CYBERONICS, INC. AND WELLS FARGO BANK, NATIONAL ASSOCIATION As Trustee SUPPLEMENTAL INDENTURE Dated as of April 18, 2008 to Indenture Dated as of September 27, 2005
EXHIBIT
10.2
CYBERONICS,
INC.
AND
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
As
Trustee
_______________________________
Dated as
of April 18, 2008
to
Indenture
Dated as
of September 27, 2005
3.0%
Senior Subordinated Convertible Notes Due 2012
SUPPLEMENTAL
INDENTURE, dated as of April 18, 2008 (this “Supplemental Indenture”),
between CYBERONICS, INC., a Delaware corporation (the “Company”) and ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION, a national banking association duly organized under
the laws of the United States, as trustee (the “Trustee”). All
capitalized terms used and not defined herein shall have the respective meanings
assigned to them in the Indenture (as defined below).
WHEREAS,
the Company and the Trustee are parties to an Indenture, dated as of September
27, 2005 (the “Indenture”), pursuant to
which the Company issued its 3.0% Senior Subordinated Convertible Notes Due 2012
(the “Securities”);
WHEREAS,
Section 7.2 of the Indenture provides that the Company and the Trustee may amend
the Indenture and the Securities without the consent of any Holders of
Securities to add to the covenants of the Company or provide Guarantees for the
benefit of the Holders of Securities;
WHEREAS,
the directors of the Company have authorized and approved the amendments to the
Indenture set forth herein and will deliver to the Trustee resolutions of the
Board of Directors to that effect (the “Amendments”);
WHEREAS,
the execution and delivery of this Supplemental Indenture have been duly
authorized and all conditions and requirements necessary to make this
Supplemental Indenture a valid and binding agreement have been performed and
complied with;
NOW,
THEREFORE, for and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, it
is mutually covenanted and agreed, for the equal proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE
I
AMENDMENTS
TO INDENTURE
Section
1.1 The
following definitions are hereby added to Section 1.1, as alphabetically
appropriate:
“Company Optional Repurchase
Notice” shall have the meaning specified in Section 11.2(b)
hereof.
“Optional Repurchase Date”
shall have the meaning specified in Section 11.2(a) hereof.
“Optional Repurchase Price”
shall have the meaning specified in Section 11.2(a) hereof.
“Optional Repurchase Right”
shall have the meaning specified in Section 11.2(a) hereof.
Section 1.2 Section 11.2
is hereby amended and restated to read in its entirety as set forth
below:
SECTION
11.2 Repurchase at Option of
Holders.
(a) On
December 27, 2011 (the “Optional Repurchase Date”),
each Holder shall have the right (the “Optional Repurchase
Right”) at
the Holder’s option, but subject to the provisions of Section 11.2(b)-(i)
hereof, to require the Company to repurchase, and upon the exercise of such
right the Company shall repurchase, all of such Holder’s Securities or any
portion of the principal amount thereof that is equal to $1,000 or any integral
multiple thereof (provided,
however, that no single Security may be repurchased in part unless the
portion of the principal amount of such Security to be Outstanding after such
repurchase is equal to $1,000 or integral multiples thereof), at a purchase
price in cash equal to 100% of the principal amount of the Securities to be
repurchased (the “Optional
Repurchase Price”), plus interest accrued and unpaid to, but excluding,
the Optional Repurchase Date.
(b) Prior
to or on the 20th Business Day before the Optional Repurchase Date, the Company
shall give to all Holders of Securities notice (the “Company Optional Repurchase
Notice”) in the manner provided in Section 14.2 hereof, of the Optional
Repurchase Right set forth herein. The Company shall also deliver a
copy of the Company Optional Repurchase Notice to the Trustee. The
Company Optional Repurchase Notice shall state:
(1) the
Optional Repurchase Price;
(2) a
description of the procedure which a Holder must follow to exercise an Optional
Repurchase Right, and the place or places where such Securities are to be
surrendered for payment of the Optional Repurchase Price and accrued and unpaid
interest, if any;
(3) that
on the Optional Repurchase Date the Optional Repurchase Price and accrued and
unpaid interest, if any, will become due and payable upon each such Security
designated by the Holder to be repurchased, and that interest thereon shall
cease to accrue on and after said date;
2
(4) the
Conversion Rate then in effect, the date on which the right to convert the
Securities to be repurchased will terminate and the place where such Securities
may be surrendered for conversion; and
(5) the
place or places where such Securities, together with the Optional Repurchase
notice included in Exhibit A annexed
hereto are to be delivered for payment of the Optional Repurchase Price and
accrued and unpaid interest, if any.
