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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):
May 15, 2024
ATLASSIAN CORPORATION
(Exact Name of Registrant as Specified in its
Charter)
Delaware |
001-37651 |
88-3940934 |
(State or other jurisdiction of
incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer
Identification No.) |
350 Bush Street, Floor 13
San Francisco, California 94104
(Address of principal executive offices and
Zip Code)
(415) 701-1110
(Registrant’s telephone number, including
area code)
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:
| ¨ | Written
communication 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 |
Name of each
exchange on which registered |
Class A Common Stock, par value $0.00001 per share |
TEAM |
Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange
Act of 1934 (17 CFR §240.12b-2).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. |
Entry Into a Material Definitive Agreement. |
On May 15, 2024, Atlassian Corporation (the “Company”)
issued $500 million aggregate principal amount of 5.250% senior notes due 2029 (the “2029 Notes”) and $500 million
aggregate principal amount of 5.500% senior notes due 2034 (the “2034 Notes,” and together with the 2029 Notes, the
“Notes”). The Notes were offered and sold pursuant to a prospectus, dated May 6, 2024, forming a part of the Company’s
shelf registration statement on Form S-3 (Registration No. 333-279132), and a prospectus supplement, dated May 8, 2024, relating to the
Notes. The Notes were issued under an indenture, dated as of May 15, 2024 (the “Base Indenture”), as supplemented by
the first supplemental indenture, dated as of May 15, 2024, with respect to the Notes (the “Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”), each between the Company and U.S. Bank Trust Company, National
Association (as successor in interest to U.S. Bank National Association), as trustee. The Indenture
and the forms of the Notes provide, among other things, that the Notes are senior unsecured obligations of the Company.
The 2029 Notes bear interest at a rate of 5.250%
per year. Interest on the 2029 Notes is payable semi-annually on May 15 and November 15 of each year, beginning on November 15, 2024.
The 2034 Notes bear interest at a rate of 5.500% per year. Interest on the 2034 Notes is payable semi-annually on May 15 and November
15 of each year, beginning on November 15, 2024.
The Indenture contains covenants limiting the
Company’s ability to create certain liens and enter into certain sale and leaseback transactions. These covenants are subject to
important limitations and exceptions as set forth in the Indenture.
The description of the Indenture in this Current
Report on Form 8-K is a summary of, and is qualified in its entirety by, the terms of the Indenture. Copies of the Base Indenture and
the Supplemental Indenture are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K, and incorporated herein
by reference.
Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The
information contained in Item 1.01 above with respect to the Notes and the Indenture is hereby incorporated by reference into this Item
2.03, insofar as it relates to the creation of a direct financial obligation.
Item 9.01. |
Financial Statements and Exhibits. |
Exhibit
No. |
Description |
4.1 |
Indenture,
dated as of May 15, 2024, between the Company and U.S. Bank Trust Company, National Association, as trustee. |
4.2 |
First
Supplemental Indenture, dated as of May 15, 2024, between the Company and U.S. Bank Trust Company, National Association, as trustee. |
4.3 |
Form
of 5.250% senior notes due 2029 (included in Exhibit 4.2). |
4.4 |
Form
of 5.500% senior notes due 2034 (included in Exhibit 4.2). |
5.1 |
Opinion
of Latham & Watkins LLP. |
23.1 |
Consent
of Latham & Watkins LLP (included in Exhibit 5.1). |
104 |
Cover
Page Interactive Data File (formatted as Inline XBRL). |
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.
Date: May 15, 2024 |
|
|
|
|
ATLASSIAN CORPORATION |
|
|
|
By: |
/s/ Joseph Binz |
|
|
Joseph Binz |
|
|
Chief Financial Officer |
Exhibit 4.1
Atlassian Corporation
INDENTURE
Dated as of May 15, 2024
U.S. Bank Trust Company, National Association
Trustee
TABLE
OF CONTENTS
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Page |
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
|
1 |
Section 1.1. |
|
Definitions |
|
1 |
Section 1.2. |
|
Other Definitions |
|
4 |
Section 1.3. |
|
Incorporation by Reference of Trust Indenture Act |
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4 |
Section 1.4. |
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Rules of Construction |
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5 |
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ARTICLE II. THE SECURITIES |
|
5 |
Section 2.1. |
|
Issuable in Series |
|
5 |
Section 2.2. |
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Establishment of Terms of Series of Securities |
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6 |
Section 2.3. |
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Execution and Authentication |
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8 |
Section 2.4. |
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Registrar, Paying Agent and Notice Agent |
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9 |
Section 2.5. |
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Paying Agent to Hold Money in Trust |
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10 |
Section 2.6. |
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Holder Lists |
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10 |
Section 2.7. |
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Transfer and Exchange |
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10 |
Section 2.8. |
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Mutilated, Destroyed, Lost and Stolen Securities |
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11 |
Section 2.9. |
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Outstanding Securities |
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12 |
Section 2.10. |
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Treasury Securities |
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12 |
Section 2.11. |
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Temporary Securities |
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12 |
Section 2.12. |
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Cancellation |
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13 |
Section 2.13. |
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Defaulted Interest |
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13 |
Section 2.14. |
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Global Securities |
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13 |
Section 2.15. |
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CUSIP Numbers |
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15 |
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ARTICLE III. REDEMPTION |
|
15 |
Section 3.1. |
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Notice to Trustee |
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15 |
Section 3.2. |
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Selection of Securities to be Redeemed |
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16 |
Section 3.3. |
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Notice of Redemption |
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16 |
Section 3.4. |
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Effect of Notice of Redemption |
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17 |
Section 3.5. |
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Deposit of Redemption Price |
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17 |
Section 3.6. |
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Securities Redeemed in Part |
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17 |
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ARTICLE IV. COVENANTS |
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17 |
Section 4.1. |
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Payment of Principal and Interest |
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17 |
Section 4.2. |
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SEC Reports |
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18 |
Section 4.3. |
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Compliance Certificate |
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18 |
Section 4.4. |
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Stay, Extension and Usury Laws |
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18 |
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ARTICLE V. SUCCESSORS |
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19 |
Section 5.1. |
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When Company May Merge, Etc. |
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19 |
Section 5.2. |
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Successor Corporation Substituted |
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19 |
ARTICLE VI. DEFAULTS AND REMEDIES |
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20 |
Section 6.1. |
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Events of Default |
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20 |
Section 6.2. |
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Acceleration of Maturity; Rescission and Annulment |
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21 |
Section 6.3. |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
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21 |
Section 6.4. |
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Trustee May File Proofs of Claim |
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22 |
Section 6.5. |
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Trustee May Enforce Claims Without Possession of Securities |
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23 |
Section 6.6. |
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Application of Money Collected |
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23 |
Section 6.7. |
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Limitation on Suits |
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23 |
Section 6.8. |
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Unconditional Right of Holders to Receive Principal and Interest |
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24 |
Section 6.9. |
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Restoration of Rights and Remedies |
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24 |
Section 6.10. |
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Rights and Remedies Cumulative |
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24 |
Section 6.11. |
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Delay or Omission Not Waiver |
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25 |
Section 6.12. |
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Control by Holders |
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25 |
Section 6.13. |
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Waiver of Past Defaults |
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25 |
Section 6.14. |
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Undertaking for Costs |
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26 |
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ARTICLE VII. TRUSTEE |
|
26 |
Section 7.1. |
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Duties of Trustee |
|
26 |
Section 7.2. |
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Rights of Trustee |
|
27 |
Section 7.3. |
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Individual Rights of Trustee |
|
28 |
Section 7.4. |
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Trustee’s Disclaimer |
|
29 |
Section 7.5. |
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Notice of Defaults |
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29 |
Section 7.6. |
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Reports by Trustee to Holders |
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29 |
Section 7.7. |
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Compensation and Indemnity |
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29 |
Section 7.8. |
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Replacement of Trustee |
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30 |
Section 7.9. |
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Successor Trustee by Merger, Etc. |
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31 |
Section 7.10. |
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Eligibility; Disqualification |
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31 |
Section 7.11. |
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Preferential Collection of Claims Against Company |
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31 |
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ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
|
32 |
Section 8.1. |
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Satisfaction and Discharge of Indenture |
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32 |
Section 8.2. |
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Application of Trust Funds; Indemnification |
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33 |
Section 8.3. |
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Legal Defeasance of Securities of any Series |
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34 |
Section 8.4. |
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Covenant Defeasance |
|
35 |
Section 8.5. |
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Repayment to Company |
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36 |
Section 8.6. |
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Reinstatement |
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36 |
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ARTICLE IX. AMENDMENTS AND WAIVERS |
|
37 |
Section 9.1. |
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Without Consent of Holders |
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37 |
Section 9.2. |
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With Consent of Holders |
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37 |
Section 9.3. |
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Limitations |
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38 |
Section 9.4. |
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Compliance with Trust Indenture Act |
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38 |
Section 9.5. |
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Revocation and Effect of Consents |
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38 |
Section 9.6. |
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Notation on or Exchange of Securities |
|
39 |
Section 9.7. |
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Trustee Protected |
|
39 |
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ARTICLE X. MISCELLANEOUS |
|
39 |
Section 10.1. |
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Trust Indenture Act Controls |
|
39 |
Section 10.2. |
|
Notices |
|
40 |
Section 10.3. |
|
Communication by Holders with Other Holders |
|
41 |
Section 10.4. |
|
Certificate and Opinion as to Conditions Precedent |
|
41 |
Section 10.5. |
|
Statements Required in Certificate or Opinion |
|
41 |
Section 10.6. |
|
Rules by Trustee and Agents |
|
41 |
Section 10.7. |
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Legal Holidays |
|
42 |
Section 10.8. |
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No Recourse Against Others |
|
42 |
Section 10.9. |
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Counterparts |
|
42 |
Section 10.10. |
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Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
|
42 |
Section 10.11. |
|
No Adverse Interpretation of Other Agreements |
|
43 |
Section 10.12. |
|
Successors |
|
43 |
Section 10.13. |
|
Severability |
|
43 |
Section 10.14. |
|
Table of Contents, Headings, Etc. |
|
43 |
Section 10.15. |
|
Securities in a Foreign Currency |
|
43 |
Section 10.16. |
|
Judgment Currency |
|
44 |
Section 10.17. |
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Force Majeure |
|
44 |
Section 10.18. |
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U.S.A. Patriot Act |
|
45 |
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ARTICLE XI. SINKING FUNDS |
|
45 |
Section 11.1. |
|
Applicability of Article |
|
45 |
Section 11.2. |
|
Satisfaction of Sinking Fund Payments with Securities |
|
45 |
Section 11.3. |
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Redemption of Securities for Sinking Fund |
|
46 |
Atlassian
Corporation
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of May 15, 2024
§ 310(a)(1) |
|
7.10 |
(a)(2) |
|
7.10 |
(a)(3) |
|
Not Applicable |
(a)(4) |
|
Not Applicable |
(a)(5) |
|
7.10 |
(b) |
|
7.10 |
§ 311(a) |
|
7.11 |
(b) |
|
7.11 |
(c) |
|
Not Applicable |
§ 312(a) |
|
2.6 |
(b) |
|
10.3 |
(c) |
|
10.3 |
§ 313(a) |
|
7.6 |
(b)(1) |
|
7.6 |
(b)(2) |
|
7.6 |
(c)(1) |
|
7.6 |
(d) |
|
7.6 |
§ 314(a) |
|
4.2, 10.5 |
(b) |
|
Not Applicable |
(c)(1) |
|
10.4 |
(c)(2) |
|
10.4 |
(c)(3) |
|
Not Applicable |
(d) |
|
Not Applicable |
(e) |
|
10.5 |
(f) |
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Not Applicable |
§ 315(a) |
|
7.1 |
(b) |
|
7.5 |
(c) |
|
7.1 |
(d) |
|
7.1 |
(e) |
|
6.14 |
§ 316(a) |
|
2.10 |
(a)(1)(A) |
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6.12 |
(a)(1)(B) |
|
6.13 |
(b) |
|
6.8 |
§ 317(a)(1) |
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6.3 |
(a)(2) |
|
6.4 |
(b) |
|
2.5 |
§ 318(a) |
|
10.1 |
Note: This reconciliation and tie shall not, for
any purpose, be deemed to be part of the Indenture.
Indenture dated as of May 15,
2024 between Atlassian Corporation, a company incorporated under the laws of Delaware (“Company”), and U.S. Bank Trust
Company, National Association, a national banking association, as trustee (“Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified
person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means
any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York, New York (or in connection with any payment, the place
of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default”
means any event which is, or after notice, passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations
of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP” means
generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in
the name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary and any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
The opinion may contain customary limitations, conditions and exceptions.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument 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, and if at any time there is more than one such person, “Trustee” as used with respect to the
Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, the United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary
receipt.
