
Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding
anything to the contrary in this Section 15.01, the Company shall not be required to send a Fundamental Change Company Notice, or
offer to repurchase or repurchase any Notes, as set forth in this Article 15,
in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such
Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately
after such Fundamental Change, the Notes become exchangeable (pursuant to Section 14.07
and, if applicable, Section 14.03) for consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount
of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that
the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such
Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii).
Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.01(f), the Company
does not offer to repurchase any Notes is referred to herein as an “Exempted Fundamental Change.”
Section 15.02. Withdrawal
of Fundamental Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) in
respect of Physical Notes by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance
with this Section 15.02 at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, specifying:
(i) the
principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which must be $1,000 or an integral
multiple thereof,
(ii) the
certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(iii) the
principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must
be in principal amounts of $1,000 or an integral multiple of $1,000;
If the Notes are Global Notes, Holders must withdraw
their Notes subject to repurchase at any time prior to the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date in accordance with applicable procedures of the Depositary.
Section 15.03. Deposit
of Fundamental Change Repurchase Price. (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the
Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04)
on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase
all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by
the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not validly withdrawn
prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the
later of (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in Section 15.01)
and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company)
by the Holder thereof in the manner required by Section 15.01 by mailing checks for the amount payable to the Holders of such Notes
entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Depositary shall be
made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after
such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(b) If
by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the
Company) holds money sufficient to pay the Fundamental Change Repurchase Price (and, to the extent not included in the Fundamental Change
Repurchase Price, accrued and unpaid interest, if applicable) of the Notes to be repurchased on such Fundamental Change Repurchase Date,
then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such
Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the
Notes has been made or whether or not the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of
the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price and, to the extent
not included in the Fundamental Change Repurchase Price, accrued and unpaid interest, if applicable).
(c) Upon
surrender of a Note that is to be repurchased in part pursuant to Section 15.01, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion
of the Note surrendered.
Section 15.04. Covenant
to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer upon a Fundamental Change pursuant
to this Article 15, the Company will, if required:
(a) comply
with the tender offer rules under the Exchange Act that may then be applicable;
(b) file
a Schedule TO or any other required schedule under the Exchange Act; and
(c) otherwise
comply in all material respects with all federal and state securities laws in connection with any offer by the Company to repurchase
the Notes;
in each case, so as to permit the rights and
obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.
To the extent that the provisions
of any securities laws or regulations enacted or adopted after the date of this Indenture conflict with the provisions of this Indenture
relating to the Company’s obligations to repurchase the Notes upon a Fundamental Change, the Company shall comply with such securities
laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such
conflict.
Article 16
Optional Redemption
Section 16.01. Optional
Redemption. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company prior to November 6,
2026. On or after November 6, 2026, the Company may redeem (an “Optional Redemption”) for cash all or any portion
of the Notes (subject to the Partial Redemption Limitation), at the Redemption Price, if the Last Reported Sale Price of the Common Stock
has been at least 130% of the Exchange Price then in effect for at least 20 Trading Days (whether or not consecutive) during any 30 consecutive
Trading Day period (including the last Trading Day of such period) ending on, and including, the Trading Day immediately preceding the
date on which the Company provides the Notice of Redemption in accordance with Section 16.02.
Section 16.02. Notice
of Optional Redemption; Selection of Notes.
(a) In
case the Company exercises its Optional Redemption right to redeem all or, as the case may be, any part of the Notes pursuant to Section 16.01,
it shall fix a date for redemption (each, a “Redemption Date”) and it or, at its written request received by the Trustee
not less than five Business Days prior to the date such Notice of Redemption is to be sent (or such shorter period of time as may be
acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice
of such Optional Redemption (a “Notice of Redemption”) not less than 35 nor more than 60 Scheduled Trading Days prior
to the Redemption Date to each Holder so to be redeemed as a whole or in part; provided, however, that, if the Company
shall give such notice, it shall also give written notice of the Redemption Date to the Trustee and the Paying Agent (if other than the
Trustee). The Redemption Date must be a Business Day, and the Company shall not specify a Redemption Date that falls on or after the
31st Scheduled Trading Day immediately preceding the Maturity Date.
