PATRIOTCOAL CORPORATION asIssuer AND U.S. BANKNATIONAL ASSOCIATION asTrustee ____________________ Indenture Dated asof May 28, 2008 ___________________ 3.25%Convertible Senior Notes due 2013

INDENTURE, dated as of May 28, 2008, between PATRIOT COAL CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware, as Issuer (the “Company”), having its principal office at 12312 Olive Boulevard, Suite 400, St. Louis, Missouri and U.S. BANK NATIONAL ASSOCIATION, a Minneapolis banking corporation, as Trustee (the “Trustee”).

 

 

WHEREAS, the Company has duly authorized the creation of an issue of 3.25% Convertible Senior Notes due 2013 (each a “Security” and collectively, the “Securities”) of the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture; and

 

WHEREAS, all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid and legally binding obligations of the Company, and to make this Indenture a valid and legally binding agreement of the Company, in accordance with the terms of the Securities and the Indenture, have been done;

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Securities by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Securities, as follows:

 

 

Definitions and Other Provisions of General Application

 

Section 1.01.  Definitions.

 

“Act,” when used with respect to any Holder, has the meaning specified in Section 1.05(a).

 

“Additional Interest” means Default Additional Interest and Late Filing Additional Interest.

 

“Additional Securities” has the meaning specified in Section 2.17.

 

“Additional Shares” has the meaning specified in Section 5.03(a).

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control” when

 

 

used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Agent Members” has the meaning specified in Section 2.09(f).

 

“Average Redemption VWAP” means, in respect of any Securities called for redemption pursuant to Section 6.01, the average of the Daily VWAP for the five consecutive Trading Days ending on the third VWAP Trading Day immediately preceding the Redemption Date for such Securities.

 

“Averaging Period” has the meaning specified in Section 5.07(f).

 

“Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

 

 “Bankruptcy Law” means Title 11 of the United States Code or any similar Federal or State law for relief of debtors.

 

 “Beneficial Owner” means a “beneficial owner” as determined in accordance with Rule 13d-3 under the Exchange Act.

 

“Bid Solicitation Agent” means initially the Company, or any agent the Company may appoint in the future.  The Company may appoint any Person, including the Trustee (who may accept such appointment in its discretion), as Bid Solicitation Agent without prior notice to the Holders.

 

“Board of Directors” means, with respect to any Person, either the board of directors of such Person or any duly authorized committee of that board.

 

“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification.

 

“Business Day” means any day, other than a Saturday or a Sunday, that is neither a legal holiday in the City of New York nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York.

 

“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock and limited liability company interests and, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person

 

 

the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.

 

“Cash Percentage” has the meaning specified in Section 5.05(c).

 

“Cash Percentage Notice” has the meaning specified in Section 5.05(c).

 

“Clause B Distribution” has the meaning specified in Section 5.07(d).

 

“Clause C Distribution” has the meaning specified in Section 5.07(d).

 

“Clause D Distribution” has the meaning specified in Section 5.07(d).

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act.

 

“Common Stock” means the shares of common stock, par value $0.01 per share, of the Company as they exist on the date of this Indenture or any other Reference Property into which the Common Stock shall be reclassified, changed, converted into or exchanged for in accordance with to Section 5.12.

 

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

 

“Continuing Directors” means (i) individuals who on the Issue Date were members of the Board of Directors of the Company and (ii) any new directors whose election or appointment to the Board of Directors of the Company or nomination for election by the Company’s stockholders was approved by at least a majority of the Company’s directors then still in office (or a duly constituted committee thereof), either who were directors on the Issue Date or whose election, appointment or nomination for election was previously so approved.

 

“Conversion Agent” has the meaning specified in Section 2.06(a) and shall include any additional conversion agents appointed pursuant to Section 2.06(a).

 

“Conversion Date” has the meaning specified in Section 5.04(b).

 

“Conversion Notice” has the meaning specified in Section 5.04(a).

 

“Conversion Obligation” has the meaning specified in Section 5.05(a).

 

 

“Conversion Price” means, at any time, $1,000 divided by the Conversion Rate as at that time.

 

“Conversion Rate” means the Initial Conversion Rate, as it may be adjusted pursuant to Section 5.03 or Section 5.07.

 

“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, as of the date of this Indenture, located at U.S. Bank National Association, 60 Livingston Avenue, EP-MN-WS3C, St. Paul, MN 55107-2292, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

“Corporation” means a corporation, association, company, limited partnership, joint-stock company or business trust.

 

“Custodian” means the Trustee, as custodian with respect to the Global Securities, or any successor entity.

 

“Daily Conversion Value” means, for each of the 20 consecutive VWAP Trading Days during the Observation Period, one-twentieth of the product of (a) the Conversion Rate on such VWAP Trading Day and (b) the Daily VWAP of the Common Stock (or the Reference Property into which the Securities are convertible pursuant to Section 5.12, as the case may be) on such VWAP Trading Day. Any such determination of the Daily Conversion Value by the Company shall be conclusive absent manifest error.

 

“Daily Settlement Amount” has the meaning specified in Section 5.05(b).

 

“Daily Share Amount” has the meaning specified in Section 5.05(b).

 

“Daily VWAP” means, in respect of Common Stock, for each of the 20 consecutive VWAP Trading Days during the Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page PCX.N <equity> AQR (or any equivalent successor page if such page is not available) in respect of the period from the scheduled open of trading on the Relevant Exchange to the scheduled close of trading on the Relevant Exchange on such VWAP Trading Day, or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such VWAP Trading Day using a volume-weighted method as determined by a nationally recognized independent investment banking firm retained by the

 

 

Company for such purpose.  Daily VWAP shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

 

“Default” means any event that is or, with the passage of time or the giving of notice or both, would become an Event of Default.

 

“Default Additional Interest” has the meaning specified in Section 7.03(a).

 

“Delegending Date” has the meaning specified in Section 2.10(d).

 

“Depositary” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor Depositary.

 

“Distributed Property” has the meaning specified in Section 5.07(d).

 

“Effective Date” has the meaning specified in Section 5.03(c).

 

“Event of Default” has the meaning specified in Section 7.01.

 

“Ex-Date” means, with respect to any issuance or distribution to holders of the Common Stock, the first date on which the shares of the Common Stock trade on the Relevant Exchange, regular way, without the right to receive such issuance or distribution.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Foreign Jurisdiction Transaction” has the meaning specified in Section 8.02.

 

“Fundamental Change” means the occurrence of any one of the following events at any time after the Issue Date:

 

(a)        any Person other than the Company, its Subsidiaries or its or their employee benefit plans, files a Schedule TO or any similar schedule, form or report under the Exchange Act disclosing that such Person has become the direct or indirect ultimate Beneficial Owner of the Company’s Capital Stock representing more than 50% of the total voting power of all shares of the Capital Stock of the Company entitled to vote generally in elections of directors;

 

(b)        the Company (1) merges or consolidates with or into any other Person, another Person merges with or into the Company, or the Company conveys, sells, transfers or leases all or substantially all of its assets to another Person (excluding a pledge of securities issued by the Company or any of its

 

 

Subsidiaries) or (2) engages in any recapitalization, reclassification or other acquisition transaction or series of transactions in which all or substantially all the Common Stock is exchanged for or converted into cash, securities or other property, in each case, other than any merger or consolidation:

 

(i)          pursuant to which the holders of the Common Stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the voting power of all shares of Capital Stock entitled to vote generally in the election of directors of either (A) the continuing or surviving corporation immediately after the transaction or (B) the corporation that directly or indirectly owns 100% of the Capital Stock of such continuing or surviving corporation;

 

(ii)         that does not result in a reclassification, conversion, exchange or cancellation of the outstanding Common Stock; or

 

(iii)        which is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving entity;

 

(c)        at any time the Continuing Directors do not constitute a majority of Board of Directors of the Company (or, if applicable, of a successor person to the Company); or

 

(d)        if shares of the Common Stock, or shares of any other Capital Stock into which the Securities are convertible pursuant to the terms of this Indenture, are not listed for trading on any United States national or regional securities exchange.

