SUPPLEMENTAL INDENTURE dated as of May 4, 2012 among AETNA INC.,

dated as of May 4, 2012

among

AETNA INC.,

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 

1.750% Senior Notes due May 15, 2017

4.500% Senior Notes due May 15, 2042

 

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 4, 2012, between AETNA INC., a corporation duly organized and validly existing under the laws of the Commonwealth of Pennsylvania (the “Company”), having its principal office at 151 Farmington Avenue, Hartford, Connecticut 06156 and U.S. BANK NATIONAL ASSOCIATION, as successor-in-interest to State Street Bank and Trust Company, as trustee (the “Trustee”).

 

 

WHEREAS, the Company and the Trustee entered into a Senior Indenture dated as of March 2, 2001 (the “Base Indenture”, and as supplemented by this Supplemental Indenture, the “Indenture”) providing for the issuance from time to time of the Company’s debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one more series as in the Base Indenture provided;

 

WHEREAS, Sections 201 and 301 of the Base Indenture provide that the Company and the Trustee may establish the terms of a new series of Securities in an indenture supplemental to the Base Indenture;

 

WHEREAS, Section 901 of the Base Indenture provides that the Company and the Trustee may enter into an indenture supplemental to the Base Indenture, without the consent of any Holders, to eliminate any of the provisions of the Base Indenture in respect of a new series of Securities so established pursuant to Section 301 of the Base Indenture;

 

WHEREAS, pursuant to resolutions adopted by the Board of Directors of the Company on September 23, 2011 and the Delegation of Authority of Mark T. Bertolini, Chairman, Chief Executive Officer and President of the Company, dated April 30, 2012 (collectively, the “Company Resolutions”), the Company has approved to be established two new series of Securities, designated as its 1.750% Senior Notes due May 15, 2017 (the “2017 Notes”) and its 4.500% Senior Notes due May 15, 2042 (the “2042 Notes” and together with the 2017 Notes, the “Notes”) as in this Supplemental Indenture provided; and

 

WHEREAS, all requirements necessary to make this Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms and to make the Notes, when executed, authenticated and delivered by the Company, the valid, binding and enforceable obligations of the Company have been done and performed.

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties to this Supplemental Indenture hereby agree as follows:

 

 

ARTICLE 1

Definitions

 

Section 1.01.  Definitions.

 

 

“2017 Notes” has the meaning stated in the fourth recital of this Supplemental Indenture.

 

“2042 Notes” has the meaning stated in the fourth recital of this Supplemental Indenture.

 

“Base Indenture” has the meaning stated in the first recital of this Supplemental Indenture.

 

“Below Investment Grade Rating Event” means the Notes of a series are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect a Change of Control, in each case until the end of the 60-day period following the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect a Change of Control; provided, however, that if (i) during such 60-day period one or more Rating Agencies has publicly announced that it is considering the possible downgrade of the Notes of such series, and (ii) a downgrade by each of the Rating Agencies that has made such an announcement would result in a Below Investment Grade Rating Event, then such 60-day period shall be extended for such time as the rating of the Notes of such series by any such Rating Agency remains under publicly announced consideration for possible downgrade to a rating below an Investment Grade Rating and a downgrade by such Rating Agency to a rating below an Investment Grade Rating could cause a Below Investment Grade Rating Event. Notwithstanding the foregoing, a rating 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 Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company’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 (whether or not the applicable Change of Control has occurred at the time of the rating event).

 

 

“Change of Control Offer” has the meaning stated in ‎Section 2.07(a) of this Supplemental Indenture.

 

“Change of Control Payment” has the meaning stated in ‎Section 2.07(a) of this Supplemental Indenture.

 

“Change of Control Payment Date” has the meaning stated in ‎Section 2.07(a) of this Supplemental Indenture.

 

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

 

“Company” means the Person named as the “Company” in the first paragraph of this Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person.

 

“Company Resolutions” has the meaning stated in the fourth recital of this Supplemental Indenture.

 

“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes of the series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes of such series to be redeemed.

 

“Comparable Treasury Price” means, with respect to any Redemption Date for any Notes of a series, the average of all Reference Treasury Dealer Quotations obtained.

 

“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of the Board of Directors of the Company on the date of the issuance of the Notes; or (2) was nominated for election or elected to the Board of Directors of the Company with the approval of a majority of the Continuing Directors who were members of such Board of Directors of the Company at the time of such nomination or election (either by specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).

 

“DTC” means The Depository Trust Company.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute thereto.

 

“Fitch” means Fitch Ratings Inc.

 

“Indenture” has the meaning stated in the first recital of this Supplemental Indenture.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.