Section 1.2. Other
Definitions.
TERM |
|
DEFINED IN SECTION |
|
|
|
“Agent Member” |
|
2.14.6 |
“Bankruptcy Law” |
|
6.1 |
“Custodian” |
|
6.1 |
“Event of Default” |
|
6.1 |
“Judgment Currency” |
|
10.16 |
“mandatory sinking fund payment” |
|
11.1 |
“New York Banking Day” |
|
10.16 |
“Notice Agent” |
|
2.4 |
“optional sinking fund payment” |
|
11.1 |
“Paying Agent” |
|
2.4 |
“Registrar” |
|
2.4 |
“Required Currency” |
|
10.16 |
“Specified Courts” |
|
10.10 |
“successor person” |
|
5.1 |
Section 1.3. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Holder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4. Rules of
Construction.
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions;
(f) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including,” and the words “to” and “until” each mean “to but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution,
a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under
a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate
or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are
to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23)
by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture
hereto or Officer’s Certificate:
2.2.1. the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2. the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5. the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12. if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15. if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
2.2.17. the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19. any
addition to, deletion of or change in the covenants applicable to Securities of the Series;
2.2.20. any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein;
2.2.21. the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting
conversion or exchange if such Series of Securities are redeemed;
2.2.22. any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities
of that Series; and
2.2.23. whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one Series need
not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Execution
and Authentication.
An Officer shall sign the Securities
for the Company by manual, facsimile or electronic signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officer’s Certificate complying with Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and
10.5.
The Trustee shall have the right
to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that
such action may not be taken lawfully; or (b) if the Trustee in good faith determines that such action may expose the Trustee to
personal liability.
The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar,
Paying Agent and Notice Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2,
an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered
(“Notice Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address,
of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying
Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee
as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal
process on the Company.
The Company may also from time
to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series 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
name or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar,
Paying Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. The
rights, powers, duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and
the Agents shall only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section 2.5. Paying
Agent to Hold Money in Trust.
The Company shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of any Series of
Securities or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities
and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities all money held by it as Paying
Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent
for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless and have no liability with respect
to payments or disbursements (including to the Holders) until they have confirmed receipt of funds sufficient to make the relevant payment.
No money held by an Agent needs to be segregated except as is required by law.
Section 2.6. Holder
Lists.
If it is serving as Registrar,
the Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request
in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each
Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made under TIA § 312(b).
Section 2.7. Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt
of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9. Outstanding
Securities.
The Securities outstanding at
any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced pursuant
to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held
by a bona fide purchaser.
If the Paying Agent (other than
the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.
The Company may purchase or
otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders
of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury
Securities.
In determining whether the Holders
of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice,
consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall
authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirements of the Exchange
Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company may
not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted
Interest.
If the Company defaults in a
payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Holders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the Trustee and
to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid.
The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global
Securities.
2.14.1. Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.
2.14.2. Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate
to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2,
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.
None of the Trustee or any Agent
shall have any 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 Security (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Security) 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.
None of the Trustee or any Agent
shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under
or with respect to such Security.
2.14.3. Legends.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY, 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 A SUCCESSOR DEPOSITARY.”
In addition, so long as the
Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee shall
bear a legend in substantially the following form:
“UNLESS THIS GLOBAL SECURITY
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 GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4. Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5. Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6. Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered Holders
shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 2.15. CUSIP
Numbers.
The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only
on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission
of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice
to Trustee.
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay
the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing
of the redemption date and the principal amount of the Series of Securities to be redeemed. The Company shall give the notice at
least 10 days before the redemption date (or such shorter period as may be acceptable to the Trustee).
Section 3.2. Selection
of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected
as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the
manner that the Trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock
exchange requirements, subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Securities
to be redeemed shall be selected from Securities of the Series outstanding not previously called for redemption. Portions of the
principal of Securities of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the
Series and portions of them it selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect
to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for
each Series and the authorized integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called
for redemption also apply to portions of Securities of that Series called for redemption. Neither the Trustee nor the Paying Agent
shall be liable for any selection made by it in accordance with this paragraph (including the procedures of the Depositary).
Section 3.3. Notice
of Redemption.
Unless otherwise indicated for
a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 10 days but
not more than 60 days before a redemption date, the Company shall send or cause to be sent by first-class mail or electronically, in accordance
with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the
Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption
date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original
Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company defaults
in the deposit of the redemption price;
(g) the
“CUSIP” number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has
delivered to the Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice and the form of
such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is
sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date
and at the redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment
of Principal and Interest.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if
any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m.,
New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal
of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC
Reports.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates). All such reports, information or documents referred to in this Section 4.2 that the Company files
with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to Holders at the time such
reports, information or documents are filed via the EDGAR system (or any successor system).
Section 4.3. Compliance
Certificate.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best
of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is
not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture the Company’s
obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to
the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any
Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Corporation Substituted.
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance
or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officer’s Certificate it is provided that such Series shall not have the benefit of said
Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraph (a) or
(b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of a Series of
Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder;
(d) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors, or
(v) generally
is unable to pay its debts as the same become due;
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company,
and the order or decree remains unstayed
and in effect for 60 days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal
amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days,
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee, subject to Article VII hereof, may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee
May File Proofs of Claim.
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities 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 on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee 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 the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.7.
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 the Securities 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.
Section 6.5. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 6.6. Application
of Money Collected.
Any money or property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money or property on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To
the payment of all amounts due the Trustee under Section 7.7; and
Second: To
the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To
the Company.
Section 6.7. Limitation
on Suits.
No Holder of any Security of
any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood, intended and expressly covenanted
by the Holder of every Security with every other Holder and the Trustee that no one or more of such 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
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.8. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 6.12. Control
by Holders.
The Holders of a majority in
principal amount of the outstanding Securities of any Series 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
Securities of such Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject
to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability, and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of
such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its
consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, 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 shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by his 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, suffered 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, 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; but the provisions
of this Section shall not apply to any suit instituted by the Company, 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 outstanding Securities of any Series,
or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after
the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption
date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise 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.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
will be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series 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 with respect to the Securities of such Series in accordance with
Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(h) The
Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting in any other capacity hereunder shall
be entitled to the protections and immunities as are set forth in this Article VII.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities under this Indenture.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No
Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) 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, note, other evidence of indebtedness 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.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental 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.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The
Trustee will not be required to give any bond or surety in respect of the execution of this Indenture or otherwise.
Section 7.3. Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
Section 7.4. Trustee’s
Disclaimer.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities. The Trustee shall not be accountable for the Company’s use of
the proceeds from the Securities and shall not be responsible for any statement in the Securities other than its certificate of authentication.
Section 7.5. Notice
of Defaults.
If
a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall send to each Holder of the Securities of that Series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Holders of that Series. The Trustee will not be deemed to have notice or be charged
with knowledge of any Default or Event of Default unless written notice thereof has been received by a Responsible Officer, and such notice
references the applicable Series of Securities and this Indenture and states on its face that a Default or Event of Default has occurred.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each anniversary
of this Indenture, the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by the
Registrar, a brief report dated as of such anniversary date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its mailing to Holders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed
on any national securities exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including for the cost of defending itself) against any cost, expense or liability, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the
next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through willful misconduct or negligence, as determined by a final decision of a court of competent jurisdiction.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall
survive the termination of this Indenture and the resignation or removal of the Trustee.
Section 7.8. Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall
send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture
prior to such replacement.
Section 7.9. Successor
Trustee by Merger, Etc.
Any organization or entity into
which the Trustee may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity
shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or
(3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S.
Government Obligations, which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including
mandatory sinking fund payments or analogous payments) of and interest on all the Securities of such Series on the dates such installments
of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5,
and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith
shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination of this Indenture) against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections
8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or
Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any
U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
Section 8.3. Legal
Defeasance of Securities of any Series.
Unless this Section 8.3
is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities
of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order,
execute instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment
bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and
interest, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments
of principal or interest and such sinking fund payments are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance.
Unless this Section 8.4
is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with
respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and,
unless otherwise specified therein, any additional covenants specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence
of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate
delivered pursuant to Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will
be unaffected thereby; provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments or analogous
payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit;
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have 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 covenant defeasance contemplated by this Section have been complied with.
Section 8.5. Repayment
to Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying
Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such Series and
under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1
until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided,
however, that if the Company has made any payment of principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Holder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee; or
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With
Consent of Holders.
Subject to Section 9.3,
the Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of each such Series. Except as provided in Section 6.13, and subject to Section 9.3, the Holders
of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each
Holder affected, an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
Section 9.4. Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
Section 9.5. Revocation
and Effect of Consents.
Until an amendment is set forth
in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to
his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture or
the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who
has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
The Company may, but shall not
be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second
immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record
date.
Section 9.6. Notation
on or Exchange of Securities.
The Company or the Trustee may,
but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 new Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee
Protected.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, upon request, an Officer’s Certificate and/or an Opinion of Counsel
complying with Sections 10.4 and 10.5 and (subject to Section 7.1) shall be fully protected in relying upon such Officer’s
Certificate and/or Opinion of Counsel. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate
or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties,
liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust
Indenture Act Controls.
If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered by
email to the others’ address:
if to the Company:
Atlassian Corporation
Attention: General Counsel
Email: legalfilings@atlassian.com
with a copy to:
Latham & Watkins
LLP
Attention: Greg Rodgers, Esq.
Email: Greg.Rodgers@lw.com
if to the Trustee:
U.S. Bank Trust Company, National Association
Attention:
Bradley Scarbrough and Shawn S. Goffinet
Email: bradley.scarbrough@usbank.com
and bhscorporatetrust@usbank.com
The Company or the Trustee by
notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address shown on the register
kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Holder of any
Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
Notwithstanding any other provision
of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security
(or its designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication
by Holders with Other Holders.
Holders of any Series may
communicate pursuant to TIA § 312(b) with other Holders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5. Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such person, such person has made such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
If a payment date for any payment
made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee
or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting
a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf” or “.tif”)
shall be deemed to be their original signatures for all purposes.
Unless otherwise provided herein
or in any other Securities, the words “execute”, “execution”, “signed” and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Securities or any of
the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
THE
COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, 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 SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Securities)
each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has
been brought in an inconvenient forum.
Section 10.11. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this
Indenture or in the Securities 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 10.14. Table
of Contents, Headings, Etc.
The Table of Contents, Cross
Reference Table, 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 10.15. Securities
in a Foreign Currency.
Unless otherwise specified in
a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one
currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking
such action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular
Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall
be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates”
section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such
source as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection
with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment
Currency.
The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in the City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
Section 10.17. 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,
civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics or other public health emergencies, 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 best efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee 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 U.S.A. Patriot Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities
pursuant to Section 2.2, except as otherwise permitted or required by any form of Security of such Series issued pursuant to
this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption
and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a
Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying
Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3. Redemption
of Securities for Sinking Fund.
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of
Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that
Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied
by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect
of a particular Series of Securities) before each such sinking fund payment date the Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2, and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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Atlassian Corporation |
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By: |
/s/ Joseph Binz |
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Name: |
Joseph Binz |
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Its: |
Chief Financial Officer |
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U.S. Bank Trust Company, National
Association, as Trustee |
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By: |
/s/ Bradley E. Scarbrough |
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Name: |
Bradley E. Scarbrough |
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Its: |
Vice President |
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE,
dated as of May 15, 2024 (the “Supplemental Indenture”), is between ATLASSIAN CORPORATION, a Delaware corporation
(the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as trustee for the 2029 Notes defined below (in
such capacity, the “2029 Trustee”) and the 2034 Notes defined below (in such capacity, the “2034 Trustee”,
collectively with the 2029 Trustee, the “Trustee”), to the Indenture (as defined below).
RECITALS
WHEREAS, the Company and the
Trustee executed and delivered an Indenture, dated as of May 15, 2024 (the “Base Indenture” and, as amended and
supplemented by this Supplemental Indenture, the “Indenture”), substantially in the form of Indenture previously filed
as Exhibit 4.3 to the Registration Statement (No. 333-279132) filed with the Securities and Exchange Commission (the “Commission”)
on Form S-3 by the Company.