 

           Notwithstanding the foregoing, any transaction or event described above shall not constitute a Fundamental Change if, in connection with such transaction or event, or as a result therefrom, a transaction described in clause (b) above occurs (without regard to any exclusion to such clause described in the paragraphs (i), (ii) or (iii) thereunder) and at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares, cash payments made pursuant to dissenters’ appraisal rights and cash dividends) consists of shares of common stock (or depositary receipts in respect thereof) traded on any of the New York Stock Exchange, the NASDAQ Global Market, the NASDAQ Global Select Market or the American Stock Exchange (or any of their respective successors) (or will be so traded or quoted immediately following the completion of the merger or consolidation or such other transaction) and, as a result of such transaction, the Securities become convertible into a combination of cash (in respect of the Principal Portion of such Securities) and Reference Property pursuant to Section 5.12.  For the avoidance of doubt, the Magnum Acquisition

 

 

pursuant to the Merger Agreement, as such Merger Agreement is in effect as at the Issue Date, shall not constitute a Fundamental Change.

 

For the purposes of this definition, the term “Person” has the meaning specified in Section 1.01 and also includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

 

“Fundamental Change Expiration Time” has the meaning specified in Section 4.02(b).

 

“Fundamental Change Repurchase Date” has the meaning specified in Section 4.02(a).

 

“Fundamental Change Repurchase Notice” has the meaning specified in Section 4.02(b).

 

“Fundamental Change Repurchase Price” has the meaning specified in Section 4.02(a).

 

“Fundamental Change Repurchase Right Notice” has the meaning specified in Section 4.01(a).

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Public Company Accounting Oversight Board 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, in each case, as in effect in the United States from time to time.

 

“Global Security” means a Security in global form registered in the Security Register in the name of a Depositary or a nominee thereof.

 

“Holder” means a Person in whose name a Security is registered in the Security Register.

 

“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.

 

“Initial Conversion Rate” means 7.3889 shares of Common Stock per $1,000 principal amount of Securities.

 

“Initial Conversion Value” means, for each $1,000 principal amount of Securities to be redeemed pursuant to Section 6.01, an amount equal to (a) the Initial Conversion Rate, multiplied by (b) $96.67, being the Last Reported Sale Price of the Common Stock on May 21, 2008.

 

 

“interest” means, when used with reference to the Securities, any interest payable under the terms of the Securities, including any Additional Interest payable under the terms of the Securities.

 

“Interest Payment Date” means each May 31 and November 30 of each year.

 

“Issue Date” means May 28, 2008, being the date the Securities are originally issued.

 

“Last Reported Sale Price” means, with respect to the Common Stock or any other security for which a Last Reported Sale Price must be determined, on any date, the closing sale price per share of Common Stock or unit of such other security (or, if no closing sale price is reported, the average of the last bid and last ask prices or, if more than one in either case, the average of the average last bid and the average last ask prices) on such date as reported in composite transactions for the principal United States national or regional securities exchange on which it is then traded, if any. If the Common Stock or such other security is not listed for trading on a United States national or regional securities exchange on such date, the “Last Reported Sale Price” shall be the average of the last quoted bid and ask prices per share of Common Stock or unit of such other security in the over-the-counter market on such date, as reported by Pink Sheets LLC or similar organization. If the Common Stock or such other security is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock or such other security on such date from each of at least three nationally recognized independent investment banking firms, selected from time to time by the Company for that purpose. The Last Reported Sale Price shall be determined without reference to extended or after hours trading. Any such determination shall be conclusive absent manifest error.

 

“Late Filing Additional Interest” has the meaning specified in Section 3.05(a).

 

“Magnum Acquisition” means the acquisition by the Company of Magnum Coal Company pursuant to the terms of the Merger Agreement.

 

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change pursuant to clauses (a) or (b) of the definition thereof other than, for the avoidance of doubt, any such transaction or event that is not a Fundamental Change as a result of the paragraph following clause (d) thereof.

 

“Market Disruption Event” means the occurrence or existence on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted

 

 

by the Relevant Exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock on the Relevant Exchange, and such suspension or limitation occurs or exists at any time within the 30 minutes prior to the closing time of the Relevant Exchange on such day.

 

“Maturity” means, in respect of any Security, the date on which the principal, Fundamental Change Repurchase Price or Redemption Price of such Security becomes due and payable pursuant to this Indenture, whether at the Stated Maturity Date, Fundamental Change Repurchase Date or Redemption Date, by declaration of acceleration or otherwise.

 

“Measurement Period” has the meaning specified in Section 5.01(b).

 

“Merger Agreement” means the Merger Agreement dated April 2, 2008 between the Company, Colt Merger Corporation, ArcLight Energy Partners Fund I, L.P. and ArcLight Energy Partners Fund II, L.P, as amended or supplemented from time to time.

 

“Notice of Default” has the meaning specified in Section 7.01(e).

 

“Observation Period” means, with respect to any Security to be converted:

 

(i)           if the Conversion Date for such Security occurs during the period beginning on, and including, April 30, 2013, and ending at 5:00 p.m., New York City time, on the Business Day immediately preceding the Stated Maturity Date (other than in respect of Securities called for redemption), the period of 20 consecutive VWAP Trading Days beginning on and including the 22nd Scheduled Trading Day prior to the Stated Maturity Date (whether or not the Stated Maturity Date is a Scheduled Trading Day);

 

(ii)           if such Security has been called for redemption by the Company, the period of 20 consecutive VWAP Trading Days beginning on, and including, the 22nd Scheduled Trading Day prior to the Redemption Date for such Security; and

 

(iii)           in all other instances, the period of 20 consecutive VWAP Trading Days beginning on, and including, the third VWAP Trading Day immediately following the Conversion Date for such Security.

 

“Officer” means each of the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer and the Secretary, of the Company.

 

“Officers’ Certificate” means a certificate signed by two Officers, or by one Officer and any Senior Vice President of the company, and delivered to the Trustee.

 

 

“Opinion of Counsel” means a written opinion of counsel for the Company, who may be external or in-house counsel.

 

“Outstanding” means, in respect of a Security, that such Security is outstanding pursuant to the terms of Section 2.13.

 

“Paying Agent” has the meaning specified in Section 2.06(a) and shall include any additional paying agents appointed pursuant to Section 2.06(a).

 

“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Physical Securities” means permanent certificated Securities in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.

 

“Principal Portion” has the meaning specified in Section 5.05(b).

 

“Protected Purchaser” has the meaning specified in Section 2.12(a).

 

“Record Date” means (a) with respect to an Interest Payment Date falling on May 31, the May 15 immediately preceding such Interest Payment Date (whether or not a Business Day), and (b) with respect to an Interest Payment Date falling on November 30, the November 15 immediately preceding such Interest Payment Date (whether or not a Business Day).

 

“Redemption Conversion Value” means, for each $1,000 principal amount of Securities to be redeemed pursuant to Section 6.01, an amount equal to (a) the Conversion Rate in effect on the Redemption Date for such Securities, multiplied by (b) the Average Redemption VWAP for such Securities.

 

“Redemption Date” means, with respect to any Security to be redeemed, the date fixed for redemption of such Security by the Company.

 

“Redemption Notice” has the meaning specified in Section 6.05(a).

 

“Redemption Price” has the meaning specified in Section 6.03(a).

 

“Reference Property” has the meaning specified in Section 5.12(a).

 

“Relevant Exchange” means, at any time, the principal United States national or regional securities exchange or market on which the Common Stock is listed or admitted for trading at such time.

 

“Reorganization Event” has the meaning specified in Section 5.12(a).

 

 

“Resale Restriction Termination Date” has the meaning specified in Section 2.10(a).

 

“Responsible Officer” means any officer of the Trustee within the corporate trust department of the Trustee including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, with direct responsibility for the administration of this Indenture and also, with respect to a particular matter, any other officer of the Trustee to whom such matter is referred because of such officer’s knowledge and familiarity with the particular subject.

 

“Restricted Security” has the meaning specified in Section 2.10(b).

 

“Restricted Security Legend” has the meaning specified in Section 2.10(a).

 

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

 

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

 

“Scheduled Trading Day” means a day during which trading in the Common Stock is scheduled to occur on the Relevant Exchange.  If the Common Stock is not then listed or admitted for trading on a United States national or regional securities exchange or market, “Scheduled Trading Day” shall mean a Business Day.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Security” has the meaning specified in the first paragraph of the Recitals of the Company.