 

“Investment Grade Rating” means a rating by Moody’s equal to or higher than Baa3 (or the equivalent under any successor rating category of Moody’s), a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P), a rating by Fitch equal to or higher than BBB- (or the equivalent under any successor rating category of Fitch), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances permitting the Company to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of “Rating Agencies”.

 

“Moody’s” means Moody’s Investors Service, Inc.

 

“Notes” has the meaning stated in the fourth recital of this Supplemental Indenture.

 

“Primary Treasury Dealer” has the meaning stated in the definition of “Reference Treasury Dealer” in this ‎Section 1.01(b).

 

“Rating Agencies” means (1) Moody’s, S&P and Fitch; and (2) if any or all of Moody’s, S&P or Fitch ceases to rate the Notes of a series or fails to make a rating of the Notes of such series publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, that the Company selects (pursuant to a resolution of the Company’s Board of Directors) as a replacement agency for any of Moody’s, S&P or Fitch, or all of them, as the case may be, with respect to such series of Notes.

 

“Reference Treasury Dealer” means each of Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated.  If any Reference Treasury Dealer ceases to be a primary U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company shall substitute another Primary Treasury Dealer for that dealer.

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.

 

“Securities” has the meaning stated in the first recital of this Supplemental Indenture and more particularly means any Securities authenticated and delivered under the Indenture, including, without limitation, the Notes.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

 

“Supplemental Indenture” has the meaning stated in the first paragraph of this instrument.

 

“Treasury Rate” means, with respect to any Redemption Date for any portion of the Notes of a series,

 

·

the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of

 

·

if the release referred to in the previous bullet (or any successor release) is not published during the week preceding the calculation date or does not contain the yields referred to above, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.

 

The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.

 

“Trustee” means the Person named as the “Trustee” in respect of the Notes in the first paragraph of this Supplemental Indenture until a successor Trustee in respect of the Notes shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean or include such Person who is then a Trustee in respect of the Notes.

 

Section 1.02.  Section References.  Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.  Each reference to a particular section of the Base Indenture shall refer to that particular section of the Base Indenture.

 

 

ARTICLE 2

The Notes

 

Section 2.01.  Issue of Notes.  The Notes shall be issued as two series of Securities under the Base Indenture as supplemented by this Supplemental Indenture, which such series shall be known and designated as the “1.750% Senior Notes due May 15, 2017” and the “4.500% Senior Notes due May 15, 2042” of the Company.  Each series of Notes shall constitute a separate series of Securities for all purposes under the Indenture.  The Notes shall be unsecured. 

 

 

Section 2.02.  Stated Maturity.  The Stated Maturity of the principal of the 2017 Notes shall be May 15, 2017 and the Stated Maturity of the principal of the 2042 Notes shall be May 15, 2042.

 

Section 2.03.  Notes Issuable as Global Securities.

 

 

Section 2.04.  Interest and Payment.  The 2017 Notes shall bear interest at the rate of 1.750% per annum and the 2042 Notes shall bear interest at the rate of 4.500% per annum, which in each case will accrue from May 4, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable semi-annually on May 15 and November 15 in each year, commencing November 15, 2012, to the Person in whose name such Notes (or one or more predecessor Notes) are registered at the close of business on the Regular Record Date next preceding the Interest Payment Date.  Each May 15 and November 15 shall be an “Interest Payment Date” for such Notes, and the May 1 or November 1 (whether or not a Business Day), as the

 

 

Section 2.05.  Payment of Interest.  Payment of the principal of and premium, if any, and interest on the Notes will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, City of New York; provided, however, that at any time that the Notes are not represented by Global Securities, at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

 

Section 2.06.  Optional Redemption

 

 

 

plus, in each case, any interest accrued but not paid to the Redemption Date.

 

(b)  At any time on or after April 15, 2017, the 2017 Notes will be redeemable upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of the 2017 Notes being redeemed plus any interest accrued but not paid to the Redemption Date.

 

(c)  At any time prior to November 15, 2041, the 2042 Notes will be redeemable upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of:

 

 

plus, in each case, any interest accrued but not paid to the Redemption Date.

 

(d)  At any time on or after November 15, 2041, the 2042 Notes will be redeemable upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of the 2042 Notes being redeemed plus any interest accrued but not paid to the Redemption Date.

 

(e)  Notice of any redemption will be mailed at least 30 calendar days but no more than 60 calendar days before the Redemption Date to each holder of the Notes of the series to be redeemed.

 

(f)  Unless the Company defaults in payment of the Redemption Price, interest will cease to accrue on the Notes of the series or the portions of the Notes of the series called for redemption on and after the Redemption Date.

 

Section 2.07.  Change of Control Offer to Purchase.

 

 

 

Section 2.08.  Applicability of Certain Provisions of the Base Indenture in Respect of the Notes.