WHEREAS, the Company has duly
authorized and desires to create two new series of Securities to be issued under the Indenture, as hereby supplemented, consisting of:
(i) $500.0 million in an initial aggregate principal amount of Securities to be designated the “5.250% Senior Notes due 2029”
(the “2029 Notes”) and (ii) $500.0 million in an initial aggregate principal amount of Securities to be designated
the “5.500% Senior Notes due 2034” (the “2034 Notes” and, together with the 2029 Notes, the “Notes”
and each, a “series of Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof
to be set forth as provided in the Indenture and this Supplemental Indenture;
WHEREAS, Section 9.1(i) of
the Base Indenture provides that the Company and the Trustee may amend or supplement the Indenture without the written consent of the
Holders of the outstanding Securities to provide for the issuance of and establish the form and terms and conditions of Securities of
any Series as permitted by the Indenture;
WHEREAS, all acts and things
prescribed by the Indenture, by law and by the organizational documents of the Company and the Trustee necessary to make this Supplemental
Indenture a valid instrument legally binding on the Company and the Trustee, in accordance with its terms, have been duly done and performed;
and
WHEREAS, all conditions precedent
to amend or supplement the Indenture have been met.
NOW, THEREFORE, to comply
with the provisions of the Indenture, and in consideration of the above premises, the Company and the Trustee covenant and agree as follows:
Article I
Section 1.01 Nature
of Supplemental Indenture. This Supplemental Indenture supplements the Indenture and does and shall be deemed to form a part of, and
shall be construed in connection with and as part of, the Indenture for any and all purposes.
Section 1.02 Establishment
of New Series. Pursuant to Section 2.2 of the Base Indenture, there is hereby established each series of Notes having the terms,
in addition to those set forth in the Indenture and this Supplemental Indenture, set forth in each form of Note, attached to this Supplemental
Indenture as Exhibit A (for the 2029 Notes) and Exhibit B (for the 2034 Notes), which are incorporated herein
as a part of this Supplemental Indenture. In addition to the initial aggregate principal amount of each series of Notes issued on the
date hereof, the Company may issue additional Notes of a series under the Base Indenture and this Supplemental Indenture in accordance
with Section 2.2 of the Base Indenture.
Section 1.03 Title,
Amount and Payment of Principal and Interest.
(a) The
2029 Notes shall be entitled the “5.250% Senior Notes due 2029”. The 2029 Trustee shall authenticate and deliver (i) the
2029 Notes for original issue on the date hereof (the “Original 2029 Notes”) in the aggregate principal amount of $500.0
million, and (ii) additional 2029 Notes for original issue from time to time after the date hereof in such principal amounts as may
be specified in a Company Order described in this sentence, in each case upon a Company Order for the authentication and delivery thereof
and satisfaction of the other provisions of Section 2.3 of the Base Indenture. Such Company Order shall specify the amount of the
2029 Notes to be authenticated, the date on which the original issue of 2029 Notes is to be authenticated, and the name or names of the
initial Holder or Holders. The Original 2029 Notes and any additional 2029 Notes issued and authenticated pursuant to clause (ii) of
this paragraph shall constitute a single series of Notes for all purposes under the Indenture.
The principal amount of each
2029 Note shall be payable on May 15, 2029. Each 2029 Note shall bear interest from the date of original issuance, or the most recent
date to which interest has been paid, at the fixed rate of 5.250% per annum. The dates on which interest on the 2029 Notes shall be payable
shall be May 15 and November 15 of each year (the “2029 Notes Interest Payment Dates”). The regular record
date for interest payable on the 2029 Notes on any 2029 Notes Interest Payment Date shall be May 1 and November 1, as the case
may be, next preceding such 2029 Notes Interest Payment Date.
Payments of principal of,
premium, if any, on, and interest due on the 2029 Notes on any 2029 Notes Interest Payment Date or at maturity will be made available
to the 2029 Trustee by 11:00 a.m., New York City time, on such date, unless such date falls on a day that is not a Business Day, in which
case (x) such payments will be made available to the 2029 Trustee by 11:00 a.m., New York City time, on the next Business Day, and
(y) for so long as clause (x) is satisfied, no interest shall accrue on the amount of interest due on such 2029 Notes Interest
Payment Date for the period from and after such 2029 Notes Interest Payment Date and the date of payment. As soon as possible thereafter,
the 2029 Trustee will make such payments to the Depositary.
(b) The
2034 Notes shall be entitled the “5.500% Senior Notes due 2034”. The 2034 Trustee shall authenticate and deliver (i) the
2034 Notes for original issue on the date hereof (the “Original 2034 Notes”) in the aggregate principal amount of $500.0
million, and (ii) additional 2034 Notes for original issue from time to time after the date hereof in such principal amounts as may
be specified in a Company Order described in this sentence, in each case upon a Company Order for the authentication and delivery thereof
and satisfaction of the other provisions of Section 2.3 of the Base Indenture. Such Company Order shall specify the amount of the
2034 Notes to be authenticated, the date on which the original issue of 2034 Notes is to be authenticated, and the name or names of the
initial Holder or Holders. The Original 2034 Notes and any additional 2034 Notes issued and authenticated pursuant to clause (ii) of
this paragraph shall constitute a single series of Notes for all purposes under the Indenture.
The principal amount of each
2034 Note shall be payable on May 15, 2034. Each 2034 Note shall bear interest from the date of original issuance, or the most recent
date to which interest has been paid, at the fixed rate of 5.500% per annum. The dates on which interest on the 2034 Notes shall be payable
shall be May 15 and November 15 of each year (the “2034 Notes Interest Payment Dates” and, together with
the 2029 Notes Interest Payment Dates, the “Interest Payment Dates”, as applicable). The regular record date for interest
payable on the 2034 Notes on any 2034 Notes Interest Payment Date shall be May 1 and November 1, as the case may be, next preceding
such 2034 Notes Interest Payment Date.
Payments of principal of,
premium, if any, on, and interest due on the 2034 Notes on any 2034 Notes Interest Payment Date or at maturity will be made available
to the 2034 Trustee by 11:00 a.m., New York City time, on such date, unless such date falls on a day that is not a Business Day, in which
case (x) such payments will be made available to the 2034 Trustee by 11:00 a.m., New York City time, on the next Business Day, and
(y) for so long as clause (x) is satisfied, no interest shall accrue on the amount of interest due on such 2034 Notes Interest
Payment Date for the period from and after such 2034 Notes Interest Payment Date and the date of payment. As soon as possible thereafter,
the 2034 Trustee will make such payments to the Depositary.
Section 1.04 Optional
Redemption. (a) Prior to April 15, 2029 in the case of the 2029 Notes (one month prior to their maturity date) (the “2029
Notes Par Call Date”), or February 15, 2034, in the case of the 2034 Notes (three months prior to their maturity date)
(the “2034 Notes Par Call Date,” and together with the 2029 Notes Par Call Date, each a “Par Call Date”),
the Company may redeem either series of Notes at its option, in whole or in part, at any time and from time to time, at a redemption price
(expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(i) (a) the
sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed, in each case discounted
to the redemption date (assuming the Notes of such series matured on the applicable Par Call Date) on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus (I) 15 basis points, in the case of the 2029 Notes, and
(II) 20 basis points, in the case of the 2034 Notes, less (b) interest accrued thereon to the date of redemption; and
(ii) 100%
of the principal amount of the Notes to be redeemed;
plus, in either case for clause (i) or (ii) above,
accrued and unpaid interest thereon to, but not including, the redemption date.
(b) At any time on or
after the applicable Par Call Date, either series of Notes shall be redeemable as a whole or in part, at any time and from time to time,
at the Company’s option, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and
unpaid interest on the Notes to be redeemed to, but not including, the date of redemption
(c) The Company’s
actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
(d) The calculation or
determination of the redemption price shall be made by the Company or on its behalf by such person as the Company shall designate. For
the avoidance of doubt, the calculation or determination of the redemption price shall not be the obligation or responsibility of the
Trustee or Paying Agent.
(e) Unless the Company
defaults in payment of the redemption price, on or after the redemption date, interest will cease to accrue on any Notes that have been
called for redemption.
(f) Notwithstanding the
foregoing, the Company may repurchase Notes at any time in the open market and may hold such Notes or surrender such Notes to the Trustee
for cancellation.
Article II
Section 2.01 For
all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context requires otherwise:
(a) A
term defined in the Indenture and not otherwise defined herein has the same meaning when used in this Supplemental Indenture; and
(b) The
following terms have the meanings given to them in this Section 2.01 and shall have the meaning set forth below for the purposes
of this Supplemental Indenture and the Indenture solely with respect to the Notes:
“2029 Notes Par Call
Date” means April 15, 2029.
“2034 Notes Par Call
Date” means February 15, 2034.
“Applicable Procedures”
means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange at the relevant time.
“Aggregate Debt”
means the sum of the following as of the date of determination:
(1) the
aggregate principal amount of the Company’s Indebtedness incurred after the Issue Date and secured by Liens not permitted pursuant
to Section 3.02(a) of this Supplemental Indenture; and
(2) the
Company’s Attributable Liens in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 3.03(b) of
this Supplemental Indenture.
“Attributable Liens”
means in connection with a sale and lease-back transaction the lesser of:
(1) the
fair market value of the assets subject to such transaction (as determined in good faith by the Company’s board of directors); and
(2) the
present value (discounted at a rate per annum equal to the average interest borne by all outstanding Notes (or other debt securities)
issued under the Indenture determined on a weighted average basis and compounded semi-annually) of the obligations of the lessee for rental
payments during the term of the related lease.
“Certificated Note”
means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 4.01 of this Supplemental
Indenture, in the form of Exhibit A (for the 2029 Notes) and Exhibit B (for the 2034 Notes) to this Supplemental
Indenture, except that such Certificated Note shall not include the information called for by the footnotes included therein.
“Change of Control”
means the occurrence of any one of the following:
(1) the
direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the Company’s assets and the assets of the Company’s subsidiaries
taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) other than to the Company or one of its subsidiaries;
(2) the
consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person”
(as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or its subsidiaries, becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s
outstanding Voting Stock, measured by voting power rather than number of shares; provided, however, that a person shall not be deemed
the beneficial owner of, or to own beneficially, any securities tendered pursuant to a tender or exchange offer made by or on behalf of
such person or any of such person’s affiliates (as defined in the indenture) until such tendered securities are accepted for purchase
or exchange thereunder;
(3) the
Company consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the outstanding Voting Stock
of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the
shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitutes, or is converted into or exchanged
for, a majority of the Voting Stock of the surviving person, or any direct or indirect parent of the surviving person, immediately after
giving effect to such transaction; or
(4) the
adoption of a plan by the Company’s board of directors relating to the Company’s liquidation or dissolution in connection
with a bankruptcy or insolvency proceeding.
Notwithstanding the foregoing,
a transaction will not be considered to be a Change of Control if (1) the Company becomes a direct or indirect wholly owned subsidiary
of a holding company and (2) immediately following that transaction, (a) the direct or indirect holders of the Voting Stock
of the holding company are substantially the same as the holders of the Company’s Voting Stock in substantially the same proportions
immediately prior to that transaction or (b) no person or group is the beneficial owner, directly or indirectly, of more than a majority
of the total voting power of the Voting Stock of the holding company.
“Change of Control
Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“Clearstream”
means Clearstream Banking S.A., or its successors.
“Consolidated Net
Tangible Assets” means, as of any date of determination, the total assets less (a) all current liabilities (excluding deferred
revenue) and (b) the value of all goodwill and intangible assets (such as acquired developed technology, patents, trade names, and
other rights, customer relationships), less accumulated amortization, all as shown on or reflected in the Company’s most recent
consolidated balance sheet (including, without duplication, the Notes related thereto) prepared in accordance with GAAP contained in an
annual report on Form 10-K or a quarterly report on Form 10-Q or any amendment thereto (and not subsequently disclaimed as not
being reliable by the Company) filed pursuant to the Exchange Act by the Company prior to the time as of which “Consolidated Net
Tangible Assets” is being determined or, if the Company is not required to so file, as reflected on its most recent consolidated
balance sheet prepared by the Company in accordance with GAAP.
“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, The Depository Trust Company (“DTC”),
and any and all successors thereto appointed as depositary by the Company.
“Euroclear”
means Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear system.
“Finance Lease”
means any Indebtedness represented by a lease obligation of a Person incurred with respect to real property or equipment acquired or leased
by such Person and used in its business that is required to be recorded as a finance lease in accordance with GAAP.
“Fitch”
means Fitch Ratings Inc. and its successors.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Public Company Accounting Oversight
Board (United States) and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.
“Global Note”
means a Note that includes the information referred to in footnotes included in the form of Note, attached to this Supplemental Indenture
as Exhibit A (for the 2029 Notes) and Exhibit B (for the 2034 Notes), issued under the Indenture, that is deposited
with or on behalf of and registered in the name of the Depositary or a nominee of the Depositary.
“Global Note Legend”
means the legend set forth in Section 4.01(f) of this Supplemental Indenture, which is required to be placed on all Global Notes
issued under the Indenture.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement
to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise)
or (2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee” will
not include endorsements for collection or deposit in the ordinary course of business. The term “guarantee,” when used as
a verb, has a correlative meaning.