 

“Security Register” has the meaning specified in Section 2.06(b).

 

“Security Registrar” has the meaning specified in Section 2.06(a) and shall include any co-registrars appointed pursuant to Section 2.06(a).

 

“Significant Subsidiary” means any subsidiary, or group of subsidiaries, that would constitute a “significant subsidiary” under Regulation S-X under the Securities Act.

 

“Spin-Off” has the meaning specified in Section 5.07(d).

 

 

“Stated Maturity Date” means, for any Security,  May 31, 2013.

 

“Stock Price” means, for a Make-Whole Fundamental Change (a) if holders of the Common Stock receive only cash consideration for their shares of Common Stock in connection with such Make-Whole Fundamental Change, the cash amount paid per share of Common Stock and (b) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Effective Date of such Make-Whole Fundamental Change.

 

“Stock Price Condition” has the meaning specified in Section 5.01(c).

 

“Subsidiary” means a Corporation more than 50% of the outstanding voting stock or other voting interests of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting stock or other voting interests” means stock or other voting interests which ordinarily have voting power for the election of directors or comparable governing body, whether at all times or only so long as no senior class of stock or other interests has such voting power by reason of any contingency.

 

“Substitution Event” has the meaning specified in Section 5.07(d).

 

“Successor Company” has the meaning specified in Section 8.01(a)(i).

 

“Trading Day” means a day during which (a) trading in the Common Stock generally occurs on the Relevant Exchange and (b) there is no Market Disruption Event.  If the Common Stock is not then listed or admitted for trading on a United States national or regional securities exchange or market, then “Trading Day” means a Business Day.

 

“Trading Price” with respect to the Securities, on any date of determination, means the average of the secondary market bid quotations per $1,000 principal amount of the Securities obtained by the Bid Solicitation Agent for $2.0 million principal amount of such Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If at least one bid for $2.0 million principal amount of Securities cannot reasonably be obtained from an independent nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Securities shall be deemed to be less than 97% of the product of the Last

 

 

Reported Sale Price of the Common Stock and the Conversion Rate in effect at such time. Any such determination shall be conclusive absent manifest error.

 

“Trading Price Condition” has the meaning specified in Section 5.01(b).

 

“Trigger Event” has the meaning specified in Section 5.07(d).

 

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in effect on the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

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

 

“United States” means the United States of America.

 

“Valuation Period” has the meaning specified in Section 5.07(d).

 

“VWAP Market Disruption Event” means (a) a failure by the Relevant Exchange to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m. (local time on the applicable securities exchange or market) on any Scheduled Trading Day for the Common Stock for an aggregate one half-hour period or longer of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the applicable securities exchange or market or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock, in each case, on the Relevant Exchange or the principal United States national or regional securities exchange or market on which such options contracts or futures contracts trade or are quoted, as the case may be.

 

“VWAP Trading Day” means a day during which (i) trading in the Common Stock generally occurs on the Relevant Exchange and (ii) there is no VWAP Market Disruption Event.  If the Common Stock is not then listed or admitted for trading on a United States national or regional securities exchange or market, then “VWAP Trading Day” shall mean a Business Day.

 

“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, all the Capital Stock of which (other than directors’ qualifying shares) is owned by such Person or another Wholly Owned Subsidiary of such Person.

 

Section 1.02.  Rules of Construction.

 

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)        the terms defined in Section 1.01 have the meanings assigned to them in Section 1.01 and include the plural as well as the singular;

 

(b)        all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and

 

(c)        the words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

Section 1.03.  Compliance Certificates and Opinions.

 

(a)        Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required hereunder.  Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with any other requirement set forth in this Indenture.

 

(b)        Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(i)          a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(ii)         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;

 

(iii)        a statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(iv)        a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

Section 1.04.  Form of Documents Delivered to Trustee.

 

(a)        In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such

 

 

matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

(b)        Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

 

(c)        Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 1.05.  Acts of Holders; Record Dates.

 

(a)        Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 9.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.05.

 

(b)        The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.  

 

 

The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee reasonably deems sufficient.

 

(c)        The Company may fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders.  If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 10.01) prior to such first solicitation or vote, as the case may be.  With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.

 

(d)        The ownership of the Securities shall be proved by the Security Register.

 

(e)        Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

Section 1.06.  Notices, Etc., to Trustee and Company.  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

 

(i)           the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its applicable Corporate Trust Office; or

 

(ii)           the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: General Counsel.

 

Section 1.07.  Notice to Holders; Waiver.

 

(a)        Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Notices will be deemed to have been given on the date of mailing.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

(b)        In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

(c)        Whenever under this Indenture the Trustee is required to provide any notice by mail, in all cases the Trustee may alternatively provide notice by overnight courier or by telefacsimile, with confirmation of transmission.

 

Section 1.08.  Effect of Headings and Table of Contents.  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof, and all Article and Section references are to Articles and Sections, respectively, of this Indenture unless otherwise expressly stated.

 

Section 1.09.  Severability Clause.  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 1.10.  Benefits of Indenture.  Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 1.11.  Governing Law.  This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

 

 

Section 1.12.  No Recourse Against Others.  No director, officer, employee, stockholder or Affiliate of the Company from time to time shall have any liability for any obligations of the Company under the Securities or this Indenture.  Each Holder by accepting a Security waives and releases such liability.

 

 

The Securities

 

Section 2.01.  Designation, Amount and Issuance of Securities.  The Securities shall be designated as “3.25% Convertible Senior Notes due 2013.”  The Securities shall be limited to an aggregate principal amount of $200,000,000, subject to Section 2.17.  Upon the execution of this Indenture, or from time to time thereafter, Securities may be executed by the Company and delivered to the Trustee for authentication in accordance with Section 2.05.

 

Section 2.02.  Form of the Securities. 

 

(a)        The Securities and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the form set forth in Exhibit A hereto.  The terms and provisions contained in the form of Securities attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

(b)        Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the custodian for the Global Securities, the Depositary or by The Financial Industry Regulatory Authority in order for the Securities to be tradable on The PORTAL Market or as may be required for the Securities to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject.

 

(c)        So long as the Securities are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, subject to Section 2.09, all of the Securities will be represented by one or more Global Securities.  The transfer and exchange of beneficial interests in any such Global Securities shall be

 

 

effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.09, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered Holders of such Global Security.

 

(d)        Any Global Security shall represent such of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be increased or reduced to reflect issuances, repurchases, conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee or the custodian for the Global Security, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Securities in accordance with this Indenture.

 

Section 2.03.  Date and Denomination of Securities and Interest.  The Securities shall be issuable in fully registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof.  Each Security shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Securities attached as Exhibit A hereto.  Interest on the Securities shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

Section 2.04.  Payments on the Securities.

 

(a)        On the Stated Maturity Date, each Holder shall be entitled to receive on such date the principal amount of the Securities held, plus accrued and unpaid interest to, but not including, the Stated Maturity Date.

 

(b)        On each Interest Payment Date, the Person in whose name a Security is registered on the Register at 5:00 p.m., New York City time, on the Record Date for such Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date, except that the interest payable upon Maturity shall be payable to the Person to whom principal is payable upon Maturity.

 

(c)        If any Interest Payment Date or any date on which principal or any other amount is payable in respect of the Securities falls on a day that is not a Business Day, such payment of interest or principal, as the case may be, shall be postponed to the next succeeding Business Day and no interest or other amount shall be paid as a result of such postponement.

 

 

(d)        The Company shall pay any amount of principal when due:

 

(i)          with respect to Global Securities, to the Depositary or its nominee in immediately available funds; and

 

(ii)          with respect to Physical Securities, at the office of the Paying Agent, which initially shall be the Corporate Trust Office.

 

(e)        The Company shall pay interest on each Interest Payment Date:

 

(i)           with respect to any Global Securities by wire transfer of immediately available funds to the account of the Depositary or its nominee;

 

(ii)          with respect to any Physical Securities having a principal amount of $5,000,000 or less, by check mailed to the address of the Person entitled thereto as it appears in the Security Register; provided that at Maturity, interest will be payable at the office of the Company maintained by the Company for such purposes, which shall initially be the Corporate Trust Office; and

 

(iii)         with respect to any Physical Securities having a principal amount of more than $5,000,000, either (A) by check mailed to the address of the Person entitled thereto as it appears in the Security Register or (B) at the election of the Person entitled thereto, by wire transfer in immediately available funds to an account within the United States of such Person if such Person has duly delivered notice of such election and applicable wire instructions to the Registrar not later than the Record Date for such Interest Payment Date and has not delivered notice to the Registrar revoking such election prior to such Record Date; provided that at Maturity, interest will be payable at the office of the Company maintained by the Company for such purposes, which shall initially be the Corporate Trust Office.

