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EXECUTION COPY FIRST SUPPLEMENTAL INDENTURE by and among ENERGY CONVERSION DEVICES, INC. and THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee Dated as of June 24, 2008 Supplemental to Indenture for Debt Securities Dated as of June 24, 2008 3.0% Convertible Senior Notes due 2013
TABLE OF CONTENTS
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EXHIBITS
ii FIRST SUPPLEMENTAL INDENTURE THIS FIRST SUPPLEMENTAL INDENTURE dated as of June 24,2008 (this “ Supplemental Indenture ”), is entered into among Energy Conversion Devices, Inc., a Delaware corporation (the “ Company ”), and The Bank of New York Trust Company, N.A., a national banking association, as trustee (the “ Trustee ”). Capitalized terms used herein and not otherwise defined have the meanings set forth in the Original Indenture (as defined below). RECITALS A. The Company and the Trustee entered into that certain Indenture, dated as of June 24, 2008 (the “ Original Indenture ”), pursuant to which the Company may from time to time issue its debentures, notes, bonds or other evidences of indebtedness (collectively, the “ Debt Securities ”). B. Section 9.1 of the Original Indenture provides that the Company, when authorized by a resolution of the Board of Directors of the Company, and the Trustee may, without the consent of the holders of the Debt Securities, enter into a supplemental indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.1 and 3.1 of the Original Indenture. C. The Company has duly authorized the issue of 3.0% Convertible Senior Notes due 2013 (as they may be issued from time to time under this Supplemental Indenture, including any Additional Notes, the “ Notes ”), initially in an aggregate principal amount not to exceed $316,250,000 and in connection therewith, the Company has duly determined to make, execute and deliver this Supplemental Indenture to set forth the terms and provisions of the Notes as required by the Original Indenture. D. The Company has determined that this Supplemental Indenture is authorized or permitted by Section 9.1 of the Original Indenture and has delivered to the Trustee an Opinion of Counsel and Officers’ Certificate to the effect that all conditions precedent provided for in the Original Indenture to the execution and delivery of this Supplemental Indenture have been complied with and such execution and delivery are authorized and permitted by the Indenture. E. The Form of Note, the Trustee’s Certificate of Authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided for. F. All things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in the Original Indenture provided, the valid and legally binding obligations of the Company have been done. G. All things necessary to make this Supplemental Indenture a valid and legally binding indenture and agreement according to its terms, and a valid and legally binding amendment of, and supplement to, the Original Indenture have been done. NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, the parties hereto agree, subject to the terms and conditions hereinafter set forth, as follows for the benefit of the Trustee and the Noteholders: ARTICLE I
Section 1.01 Scope of Supplemental Indenture . The changes, modifications and supplements to the Original Indenture affected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, which shall be limited initially to $316,250,000 aggregate principal amount, except as otherwise provided herein, and which may be issued from time to time, and shall not apply to any other Debt Securities that may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding or inconsistent provisions in the Original Indenture. Section 1.02 Definitions . The terms defined in this Section 1.02 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Supplemental Indenture and for purposes of the Original Indenture as it relates to the Notes shall have the respective meanings specified in this Section 1.02. Except as otherwise provided in this Supplemental Indenture, all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meaning herein as in the Original Indenture. All other terms used in this Supplemental Indenture that are defined in the Trust Indenture Act or that are by reference therein defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Supplemental Indenture. The words “ herein ,” “ hereof ,” “ hereunder ,” and words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular. “ Additional Interest ” shall have the meaning specified in Section 4.02. “ Additional Shares ” shall have the meaning specified in Section 8.03(a). “ Applicable Stock Price ” per share of Common Stock on any Trading Day means the per share volume-weighted average price as displayed under the heading “ Bloomberg VWAP ” on Bloomberg (or any successor service) page ENER <Equity> AQR (or any equivalent successor page) in respect of the period from the scheduled open of trading on the principal U.S. national securities exchange or quotation system on which the Common Stock is traded on such Trading Day, or, if such volume-weighted average price is not available, the Applicable Stock