(b) The
Notice of Redemption, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice. In any case, failure to give such Notice of Redemption or any defect in the Notice of Redemption
to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption
of any other Note. A Notice of Redemption shall be irrevocable.
(c) Each
Notice of Redemption shall specify:
(i) the
Redemption Date;
(ii) the
Redemption Price;
(iii) that
on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if
any, shall cease to accrue on and after the Redemption Date;
(iv) the
place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v) that
Holders of Called Notes may surrender their Notes for exchange at any time prior to the close of business on the Scheduled Trading Day
immediately preceding the Redemption Date;
(vi) the
procedures an exchanging Holder must follow to exchange its Called Notes and the Settlement Method and Specified Dollar Amount, if applicable;
(vii) the
Exchange Rate and, if applicable, the number of Additional Shares added to the Exchange Rate in accordance with Section 14.03;
(viii) the
CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(ix) in
case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Redemption
Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.
(d) If
the Company elects to redeem fewer than all of the outstanding Notes, at least $100,000,000 aggregate principal amount of Notes must
be outstanding and not subject to redemption as of the relevant date of a Notice of Redemption (such requirement, the “Partial
Redemption Limitation”). If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are Global
Notes, the Notes to be redeemed shall be selected by the Depositary in accordance with the applicable procedures of the Depositary. If
fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are not Global Notes, the Trustee shall select
the Notes or portions thereof to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot.
Section 16.03. Payment
of Notes Called for Redemption.
(a) If
any Notice of Redemption has been given in respect of the Notes in accordance with Section 16.02, the Notes called for redemption
shall become due and payable on the Redemption Date at the place or places stated in the Notice of Redemption and at the applicable Redemption
Price. On presentation and surrender of the Notes called for redemption at the place or places stated in the Notice of Redemption, the
Notes shall be paid and redeemed by the Company at the applicable Redemption Price.
(b) Prior
to 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a
Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount
of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes
to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be
made on the Redemption Date for such Notes. The Paying Agent shall, promptly after such payment and upon written demand by the Company,
return to the Company any funds in excess of the Redemption Price.
Section 16.04. Restrictions
on Redemption. The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated
in accordance with the terms of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except
in the case of an acceleration resulting from a Default by the Company in the payment of the Redemption Price in respect of such Notes).
Article 17
Miscellaneous Provisions
Section 17.01. Provisions
Binding on Company’s and the Guarantors’ Successors. All the covenants, stipulations, promises and agreements of the
Company and each of the Guarantors contained in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 17.02. Official
Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed
by any board, committee or Officer of the Company or any Guarantor shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company
or such Guarantor, as the case may be.
Section 17.03. Addresses
for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders on the Company or any Guarantor shall be deemed to have been sufficiently given or made, for all purposes
if given or served by overnight courier or by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company or any Guarantor, as the case may be, with the Trustee) to Spirit AeroSystems, Inc.,
3801 South Oliver, Wichita, Kansas 67210, Attention: Rhonda Harkins, Treasurer. Any notice, direction, request or demand hereunder to
or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited
postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office or sent electronically
in PDF format to an email address specified by the Trustee.
The Trustee, by notice to
the Company and the Guarantors, may designate additional or different addresses for subsequent notices or communications.