 

(f)        If the Company is required to pay any Additional Interest under this Indenture, the Company shall pay such Additional Interest to Holders on the same dates and in the same manner as regular interest is paid to Holders, except as set forth in Section 3.05 and Section 7.03.

 

Section 2.05.  Execution and Authentication. 

 

(a)        One or more Officers shall sign the Securities for the Company by manual or facsimile signature.  If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless.

 

 

(b)        The Company shall deliver the Securities executed by the Company to the Trustee for authentication together with an Officers’ Certificate ordering the authentication and delivery of such Securities, which Officers’ Certificate shall set forth the number of separate Securities certificates, the principal amount of each of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, the Holder of each such Security and delivery instructions.  Upon receipt of such executed Securities and such Officers’ Certificate, the Trustee shall authenticate and deliver such Securities in accordance with such Officers’ Certificate.

 

(c)        A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security.  The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

(d)        The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities.  Any such appointment shall be evidenced by an instrument signed by a Responsible Officer, a copy of which shall be furnished to the Company.  Unless limited by the terms of such appointment, 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 any Security Registrar, Paying Agent or agent for service of notices and demands.

 

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

 

(a)        The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “Security Registrar”), an office or agency where Securities may be presented for payment (the “Paying Agent”) and an office or agency where Securities may be presented for conversion (the “Conversion Agent”), in each case, in the Borough of Manhattan, The City of New York.  The Company initially appoints the Trustee as Security Registrar, Conversion Agent and Paying Agent in connection with the Securities.  The Corporate Trust Office shall be considered as one such office or agency of the Company for each of the aforesaid purposes.  The Company or any of its domestically organized Wholly Owned Subsidiaries may act as Paying Agent, Conversion Agent or Security Registrar.  The Company may from time to time appoint one or more additional Conversion Agents, Paying Agents and co-registrars and may from time to time rescind such designations.

 

(b)        The Security Registrar shall keep a register of the Securities (the “Security Register”) and of their transfer and exchange.  

 

 

(c)        The Company shall enter into an appropriate agency agreement with any Security Registrar, Paying Agent or Conversion Agent not a party to this Indenture.  Each such agreement shall implement the provisions of this Indenture that relate to such agent.

 

(d)        The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency, if not the Trustee, or if not designated or appointed by the Trustee.

 

(e)        If at any time the Company fails to maintain a Security Registrar, Paying Agent or Conversion Agent or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

(f)        The Company may remove any Security Registrar, Paying Agent or Conversion Agent at any time and without prior notice to Holders by written notice to such Security Registrar, Paying Agent or Conversion Agent and to the Trustee; provided that no such removal shall become effective until (i) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Security Registrar, Paying Agent or Conversion Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Security Registrar, Paying Agent or Conversion Agent until the appointment of a successor in accordance with clause (i) above.  The Security Registrar, Paying Agent or Conversion Agent may resign at any time upon written notice; provided that the Trustee may resign as Paying Agent, Conversion Agent or Security Registrar only if the Trustee also resigns as Trustee in accordance with Section 9.11.

 

Section 2.07.  Paying Agent To Hold Money in Trust.

 

(a)         On or prior to each due date of the principal and interest on any Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due.  If the Company or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund for the benefit of the Persons entitled thereto.  If such deposit is made, or such segregation is effected, on a due date for such principal or interest, such deposit shall be received, or such segregation shall be effected, by 11:00 a.m., New York City time, on such due date.

 

(b)        The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the

 

 

payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment.

 

(c)        The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent.  Upon complying with this Section 2.07, the Paying Agent shall have no further liability for the money delivered to the Trustee.

 

Section 2.08.  Exchange and Registration of Transfer of Securities.

 

(a)        The Company shall cause to be kept at the Corporate Trust Office the Security Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.  The Security Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.

 

(b)        Upon surrender for registration of transfer of any Securities to the Security Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.08 and in Section 2.10, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

 

(c)        Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture, upon surrender of the Securities to be exchanged at the office of the Security Registrar.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.

 

(d)        All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

(e)        All Securities presented or surrendered for registration of transfer or for exchange, repurchase, redemption or conversion shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, duly executed by the Holder thereof or his attorney duly authorized in writing.

 

 

(f)        No service charge shall be made to any Holder for any registration of, transfer or exchange of Securities, but the Company may require payment by the Holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.

 

(g)        Neither the Company nor the Trustee nor any Security Registrar shall be required to exchange, issue or register a transfer of any Securities or portions thereof (i) tendered for repurchase (and not withdrawn) pursuant to Article 4, (ii) surrendered for conversion pursuant to Article 5 or (iii) selected for redemption pursuant to Article 6.

 

Section 2.09.  Global Securities. 

 

(a)        Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary or a nominee thereof and delivered to the Depositary or a nominee thereof or custodian for the Global Securities therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

 

(b)        Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless:

 

(i)          the Depositary (A) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act, and in each case, a successor depositary has not been appointed by the Company within 90 calendar days; or

 

(ii)          in accordance with clause (c) below.

 

Any Global Securities exchanged pursuant to this Section 2.09(b) shall be so exchanged in whole and not in part.

 

(c)        In addition, Physical Securities shall be issued in exchange for beneficial interests in a Global Security upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to enforce its rights under the Securities or this Indenture upon the occurrence and during the continuance of an Event of Default.

 

(d)        Securities issued in exchange for a Global Security or any portion thereof pursuant to Section 2.09(b) or Section 2.09(c) shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Securities or portion thereof to be so

 

 

exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear any legends required hereunder.  Any Global Securities to be exchanged shall be surrendered by the Depositary to the Trustee, as Security Registrar, provided that pending completion of the exchange of a Global Security, the Trustee acting as custodian for the Global Securities for the Depositary or its nominee with respect to such Global Securities, shall reduce the principal amount thereof, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the Trustee shall authenticate and make available for delivery the Securities issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

 

(e)        In the event of the occurrence of any of the events specified in Section 2.09(b) above or upon any request described in Section 2.09(c), the Company will promptly make available to the Trustee a sufficient supply of Physical Securities in definitive, fully registered form, without interest coupons.

 

(f)        Neither any members of, or participants in, the Depositary (“Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Securities registered in the name of the Depositary or any nominee thereof, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Securities for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Securities.

 

(g)        At such time as all interests in a Global Security have been redeemed, repurchased, converted, cancelled or exchanged for Physical Securities, such Global Security shall, upon receipt thereof, be canceled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the custodian for the Global Security.  At any time prior to such cancellation, if any interest in a Global Security is redeemed, repurchased, converted, cancelled or exchanged for Physical Securities, the principal amount of such Global Security shall, in accordance with the standing procedures and instructions existing between the Depositary and the custodian for the Global Security, be appropriately reduced, and an endorsement shall be made on such Global Security, by the Trustee or the custodian for the Global Security, at the direction of the Trustee, to reflect such reduction.

 

 

Section 2.10.  Transfer Restrictions.

 

(a)        Until the date (the “Resale Restriction Termination Date”) that is the later of (1) one year after the Issue Date or such shorter period of time as permitted under Rule 144, and (2) such later date, if any, as may be required by applicable law:

 

(i)          any certificate evidencing a Security shall bear a legend in substantially the form identified as “Form of Restricted Security Legend” in the form of Security set forth in Exhibit A; and

 

(ii)         any certificate representing Common Stock issued upon conversion or redemption of a Security shall bear a legend substantially in the form identified as “Form of Restricted Security Legend for Common Stock Issued Upon Conversion or Redemption” in Exhibit B,

 

(each a “Restricted Security Legend”), in each case, unless (A) such Security or such Common Stock, as the case may be, has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer) or sold pursuant to Rule 144, (B) such Restricted Security Legend has been removed pursuant to Section 2.10(d), or (C) otherwise agreed by the Company in writing with written notice thereof to the Trustee.