2 Price means the volume-weighted average price per share of Common Stock on such day as determined by a nationally recognized investment banking firm retained for this purpose by the Company. The Applicable Stock Price of other securities that constitute Reference Property and that are traded on a National Securities Exchange shall be determined in a manner substantially equivalent to the foregoing as determined in good faith by the Company. “ Bid Solicitation Agent ” means any reputable financial services provider that customarily provides administrative agency or trustee services as the Company may designate from time to time, but it shall not be the Trustee. “ Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests (including partnership interests) in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity. “ Cash Settlement Averaging Period ” means, with respect to any Note being converted, the 20 consecutive Trading Days beginning on, and including, the second Trading Day after the Conversion Date for such Note; provided that with respect to any Conversion Date that is on or after the 24th Scheduled Trading Day immediately preceding the Maturity Date, the Cash Settlement Averaging Period shall mean the 20 consecutive Trading Days beginning on, and including, the 22nd Scheduled Trading Day immediately preceding the Maturity Date. “ close of business ” means 5:00 p.m. (New York City time). “ Code ” means the Internal Revenue Code of 1986, as amended from time to time. “ Company ” means Energy Conversion Devices, Inc., a Delaware corporation, and subject to the provisions of Article VII hereof (which, for purposes of the Notes, supersede and replace the provisions of Article 8 of the Original Indenture), shall include its successors and assigns. “ Conversion Agent ” shall have the meaning specified in Section 3.02. “ Conversion Date ” shall have the meaning specified in Section 8.02(d). “ Conversion Obligation ” shall have the meaning specified in Section 8.01(a). “ Conversion Price ” on any day means a dollar amount (initially, approximately $91.80) equal to $1,000 divided by the Conversion Rate in effect on such day. “ Conversion Rate ” is initially 10.8932 shares of Common Stock, subject to adjustment as set forth herein. “ Custodian ” means the Trustee, as custodian for the Depositary, with respect to the Notes in global form, or any successor entity thereto. “ Daily Conversion Value ” means, for each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period, 1/20th of the product of (i) the Conversion Rate
3 and (ii) the Applicable Stock Price of the Common Stock on such day. For purposes of the foregoing, the Daily Conversion Value of Reference Property will be determined by reference to (a) in the case of Reference Property or part of Reference Property that is traded on a National Securities Exchange, the Applicable Stock Price of such security or common stock, (b) in the case of any other property other than cash, the value thereof as determined by two independent nationally recognized investment banks as of the effective date of the applicable Reference Property transaction and (c) in the case of cash, 100% of the amount thereof. “ Daily Settlement Amount ” means for each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period (1) cash equal to $50, or if less, the Daily Conversion Value; and (2) to the extent the Daily Conversion Value exceeds $50, a number of shares equal to (A) the difference between the Daily Conversion Value and $50, divided by(B) the Applicable Stock Price of the Common Stock for such day. “ Defaulted Interest ” means any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date. “ Designated Institution ” shall have the meaning specified in Section 8.02(1). “ Distributed Property ” shall have the meaning specified in Section 8.04(c). “ Effective Date ” means, with respect to a Make-Whole Fundamental Change, a consolidation, merger, share exchange, sale of all or substantially all of the Company’s assets or other similar transaction, the date on which such event or transaction becomes effective (or the date on which the Company reasonably believes such event or transaction becomes effective, if the Company is unable to ascertain the precise date in the case of a Fundamental Change as described in clause (a) of the definition of Fundamental Change). “ Ex-Dividend Date ” means, with respect to any issuance, dividend or distribution in which the holders of Common Stock (or other security) have the right to receive any cash, securities or other property, the first date on which the shares of the Common Stock (or other security) trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question. “ Fundamental Change ” means the occurrence after the original issuance of the Notes of any of the following events: (a) a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act becomes the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares of the Common Stock representing more than 50% of the voting power of the Common Stock entitled to vote generally in the election of directors and (i) files a Schedule 13D or Schedule TO or any other schedule, form or report under the Exchange Act disclosing such beneficial ownership or (ii) the Company otherwise becomes aware of any such person or group; provided that this clause (a) shall not apply to a transaction covered in clause (d) below, including any exception thereto; or (b) the Common Stock into which the Notes are then convertible ceases to be listed for trading on a National Securities Exchange; or