The Trustee shall have the
right to accept and act upon instructions (“Instructions”), including fund transfer instructions given pursuant
to this Indenture and delivered using Electronic Means; provided, however, that the Company and each Guarantor shall provide to
the Trustee an incumbency certificate listing Officers and other personnel of the Company or such Guarantor, as the case may be, with
the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized
Officers, which incumbency certificate shall be amended by the Company and/or the Guarantors, as applicable, whenever a person is to
be added or deleted from the listing or promptly upon reasonable request of the Trustee. If the Company and/or the Guarantors elects
to give the Trustee Instructions using Electronic Means and the Trustee in its reasonable discretion elects to act upon such Instructions,
the Trustee’s reasonable understanding of such Instructions shall be deemed controlling. The Company and the Guarantors understand
and agree that the Trustee shall be entitled to presume that directions that purport to have been sent by an Authorized Officer listed
on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Guarantors shall
establish reasonable procedures to ensure that only Authorized Officers transmit such Instructions to the Trustee and that the Company,
the Guarantors and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization
codes, passwords and/or authentication keys upon receipt by the Company or the Guarantors, as applicable. The Trustee shall not be liable
for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions
notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company and each of the Guarantors
agree: (i) to assume all risks arising out of the use of the Electronic Means they select to submit Instructions 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; (ii) that it is informed of the protections and risks associated with the various methods of transmitting Instructions
to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company
or such Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission
of Instructions provide to them a commercially reasonable degree of protection in light of its particular needs and circumstances; and
(iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. For purposes
of this Section 17.03, “Electronic Means” shall mean the following communications methods: e-mail, facsimile
transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by
the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Any notice or communication
delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address
as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication
delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable procedures of the Depositary
and shall be sufficiently given to it if so delivered within the time prescribed. Notwithstanding any other provision of this Indenture
or any Note, where this Indenture or any Note provides for notice of any event (including any Fundamental Change Company Notice) to a
Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee)
pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with the Depositary’s
applicable procedures.
Failure to mail or deliver
a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee
receives it.
In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 17.04. Governing
Law; Jurisdiction. THIS INDENTURE, EACH NOTE AND THE GUARANTEES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO
THIS INDENTURE, EACH NOTE AND THE GUARANTEES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company and each of the
Guarantors irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal
action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with
this Indenture, the Notes or the Guarantees may be brought in the courts of the State of New York or the courts of the United States
of America, in each case located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect
of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam,
generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The Company and each of the
Guarantors irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture
brought in the courts of the State of New York or the courts of the United States of America, in each case located in the Borough of
Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 17.05. Evidence
of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish
to the Trustee an Officer’s Certificate stating that such action is permitted by the terms of this Indenture.
Each Officer’s Certificate
and Opinion of Counsel provided for, by or on behalf of the Company or any Guarantor in this Indenture and delivered to the Trustee with
respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include
(a) a statement that the person signing such certificate is familiar with the requested action and this Indenture; (b) a brief
statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based;
(c) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable
him or her to express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement
as to whether or not, in the judgment of such person, such action is permitted by this Indenture and that all conditions precedent to
such action have been complied with; provided that no Opinion of Counsel shall be required to be delivered in connection with
(1) the original issuance of Notes on the date hereof under this Indenture, (2) the mandatory exchange of the restricted CUSIP
of the Restricted Securities to an unrestricted CUSIP pursuant to the applicable procedures of the Depositary upon the Notes becoming
freely tradable by non-Affiliates of the Company and the Guarantors under Rule 144, or (3) a request by the Company that the
Trustee deliver a notice to Holders under this Indenture where the Trustee receives an Officer’s Certificate with respect to such
notice. With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.
Notwithstanding anything
to the contrary in this Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive
an Opinion of Counsel in connection with any action to be taken by the Trustee from the Company or any Guarantor hereunder, the Trustee
shall be entitled to, or entitled to request, such Opinion of Counsel.
Section 17.06. Legal
Holidays. In any case where any Interest Payment Date, any Fundamental Change Repurchase Date, any Redemption Date or the Maturity
Date is not a Business Day or is a day on which financial institutions located in the state in which the Corporate Trust Office is located
are authorized or required by law or executive order to close or be closed, then any action to be taken on such date need not be taken
on such date, but may be taken on the next succeeding Business Day that is not a day on which financial institutions located in the state
in which the Corporate Trust Office is located are authorized or required by law or executive order to close or be closed with the same
force and effect as if taken on such date, and no interest shall accrue in respect of the delay.
Section 17.07. No
Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.08. Benefits
of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders,
the parties hereto, any Paying Agent, any Exchange Agent, any authenticating agent, any Note Registrar and their successors hereunder,
any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 17.09. Table
of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
Section 17.10. Authenticating
Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction
in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.03
as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections
to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for
the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 7.08.