 

(b)        Every Security (and all securities issued in exchange therefor or in substitution thereof) and any Common Stock issued upon conversion or redemption of any Security that bears or is required under Section 2.10(a) to bear a Restricted Security Legend (each a “Restricted Security”) shall be subject to the restrictions on transfer set forth in this Section 2.10 and in the Restricted Security Legend for such Restricted Security, unless such restrictions on transfer shall be waived by written consent of the Company following receipt of legal advice supporting the permissibility of the waiver of such transfer restrictions, and the Holder of any Restricted Securities, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.

 

(c)        In connection with any transfer of a Physical Security that is a Restricted Security, the Holder must complete and deliver the form of assignment set forth on the certificate representing the Securities with the appropriate box checked to the Trustee.  If the proposed transfer is pursuant to clause (2)(D) of the Restricted Security Legend (other than a transfer pursuant to Rule 144), the Holder must, prior to such transfer, furnish to the Trustee, such certifications, legal opinions or other information as the Company may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

 

 

(d)        The Company shall cause the Restricted Securities Legend to be removed from any Restricted Security on the date (the “Delegending Date”) that is earlier of (1) the date that is one year after the Issue Date for any Security Outstanding, (2) the transfer of such Restricted Security pursuant to an effective registration statement or (3) on any transfer of such Restricted Security under Rule 144, in each case  as follows:

 

(i)          with respect to any Restricted Security that is a Physical Security, upon surrender of such Restricted Security by the Holder thereof to the Security Registrar for exchange, such Restricted Security shall be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Restricted Security Legend; and

 

(ii)         with respect to any Restricted Security represented by a Global Security, the Company shall, on or promptly after the Delegending Date direct the Depositary to remove the Restricted Securities Legend from the Global Security; provided that if such a direction is not permitted under the applicable rules, regulations, policies and procedures of the Depositary as at the Delegending Date, the Company shall, upon surrender of such Restricted Security by the Holder thereof, reduce the principal amount of such Global Security by the principal amount of such Restricted Security and increase the principal amount of a Global Security without the Restricted Security Legend by an equal principal amount.  If a Global Security without the Restricted Security Legend is not then outstanding, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary, a Global Security without the Restricted Security Legend.

 

Section 2.11.  Responsibilities and Obligations Relating to the Depositary.

 

(a)        Neither the Company nor the Trustee shall have any responsibility or obligation to any Agent Members or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any Agent Member or other Person (other than the Depositary) of any notice or the payment of any amount under or with respect to such Securities.

 

(b)        All notices and communications to be given to the Holders of Securities and all payments to be made to Holders of Securities under the Securities shall be given or made only to or upon the order of the registered Holders of Securities (which shall be the Depositary or its nominee in the case of a Global Security).

 

 

(c)        The rights of beneficial owners in any Global Securities shall be exercised only through the Depositary subject to the customary procedures of the Depositary.

 

(d)        The Company and the Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members.

 

(e)        The Company and the Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Securities (including any transfers between or among Agent Members) 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.

 

Section 2.12.  Replacement Securities.

 

(a)        If a mutilated Security is surrendered to the Security Registrar or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder:

 

(i)          notifies the Company or the Trustee within a reasonable time after he has notice of such loss, destruction or wrongful taking and the Security Registrar does not register a transfer prior to receiving such notification;

 

(ii)         makes such request to the Company or the Trustee prior to the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “Protected Purchaser”); and

 

(iii)        satisfies any other reasonable requirements of the Trustee and the Company.  If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Company, the Trustee, the Paying Agent, the Conversion Agent and the Security Registrar from any loss or liability that any of them may suffer if a Security is replaced and subsequently presented or claimed for payment.

 

(b)        The Company and the Trustee may charge the Holder for their expenses in replacing a Security.

 

(c)        In case any Security which (i) has matured or is about to mature, (ii) has been properly tendered for repurchase on a Fundamental Change Repurchase Date (and not withdrawn), (iii) is to be converted into or redeemed for cash and, if applicable, shares of Common Stock, shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of, repurchase or authorize the repurchase of, convert or authorize the conversion of, or redeem or authorize redemption of, the same (without surrender thereof except in the case of a mutilated Securities), as the case may be, if the applicant for such payment, conversion, repurchase or redemption shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence to their satisfaction of the destruction, loss or theft of such Securities and of the ownership thereof.

 

(d)        The provisions of this Section 2.12 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Securities.

 

Section 2.13.  Outstanding Securities.

 

(a)        At any time, the Securities outstanding as that time are all Securities that have been authenticated by the Trustee and delivered under this Indenture as at that time, other than:

 

(i)          Securities cancelled by the Trustee or accepted by the Trustee for cancellation as at that time;

 

(ii)         Securities replaced pursuant to Section 2.12 as at that time, unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a Protected Purchaser;

 

(iii)        Securities repurchased pursuant to Article 4 which are no longer outstanding as at that time pursuant to Section 4.03(d);

 

(iv)        Securities converted pursuant to Article 5 which are no longer outstanding as at that time pursuant to Section 5.05(g);

 

(v)         Securities redeemed pursuant to Article 6 which are no longer outstanding as at that time pursuant to Section 6.06(c); and

 

(vi)        Securities that have matured at the Stated Maturity in respect of which the Paying Agent segregates and holds in trust, in accordance with this Indenture, as of the Stated Maturity Date, sufficient

 

 

funds to pay all amounts due on the Stated Maturity Date with respect to such Securities maturing and the Paying Agent is not prohibited from paying such money to the Holders on such date pursuant to the terms of this Indenture.

 

(b)        Subject to Section 2.13(c), a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

 

(c)        Notwithstanding anything else in this Section 2.13, in determining whether the Holders of the requisite principal amount of Securities outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

Section 2.14.  Temporary Securities.

 

(a)        Pending the preparation of Securities in certificated form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon the written request of the Company, authenticate and deliver temporary Securities (printed or lithographed).  Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Security, all as may be determined by the Company.  Every such temporary Security shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in certificated form.

 

(b)        Without unreasonable delay, the Company will execute and deliver to the Trustee or such authenticating agent Securities in certificated form and thereupon any or all temporary Securities may be surrendered in exchange therefor, at the office of the Security Registrar and the Trustee or such authenticating agent shall authenticate and make available for delivery in exchange for such temporary Securities an equal aggregate principal amount of Securities in certificated form.  Such exchange shall be made by the Company at

 

 

its own expense and without any charge therefor.  Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in certificated form authenticated and delivered hereunder.

 

Section 2.15.  Cancellation.

 

(a)        The Company may, at any time, deliver Securities to the Trustee for cancellation.  The Security Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and deliver canceled Securities to the Company pursuant to written direction by an Officer.

 

(b)        The Company may not issue new Securities to replace Securities it has redeemed, repurchased, converted, paid or delivered to the Trustee for cancellation.  The Trustee shall not authenticate Securities in place of canceled Securities other than pursuant to the terms of this Indenture.

 

Section 2.16.  CUSIP and ISIN Numbers.  The Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN” 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 identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.

 

Section 2.17.  Additional Securities.

 

           The Company may, from time to time without the consent of the Holders of Outstanding Securities, increase the aggregate principal amount of the Securities by issuing additional Securities in the future pursuant to this Indenture (“Additional Securities”) having terms and conditions identical to those of the other Outstanding Securities, except that Additional Securities may have a different initial date from which interest begins to accrue thereon so that the Additional Securities are fungible with Outstanding Securities; provided that the Additional Securities may have the same CUSIP number as the Securities issued on the Issue Date, only if:

 

(a)        such issuance of Additional Securities is permissible as a “qualified reopening” for United States federal income tax purposes; and

 

 

(b)        the resale of such Additional Securities by non-affiliates of the Company would not require registration under the Securities Act.

 

 

 

Section 3.01.  Payment of Principal and Interest.  The Company covenants and agrees that it shall duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities at the places, at the respective times and in the manner provided herein and in the Securities.

 

Section 3.02.  Rule 144A Information Requirement.  The Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any Holder or beneficial owner of any Restricted Securities which continue to be Restricted Securities in connection with any sale thereof, and any prospective purchaser of Restricted Securities designated by such Holder or beneficial owner, the information, if any, required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of such Holder or beneficial owner, the extent required from time to time to enable such Holder or beneficial owner to sell its Restricted Securities without registration under the Securities Act pursuant to the exemption provided by Rule 144A.