 

 

Section 2.09.  Registrar and Paying Agent.  U.S. Bank National Association shall act as Paying Agent and registrar with respect to the Notes.

 

Section 2.10.  No Sinking Fund.  The Company shall not be obligated to redeem or purchase the Notes of either series pursuant to any sinking fund or analogous provision, or at the option of any Holder thereof, except as provided in ‎Section 2.07 of this Supplemental Indenture.

 

Section 2.11.  Minimum Denominations.  The Notes shall be issuable only in registered form without coupons in denominations of $2,000 and any multiple of $1,000 in excess thereof.

 

 

ARTICLE 3

Miscellaneous

 

Section 3.01.  Relation to Indenture.  This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby.

 

Section 3.02.  Continued Effect. Except as expressly supplemented and amended by this Supplemental Indenture, the Base Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Base Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Indenture in the manner and to the extent herein and therein provided.

 

Section 3.03.  Provisions Binding on Company’s Successors.  All of the covenants, stipulations, promises and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns whether so expressed or not.

 

Section 3.04.  Certain Trustee Matters.

 

 

Section 3.05.  Governing Law.  This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the internal laws of the State of New York.

 

Section 3.06.  Counterparts.  This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.

 

[signatures follow]

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

 

 

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, AND NO SUCH TRANSFER MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.  EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to Aetna Inc. or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment 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.

 

AETNA INC.

 

[·]% SENIOR NOTE DUE 20[·]

 

CUSIP: [●]

ISIN: [●]

 

AETNA INC., a Pennsylvania corporation (herein called the “Company”), which term includes any successor Person under the Indenture hereinafter referred to, for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [                  ] Dollars ($[·]) upon presentation and surrender of this Security on May 15, 20[·], and to pay interest thereon from May 4, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on May 15 and November 15 in each year, commencing November 15, 2012, at the rate of [·]%

 

Payment of the principal of and premium, if any, and interest on this Security will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.  Such provisions include, without limitation, provisions relating to redemption of this Security by the Company.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

Dated: May 4, 2012

 

[SEAL]

 

Attest:

 

 

 

Judith H. Jones

 

 

This is one of the Securities of the series designated under, and referred to in, the within-mentioned Indenture.

 

(Back of Security)

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under a Senior Indenture, dated as of March 2, 2001 (herein called the “Base Indenture”), between the Company, as issuer, and U.S. Bank National Association (as successor in interest to State Street Bank and Trust Company), as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as supplemented by the Supplemental Indenture dated as of May 4, 2012, between the Company and the Trustee (together with the Base Indenture, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.  This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $[·], subject to future issuances of additional Securities pursuant to Section 301 of the Base Indenture.

 

1.	Optional Redemption.

 

At any time prior to [·], 20[·], the Securities of this series are subject to redemption upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of:

 

·

100% of the principal amount of the Securities to be redeemed, or

 

·

the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed from the Redemption Date to the date of Maturity for such Securities discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus [·] basis points,

 

plus, in each case, any interest accrued but not paid to the Redemption Date.

 

At any time on or after [·], 20[·], the Securities of this series are subject to redemption upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of the Securities to be redeemed plus any interest accrued but not paid to the Redemption Date.

 

“Treasury Rate” means, with respect to any Redemption Date for any portion of the Securities of this series,

 

·

the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the date of Maturity for the Securities of this series to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month), or

 

·

if the release referred to in the previous bullet (or any successor release) is not published during the week preceding the calculation date or does not contain the yields referred to above, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.

 

The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.

 

“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series to be redeemed.

 

“Comparable Treasury Price” means, with respect to any Redemption Date for any Securities of this series, the average of all Reference Treasury Dealer Quotations obtained.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.

 

“Reference Treasury Dealer” means each of Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated.  If any Reference Treasury Dealer ceases to be a primary U.S. government securities dealer in the United States (a

 

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.

 

Notice of any redemption will be mailed at least 30 calendar days but no more than 60 calendar days before the Redemption Date to each Holder of the Securities of this series to be redeemed.

 

Unless the Company defaults in payment of the Redemption Price, interest will cease to accrue on the Securities of this series or the portions of the Securities of this series called for redemption on and after the Redemption Date.

 

If this Security is redeemed in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

 

2.	Change of Control.

 

If a Change of Control Triggering Event occurs with respect to the Securities of this series, unless the Company has exercised its right to redeem the Securities of this series in full, as described under “Optional Redemption” above, the Company will make an offer to each Holder of the Securities of this series (the “Change of Control Offer”) to repurchase any and all (equal to $2,000 or an integral multiple of $1,000) of such Holder’s Securities of this series at a repurchase price in cash equal to 101% of the aggregate principal amount of the Securities of this series to be repurchased plus accrued and unpaid interest, if any, thereon, to the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event with respect to the Securities of this series, the Company will mail a notice to Holders of the Securities of this series describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Securities of this series on the date specified in the notice (the “Change of Control Payment Date”), which date will be no less than 30 days and no more than 60 days from the date such notice is mailed, pursuant to the procedures required hereby and described in such notice.