Any corporation or other
entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other
entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to all or substantially all of the corporate trust business of any authenticating agent, shall be the successor
of the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10,
without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such
successor corporation or other entity.
Any authenticating agent
may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate
the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be
eligible under this Section 17.10, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give
written notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.
The Company agrees to pay
to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the authenticating
agent, if it determines such agent’s fees to be unreasonable.
The provisions of Section 7.02,
Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating agent.
If an authenticating agent
is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:
__________________________,
as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.
By: ____________________
Authorized Signatory
Section 17.11. Execution
in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
The exchange of copies of
this Indenture and of signature pages that are executed by manual signatures that are scanned, photocopied or faxed or by other
electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign) shall constitute effective
execution and delivery of this Indenture for all purposes. Signatures of the parties hereto that are executed by manual signatures that
are scanned, photocopied or faxed or by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing
(such as Adobe Sign) shall be deemed to be their original signatures for all purposes of this Indenture as to the parties hereto and
may be used in lieu of the original.
Anything in this Indenture
or the Notes to the contrary notwithstanding, for the purposes of the transactions contemplated by this Indenture, the Notes and any
document to be signed in connection with this Indenture or the Notes (including the Notes and amendments, supplements, waivers, consents
and other modifications, Officer’s Certificates, Company Orders and Opinions of Counsel and other issuance, authentication and
delivery documents) or the transactions contemplated hereby may be signed by manual signatures that are scanned, photocopied or faxed
or other electronic signatures created on an electronic platform (such as DocuSign) or by digital signature (such as Adobe Sign) and
contract formations on electronic platforms, and the keeping of records in electronic form, are hereby authorized, and each shall be
of the same legal effect, validity or enforceability as a manually executed signature.
Section 17.12. Severability.
In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted
by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 17.13. Waiver
of Jury Trial. THE COMPANY, EACH OF THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14. Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, pandemics, epidemics, quarantine restrictions, recognized public emergencies, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 17.15. Calculations.
The Parent shall be responsible for making all calculations called for under the Notes or this Indenture. These calculations include,
but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the Trading Price of the Notes (for purposes
of determining whether the Notes are exchangeable as described herein), the Daily VWAPs, the Daily Exchange Values, the Daily Settlement
Amounts, accrued interest payable on the Notes and the Exchange Rate of the Notes. The Parent shall make all these calculations in good
faith and, absent manifest error, the Parent’s calculations shall be final and binding on Holders of Notes. The Company shall provide
a schedule of the Parent’s calculations to each of the Trustee and the Exchange Agent, and each of the Trustee and Exchange Agent
is entitled to rely conclusively upon the accuracy of the Parent’s calculations without independent verification. The Trustee will
forward the Parent’s calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.
For the avoidance of doubt, neither the Trustee nor the Exchange Agent shall be responsible for performing any calculations under this
Indenture and the Trustee and the Exchange Agent shall rely conclusively on the calculations and information provided to them by the
Company as to the Last Reported Sale Prices of the Common Stock, the Trading Price of the Notes (for purposes of the Company’s
determination whether the Notes are exchangeable as described herein), the Daily VWAPs, the Daily Exchange Values, the Daily Settlement
Amounts, accrued interest payable on the Notes and the Exchange Rate of the Notes. Neither the Trustee nor the Exchange Agent shall be
charged with knowledge of or have any duties to monitor the price of the Common Stock or any Measurement Period.
Section 17.16. USA
PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all
financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the USA PATRIOT Act.
Section 17.17. Electronic
Signatures. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that
any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature
provided by DocuSign (or such other digital signature provider as specified in writing to Trustee by the authorized representative),
in English). The Company agrees to assume all risks arising out of the use of digital signatures and electronic methods to submit communications
to Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse
by third parties.