“Hedging Obligations”
means, with respect to any specified Person, the obligations of such Person under:
(1) interest
rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar
agreements;
(2) other
agreements or arrangements designed to manage interest rates or interest rate risk;
(3) forward
foreign exchange transactions, currency floor, cap, collar or swap transactions or currency options;
(4) other
agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices; and
(5) other
agreements or arrangements designed to protect such person against fluctuations in equity or bond (or equity or bond index) prices.
“Indebtedness”
of any specified Person means, without duplication, any indebtedness, whether or not contingent, in respect of borrowed money or evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements with respect thereto (other than
obligations with respect to letters of credit securing obligations entered into in the ordinary course of business of such person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the fifth
Business Day following receipt by such person of a demand for reimbursement following payment on the letter of credit)), except any such
balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP (but does not include contingent liabilities which appear
only in a footnote to a balance sheet).
“Indirect Participant”
means an entity that, with respect to DTC, clears through or maintains a direct or indirect custodial relationship with a Participant.
“Issue Date”
means May 15, 2024.
“Investment Grade”
means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of
BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch
(or its equivalent under any successor rating category of Fitch) and the equivalent investment grade rating from any replacement Rating
Agency or Agencies appointed by the Company.
“Lien”
means any lien, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement).
“Moody’s”
means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Non-recourse Obligation”
means Indebtedness or other obligations substantially related to (1) the acquisition of assets not previously owned by the Company
or any of its direct or indirect Subsidiaries or (2) the financing of a project involving the development or expansion of the properties
of the Company or any of its direct or indirect Subsidiaries, as to which the obligee with respect to such Indebtedness or obligation
has no recourse to the Company or any of its direct or indirect Subsidiaries or such Subsidiary’s assets other than the assets which
were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
“Par Call Date”
means, with respect to the 2029 Notes, April 15, 2029 (one month prior to the maturity date of such Notes), and with respect to the
2034 Notes, February 15, 2034 (three months prior to the maturity date of such Notes).
“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream,
respectively (and, with respect to The Depository Trust Company, shall include Euroclear and Clearstream).
“Paying Agent”
means, until otherwise designated, the Trustee.
“Permitted Liens”
means:
(1) Liens
on any of the Company’s assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction
of such asset, which obligations are incurred no later than 18 months after completion of such refurbishment, improvement or construction,
and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(2) (a) Liens
given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or
consolidation) of Property, including Finance Lease transactions in connection with any such acquisition, and (b) Liens existing
on Property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries, or merger with
or acquisition of, any Person then owning such Property whether or not such existing Liens were given to secure the payment of the purchase
price of the Property to which they attach; provided that, with respect to clause (a), the Liens shall be given within 18 months after
such acquisition and shall attach solely to the Property acquired or purchased and any improvements then or thereafter placed thereon;
(3) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods;
(4) Liens
for taxes not yet due or that are being contested in good faith by appropriate proceedings;
(5) Liens
securing reimbursement obligations with respect to letters of credit that encumber documents and other Property relating to such letters
of credit and the products and proceeds thereof;
(6) Liens
encumbering customary deposits and margin deposits and other Liens in the ordinary course of business, in each case securing Hedging Obligations
and forward contracts, options, futures contracts, futures options, equity hedges or similar agreements or arrangements designed to protect
the Company from fluctuations in interest rates, currencies, equities or the price of commodities;
(7) Liens
incurred to secure cash or investment management or custodial services in the ordinary course of business or on insurance policies or
self-insurance arrangements and the proceeds thereof securing the financing of the premiums with respect thereto;
(8) Liens
in the Company’s favor or in favor of a Restricted Subsidiary;
(9) inchoate
Liens incident to construction or maintenance of real property, or Liens incident to construction or maintenance of real property, now
or hereafter filed of record for sums not yet delinquent or being contested in good faith, if reserves or other appropriate provisions,
if any, as shall be required by GAAP shall have been made therefor;
(10) statutory
Liens arising in the ordinary course of business with respect to obligations which are not delinquent by more than 90 days or are being
contested in good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(11) Liens
arising out of judgments or awards against the Company and Liens arising solely by virtue of any statutory or common law provision relating
to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor
depository institution;
(12) Liens
consisting of pledges or deposits to secure obligations or obtain any benefits under workers’ compensation laws and unemployment
insurance, old age pensions, social security or similar matters or legislation, including Liens of judgments thereunder which are not
currently dischargeable, or deposits in connection with obtaining or maintaining self-insurance;
(13) Liens
consisting of pledges or deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like nature;
(14) Liens
consisting of deposits of Property to secure the Company’s statutory obligations in the ordinary course of the Company’s business;
(15) Liens
created in connection with a project financed with, and created to secure, a Non-recourse Obligation;
(16) Liens
on Property in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency,
instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution
control or industrial revenue type) in order to permit the Company or any of its Subsidiaries to perform a contract or to secure Indebtedness
incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject
to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise
of any privilege, franchise or license;
(17) Liens
incurred in connection with pollution control, industrial revenue or similar financings;
(18) Liens
on accounts, payment intangibles, chattel paper, instruments and/or other receivables granted in connection with sales of any of such
assets;
(19) Liens
evidenced by UCC financing statement filings (or similar filings) regarding or otherwise arising under leases entered into the Company
or any Restricted Subsidiary in the ordinary course of business;
(20) Purported
Liens evidenced by filings of precautionary UCC financing statements relating solely to operating leases of personal property;
(21) Liens
on equipment of the Company or any of its Restricted Subsidiaries granted in the ordinary course of business;
(22) Liens
on Property incurred in connection with any transaction permitted under Section 3.03 of this Supplemental Indenture which shall not
be in addition to any basket provided in Section 3.03(b); and
(23) Liens created in substitution
of any Liens permitted by clauses (1) through (18) above, or pursuant to clauses (1) through (3) of Section 3.02(a) of
this Supplemental Indenture; provided that, (a) based on a good faith determination of the board of directors of the Company,
the Principal Property encumbered by such substitute or replacement Lien is substantially similar in nature to the Principal Property
encumbered by the otherwise permitted Lien that is being replaced, and (b) the Indebtedness secured by such Lien at such time is
not increased (other than by an amount equal to any related financing costs (including, but not limited to, the accrued interest, fees,
penalties and premium, if any, on the Indebtedness being refinanced)).
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated
organization, or any other entity, including any government or any agency or political subdivision thereof.
“Principal Property”
means the land, improvements, buildings and fixtures owned by the Company or any of its Restricted Subsidiaries that constitutes the Company’s
(i) principal offices in San Francisco, California, and (ii) any research and development facility and any service and support
facility (in each case including associated office facilities) located within the territorial limits of the States of the United States
of America, except (in the case of (ii)) (a) such as the Company’s board of directors (or authorized committee thereof) by
resolution determines in good faith (taking into account, among other things, the importance of such Property to the business, financial
condition and earnings of the Company and its Subsidiaries taken as a whole) not to be of material importance to the Company’s and
its Subsidiaries’ business, taken as a whole or (b) has a net book value that, on the date of determination as to whether such
Property is a Principal Property is being made, does not exceed the greater of (x) 1.00% of Consolidated Net Tangible Assets or (y) 30.0
million.
“Property”
means any property or asset, whether real, personal or mixed, or tangible or intangible, including shares of capital stock.
“Rating Agency”
means, as of the Issue Date, each of Moody’s and S&P; provided, that if, after the Issue Date, Fitch rates the Notes
of a series and makes such rating publicly available, “Rating Agency” shall mean each of Moody’s, S&P and Fitch;
further provided that if Moody’s, S&P and/or Fitch, as applicable, ceases to rate the Notes of a series or fails to make
a rating on the Notes of a series publicly available for reasons outside of the Company’s control, the Company will appoint a replacement
for such Rating Agency that is a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act.
“Ratings Event”
means, with respect to a series of Notes, that such Notes are rated below Investment Grade by at least two of the three Rating Agencies
(if the Notes at such time are rated by three Rating Agencies) or by both Rating Agencies (if the Notes at such time are rated by two
Rating Agencies), on any day during the period (the “Trigger Period”) commencing on the date 60 days prior to the first
public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of
such Change of Control (which Trigger Period will be extended for so long as the rating of such Notes is under publicly announced consideration
for a possible downgrade at least two of the three Rating Agencies (if the Notes at such time are rated by three Rating Agencies) or by
either of the Rating Agencies (if the Notes at such time are rated by two Rating Agencies)); provided, however, that a Ratings
Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change
of Control (and thus will not be deemed a Ratings Event for purposes of the definition of Change of Control Repurchase Event) unless each
of the Rating Agencies announces or publicly confirms or informs the Trustee in writing at the Company’s or its request that the
reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of,
the applicable Change of Control. Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred
in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Restricted Subsidiary”
means any domestic Subsidiary of the Company that owns any Principal Property (other than any of its less than 80%-owned Subsidiaries
if the common stock of such Subsidiary is traded on any national securities exchange or on the over-the-counter markets).
“S&P”
means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Subsidiary”
of any specified Person means any corporation, limited liability company, limited partnership, association or other business entity of
which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of that person or a combination thereof.
“Treasury Rate”
means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be
determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily
by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield
or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board
of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities - Treasury constant
maturities - Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury
Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period
from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury
constant maturity on H.15 exactly equal to the Remaining Life, the two yields - one yield corresponding to the Treasury
constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer
than the Remaining Life - and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual
number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity
on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining
Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity
date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business Day
preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum
equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption
date of the United States Treasury security maturing on, or with a maturity that is closest to, the applicable Par Call Date, as applicable.
If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury
securities with a maturity date equally distant from the applicable Par Call Date, one with a maturity date preceding the applicable Par
Call Date and one with a maturity date following the applicable Par Call Date, the Company shall select the United States Treasury security
with a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the
applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company
shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest
to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time.
In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United
States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at
11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Voting Stock”
of any specified person as of any date means the capital stock of such person that is at the time entitled to vote generally in the election
of the board of directors of such person.
Article III
The covenants set forth in
this Section 3 shall apply to the Notes. Except as otherwise expressly provided below, the covenants set forth in the Indenture are
in all respects ratified and confirmed and shall remain in full force and effect
Section 3.01 Change
of Control Triggering Event.
(i) If
a Change of Control Triggering Event occurs with respect to a series of Notes, unless the Company has exercised its right to redeem any
series of Notes pursuant to Section 1.04 of this Supplemental Indenture, the Company shall be required to make an offer (a “Change
of Control Offer”) to each Holder of such series of Notes to purchase all or any part (equal to $2,000 or an integral multiple
of $1,000 in excess thereof) of that Holder’s applicable Notes on the terms set forth in the Notes. In a Change of Control Offer,
the Company shall be required to offer payment in cash equal to 101% of the aggregate principal amount of Notes purchased, plus accrued
and unpaid interest, if any, on the Notes purchased to, but not including, the purchase date (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant interest payment date) (a “Change of Control Payment”);
provided that after giving effect to the purchase, any Notes that remain outstanding shall have a minimum denomination of $2,000
and integral multiples of $1,000 above that amount.
(ii) Within
30 days following the date upon which any Change of Control Triggering Event has occurred or, at the Company’s option, prior to
any Change of Control, but after the public announcement of the transaction that constitutes or may constitute the Change of Control,
except to the extent the Company has exercised its right to redeem the applicable Notes pursuant to Section 1.04 of this Supplemental
Indenture, a notice shall be mailed or sent electronically by the Company pursuant to the Applicable Procedures to Holders of the Notes
with a copy to the Trustee describing the transaction or transactions that constitute or may constitute the Change of Control Triggering
Event and offering to purchase such Notes on the date specified in the applicable notice, which date shall be no earlier than 30 days
nor later than 60 days from the date on which such notice is mailed or sent (other than as may be required by law) (such date, a “Change
of Control Payment Date”).
(iii) The
notice shall, if mailed or sent prior to the date of consummation of the Change of Control, state that the Change of Control Offer is
conditioned on the Change of Control being consummated on or prior to the applicable Change of Control Payment Date specified in the notice.
The Change of Control Payment Date must be a Business Day.