No
failure of the Company to give the foregoing notices or defect therein shall
limit any Holder’s right to exercise an Optional Repurchase Right or affect the
validity of the proceedings for the repurchase of Securities.
(c) If
any of the foregoing provisions or other provisions of this Article 11 are
inconsistent with applicable law, such law shall govern.
(d) To
exercise an Optional Repurchase Right, a Holder shall deliver to the Trustee
prior to the close of business on the Business Day immediately preceding the
Optional Repurchase Date:
(1) written
notice of the Holder’s exercise of such right, which notice shall set forth the
name of the Holder, the principal amount of the Securities to be repurchased
(and, if any Security is to be repurchased in part, the serial number thereof,
the portion of the principal amount thereof to be repurchased) and a statement
that an election to exercise the Optional Repurchase Right is being made
thereby, substantially in the form attached hereto as the Optional Repurchase
notice included in Exhibit A annexed
hereto; and
(2) the
Securities with respect to which the Optional Repurchase Right is being
exercised.
Such
written notice shall be irrevocable unless the Company defaults in its
obligation to pay the Optional Repurchase Price on the Optional Repurchase Date
as required herein.
(e) In
the event an Optional Repurchase Right shall be exercised in accordance with the
terms hereof, the Company shall pay or cause to be paid to
3
the
Trustee the Optional Repurchase Price and any accrued and unpaid interest in
cash for payment to the Holder on the Optional Repurchase Date.
(f) If
any Security (or portion thereof) surrendered for repurchase shall not be so
paid on the Optional Repurchase Date, the principal amount of such Security (or
portion thereof, as the case may be) shall, until paid, bear interest to the
extent permitted by applicable law from the Optional Repurchase Date at the
Interest Rate, and each Security shall remain convertible into Common Stock
until the principal of such Security (or portion thereof, as the case may be)
shall have been paid.
(g) Any
Security which is to be repurchased only in part shall be surrendered to the
Trustee (with, if the Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, containing identical terms and conditions,
each in an authorized denomination in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.
(h) All
Securities delivered for repurchase shall be delivered to the Trustee to be
canceled at the direction of the Trustee, which shall dispose of the same as
provided in Section 2.15 hereof.
Section 1.3 Exhibit A
shall be amended to include the Optional Repurchase notice attached hereto as
Annex
A.
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section 2.1 Upon execution
and delivery of this Supplemental Indenture, the terms and conditions of this
Supplemental Indenture shall be part of the terms and conditions of this
Indenture for any and all purposes, and all the terms and conditions of both
shall be read together as though they constitute one and the same instrument,
except that in the case of conflict, the provisions of this Supplemental
Indenture will control.
Section 2.2 Each of the
Company and the Trustee hereby confirms and reaffirms the Indenture, as amended
and supplemented by this Supplemental Indenture.
4
Section 2.3 The Parties
may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement. One copy is enough to prove this Supplemental
Indenture.
Section 2.4 All provisions
of this Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as amended and supplemented by this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
Section 2.5 The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee
shall not be liable or responsible for the validity or sufficiency of this
Supplemental Indenture or the due authorization of this Supplemental Indenture
by the Company. In entering into this Supplemental Indenture, the
Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct of, affecting the liability of or according protection
to the Trustee, whether or not elsewhere herein so provided.
[Remainder
of page left intentionally blank]
5
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed as of the day and year written above.
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CYBERONICS,
INC.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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President
& Chief Executive Officer
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
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solely
in its capacity as indenture trustee and not in its
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individual
capacity
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By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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[Name] ▇▇▇▇▇
▇. ▇▇▇▇▇▇
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[Title] Vice
President
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6
ANNEX
A
OPTIONAL
REPURCHASE
NOTICE
OF EXERCISE OF REPURCHASE RIGHT
TO: CYBERONICS,
INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
The
undersigned registered owner of this Security irrevocably acknowledges receipt
of the Company Optional Repurchase Notice from Cyberonics, Inc. (the “Company”)
and requests and instructs the Company to repay the entire principal amount of
this Security, or the portion thereof (which is $1,000 principal amount or an
integral multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Security, together with interest accrued and
unpaid, but excluding such date, to the registered holder hereof, in
cash.
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Dated:
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Your
Name:
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(Print
your name exactly as it appears on the face of this
Security)
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Your
Signature:
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(Sign
exactly as your name appears on the face of this
Security)
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Signature
Guarantee*:
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Social
Security
or
other Taxpayer
Identification
Number:
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Principal
amount to be repaid (if less than all): $
*Participant
is a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A-2