Section 17.18. Tax
Matters. The Company and each of the Guarantors agrees, subject to applicable law, (i) to provide the Trustee, upon written
request, with such reasonable tax information as it has obtained in the ordinary course and has readily available in its possession to
enable the Trustee to determine whether any payments pursuant to this Indenture are subject to the withholding requirements described
in Section 1471(b) of the US Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections
1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“FATCA”)
and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent
necessary to comply with FATCA. The agreement in this Section 17.18 shall be solely for the benefit of the Trustee in order to assist
it in complying with such withholding requirements and shall not be enforceable by any individual Holder.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the date first written above.
|
SPIRIT AEROSYSTEMS, INC.,
as Company |
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|
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By: |
/s/ Mark J. Suchinski |
|
|
Name: |
Mark J. Suchinski |
|
|
Title: |
Senior Vice President and Chief Financial Officer |
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SPIRIT AEROSYSTEMS HOLDINGS, INC.,
as Guarantor and Parent |
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|
|
By: |
/s/ Mark J. Suchinski |
|
|
Name: |
Mark J. Suchinski |
|
|
Title: |
Senior Vice President and Chief Financial Officer |
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SPIRIT AEROSYSTEMS NORTH CAROLINA, INC.,
as Guarantor |
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|
|
By: |
/s/ Mark J. Suchinski |
|
|
Name: |
Mark J. Suchinski |
|
|
Title: |
Senior Vice President and Chief Financial Officer |
[Signature Page to Indenture]
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THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
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|
|
By: |
/s/
Marie A. Hattinger |
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Name: |
Marie A. Hattinger |
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Title: |
Vice President |
[Signature Page to Indenture]
EXHIBIT A
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND
IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND
IF A RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON
STOCK, IF ANY, DELIVERABLE UPON EXCHANGE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT
IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT
OF SPIRIT AEROSYSTEMS, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY
OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF
OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO SPIRIT AEROSYSTEMS
HOLDINGS, INC. OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A PERSON REASONABLY
BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.
PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY, SPIRIT AEROSYSTEMS HOLDINGS, INC. 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.]
SPIRIT AEROSYSTEMS, INC.
3.250% Exchangeable Senior Note due 2028
No. [_____] [Initially]1
$[_____________]
CUSIP No. [______]2
Spirit AeroSystems, Inc.,
a corporation duly organized and validly existing under the laws of the State of Delaware (the “Company,” which term
includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to [CEDE & CO.]3 [_______]4, or registered assigns, the principal sum [as set forth in
the “Schedule of Exchanges of Notes” attached hereto]5 [of $[_______]]6, which amount, taken together
with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $230,000,000 in aggregate
at any time, in accordance with the rules and procedures of the Depositary, on March 15, 2028, and interest thereon as set
forth below. This Note is fully and unconditionally guaranteed by Spirit AeroSystems Holdings, Inc. and Spirit AeroSystems North
Carolina, Inc. (the “Guarantors”) on an unsecured and unsubordinated basis as set forth in Article 13 of
the Indenture.
This Note shall bear interest
at the rate of 3.250% per year from November 13, 2023, or from the most recent date to which interest had been paid or provided
for to, but excluding, the next scheduled Interest Payment Date until November 1, 2028. Interest is payable semi-annually in arrears
on each May 1 and November 1, commencing on May 1, 2024, to Holders of record at the close of business on the preceding
April 15 and October 15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set
forth in Section 4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to
interest on, or in respect of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest
is, was or would be payable pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express
mention of the payment of Additional Interest in any provision therein shall not be construed as excluding Additional Interest in those
provisions thereof where such express mention is not made.
1 Include
if a global note.
2 This
Note will be deemed to be identified by CUSIP No. 85205T AQ3 from and after such time when (i) the Company delivers, pursuant to Section
2.05(c) of the within-mentioned Indenture, written notice to the Trustee of the occurrence of the Resale Restriction Termination Date
and the removal of the restrictive legend affixed to this Note and (ii) this Note is identified by such CUSIP number in accordance with
the applicable procedures of the Depositary.
3 Include
if a global note.
4 Include
if a physical note.
5 Include
if a global note.
6 Include
if a physical note.