 

The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended from time to time, and any successor statute thereto (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in

 

The Company will not be required to offer to repurchase the Securities of this series upon the occurrence of a Change of Control Triggering Event with respect to the Securities of this series 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 Company and the third party repurchases on the applicable date all Securities of this series properly tendered and not withdrawn under its offer; provided that for all purposes of the Securities of this series and the Indenture, a failure by such third party to comply with the requirements of such offer and to complete such offer shall be treated as a failure by the Company to comply with its obligations to offer to purchase the Securities of this series unless the Company promptly makes an offer to repurchase the Securities of this series at 101% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, thereon, to the date of repurchase, which shall be no later than 30 days after the third party’s scheduled Change of Control Payment Date.

 

On the Change of Control Payment Date for the Securities of this series to be repurchased, the Company will, to the extent lawful:

 

·

accept or cause a third party to accept for payment all Securities of this series or portions of Securities of this series properly tendered pursuant to the Change of Control Offer;

 

·

deposit or cause a third party to deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Securities of this series or portions of Securities of this series properly tendered; and

 

·

deliver or cause to be delivered to the Trustee the Securities of this series properly accepted, together with an officer’s certificate stating the aggregate principal amount of Securities of this series or portions of Securities being purchased.

 

“Below Investment Grade Rating Event” means the Securities of this series are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect

 

 

“Change of Control” means the occurrence of any of the following: (1) direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of 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 one of its subsidiaries becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s voting stock; or (3) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; provided, however, that a transaction will not be deemed to involve a Change of Control if (A) the Company becomes a wholly owned subsidiary of a holding company and (B)(x) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s voting stock immediately prior to that transaction or (y) immediately following that transaction no “person” (as that term is used in Section 13(d)(3) of the Exchange Act) is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company. For purposes of this definition, “voting stock” means capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing

 

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

 

“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of the Board of Directors of the Company on the date of the issuance of the Securities; or (2) was nominated for election or elected to the Board of Directors of the Company with the approval of a majority of the Continuing Directors who were members of such Board of Directors of the Company at the time of such nomination or election (either by specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).

 

“Fitch” means Fitch Ratings Inc.

 

“Investment Grade Rating” means a rating by Moody’s equal to or higher than Baa3 (or the equivalent under any successor rating category of Moody’s), a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P), a rating by Fitch equal to or higher than BBB- (or the equivalent under any successor rating category of Fitch), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances permitting the Company to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of “Rating Agencies”.

 

“Moody’s” means Moody’s Investors Service, Inc.

 

“Rating Agencies” means (1) Moody’s, S&P and Fitch; and (2) if any or all of Moody’s, S&P or Fitch ceases to rate the Securities of this series or fails to make a rating of the Securities of this series publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, that the Company selects (pursuant to a resolution of the Company’s Board of Directors) as a replacement agency for any of Moody’s, S&P or Fitch, or all of them, as the case may be, with respect to the Securities of this series.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

 

3.	Certain Covenants.

 

The Indenture contains certain covenants that, among other things, limit the ability of the Company to consolidate, merge or sell all or substantially all of its assets.  These covenants are subject to a number of important qualifications and exceptions.  Section 1005 of the Base Indenture, including, without limitation, the limitation on liens on the Common Stock of Principal Subsidiaries set forth therein, does not apply to the Securities of this series.

 

4.	Events of Default.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.  The Event of Default set forth in Section 501(5) of the Base Indenture, including, without limitation, the cross-acceleration provisions thereof, does not apply to the Securities of this series.

 

5.	Amendment, Modification and Waiver.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected.  The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

6.	Other Matters.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register upon

 

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange of Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 of the Base Indenture not involving any transfer.

 

Prior to due and proper presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 

The Indenture provides that the Company, at the Company’s option, (a) will be discharged from any and all obligations in respect of the Securities (except for certain obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold moneys for payment in trust) or (b) need not comply with certain restrictive covenants of the Indenture, in each case if the Company deposits, in trust, with the Trustee money or U.S. Government Obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal of and premium, if any, and interest on, the Securities on the dates such payments are due in accordance with the terms of such Securities, and certain other conditions are satisfied.

 

No recourse shall be had for the payment of the principal of and premium, if any, or interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer, employee,

 

All terms used in this Security which are defined in the Indenture shall have the respective meanings assigned to them in the Indenture.