(iv) On
each Change of Control Payment Date, the Company shall, to the extent lawful:
| (a) | accept for payment all Notes or portions of Notes properly tendered pursuant to the applicable Change
of Control Offer; |
| (b) | deposit with the Paying Agent prior to 10:00 a.m. New York City time an amount equal to the Change
of Control Payment in respect of all Notes or portions of Notes properly tendered pursuant to the applicable Change of Control Offer;
and |
| (c) | deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s
Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased. |
(v) The
Company shall comply, to the extent applicable, with the requirements of Rule 14(e)-1 of the Exchange Act and any other securities
laws or regulations thereunder to the extent those laws and regulations are applicable in connection with the purchase of the Notes as
a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict
with the Change of Control Offer provisions of the Notes, the Company shall comply with those securities laws and regulations and shall
not be deemed to have breached its obligations under the Change of Control Offer provisions of the Notes by virtue of any such conflict;
rather, the Company will be deemed to comply with its obligation to repurchase the Notes upon a Change of Control Triggering Event in
accordance with the Indenture, modified necessary by the Company in good faith to permit compliance with such law or regulation.
(vi) If
Holders of not less than 95% in aggregate principal amount of outstanding Notes of such series validly tender and do not withdraw such
Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, purchases
all of the Notes of such series validly tendered and not withdrawn by such Holders, all of the Holders will be deemed to have consented
to such Change of Control Offer and, accordingly, the Company shall have the right, upon not less than 30 nor more than 60 days’
prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all
Notes of such series that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the right of Holders of record
on a record date to receive interest on the relevant interest payment date).
Section 3.02 Limitations
on Liens.
(a) The
Company shall not incur, and shall not permit any of its Restricted Subsidiaries to incur, any Indebtedness secured by a Lien upon (a) any
Principal Property of the Company or any of its Restricted Subsidiaries or (b) any shares of stock or Indebtedness of any of its
Restricted Subsidiaries (whether such Principal Property or shares or Indebtedness of any Restricted Subsidiary are existing or owned
at the date of this Supplemental Indenture or hereafter created or acquired), in each case, unless prior to or at the same time, the Notes
(together with, at the option of the Company, any other Indebtedness or Guarantees of the Company or any of its Subsidiaries ranking equally
in right of payment with the Notes or such Guarantee) are equally and ratably secured with or, at the option of the Company, prior to,
such secured Indebtedness.
The foregoing restriction
shall not apply to:
| (1) | Liens existing as of the Issue
Date; |
| (2) | Liens granted after the Issue Date, created in favor of the Holders of the Notes or other series of Notes
under the Indenture; |
| (3) | Liens securing the Company’s Indebtedness which are incurred to extend, renew or refinance Indebtedness
which is secured by Liens permitted to be incurred under the Indenture (including Permitted Liens) so long as such Liens are limited to
all or part of substantially the same Principal Property which secured the Liens extended, renewed or replaced and the amount of Indebtedness
secured is not increased (other than by the amount equal to any costs and expenses (including any premiums, fees or penalties) incurred
in connection with any extension, renewal or refinancing); and |
(b) Notwithstanding
Section 3.02(a) hereof, the Company and/or its Restricted Subsidiaries may, without securing the Notes, create or incur Liens
which would otherwise be subject to the restrictions set forth in Section 3.02(a) hereof, if after giving effect thereto, Aggregate
Debt of the Company does not exceed the greater of (a) 15% of the Company’s Consolidated Net Tangible Assets calculated as
of the date of creation or incurrence of the Lien and (b) $400.0 million.
Section 3.03 Limitation
on Sale and Lease-Back Transactions.
(a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any sale and lease-back transaction for the
sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
| (1) | such transaction was entered into prior to the Issue Date; |
| (2) | such transaction was for the sale and leasing back to the Company or any of its Subsidiaries of any Principal
Property by the Company or one of its Subsidiaries; |
| (3) | such transaction involves a lease for less than three years; |
| (4) | the Company would be entitled to incur Indebtedness secured by a mortgage on the Principal Property to
be leased in an amount equal to the Attributable Liens with respect to such sale and lease-back transaction without equally and ratably
securing the Notes pursuant to Section 3.02(a) of this Supplemental Indenture; or |
| (5) | the Company applies an amount equal to the fair value of the Principal Property (as determined by the
Company’s board of directors in good faith) sold to the purchase of Property or to the retirement of the Company’s long-term
Indebtedness that is pari passu with the Notes (including the Notes) within 365 days of the effective date of any such sale and
lease-back transaction. In lieu of applying such amount to such retirement, the Company may deliver debt securities that rank pari
passu with the Notes (including the Notes) to the trustee under the indenture therefor for cancellation, such debt securities to be
credited at the cost thereof to the Company. |
(b) Notwithstanding
Section 3.03(a) hereof, the Company and/or its Restricted Subsidiaries may enter into any sale and lease-back transaction which
would otherwise be subject to the restrictions of Section 3.03(a) hereof, if after giving effect thereto and at the time of
determination, Aggregate Debt does not exceed the greater of (a) 15% of the Company’s Consolidated Net Tangible Assets calculated
as of the date of creation or incurrence of the Lien and (b) $400.0 million.
Section 3.04 Applicability
of Covenants Contained in the Indenture. Each of the agreements and covenants of the Company contained in Article 3 of the Indenture
shall apply to the Notes.
Article IV
Section 4.01 For
purposes of the Notes, Sections 2.7 and 2.14 of the Indenture are hereby supplemented with, and where inconsistent replaced by, the following
provisions:
(a) Transfer
and Exchange of Global Notes. A Global Note of a series may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for
Certificated Notes of the applicable series if:
(1) the
Company delivers to the Trustee notice from the Depositary (A) that it is unwilling or unable to continue to act as Depositary for
the Global Notes of such series and a successor Depositary is not appointed by the Company within 90 days after the date of such notice
from the Depositary or (B) that it is no longer a clearing agency registered under the Exchange Act at a time when it is required
to be registered and a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary;
(2) the
Company, in its sole discretion, delivers to the Trustee an Officer’s Certificate to the effect that it elects to cause the issuance
of Certificated Notes of such series; or
(3) upon
request of the Trustee or Holders of a majority of the principal amount of outstanding Notes of such series if there shall have occurred
and be continuing a Default or Event of Default with respect to such series of Notes.
Upon the occurrence of any
of the preceding events in (1), (2) or (3) above, Certificated Notes of such series shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes of any series also may be exchanged or replaced, in whole or in part, as provided in Sections
2.8 and 2.11 of the Indenture. A Global Note of any series may not be exchanged for another Note of such series other than as provided
in this Section 4.01(a); however, beneficial interests in a Global Note of any series may be transferred and exchanged as provided
in Section 4.01(b) or (c) hereof.
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes of
a series will be effected through the Depositary, in accordance with the provisions of the Indenture and the Applicable Procedures. Beneficial
interests in the Global Notes of a series will be subject to restrictions on transfer comparable to those set forth herein. Transfers
of beneficial interests in the Global Notes of a series also will require compliance with either subparagraph (1) or (2) below,
as applicable, as well as one or more of the other following subparagraphs, as applicable:
(1) Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any Global Note of any series may be transferred to persons
who take delivery thereof in the form of a beneficial interest in the same Global Note of such series. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers described in this Section 4.01(b)(1).
(2) All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 4.01(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar
either: (A)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note of the applicable series
in an amount equal to the beneficial interest to be transferred or exchanged; and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be credited with such increase; or (B)(1) a written order
from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Certificated Note of the applicable series in an amount equal to the beneficial interest to be transferred or
exchanged; and (2) instructions given by the Depositary to the Registrar containing information regarding the person in whose name
such Certificated Note of such series shall be registered to effect the transfer or exchange referred to in (B)(1) above;
(c) Transfer
or Exchange of Beneficial Interests in Global Notes for Certificated Notes. If any holder of a beneficial interest in a Global
Note of any series proposes to exchange such beneficial interest for a Certificated Note of such series or to transfer such beneficial
interest to a person who takes delivery thereof in the form of a Certificated Note of such series, then, if the exchange or transfer complies
with the requirements of Section 4.01(a) of this Supplemental Indenture and upon satisfaction of the conditions set forth in
Section 4.01(b)(2) of this Supplemental Indenture, the Trustee shall cause the aggregate principal amount of the applicable
Global Note of any series to be reduced accordingly pursuant to Section 4.01(f) hereof, and the Company shall execute and, upon
receipt of a Company Order pursuant to Section 2.3 of the Indenture, the Trustee shall authenticate and deliver to the person designated
in the instructions a Certificated Note of such series in the appropriate principal amount. Any Certificated Note of any series issued
in exchange for a beneficial interest pursuant to this Section 4.01(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Certificated Notes of such series
to the persons in whose names such Notes of such series are so registered.
(d) Transfer
and Exchange of Certificated Notes for Beneficial Interests in Global Notes. A Holder of a Certificated Note of any series may exchange
such Certificated Note for a beneficial interest in a Global Note of such series or transfer such Certificated Notes to a person who takes
delivery thereof in the form of a beneficial interest in a Global Note of such series at any time. Upon receipt of a request for such
an exchange or registration of transfer, the Trustee shall cancel the applicable Certificated Note and increase or cause to be increased
the aggregate principal amount of one of the applicable Global Notes. If any such exchange or registration of transfer from a Certificated
Note to a beneficial interest in a Global Note is effected pursuant to this Section 4.01(d) at a time when a Global Note has
not yet been issued, the Company shall issue and, upon receipt of a Company Order in accordance with Section 2.3 of the Indenture,
the Trustee shall authenticate one or more Global Notes of such series in an aggregate principal amount equal to the principal amount
of Certificated Notes of such series so transferred.
(e) Transfer
and Exchange of Certificated Notes for Certificated Notes. A Holder of Certificated Notes of any series may transfer such Certificated
Notes of such series to a person who takes delivery thereof in the form of a Certificated Note. Upon request by a Holder of Certificated
Notes of any series and such Holder’s compliance with the provisions of this Section 4.01(e), the Registrar shall register
the transfer or exchange of Certificated Notes of such series. Prior to such registration of transfer or exchange, the requesting Holder
must present or surrender to the Registrar the Certificated Notes of such series duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. Upon receipt
of a request to register such a transfer, the Registrar shall register the Certificated Notes of such series pursuant to the instructions
from the Holder thereof.
(f) Global
Note Legend. To the extent required by the Depositary, each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS
HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 4.01 OF THE FIRST SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.01 OF THE FIRST SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE 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.”
(g) Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note of any series have been exchanged
for Certificated Notes of such series or a particular Global Note of any series has been redeemed, repurchased or canceled in whole and
not in part, each such Global Note of such series shall be returned to or retained and canceled by the Trustee in accordance with Section 2.12
of the Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note of a series is exchanged for or
transferred to a person who will take delivery thereof in the form of a beneficial interest in another Global Note of such series or for
Certificated Notes of such series, the principal amount of Notes represented by such Global Note of such series shall be reduced accordingly
and an endorsement shall be made on such Global Note of such series by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a person who shall take delivery thereof
in the form of a beneficial interest in another Global Note of such series, such other Global Note of such series shall be increased accordingly
and an endorsement shall be made on such Global Note of such series by the Trustee or by the Depositary at the direction of the Trustee
to reflect such increase.
(h) General
Provisions Relating to Transfers and Exchanges.
(1) To
permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Certificated
Notes upon receipt of a Company Order.
(2) No
service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Certificated Note for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.11, 3.6 and 9.6 of the Indenture).
(3) The
Registrar shall not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(4) All
Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes shall be
the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under the Indenture, as the Global Notes
or Certificated Notes surrendered upon such registration of transfer or exchange.
(5) Neither
the Registrar nor the Company will be required:
(A) to
issue, to register the transfer of or to exchange any Notes of any series for the period beginning at the opening of business 15 days
immediately preceding the sending of a notice of redemption of Notes of such series selected for redemption and ending at the close of
business on the day such notice is sent;
(B) to
register the transfer of or to exchange any Note of any series selected, called or being called for redemption as a whole or the portion
being redeemed of any such Notes selected, called or being called for redemption in part; or
(C) to
register the transfer of or to exchange Notes of any series between a record date and payment date for such series of Notes.
(6) Prior
to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the person
in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest
on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(7) The
Trustee shall authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.3 of the Indenture.