Any Defaulted Amounts shall
accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including,
the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election,
in accordance with Section 2.03(c) of the Indenture.
The Company shall pay or
cause to be paid the principal of and interest on this Note, if and so long as such Note is a Global Note, in immediately available funds
to the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions
of the Indenture, the Company shall pay or cause to be paid the principal of any Notes (other than Notes that are Global Notes) at the
office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and
Note Registrar in respect of the Notes and its Corporate Trust Office in Chicago, Illinois, as a place where Notes may be presented
for payment or for registration of transfer and exchange.
Reference is made to the
further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this
Note the right to exchange this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable,
on the terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note, and any claim,
controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State
of New York.
In the case of any conflict
between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid
or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually or electronically
by the Trustee or a duly authorized authenticating agent under the Indenture.
[Remainder of page intentionally left
blank]
IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed.
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SPIRIT AEROSYSTEMS, INC. |
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By: |
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Name: |
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Title: |
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.
[FORM OF REVERSE OF NOTE]
SPIRIT AEROSYSTEMS, INC.
3.250% Exchangeable Senior Note due 2028
This Note is one of a duly
authorized issue of Notes of the Company, designated as its 3.250% Exchangeable Senior Notes due 2028 (the “Notes”),
limited to the aggregate principal amount of $230,000,000, all issued or to be issued under and pursuant to an Indenture dated as of
November 13, 2023 (the “Indenture”), among the Company, Spirit AeroSystems Holdings, Inc. and Spirit AeroSystems
North Carolina, Inc. (the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”),
to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantors and the Holders of the Notes. Additional Notes
may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms
used in this Note and not defined in this Note shall have the respective meanings set forth in the Indenture.
In case certain Events of
Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or
Holders of at least 30% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.
Subject to the terms and
conditions of the Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price
on the Fundamental Change Repurchase Date, the Redemption Price on any Redemption Date and the principal amount on the Maturity Date,
as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company
will pay cash amounts in money of the United States of America that at the time of payment is legal tender for payment of public and
private debts.
The Indenture contains provisions
permitting the Company, the Guarantors and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and
in certain other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture
and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority
in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default
or Event of Default under the Indenture and its consequences.
Each Holder shall have the
right to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon
exchange of, this Note at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case
may be, herein prescribed.
The Notes are issuable in
registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. At the office or agency of
the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but,
if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection
therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of
the Holder of the old Notes surrendered for such exchange.
The Notes shall be redeemable
at the Company’s option on or after November 6, 2026 in accordance with the terms and subject to the conditions specified
in the Indenture. No sinking fund is provided for the Notes.
Upon the occurrence of a
Fundamental Change (other than an Exempted Fundamental Change), the Holder has the right, at such Holder’s option, to require the
Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral multiples
thereof) on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.
Subject to the provisions
of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions
specified in the Indenture, prior to the close of business on the Business Day immediately preceding the Maturity Date, to exchange any
Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, at the Exchange Rate specified in the Indenture, as adjusted from time to time as provided in
the Indenture.
ABBREVIATIONS
The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants
in common
Additional abbreviations
may also be used though not in the above list.
SCHEDULE A7
SCHEDULE OF EXCHANGES OF NOTES
SPIRIT AEROSYSTEMS, INC.
3.250% Exchangeable Senior Notes due 2028
The initial principal amount
of this Global Note is [_______] DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:
Date
of exchange | |
Amount
of decrease in principal amount of this Global Note | |
Amount
of increase in principal amount of this Global Note | |
Principal
amount of this Global Note following such decrease or increase | |
Signature
of authorized signatory of Trustee or Custodian |
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ATTACHMENT 1
[FORM OF NOTICE OF EXCHANGE]
To: The
Bank of New York Mellon Trust Company, N.A., as Exchange Agent
311 S. Wacker Drive
Suite 6200B
Mailbox #44
Chicago, IL 60606
Attention: Corporate Trust Department –
Corporate Finance Unit
The undersigned registered
owner of this Note hereby exercises the option to exchange this Note, or the portion hereof (that is $1,000 principal amount or an integral
multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable,
in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock
issuable and deliverable upon such exchange, together with any cash for any fractional share, and any Notes representing any unexchanged
principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If
any shares of Common Stock or any portion of this Note not exchanged are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and
Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this
Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
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Signature Guarantee |
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Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued,
or Notes are to be delivered, other than to and in the name of the registered holder. |
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Fill in for registration of shares if to be issued,
and Notes if to be delivered, other than to and in the name of the registered holder: |
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(Name) |
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(Street Address) |
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(City, State and Zip
Code) |
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Please print name and address |
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Principal amount to be exchanged (if less than
all): $______,000
NOTICE: The above signature(s) of the Holder(s) hereof
must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change
whatever.