 

Section 3.03.  Resale of Certain Securities.  Subject to Section 2.17, the Company shall not, and shall not permit any of its “affiliates” (as defined under Rule 144 or any successor provision thereto) to, resell any Securities that have been reacquired by any of them.  The Trustee shall have no responsibility in respect of the Company’s performance of its agreement in the preceding sentence.

 

Section 3.04.  Notice of Event of Default.  The Company shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or Default, its status and the action which the Company proposes to take with respect thereto.  Any notice required to be given under this Section 3.04 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.

 

Section 3.05.  Late Filing Additional Interest.

 

(a)        If, at any time during the six-month period beginning on, and including, November 28, 2008, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule

 

 

 

12b-25 under the Exchange Act), as applicable (other than reports on Form 8-K), the Company shall pay additional interest (the “Late Filing Additional Interest”) in accordance with this Section 3.05.

 

(b)        Late Filing Additional interest shall accrue on all Restricted Securities then Outstanding at an annual rate of 0.50% per annum of the principal amount of such Restricted Securities for each day during such period for which the Company’s failure to file continues until May 28, 2009; provided that the Company shall have 14 days, in the aggregate, to cure any such late filings before any Late Filing Additional Interest shall begin to accrue under this Section 3.05.

 

(c)        Late Filing Additional Interest shall be payable in arrears on each Interest Payment Date following the late filing in the same manner as regular interest on the Securities.

 

(d)        No Late Filing Additional Interest shall accrue after the end of such six-month period, regardless of whether any such failure has occurred or is continuing.  No Late Filing Additional Interest or other amounts shall be payable in respect of any Common Stock delivered upon conversion or redemption of the Securities.    

 

 

 

Section 4.01.  Fundamental Change Repurchase Right Notice.

 

(a)        On or before the 10th day following the occurrence of a Fundamental Change, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof.  

 

(b)        A Fundamental Change Repurchase Right Notice shall specify (if applicable):

 

(i)          the events causing a Fundamental Change;

 

(ii)         the date of the Fundamental Change;

 

(iii)        the Fundamental Change Repurchase Date and the last date on which a Holder may exercise the repurchase right;

 

(iv)        the Fundamental Change Repurchase Price;

 

 

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

 

(vi)        the Conversion Rate and any adjustments to the Conversion Rate;

 

(vii)       that the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;

 

(viii)      that the Holder must exercise the repurchase right on or prior to the Fundamental Change Expiration Time;

 

(ix)        that the Holder shall have the right to withdraw any Securities surrendered for repurchase prior to the Fundamental Change Expiration Time; and

 

(x)         the procedures that Holders must follow to require the Company to repurchase their Securities.

 

(c)        No failure of the Company to give a Fundamental Change Repurchase Right Notice and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Article 4.

 

Section 4.02.  Right to Require Repurchase Upon Fundamental Change.

 

(a)        If a Fundamental Change occurs, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof that is an integral multiple of $1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).  However, if such Fundamental Change Repurchase Date falls after a Record Date for the payment of interest and on or prior to the corresponding Interest Payment Date, the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the holder of record at 5:00 p.m., New York City time, on such Record Date and the Fundamental Change Repurchase Price shall not include such accrued and unpaid interest.

 

(b)        In order to exercise the repurchase right, a Holder shall:

 

 

(i)          deliver to the Trustee (or other Paying Agent appointed by the Company) a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Security prior to 5:00 p.m., New York City time, on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); and

 

(ii)         deliver or effect a book-entry transfer of the Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.02 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice.

 

(c)        A Fundamental Change Repurchase Notice shall state:

 

(i)          if certificated, the certificate numbers of Securities to be delivered for repurchase;

 

(ii)         the portion of the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and

 

(iii)        that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture.

 

(d)        A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal, delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Fundamental Change Expiration Time, specifying:

 

(i)          if certificated Securities have been issued, the certificate numbers of the withdrawn Securities;

 

(ii)         the principal amount of the Securities with respect to which such notice of withdrawal is being submitted; and

 

(iii)        the principal amount, if any, of such Securities that remain subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000.

 

(e)        If the Securities to be repurchased are represented by a Global Security, any Fundamental Change Repurchase Notice or notice of withdrawal thereof in respect of such Securities must comply with appropriate procedures of the Depositary.

 

(f)        The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or notice of withdrawal thereof in accordance with the provisions of this Section 4.02.

 

Section 4.03.  Settlement Of Fundamental Change Repurchases.

 

(a)        Any repurchase by the Company pursuant to this Article 4 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security.

 

(b)        Any Security that is to be repurchased in part only 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.

 

(c)        On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Securities to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of:

 

(i)          the Fundamental Change Repurchase Date with respect to such Security; provided that the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.03; and

 

 

(ii)         the time of book-entry transfer or the delivery of such Security to the Paying Agent by the Holder thereof in the manner required by this Section 4.03.

 

The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.

 

(d)        If the Paying Agent holds money sufficient to repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date Article 1 such Securities shall cease to be outstanding, Article 2 interest shall cease to accrue on such Securities, and Article 3 all other rights of the Holders of such Securities shall terminate (other than the right to receive the Fundamental Change Repurchase Price in respect of such Securities), in each case, whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Paying Agent.

 

(e)        In connection with any repurchase of Securities pursuant to this Article 4, the Company hereby agrees to:

 

(i)          comply with the provisions of Rule 13e-1, Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; and

 

(ii)         otherwise comply with all applicable federal and state securities laws.

 

Section 4.04.  Restrictions On Repurchases.  No Securities may be repurchased at the option of Holders upon a Fundamental Change if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to such date.

 

 

Conversion

 

Section 5.01.  Conversion Rights.

 

(a)        At any time prior to 5:00 p.m. on the Business Day immediately preceding February 15, 2013, a Holder shall have the right, at such Holder’s option, to convert all its Securities or any portion thereof that is an integral multiple of $1,000 principal amount at the Conversion Rate only in accordance with the conditions described in clauses (b), (c), (d), (e) and (f) of this Section

 

 

 

5.01.  At any time on or after February 15, 2013 until 5:00 p.m., New York City time, on the Business Day immediately preceding the Stated Maturity Date, a Holder shall have the right, at such Holder’s option, to convert all its Securities or any portion thereof that is an integral multiple of $1,000 principal amount at the Conversion Rate regardless of such conditions.

 

(b)        The Securities shall be convertible during the five Trading Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of the Securities for each Trading Day of such Measurement Period was less than 97% of the product of (i) the Last Reported Sale Price of the Common Stock on such Trading Day and (ii) the Conversion Rate on such Trading Day (the “Trading Price Condition”).  The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Securities unless the Company has requested such determination, and the Company has no obligation to make such a request unless a Holder provides the Company with reasonable evidence that the Trading Price of the Securities would be less than 97% of the product of (A) the Last Reported Sale Price of the Common Stock and (B) the Conversion Rate of the Securities at such time.  If such evidence is provided to the Company, then the Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per Security is greater than or equal to 97% of the product of (a) the Conversion Rate and (b) the Last Reported Sale Price (as provided to the Bid Solicitation Agent by the Company on each such date).  

 

(c)        The Securities shall be convertible during any calendar quarter after the calendar quarter ending September 30, 2008 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 130% of the Conversion Price in effect on each such Trading Day, all as determined by the Company and communicated to the Trustee (the “Stock Price Condition”).

 

(d)        If the Company calls any of the Securities for redemption (other than pursuant to Section 6.01), the Securities shall be convertible at any time on and after the Company calls such Securities for redemption until 5:00 p.m., New York City time, on the Business Day immediately preceding the Redemption Date.

 

(e)        If the Company elects to:

 

(i)          distribute to all or substantially all holders of the Common Stock any rights or warrants entitling them for a period of not more than 60 days after the date of issuance to subscribe for or purchase shares of the

 

 

 

Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or

 

(ii)         distribute to all or substantially all holders of the Common Stock assets (including cash), debt securities of the Company or other property, which distribution has a per share value (as determined by the Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution,

 

then, in either case, the Securities shall be convertible at any time on and after the date that the Company provides the notice to such Holders referred to in the next sentence until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex-Date for such distribution and (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. The Company shall notify Holders of any distribution referred to in either clause (i) or (ii) of this Section 5.01(e) and of the resulting conversion right no later than 30 Scheduled Trading Days prior to the Ex-Date for such distribution. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or (ii) of this Section 5.01(e) as if such Holder held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.