Notwithstanding anything herein
to the contrary, as to any certifications and certificates delivered to the Registrar pursuant to this Section 4.01 of this Supplemental
Indenture, the Registrar’s duties shall be limited to confirming that any such certifications and certificates delivered to it are
substantially in the form of Exhibit A (for the 2029 Notes) and Exhibit B (for the 2034 Notes) attached to this
Supplemental Indenture. The Registrar shall not be responsible for confirming the truth or accuracy of representations made in any such
certifications or certificates
Article V
Section 5.01 Events
of Default. In addition to the Events of Default specified in Section 6.1(a) through (e) of the Base Indenture, which
shall apply to the Notes of each series, the following event shall be an “Event of Default” under the Notes of each series:
(1) default
in paying interest on the Notes of the applicable series when it becomes due and the default continues for a period of 30 days or more;
(2) default
in paying principal, or premium, if any, on the Notes of the applicable series when due at maturity, upon optional redemption as set forth
under Section 1.04 of this Supplemental Indenture hereof or otherwise;
(3) failure
by the Company to repurchase Notes of such series tendered for repurchase following the occurrence of a Change of Control Repurchase Event
in accordance with Section 3.01 hereof;
(4) default
in the performance, or breach, of any covenant in the Indenture (other than defaults specified in clause (1), (2) or (3) above)
and the default or breach continues for a period of 90 days or more after the Company receives written notice from the Trustee or the
Company (with a copy to the Trustee) receives notice from the Holders of at least 25% in aggregate principal amount of the Notes (together
with any other applicable series of debt securities affected that is then outstanding (all such series voting together as a single class));
(5) a
failure to make any payment at maturity, including any applicable grace period, on any Indebtedness of the Company (other than Indebtedness
of the Company owing to any of its Subsidiaries) outstanding in an amount in excess of $100.0 million and continuance of this failure
to pay or (b) a default on any Indebtedness of the Company (other than Indebtedness of the Company owing to any of its Subsidiaries),
which default results in the acceleration of such Indebtedness in an amount in excess of $100.0 million without such Indebtedness having
been discharged or the acceleration having been cured, waived, rescinded or annulled, in the case of clause (a) or (b) above,
for a period of 30 days after such failure to pay or acceleration, as applicable; provided, however, that if any failure, default or acceleration
referred to in clause (a) or (b) above ceases or is cured, waived, rescinded or annulled, then the event of default will be
deemed cured; and
(6) the
Company pursuant to or within the meaning of any Bankruptcy Law (as defined in the Base Indenture):
| (i) | commences a voluntary case, |
| (ii) | consents to the entry of an order for relief against it in an involuntary case, |
| (iii) | consents to the appointment of a Custodian (as defined in the Base Indenture) of it or for all or substantially
all of its property, |
| (iv) | makes a general assignment for the benefit of its creditors, or |
| (v) | generally is unable to pay its debts as the same become due; |
(7) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:
| (i) | is for relief against the Company in an involuntary case, |
| (ii) | appoints a Custodian of the Company or for all or substantially all of its property, or |
| (iii) | orders the liquidation of the Company, |
and the order or decree remains
unstayed and in effect for 60 days.
Article VI
Section 6.01 For
the avoidance of doubt, the provisions of Article VIII of the Indenture will apply to the Notes of each series. If the Company exercises
its Covenant Defeasance option pursuant to Section 8.4 of the Indenture with respect to a series of Notes, in addition to the provisions
of the Indenture set forth in Sections 4.2 and 4.3 of the Indenture, the Company also shall be released from its obligations in respect
of the Notes of such series under Sections 3.01, 3.02 and 3.03 of this Supplemental Indenture, and the Events of Default specified in
Sections 6.1(c) (with respect to the covenants specified in this Section 6.01) and 6.1(f) (as set forth in Section 5.01
of this Supplemental Indenture) shall not constitute Defaults or Events of Default under the Indenture with respect to the Notes of such
series.
Article VII
Section 7.01 Except
as specifically modified herein, the Indenture is in all respects ratified and confirmed and shall remain in full force and effect in
accordance with its terms.
Section 7.02 Except
as otherwise expressly provided herein, no duties, responsibilities or liabilities are assumed or shall be construed to be assumed by
the Trustee by reason of this Supplemental Indenture. This Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and effect as if those terms and conditions were repeated at length
herein and made applicable to the Trustee with respect to this Supplemental Indenture.
Section 7.03 The
Trustee shall not be responsible in any manner whatsoever for or in respect of the recitals contained herein, all of which recitals are
made solely by the Company. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
Section 7.04 THIS
SUPPLEMENTAL INDENTURE, THE NOTES AND THE INDENTURE AS IT RELATES TO THE NOTES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF
OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE INDENTURE AS IT RELATES TO THE NOTES, SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE, THE PAYING AGENT AND THE REGISTRAR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE GENERAL
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE
AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND (IN THE CASE OF THE COMPANY) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY, THE TRUSTEE, THE PAYING AGENT AND THE REGISTRAR IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FOR PURPOSES OF THE NOTES, SECTION 10.10 OF THE INDENTURE IS
HEREBY SUPPLEMENTED BY, AND WHERE INCONSISTENT REPLACED BY, THIS SECTION 7.04.
Section 7.05 EACH
OF THE COMPANY, THE TRUSTEE, THE PAYING AGENT AND THE REGISTRAR 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 SUPPLEMENTAL INDENTURE, THE NOTES OR
THE TRANSACTION CONTEMPLATED HEREBY
Section 7.06 This
Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Supplemental Indenture. Delivery of an executed agreement by one party to the others may be
made by 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 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.
Section 7.07 All
capitalized terms used in this Supplemental Indenture which are not otherwise defined herein, shall have the respective meanings specified
in the Indenture, unless the context otherwise requires.
Section 7.08 The
Notes may be issued in whole or in part in the form of one or more Global Notes, registered in the name of Cede & Co., as nominee
of DTC.
Section 7.09 The
Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.
|
Company: |
|
|
|
ATLASSIAN CORPORATION |
|
|
|
By: |
/s/ Joseph Binz |
|
Name: |
Joseph Binz |
|
Title: |
Chief Financial Officer |
[Signature Page of Supplemental Indenture]
|
Trustee: |
|
|
|
U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee |
|
|
|
By: |
/s/ Bradley E.
Scarbrough |
|
Name: |
Bradley E. Scarbrough |
|
Title: |
Vice President |
[Signature Page of Supplemental Indenture]
Exhibit A
FORM OF NOTES DUE 2029
[FACE OF NOTE]
THIS GLOBAL
NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 4.01 OF THE FIRST SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.01 OF THE FIRST SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
No._________ | |
$____________ |
CUSIP: 049468AA9
ISIN: US049468AA91
ATLASSIAN CORPORATION
5.250% Senior Notes due 2029
ATLASSIAN CORPORATION, a Delaware
corporation (the “Issuer”), for value received promises to pay to CEDE & CO. or registered assigns the principal
sum of _________________ on May 15, 2029.
Interest Payment Dates: May 15
and November 15 (each, an “Interest Payment Date”), commencing on November 15, 2024.
Interest Record Dates: May 1
and November 1 (each, an “Interest Record Date”).
Reference is made to the further
provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer
has caused this Note to be signed manually, electronically or by facsimile by its duly authorized officer.
|
ATLASSIAN CORPORATION |
|
|
|
By: |
|
|
Name: |
|
Title: |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of
the series designated herein and referred to in the within-mentioned Indenture.
Dated: _________, 2024
|
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, |
|
as Trustee |
|
|
|
By: |
|
|
|
Authorized Signatory |
[REVERSE OF NOTE]
ATLASSIAN
CORPORATION
5.250% Senior Notes due 2029
1. Interest.
Atlassian Corporation (the “Issuer”)
promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue
from the most recent date to which interest has been paid; or, if no interest has been paid, from _______, 20__. Interest on this Note
will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest
Payment Date, commencing on November 15, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day
months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal
from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful.
2. Paying
Agent.
Initially, U.S. Bank Trust Company, National Association
(the “Trustee”) will act as Paying Agent. The Issuer may change any Paying Agent without notice to the Holders.
3. Indenture;
Defined Terms.
This Note is one of the 5.250% Senior Notes due
2029 (the “Notes”) issued under an indenture dated as of May 15, 2024 (the “Base Indenture”)
by and between the Issuer and the Trustee, and established pursuant to a First Supplemental Indenture dated May 15, 2024 (the “Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”), issued pursuant to Section 2.1 and
Section 2.2 of the Base Indenture. This Note is a “Security” and the Notes are “Securities” under the Indenture.
For purposes of this Note, unless otherwise defined
herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”)
as in effect on the date on which the Indenture was qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the
terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations;
Transfer; Exchange.
The Notes are in registered form, without coupons,
in minimum denominations of $2,000 and integral multiples of $1,000 thereafter. A Holder shall register the transfer or exchange of Notes
in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15)
days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption
in whole or in part.
5. Amendment;
Supplement; Waiver.
Subject to certain exceptions, the Notes and the
provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance
with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of any Series (including the Notes) under the Indenture that are affected by such amendment, supplement
or waiver (voting together as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture and the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency or comply with any requirements
of the Commission in connection with the qualification of the Indenture under the TIA, or make any other change that does not adversely
affect the rights of any Holder of a Note in any material respect.
6. Redemption.
Prior to the Par Call Date (as defined below),
the Issuer may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed
as a percentage of principal amount and rounded to three decimal places) calculated by the Issuer equal to the greater of:
(i) (a) the sum of the present values
of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the redemption date (assuming
that such notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below) plus 15 basis points, less (b) interest accrued to the date of redemption; and
(ii) 100% of the principal amount of the
Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding,
the redemption date.
On or after Par Call Date, the Issuer may redeem
the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal
amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the redemption date.
Notwithstanding the foregoing, installments of
interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest
payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
“Par Call Date” means April 15,
2029.
“Treasury Rate” means, with
respect to any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Issuer
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities—Treasury constant maturities—Nominal” (or any successor caption
or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for
the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining
Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one
yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Par Call Date on a straight-line basis
(using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury
constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15
closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be
deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from
the redemption date.
If on the third Business Day preceding the redemption
date H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States
Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally
distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call
Date, the Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or
more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria
of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities
at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield
to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as
a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal
places.
7. Change
of Control Triggering Event.
If a Change of Control Triggering Event (as defined
below) occurs, unless the Issuer shall have exercised its right to redeem the Notes as described above, the Issuer shall be required to
make an offer to each Holder of Notes to purchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof)
of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided that after giving effect to the purchase, any Notes that remain outstanding
shall have a minimum denomination of $2,000 and integral multiples of $1,000 above that amount.
Within 30 days following the date upon which the
Change of Control Triggering Event has occurred or, at the Issuer’s option, prior to any Change of Control (as defined below), but
after the public announcement of the transaction that constitutes or may constitute the Change of Control, except to the extent that the
Issuer shall have exercised its right to redeem the Notes pursuant to Section 6 hereof, the Issuer shall mail or send a notice in
accordance with the applicable procedures of the Depositary (a “Change of Control Offer”) to each Holder of Notes subject
to such offer with a copy to the Trustee describing the transaction or transactions that constitute or may constitute a Change of Control
Triggering Event and offering to purchase Notes on the date specified in the notice, which date will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed or sent (other than as may be required by law) (such date, the “Change of Control
Payment Date”). The notice will, if mailed or sent prior to the date of consummation of the Change of Control, state that the Change
of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date specified
in the notice. The Change of Control Payment Date must be a Business Day.
On each Change of Control Payment Date, the Issuer
shall, to the extent lawful:
| · | accept for payment all Notes or portions of the Notes properly tendered pursuant to the Change of Control Offer; |
| · | deposit with the Paying Agent prior to 10:00 a.m. New York City time an amount equal to the change of control payment in respect
of all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and |
| · | deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased. |
The Trustee shall promptly deliver, or cause the
Paying Agent to promptly deliver, to each Holder of Notes so tendered the payment for such Notes, and the Trustee shall promptly authenticate
and deliver (or cause to be transferred by book entry) to each holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any.
Except as described above with respect to a Change
of Control Triggering Event, the Indenture does not contain provisions that permit the Holders to require the Issuer to purchase or redeem
the Notes in the event of a takeover, recapitalization or similar transaction.
The Issuer shall comply, to the extent applicable,
with the requirements of Rule 14(e)-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and any other securities laws or regulations in connection with the purchase of Notes pursuant to a Change of Control Triggering Event.
To the extent that the provisions of any securities laws or regulations conflict with the terms described in the Notes, the Issuer shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations by virtue thereof;
rather, the Issuer shall be deemed to be in compliance with those obligations if it complies with its obligation to repurchase Notes upon
a Change of Control Triggering Event in accordance with the Indenture, modified as necessary by the Issuer in good faith to permit compliance
with any such law or regulation.
Holders of Notes electing to have Notes purchased
pursuant to a Change of Control Offer will be required to surrender their Notes, with the form entitled “Purchase Exercise Notice
Upon a Change of Control Triggering Event” on the reverse of the Note completed, to the Paying Agent at the address specified in
the notice, or transfer their Notes to the Paying Agent by book-entry transfer pursuant to the applicable procedures of DTC, prior to
the close of business on the third Business Day prior to the Change of Control Payment Date.
The Issuer shall not be required to make a Change
of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for
an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer in accordance
with such requirements.
In addition, the Issuer shall not purchase any
Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than
a default in the payment of the change of control payment upon a Change of Control Triggering Event.