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Social Security or Other Taxpayer |
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Identification Number |
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
To: The
Bank of New York Mellon Trust Company, N.A., as Paying Agent
311 S. Wacker Drive
Suite 6200B
Mailbox #44
Chicago, IL 60606
Attention: Corporate Trust Department –
Corporate Finance Unit
The undersigned registered owner of this Note
hereby acknowledges receipt of a notice from Spirit AeroSystems, Inc. (the “Company”) as to the occurrence of
a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the
Company to pay to the registered holder hereof in accordance with Section 15.01 of the Indenture referred to in this Note (1) the
entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on
or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental
Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
In the case of Physical Notes,
the certificate numbers of the Notes to be repurchased are as set forth below:
Social Security or Other Taxpayer
Identification Number
Principal amount to be repaid (if less than all):
$______,000
NOTICE: The above signature(s) of the Holder(s) hereof
must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change
whatever.
ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
For value received ____________________________
hereby sell(s), assign(s) and transfer(s) unto _________________ (Please insert social security or Taxpayer Identification
Number of assignee) the within Note, and hereby irrevocably constitutes and appoints _____________________ attorney to transfer the said
Note on the books of the Company, with full power of substitution in the premises.
In connection with any transfer of the within
Note occurring prior to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms
that such Note is being transferred:
¨ To
Spirit AeroSystems Holdings, Inc. or a subsidiary thereof (including Spirit AeroSystems, Inc. and Spirit AeroSystems North
Carolina, Inc.); or
¨ Pursuant
to a registration statement that has become effective under the Securities Act of 1933, as amended; or
¨ Pursuant
to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
¨ Pursuant
to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Dated: |
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Signature(s) |
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Signature
Guarantee |
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Signature(s) must be guaranteed
by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an
approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be
delivered, other than to and in the name of the registered holder. |
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NOTICE: The signature on the assignment must
correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
Exhibit 5.1
[Letterhead of Sullivan & Cromwell
LLP]
November 13, 2023
Spirit
AeroSystems Holdings, Inc.,
3801 South Oliver,
Wichita, Kansas 67210.
Ladies and Gentlemen:
In connection with the registration under the Securities
Act of 1933 (the “Act”) of 10,454,545 shares of Class A common stock, par value $0.01 per share (the “Securities”),
of Spirit AeroSystems Holdings, Inc., a Delaware corporation (the “Company”), we, as your counsel, have examined such
corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. Upon the basis of such examination, we advise you that, in our opinion, the Securities have been validly issued
and are fully paid and nonassessable.
In rendering the foregoing opinion, we are not passing
upon, and assume no responsibility for, any disclosure in any registration statement or any related prospectus or other offering material
relating to the offer and sale of the Securities.
The foregoing opinion is limited to the Federal laws
of the United States and the General Corporation Law of the State of Delaware, and we are expressing no opinion as to the effect of the
laws of any other jurisdiction.
We have relied as to certain factual matters on information
obtained from public officials, officers of the Company and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as
an exhibit to a Current Report on Form 8-K to be incorporated by reference into the Registration Statement relating to the Securities
and to the reference to us under the heading “Validity of Common Stock” in the Prospectus Supplement relating to the Securities.
In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7
of the Act.
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Very truly yours, |
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/s/ SULLIVAN & CROMWELL LLP |
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