 

(f)        If the Company is a party to any transaction or event that (i) constitutes a Fundamental Change or (ii) would constitute a Fundamental Change but for the paragraph immediately following clause (d) of the definition thereof (other than, for the avoidance of doubt, the sentence of such paragraph relating to the Merger Agreement), the Securities shall be convertible at any time from, and including, the effective date of such transaction or event to, and including, (A) the Business Day immediately preceding related Fundamental Change Repurchase Date or (B) if there is no such Fundamental Change Repurchase Date, 30 Scheduled Trading Days following the effective date of such transaction or event.

 

Section 5.02.  Notice Of Conversion Rights.

 

The Company shall use its commercially reasonable efforts to notify the Holders and the Trustee that the Securities have become convertible as soon as practicable after the Company becomes aware that any of the conditions described in clauses (b), (c), (d), (e) and (f) of Section 5.01 have occurred.  However, nothing in this Section 5.02 requires the Company to actively monitor any such condition.

 

 

Section 5.03.  Make-Whole Fundamental Changes. 

 

(a)        If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change that occurs prior to the Stated Maturity Date, the Conversion Rate applicable to each $1,000 principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below.  For purposes of this Section 5.03, a conversion shall be deemed to be “in connection with” a Make-Whole Fundamental Change if the Conversion Date for such conversion occurs at any time from, and including, the Effective Date of such Make-Whole Fundamental Change to, and including, the Business Day prior to the related Fundamental Change Repurchase Date (regardless of whether the Securities are otherwise convertible because of the conditions set forth in Section 5.01).

 

(b)        The Company shall notify Holders and the Trustee of the occurrence of any Make-Whole Fundamental Change on the Effective Date of the Make-Whole Fundamental Change.

 

(c)        The number of Additional Shares shall be determined by the Company by reference to the table set forth in Schedule A, based on the date on which the Make-Whole Fundamental Change becomes effective (the “Effective Date”) and the Stock Price.  If the exact Stock Price and Effective Date are not set forth in such table, then:

 

(i)          if the actual Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Prices and the two nearest Effective Dates, as applicable, based on a 365-day year;

 

(ii)         if the Stock Price is greater than $400.00 per share of Common Stock (subject to adjustment in the same manner and at the same time as the Stock Prices as set forth in clause (d) of this Section 5.03), no Additional Shares shall be added to the Conversion Rate; and

 

(iii)        if the Stock Price is less than $96.67 per share (subject to adjustment in the same manner and at the same time as the Stock Prices as set forth in clause (d) of this Section 5.03), no Additional Shares shall be added to the Conversion Rate.

 

(d)        The Stock Prices set forth in the first column of the table in Schedule A shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (other than pursuant to this Section 5.03). The adjusted Stock Prices shall equal the Stock Prices applicable

 

 

 

immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate is adjusted (other than pursuant to this Section 5.03).

 

(e)        Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 10.3444 per $1,000 principal amount of Securities (subject to adjustment in the same manner as the Conversion Rate is adjusted pursuant to Section 5.07) as a result of any increase under this Section 5.03.

 

Section 5.04.  Exercise of Conversion Privilege. 

 

(a)        Before any Holder shall be entitled to convert its Securities as forth above, such Holder shall:

 

(i)          in the case of a Global Security, comply with the procedures of the Depositary in effect at that time and, if required under Section 5.05(f), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 5.05(f) and, if required under Section 5.04(g), pay any taxes or duties such Holder is required to pay as set forth in Section 5.04(g); and

 

(ii)         in the case of a Physical Security, (A) complete and manually sign and deliver an irrevocable written notice to the Conversion Agent in the form attached to such Physical Security as set forth in Exhibit A (or a facsimile thereof) (a “Conversion Notice”) at the office of the Conversion Agent and shall state in writing therein the principal amount of Securities to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock, if any, to be delivered upon settlement of the Conversion Obligation to be registered, (B) surrender such Securities, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (C) if required under Section 5.05(f), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 5.05(f) and, (D) if required under Section 5.04(g), pay any taxes or duties such Holder is required to pay as set forth in Section 5.04(g).

 

(b)        The date on which the Holder has complied with the requirements set forth in Section 5.04(a) in respect of a Security shall be deemed to be the “Conversion Date” for such Security.

 

(c)        No Conversion Notice with respect to any Securities may be tendered by a Holder thereof if such Holder has also tendered a Fundamental Change Repurchase Notice and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with the applicable provisions of Article 4.

 

(d)        No Conversion Notice with respect to any Security may be tendered by a Holder thereof if the Company has previously delivered a Redemption Notice in respect of such Security under Section 6.01.

 

(e)        If more than one Security shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Securities, if any, that shall be payable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted thereby) so surrendered.

 

(f)        In case any Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall, as provided in an Officer’s Certificate, authenticate and deliver to or upon the written order of the Holder of the Security so surrendered, without charge to such Holder, a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities.

 

(g)        If a Holder submits a Security for conversion, the Company shall pay all stamp and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon the conversion. However, the Holder shall pay any such tax which is due because the Holder requests any shares of Common Stock to be issued in a name other than the Holder’s name. The Company may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Company receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax withholding required by law or regulations.

 

(h)        Upon the conversion of an interest in a Global Security, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Securities effected through any Conversion Agent other than the Trustee.

 

Section 5.05.  Settlement of Conversion Obligation.

 

(a)        Subject to clause (d) of this Section 5.05, upon conversion of any Securities in accordance with this Article 5, the Company shall deliver, with respect to each $1,000 principal amount of Securities converted, on the third

 

 

 

Business Day immediately following the last VWAP Trading Day of the Observation Period for such Securities, the aggregate of the Daily Settlement Amounts for each VWAP Trading Day of such Observation Period (the “Conversion Obligation”).

 

(b)        The “Daily Settlement Amount” means, with respect to a Security:

 

(i)          an amount of cash (the “Principal Portion”) equal to the lesser of (A) one-twentieth of $1,000 and (B) the Daily Conversion Value on such VWAP Trading Day; and

 

(ii)         if such Daily Conversion Value exceeds one-twentieth of $1,000, a number of shares of Common Stock (the “Daily Share Amount”) equal to (A) the difference between such Daily Conversion Value and one-twentieth of $1,000, divided by (B) the Daily VWAP of the Common Stock for such VWAP Trading Day, subject to the Company’s right to pay cash in lieu of all or a portion of the Daily Share Amount in accordance with Section 5.05(c).

 

The Daily Settlement Amounts for a Security shall be determined by the Company promptly following the last VWAP Trading Day of the Observation Period for such Security.

 

(c)        The Company may elect, subject to the requirements set forth in this clause (c), to deliver cash in lieu of all or a portion of the Daily Share Amount.  By the close of business on the VWAP Trading Day prior to the first Scheduled Trading Day of the applicable Observation Period, the Company may specify a percentage of each Daily Share Amount that will be settled in cash (the “Cash Percentage”) and shall notify the Holder of such Cash Percentage through written notice to the Trustee (the “Cash Percentage Notice”).  With respect to any Securities converted on or after February 15, 2013 or any converted Securities called for redemption, any Cash Percentage the Company specifies shall apply to all such conversions.  If the Company elects to specify a Cash Percentage:

 

(i)          the amount of cash that the Company will deliver in lieu of all or an applicable portion of the Daily Share Amount in respect of each VWAP Trading Day in the applicable Observation Period will equal the (A) the Cash Percentage, multiplied by (B) the Daily Share Amount for such Trading Day (assuming for this purpose the Company has not specified a Cash Percentage), multiplied by (C) the Daily VWAP for such VWAP Trading Day; and

 

(ii)         the number of shares of Common Stock deliverable in respect of each VWAP Trading Day in the applicable Observation Period (in lieu of the full Daily Share Amount for such Trading Day) will be a

 

 

 

percentage of the Daily Share Amount (assuming the Company has not specified a Cash Percentage) equal to 100% minus the Cash Percentage.