If Holders of not less than 95% in aggregate principal
amount of outstanding Notes validly tender and do not withdraw such notes in a Change of Control Offer and the Issuer, or any third party
making a Change of Control Offer in lieu of the Issuer, as described above, purchases all of the Notes validly tendered and not withdrawn
by such Holders, all of the Holders will be deemed to have consented to such Change of Control Offer and, accordingly, the Issuer will
have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant
to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a redemption price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption
(subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date).
The definition of Change of Control includes a
phrase relating to the sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the Issuer’s
assets and the assets of the Issuer’s subsidiaries taken as a whole. Although there is a limited body of case law interpreting the
phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the
ability of a Holder of Notes to require the Issuer to purchase its notes as a result of a sale, lease, transfer, conveyance or other disposition
of less than all of the Issuer’s assets and the assets of the Issuer’s subsidiaries taken as a whole to another person may
be uncertain.
For purposes of the Change of Control Offer provisions
of the Notes, the following definitions are applicable:
“Change of Control” means the
occurrence of any one of the following:
(1) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the Issuer’s assets and the assets of the Issuer’s subsidiaries taken as a whole to any “person”
(as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Issuer or one of its subsidiaries;
(2) the consummation of any transaction (including
without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than the Issuer or its subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Issuer’s outstanding Voting Stock, measured by
voting power rather than number of shares; provided, however, that a person shall not be deemed the beneficial owner of,
or to own beneficially, any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such
person’s affiliates (as defined in the indenture) until such tendered securities are accepted for purchase or exchange thereunder;
(3) the Issuer consolidates with, or merges
with or into, any person, or any person consolidates with, or merges with or into, the Issuer, in any such event pursuant to a transaction
in which any of the Issuer’s outstanding Voting Stock or the outstanding Voting Stock of such other person is converted into or
exchanged for cash, securities or other property, other than any such transaction where the shares of the Issuer’s Voting Stock
outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of
the surviving person or any direct or indirect parent of the surviving person, immediately after giving effect to such transaction; or
(4) the adoption of a plan by the Issuer’s
board of directors relating to the Issuer’s liquidation or dissolution in connection with a bankruptcy or insolvency proceeding.
Notwithstanding the foregoing, a transaction will
not be considered to be a Change of Control if (1) the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company
and (2) immediately following that transaction, (a) the direct or indirect Holders of the Voting Stock of the holding company
are substantially the same as the Holders of the Issuer’s Voting Stock in substantially the same proportions immediately prior to
that transaction or (b) no person or group is the beneficial owner, directly or indirectly, of more than a majority of the total
voting power of the Voting Stock of the holding company.
“Change of Control
Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“Fitch”
means Fitch Ratings Inc. and its successors.
“Investment Grade”
means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of
BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch
(or its equivalent under any successor rating category of Fitch) and the equivalent investment grade rating from any replacement Rating
Agency or Agencies appointed by the Issuer.
“Moody’s”
means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Rating Agency”
means each of Moody’s and S&P; provided, that if, after the date of the initial issuance of the Notes, Fitch rates the Notes
and makes such rating publicly available, Rating Agency shall mean each of Moody’s, S&P and Fitch; provided, further, that if
Moody’s, S&P and/or Fitch, as applicable, ceases to rate the Notes or fails to continue to make a rating of the notes publicly
available for reasons outside of the Issuer’s control, the Issuer shall appoint a replacement for such Rating Agency that is a “nationally
recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.
“Ratings Event”
means the Notes are rated below Investment Grade by at least two of the three Rating Agencies (if the Notes at such time are rated by
three Rating Agencies) or by both Rating Agencies (if the Notes at such time are rated by two Rating Agencies), on any day during the
period (the “Trigger Period”) commencing on the date 60 days prior to the first public announcement by the Issuer of any Change
of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will
be extended for so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by at least two
of the three Rating Agencies (if the Notes at such time are rated by three Rating Agencies) or by either of the Rating Agencies (if the
Notes at such time are rated by two Rating Agencies)); provided, however, that a Ratings Event otherwise arising by virtue of a particular
reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Ratings
Event for purposes of the definition of Change of Control Repurchase Event (as defined in the Indenture)) unless each of the Rating Agencies
announces or publicly confirms or informs the Trustee in writing at the Issuer’s or the Trustee’s request that the reduction
was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control. Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection
with any particular Change of Control unless and until such Change of Control has actually been consummated.
“S&P”
means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock”
of any specified person as of any date means the capital stock of such person that is at the time entitled to vote generally in the election
of the board of directors of such person.
8. Defaults
and Remedies.
If an Event of Default (other than certain bankruptcy
Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then either the
Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, may by written notice to the Issuer (and to the Trustee
if given by the Holders), require the Issuer to repay immediately the entire principal amount of the outstanding Notes, together with
all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing,
then the entire principal amount of the outstanding Notes will automatically become due immediately and payable without any declaration
or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it requires.
The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes
then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of
certain continuing defaults or Events of Default if it determines that withholding notice is in their interest.
9. Authentication.
This Note shall not be valid until the Trustee
manually signs the certificate of authentication on this Note.
10. Abbreviations
and Defined Terms.
Customary abbreviations may be used in the name
of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
11. CUSIP
Numbers.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience
to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be
placed only on the other identification numbers printed hereon.
12. Governing
Law.
The laws of the State of New York shall govern
the Indenture and this Note thereof.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s
name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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Signature must be guaranteed |
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Signature |
Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion
Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES*
The following exchanges of
a part of this Global Note for Physical Notes or a part of another 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 officer
of Trustee |
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* To
be included in a Book-Entry Note.
PURCHASE EXERCISE NOTICE UPON A CHANGE OF CONTROL
TRIGGERING EVENT
To: Atlassian Corporation
The undersigned registered owner of this Security
hereby acknowledges receipt of a notice from Atlassian Corporation (the “Issuer”) as to the occurrence of a Change
of Control Triggering Event with respect to the Issuer and hereby directs the Issuer to pay, or cause the Trustee to pay, _______________
an amount in cash equal to 101% of the aggregate principal amount of the Notes, or the portion thereof (which is a multiple of $1,000,
provided that the remaining principal amount, if any, following such purchase shall be at least $2,000 or a multiple of $1,000 in excess
thereof) below designated, to be purchased plus interest accrued to, but excluding, the purchase date, except as provided in the Indenture.
Dated:
Signature
Principal amount to be purchased (a multiple of
$1,000):
Remaining principal amount following such purchase:
(zero or at least $2,000 or a multiple of $1,000
in excess thereof)
Exhibit B
FORM OF NOTES DUE 2034
[FACE OF NOTE]
THIS GLOBAL
NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 4.01 OF THE FIRST SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.01 OF THE FIRST SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
No._________ | |
$____________ |
CUSIP: 049468AB7
ISIN: US049468AB74
ATLASSIAN CORPORATION
5.500% Senior Notes due 2034
ATLASSIAN CORPORATION, a Delaware
corporation (the “Issuer”), for value received promises to pay to CEDE & CO. or registered assigns the principal
sum of _________________ on May 15, 2034.
Interest Payment Dates: May 15
and November 15 (each, an “Interest Payment Date”), commencing on November 15, 2024.
Interest Record Dates: May 1
and November 15 (each, an “Interest Record Date”).
Reference is made to the further
provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer
has caused this Note to be signed manually, electronically or by facsimile by its duly authorized officer.
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ATLASSIAN CORPORATION |
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By: |
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Name: |
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Title: |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of
the series designated herein and referred to in the within-mentioned Indenture.
Dated: _________, 2024
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U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, |
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as Trustee |
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By: |
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Authorized Signatory |
[REVERSE OF NOTE]
ATLASSIAN
CORPORATION
5.500% Senior Notes due 2034
1. Interest.
Atlassian Corporation (the “Issuer”)
promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue
from the most recent date to which interest has been paid; or, if no interest has been paid, from _______, 20__. Interest on this Note
will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest
Payment Date, commencing on November 15, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day
months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal
from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful.
2. Paying
Agent.
Initially, U.S. Bank Trust Company, National Association
(the “Trustee”) will act as Paying Agent. The Issuer may change any Paying Agent without notice to the Holders.
3. Indenture;
Defined Terms.
This Note is one of the 5.500% Senior Notes due
2034 (the “Notes”) issued under an indenture dated as of May 15, 2024 (the “Base Indenture”)
by and between the Issuer and the Trustee, and established pursuant to a First Supplemental Indenture dated May 15, 2024 (the “Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”), issued pursuant to Section 2.1 and
Section 2.2 of the Base Indenture. This Note is a “Security” and the Notes are “Securities” under the Indenture.
For purposes of this Note, unless otherwise defined
herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”)
as in effect on the date on which the Indenture was qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the
terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations;
Transfer; Exchange.
The Notes are in registered form, without coupons,
in minimum denominations of $2,000 and integral multiples of $1,000 thereafter. A Holder shall register the transfer or exchange of Notes
in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15)
days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption
in whole or in part.
5. Amendment;
Supplement; Waiver.
Subject to certain exceptions, the Notes and the
provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance
with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of any Series (including the Notes) under the Indenture that are affected by such amendment, supplement
or waiver (voting together as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture and the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency or comply with any requirements
of the Commission in connection with the qualification of the Indenture under the TIA, or make any other change that does not adversely
affect the rights of any Holder of a Note in any material respect.
6. Redemption.
Prior to the Par Call Date (as defined below),
the Issuer may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed
as a percentage of principal amount and rounded to three decimal places) calculated by the Issuer equal to the greater of:
(i) (a) the sum of the present values
of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the redemption date (assuming
that such notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below) plus 20 basis points, less (b) interest accrued to the date of redemption; and
(ii) 100% of the principal amount of the
Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding,
the redemption date.
On or after Par Call Date, the Issuer may redeem
the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal
amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the redemption date.
Notwithstanding the foregoing, installments of
interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest
payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
“Par Call Date” means February 15,
2034.
“Treasury Rate” means, with
respect to any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Issuer
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities—Treasury constant maturities—Nominal” (or any successor caption
or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for
the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining
Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one
yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Par Call Date on a straight-line basis
(using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury
constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15
closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be
deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from
the redemption date.
If on the third Business Day preceding the redemption
date H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States
Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally
distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call
Date, the Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or
more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria
of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities
at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield
to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as
a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal
places.
7. Change
of Control Triggering Event.
If a Change of Control Triggering Event (as defined
below) occurs, unless the Issuer shall have exercised its right to redeem the Notes as described above, the Issuer shall be required to
make an offer to each Holder of Notes to purchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof)
of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided that after giving effect to the purchase, any Notes that remain outstanding
shall have a minimum denomination of $2,000 and integral multiples of $1,000 above that amount.
Within 30 days following the date upon which the
Change of Control Triggering Event has occurred or, at the Issuer’s option, prior to any Change of Control (as defined below), but
after the public announcement of the transaction that constitutes or may constitute the Change of Control, except to the extent that the
Issuer shall have exercised its right to redeem the Notes pursuant to Section 6 hereof, the Issuer shall mail or send a notice in
accordance with the applicable procedures of the Depositary (a “Change of Control Offer”) to each Holder of Notes subject
to such offer with a copy to the Trustee describing the transaction or transactions that constitute or may constitute a Change of Control
Triggering Event and offering to purchase Notes on the date specified in the notice, which date will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed or sent (other than as may be required by law) (such date, the “Change of Control
Payment Date”). The notice will, if mailed or sent prior to the date of consummation of the Change of Control, state that the Change
of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date specified
in the notice. The Change of Control Payment Date must be a Business Day.
On each Change of Control Payment Date, the Issuer
shall, to the extent lawful:
| · | accept for payment all Notes or portions of the Notes properly tendered pursuant to the Change of Control Offer; |
| · | deposit with the Paying Agent prior to 10:00 a.m. New York City time an amount equal to the change of control payment in respect
of all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and |
| · | deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased. |
The Trustee shall promptly deliver, or cause the
Paying Agent to promptly deliver, to each Holder of Notes so tendered the payment for such Notes, and the Trustee shall promptly authenticate
and deliver (or cause to be transferred by book entry) to each holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any.
Except as described above with respect to a Change
of Control Triggering Event, the Indenture does not contain provisions that permit the Holders to require the Issuer to purchase or redeem
the Notes in the event of a takeover, recapitalization or similar transaction.
The Issuer shall comply, to the extent applicable,
with the requirements of Rule 14(e)-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and any other securities laws or regulations in connection with the purchase of Notes pursuant to a Change of Control Triggering Event.
To the extent that the provisions of any securities laws or regulations conflict with the terms described in the Notes, the Issuer shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations by virtue thereof;
rather, the Issuer shall be deemed to be in compliance with those obligations if it complies with its obligation to repurchase Notes upon
a Change of Control Triggering Event in accordance with the Indenture, modified as necessary by the Issuer in good faith to permit compliance
with any such law or regulation.
Holders of Notes electing to have Notes purchased
pursuant to a Change of Control Offer will be required to surrender their Notes, with the form entitled “Purchase Exercise Notice
Upon a Change of Control Triggering Event” on the reverse of the Note completed, to the Paying Agent at the address specified in
the notice, or transfer their Notes to the Paying Agent by book-entry transfer pursuant to the applicable procedures of DTC, prior to
the close of business on the third Business Day prior to the Change of Control Payment Date.
The Issuer shall not be required to make a Change
of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for
an offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under its offer in accordance
with such requirements.
In addition, the Issuer shall not purchase any
Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than
a default in the payment of the change of control payment upon a Change of Control Triggering Event.
If Holders of not less than 95% in aggregate principal
amount of outstanding Notes validly tender and do not withdraw such notes in a Change of Control Offer and the Issuer, or any third party
making a Change of Control Offer in lieu of the Issuer, as described above, purchases all of the Notes validly tendered and not withdrawn
by such Holders, all of the Holders will be deemed to have consented to such Change of Control Offer and, accordingly, the Issuer will
have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant
to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a redemption price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption
(subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date).
The definition of Change of Control includes a
phrase relating to the sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the Issuer’s
assets and the assets of the Issuer’s subsidiaries taken as a whole. Although there is a limited body of case law interpreting the
phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the
ability of a Holder of Notes to require the Issuer to purchase its notes as a result of a sale, lease, transfer, conveyance or other disposition
of less than all of the Issuer’s assets and the assets of the Issuer’s subsidiaries taken as a whole to another person may
be uncertain.
For purposes of the Change of Control Offer provisions
of the Notes, the following definitions are applicable:
“Change of Control” means the
occurrence of any one of the following:
(1) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the Issuer’s assets and the assets of the Issuer’s subsidiaries taken as a whole to any “person”
(as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Issuer or one of its subsidiaries;
(2) the consummation of any transaction (including
without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than the Issuer or its subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Issuer’s outstanding Voting Stock, measured by
voting power rather than number of shares; provided, however, that a person shall not be deemed the beneficial owner of,
or to own beneficially, any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such
person’s affiliates (as defined in the indenture) until such tendered securities are accepted for purchase or exchange thereunder;
(3) the Issuer consolidates with, or merges
with or into, any person, or any person consolidates with, or merges with or into, the Issuer, in any such event pursuant to a transaction
in which any of the Issuer’s outstanding Voting Stock or the outstanding Voting Stock of such other person is converted into or
exchanged for cash, securities or other property, other than any such transaction where the shares of the Issuer’s Voting Stock
outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of
the surviving person or any direct or indirect parent of the surviving person, immediately after giving effect to such transaction; or
(4) the adoption of a plan by the Issuer’s
board of directors relating to the Issuer’s liquidation or dissolution in connection with a bankruptcy or insolvency proceeding.
Notwithstanding the foregoing, a transaction will
not be considered to be a Change of Control if (1) the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company
and (2) immediately following that transaction, (a) the direct or indirect Holders of the Voting Stock of the holding company
are substantially the same as the Holders of the Issuer’s Voting Stock in substantially the same proportions immediately prior to
that transaction or (b) no person or group is the beneficial owner, directly or indirectly, of more than a majority of the total
voting power of the Voting Stock of the holding company.
“Change of Control
Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“Fitch”
means Fitch Ratings Inc. and its successors.
“Investment Grade”
means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of
BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch
(or its equivalent under any successor rating category of Fitch) and the equivalent investment grade rating from any replacement Rating
Agency or Agencies appointed by the Issuer.
“Moody’s”
means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Rating Agency”
means each of Moody’s and S&P; provided, that if, after the date of the initial issuance of the Notes, Fitch rates the Notes
and makes such rating publicly available, Rating Agency shall mean each of Moody’s, S&P and Fitch; provided, further, that if
Moody’s, S&P and/or Fitch, as applicable, ceases to rate the Notes or fails to continue to make a rating of the notes publicly
available for reasons outside of the Issuer’s control, the Issuer shall appoint a replacement for such Rating Agency that is a “nationally
recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.
“Ratings Event”
means the Notes are rated below Investment Grade by at least two of the three Rating Agencies (if the Notes at such time are rated by
three Rating Agencies) or by both Rating Agencies (if the Notes at such time are rated by two Rating Agencies), on any day during the
period (the “Trigger Period”) commencing on the date 60 days prior to the first public announcement by the Issuer of any Change
of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will
be extended for so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by at least two
of the three Rating Agencies (if the Notes at such time are rated by three Rating Agencies) or by either of the Rating Agencies (if the
Notes at such time are rated by two Rating Agencies)); provided, however, that a Ratings Event otherwise arising by virtue of a particular
reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Ratings
Event for purposes of the definition of Change of Control Repurchase Event (as defined in the Indenture)) unless each of the Rating Agencies
announces or publicly confirms or informs the Trustee in writing at the Issuer’s or the Trustee’s request that the reduction
was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control. Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection
with any particular Change of Control unless and until such Change of Control has actually been consummated.
“S&P”
means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock”
of any specified person as of any date means the capital stock of such person that is at the time entitled to vote generally in the election
of the board of directors of such person.
8. Defaults
and Remedies.
If an Event of Default (other than certain bankruptcy
Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then either the
Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, may by written notice to the Issuer (and to the Trustee
if given by the Holders), require the Issuer to repay immediately the entire principal amount of the outstanding Notes, together with
all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing,
then the entire principal amount of the outstanding Notes will automatically become due immediately and payable without any declaration
or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it requires.
The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes
then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of
certain continuing defaults or Events of Default if it determines that withholding notice is in their interest.
9. Authentication.
This Note shall not be valid until the Trustee
manually signs the certificate of authentication on this Note.
10. Abbreviations
and Defined Terms.
Customary abbreviations may be used in the name
of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
11. CUSIP
Numbers.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience
to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be
placed only on the other identification numbers printed hereon.
12. Governing
Law.
The laws of the State of New York shall govern
the Indenture and this Note thereof.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s
name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
|
|
|
Signature must be guaranteed |
|
Signature |
Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion
Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES*
The following exchanges of
a part of this Global Note for Physical Notes or a part of another 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 officer
of Trustee |
| |
| |
| |
| |
|
| |
| |
| |
| |
|
* To
be included in a Book-Entry Note.
PURCHASE EXERCISE NOTICE UPON A CHANGE OF CONTROL
TRIGGERING EVENT
To: Atlassian Corporation
The undersigned registered owner of this Security
hereby acknowledges receipt of a notice from Atlassian Corporation (the “Issuer”) as to the occurrence of a Change
of Control Triggering Event with respect to the Issuer and hereby directs the Issuer to pay, or cause the Trustee to pay, _______________
an amount in cash equal to 101% of the aggregate principal amount of the Notes, or the portion thereof (which is a multiple of $1,000,
provided that the remaining principal amount, if any, following such purchase shall be at least $2,000 or a multiple of $1,000 in excess
thereof) below designated, to be purchased plus interest accrued to, but excluding, the purchase date, except as provided in the Indenture.
Dated:
Signature
Principal amount to be purchased (a multiple of
$1,000):
Remaining principal amount following such purchase:
(zero or at least $2,000 or a multiple of $1,000
in excess thereof)
Exhibit 5.1
|
1271 Avenue of the Americas |
|
New York, New York 10020-1401 |
|
Tel: +1.212.906.1200 Fax: +1.212.751.4864 |
|
www.lw.com |
|
|
|
FIRM / AFFILIATE OFFICES |
Austin |
Milan |
Beijing |
Munich |
|
Boston |
New York |
|
Brussels |
Orange County |
|
Century City |
Paris |
|
Chicago |
Riyadh |
|
Dubai |
San Diego |
May 15, 2024 |
Düsseldorf |
San Francisco |
|
Frankfurt |
Seoul |
|
Hamburg |
Silicon Valley |
Atlassian Corporation |
Hong Kong |
Singapore |
350 Bush Street, Floor 13 |
Houston |
Tel Aviv |
San Francisco, California 94104 |
London |
Tokyo |
|
Los Angeles |
Washington, D.C. |
|
Madrid |
|
Re: Atlassian
Corporation - Registration Statement on Form S-3 (Registration No. 333-279132)
To the addressee set forth above:
We have acted as special counsel to Atlassian
Corporation, a Delaware corporation (the “Company”), in connection with the issuance of $500.0 million aggregate
principal amount of its 5.250% Senior Notes due 2029 (the “2029 Notes”) and $500.0 million aggregate principal
amount of its 5.500% Senior Notes due 2034 (the “2034 Notes” and, together with the 2029 Notes, the “Notes”),
pursuant to a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Act”),
filed with the Securities and Exchange Commission (the “Commission”) on May 6, 2024 (Registration No. 333-279132)
(as so filed and as amended, the “Registration Statement”), a base prospectus, dated May 6, 2024, included
in the Registration Statement at the time it originally became effective (the “Base Prospectus”), a preliminary
prospectus supplement, dated May 8, 2024, filed with the Commission pursuant to Rule 424(b) under the Act, the document
that the Company has identified as an “issuer free writing prospectus” (as defined in Rule 433 and Rule 405 under
the Act), a final prospectus supplement, dated May 8, 2024 filed with the Commission pursuant to Rule 424(b) under the
Act on May 10, 2024 (such final prospectus supplement, together with the Base Prospectus, the “Prospectus”),
and an underwriting agreement, dated May 8, 2024, among representatives of the several Underwriters named in the underwriting agreement
and the Company (the “Underwriting Agreement”). The Notes are being issued pursuant to an indenture, dated
as of the date hereof (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association,
as trustee (the “Trustee”), as supplemented by that certain First Supplemental Indenture, dated as of the date
hereof, between the Company and the Trustee, setting forth the terms of the Notes (together with the Base Indenture, the “Indenture”).
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion
is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, other than as expressly
stated herein with respect to the issue of the Notes.
May 15, 2024
Page 2
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
We are opining herein as to the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the laws of any local agencies
within any state.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof, when the Notes have been duly executed, issued and authenticated in
accordance with the terms of the Indenture and delivered against payment therefor in the circumstances contemplated by the Underwriting
Agreement, the Notes will be legally valid and binding obligations of the Company enforceable against the Company in accordance with
their respective terms.
Our opinions are subject to: (i) the
effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in
a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
(b) concepts of materiality, reasonableness, good faith and fair dealing and (c) the discretion of the court before which
a proceeding is brought; and (iii) the invalidity under certain circumstances under law or court decisions of provisions
providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or
contribution is contrary to public policy. We express no opinion as to: (a) any provision for liquidated damages, default
interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed
to constitute a penalty; (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or
judicial relief; (c) waivers of rights or defenses relating to stay, extension and usury laws; and waivers of broadly or vaguely
stated rights; (d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or
public policy; (e) any provision permitting, upon acceleration of the Notes, collection of that portion of the stated principal
amount thereof that might be determined to constitute unearned interest thereon; and (f) the severability, if invalid, of
provisions to the foregoing effect.
With your consent, except to the extent we have
expressly opined as to such matters with respect to the Company herein, we have assumed (a) that the Indenture and the Notes (collectively,
the “Documents”) have been duly authorized, executed and delivered by the parties thereto, (b) that the
Documents constitute legally valid and binding obligations of the parties thereto, enforceable against each of them in accordance with
their respective terms, and (c) that the status of the Documents as legally valid and binding obligations of the parties is not
affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations
or court or governmental orders or (iii) failures to obtain required consents, approvals or authorizations from, or make required
registrations, declarations or filings with, governmental authorities.
May 15, 2024
Page 3
We express no opinion with respect to (i) advance
waivers of claims, defenses, rights granted by law or notice, opportunity for hearing, evidentiary requirements, statutes of limitation,
trial by jury or at law or other procedural rights; (ii) waivers of broadly or vaguely stated rights; (iii) covenants not to
compete; (iv) provisions for exclusivity, election or cumulation of rights or remedies; (v) provisions authorizing or validating
conclusive or discretionary determinations; (vi) grants of setoff rights; (vii) proxies, powers and trusts; and (viii) provisions
prohibiting, restricting or requiring consent to assignment or transfer of any right or property.
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Company’s Form 8-K dated May 15, 2024 and to
the reference to our firm contained in the Prospectus under the heading “Legal Matters.” 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 or the rules and
regulations of the Commission thereunder.
|
Sincerely, |
|
|
|
/s/ Latham & Watkins LLP |
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