 

The Company may, at its option, revoke any Cash Percentage Notice through written notice to the Trustee by 5:00 p.m., New York City time, on the VWAP Trading Day prior to the first Scheduled Trading Day of the applicable Observation Period.  If the Company does not specify a Cash Percentage, the Company shall settle 100% of the Daily Share Amount for each VWAP Trading Day in the applicable Observation Period in shares of Common Stock.

 

(d)        Notwithstanding clauses (a) and (c) above, if, following a Make-Whole Fundamental Change, Securities are surrendered for conversion following the related Effective Date and the Reference Property into which the Securities are convertible consists solely of cash as set forth in Section 5.12, then the Company shall satisfy the related Conversion Obligations by delivering, on the third Business Day following the Conversion Date, cash in an amount equal to the Stock Price multiplied by the Conversion Rate then in effect.

 

(e)        Any cash amounts due upon conversion by a Holder of Securities surrendered for conversion shall be paid by the Company to such Holder, or such Holder’s nominee or nominees.  In addition, the Company shall issue, or shall cause to be issued, any shares of Common Stock due upon conversion to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary (together with any cash in lieu of fractional shares).

 

(f)        Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest except as set forth in this clause (f). The Company’s settlement of the Conversion Obligation as described above shall be deemed to satisfy its obligation to pay the principal amount of the Security and accrued and unpaid interest to, but not including, the Conversion Date. As a result, accrued and unpaid interest to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if Securities are converted after 5:00 p.m., New York City time, on a Record Date for the payment of interest, Holders of such Securities as of 5:00 p.m., New York City time, on the Record Date shall receive the interest payable on such Securities on the corresponding Interest Payment Date notwithstanding the conversion. Securities surrendered for conversion during the period from 5:00 p.m., New York City time, on any Record Date to 9:00 a.m., New York City time, on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest payable on the Securities so converted; provided that no such payment need be made with respect to any Security:

 

 

(i)          if the Company has specified a Fundamental Change Repurchase Date that is after a Record Date and on or prior to the corresponding Interest Payment Date;

 

(ii)         if the Company has called such Security for redemption and specified a Redemption Date for such Security that is after a Record Date and on or prior to the corresponding Interest Payment Date;

 

(iii)        to the extent of any overdue interest on such Security which remains unpaid at the time of conversion with respect to such Security; or

 

(iv)        if the Conversion Date for such Security occurs after the close of business on the Record Date immediately preceding the Stated Maturity Date.

 

Except as described above, no payment or adjustment shall be made for accrued interest on converted Securities.

 

(g)        Any Security converted pursuant to this Article 5 shall be deemed to have been converted and shall cease to be outstanding immediately prior to the close of business on the Conversion Date and, as of the close of business on the last VWAP Trading Day of the related Observation Period, the Holder of such Securities shall be deemed to be a holder of record of any shares of the Common Stock issuable as a result of the conversion of such Securities.  

 

Section 5.06.  Fractions of Shares.

 

(a)        No fractional shares of Common Stock shall be issued upon conversion of any Security.

 

(b)        If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so surrendered.

 

(c)        Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Securities (or specified portions thereof), the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the Daily VWAP of the Common Stock on the last VWAP Trading Day of the relevant Observation Period.

 

Section 5.07.  Adjustment of Conversion Rate.

 

 

(a)        The Conversion Rate shall be adjusted from time to time by the Company as set forth in this  Section 5.07; provided that the Company shall not make any adjustments to the Conversion Rate if Holders of the Securities participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any of the transactions described below as if such Holders held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holders, without having to convert their Securities.

 

(b)                   In case the Company shall issue shares of Common Stock as a dividend or distribution on shares of Common Stock, or shall effect a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

 

 

where,

 

CR1 =

the Conversion Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, as the case may be;

 

CR0 =

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, as the case may be;

 

OS1 =

the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, in each case, after giving effect to such dividend, distribution or share split or combination, as the case may be; and

 

OS0 =

the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, as the case may be.

 

Such adjustment shall become effective immediately after the open of business on the Ex-Date for such dividend or distribution, or the effective date for such share split or share combination. If any dividend or distribution of the type described in this Section 5.07(b) is declared but not so paid or made, or the

 

 

 

outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Company determines not to pay such dividend or distribution, or split or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared.

 

(c)        In case the Company shall distribute to all or substantially all holders of its outstanding shares of Common Stock any rights or warrants entitling them for a period of not more than 60 days from the issuance date for such distribution to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date of such distribution, the Conversion Rate shall be increased based on the following formula:

 

 

where,

 

CR1 =

the Conversion Rate in effect immediately after the open of business on the Ex-Date for such distribution;

CR0 =

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

OS0 =

the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such distribution;

X =

the total number of shares of Common Stock issuable pursuant to such rights or warrants; and

 

Y =

the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution.

 

Such adjustment shall be successively made whenever any such rights or warrants are distributed and shall become effective immediately after the open of business on the Ex-Date for such distribution. To the extent such rights or warrants are not exercised prior to their expiration or shares of the Common Stock are not delivered after the expiration of such rights or warrants, the Conversion

 

 

 

Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Ex-Date for such distribution had not been fixed.

 

In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

 

(d)        In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital Stock of the Company, evidences of its indebtedness or other assets or property of the Company, excluding:

 

(i)          dividends or distributions as to which an adjustment was effected pursuant to Section 5.07(b) or Section 5.07(c);

 

(ii)         dividends or distributions paid exclusively in cash; and

 

(iii)        distributions described below in this clause (d) with respect to Spin-Offs),

 

(any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this clause (d) called the “Distributed Property”), then, in each such case the Conversion Rate shall be increased based on the following formula:

 

 

where,

 

CR1 =

the Conversion Rate in effect immediately after the open of business on the Ex-Date for such distribution;

CR0 =

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

SP0 =

the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on

 

 

		the Trading Day immediately preceding the Ex-Date for such distribution; and
	FMV =	the fair market value as determined by the Board of Directors of the Distributed Property distributed with respect to each outstanding share of Common Stock as of the open of business on the Ex-Date for such distribution.

 

Such adjustment shall become effective immediately after the open of business on the Ex-Date for such distribution.  If “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities has the right to receive, for each $1,000 principal amount of Securities, the amount of Distributed Property such Holder would have received had such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the record date for such distribution, without being required to convert the Securities; provided that the Company may, at its option, elect to pay an amount of cash in lieu of delivering such Distributed Property equal to the fair market value (as determined by the Board of Directors) of such Distributed Property.  If such distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines “FMV” for purposes of this Section 5.07(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution.

 

With respect to an adjustment pursuant to this clause (d) where there has been a payment of a dividend or other distribution on the Common Stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company that are listed on a national or regional securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:

 

 

where,

 

CR1 =

the Conversion Rate in effect immediately after the open of business on the Ex-Date for the Spin-Off;

CR0 =

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for the Spin-Off;

 

FMV =

the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the third Trading Day after the Ex-Date for the Spin-Off (such period, the “Valuation Period”); and

 

MP0 =

the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

 

Such adjustment to the Conversion Rate under the foregoing provisions of this clause (d) shall be made immediately after the open of business on the day after the last Trading Day of the Valuation Period, but shall be given effect as of the open of business on the Ex-Date for the Spin-Off. To the extent that the final day of the Observation Period for any converted Securities occurs during the Valuation Period, the Company shall satisfy the Conversion Obligation with respect to such Securities on the third Business Day immediately following the last day of the Valuation Period.

 

Rights or warrants distributed by the Company to all holders of Common Stock, entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”) (1) are deemed to be transferred with such shares of Common Stock, (2) are not exercisable, and (3) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 5.07 (and no adjustment to the Conversion Rate under this Section shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this clause (d).  If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets (a “Substitution Event”), then each such Substitution Event shall be deemed to be a distribution of new rights or warrants and the date of each such Substitution Event shall be deemed to be the Ex-Date of such deemed distribution (in which case the original rights or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders and the Conversion Rate shall be readjusted as if such original rights or warrants had not been issued).  In addition, in the event of any distribution or deemed distribution of rights or warrants, or any Trigger Event with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 5.07 was made, (A) in the case of any such rights or warrants that shall all have been redeemed or