4 (c) the first day on which a majority of the members of the board of directors of the Company does not consist of continuing directors; or (d) the Company is a party to a consolidation, merger or binding share exchange, or any conveyance, transfer, sale, lease or other disposition in a single transaction or a series of transactions of all or substantially all of the Company’s properties and assets other than any transaction: (i) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s capital stock or pursuant to which holders of the Company’s capital stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in elections of directors of the continuing or surviving or successor Person (or any parent thereof) immediately after giving effect to such transaction; or (ii) that is effected solely for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock, if at all, solely into shares of common stock of the surviving entity or a direct or indirect parent of the surviving corporation; or (iii) with any of the Company’s wholly-owned subsidiaries, so long as such transaction is not part of a plan or a series of transactions designed to or having the effect of merging or consolidating with, or conveying, transferring, selling, leasing or disposing of all or substantially all of the Company’s properties and assets to any other Person or Persons; or (e) the Company’s shareholders approve any plan or proposal for the Company’s liquidation or dissolution. For purposes of this Fundamental Change definition: (a) “ board of directors ” means the board of directors or other governing body charged with the ultimate management of any person; (b) “ continuing director ” means a director who either was a member of the Board of Directors of the Company on the date hereof, or who becomes a member of the Board of Directors subsequent to that date and whose initial election, appointment or nomination for election by the Company’s shareholders is duly approved by a majority of the continuing directors on the Board of Directors of the Company at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the entire Board of Directors of the Company in which such individual is named as a nominee for director; and (c) “ person ” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act. Notwithstanding the foregoing, a Fundamental Change will be deemed not to have occurred if more than 90% of the consideration in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute a Fundamental Change under clause (d) above consists of shares of common stock, depositary receipts or other certificates representing common equity
5 interests traded or to be traded immediately following such transaction on a National Securities Exchange and, as a result of the transaction or transactions, the Notes become convertible into such common stock, depositary receipts or other certificates representing common equity interests (and any rights attached thereto) and other applicable consideration. “ Fundamental Change Company Notice ” shall have the meaning specified in Section 9.01(b). “ Fundamental Change Expiration Time ” shall have the meaning specified in Section 9.01 (b). “ Fundamental Change Repurchase Date ” shall have the meaning specified in Section 9.01(a). “ Fundamental Change Repurchase Notice ” shall have the meaning specified in Section 9.01(a). “ Fundamental Change Repurchase Price ” shall have the meaning specified in Section 9.01(a). “ Global Note ” shall have the meaning specified in Section 2.05(b). “ Indenture ” means the Original Indenture, as amended and supplemented by this Supplemental Indenture and, if further amended or supplemented as herein provided, as so amended or supplemented. “ interest ” means, when used with reference to the Notes, any interest payable under the terms of the Notes, including (unless context otherwise requires) Defaulted Interest, if any, and Additional Interest, if any. “ Interest Payment Date ” means each June 15 and December 15 of each year, beginning on December 15, 2008. “ Interest Record Date ,” with respect to any Interest Payment Date, shall mean the June 1 or December 1 (whether or not such day is a Business Day) immediately preceding the applicable June 15 or December 15 Interest Payment Date, respectively. “ Last Reported Sale Price ” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the last bid and ask prices or, if more than one in either case, the average of the last bid and the last ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is listed for trading. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, then the “ Last Reported Sale Price ” will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the Common Stock is not so quoted, the “ Last Reported Sale Price ” will be the average of the mid-point of the last bid and ask prices for the Common Stock on the
6 relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. “ Make-Whole Fundamental Change ” means any transaction or event that constitutes a Fundamental Change as described in clause (a) or clause (d) of the definition of Fundamental Change. “ Market Disruption Event ” means (a) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (b) the occurrence or existence on any 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 stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock for an aggregate period in excess of one half hour. “ Maturity Date ” means June 15, 2013. “ Merger Event ” shall have the meaning specified in Section 8.06. “ National Securities Exchange ” means the New York Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market or another U.S. national securities exchange. “ Noteholder ” or “ holder ,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), shall mean any person in whose name at the time a particular Note is registered on the Note Register. “ Note Register ” shall have the meaning specified in Section 2.05(a). “ Note Registrar ” shall have the meaning specified in Section 2.05(a). “ Notice of Conversion ” shall have the meaning specified in Section 8.02(b). “ open of business ” means 9:00 a.m. (New York City time). “ Original Indenture ” means the indenture for Debt Securities dated as of June 24, 2008 by and between the Company and the Trustee. “ Paying Agent ” shall have the meaning specified in Section 3.02. “ Preferred Stock ”, as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. “ Record Date ” shall have the meaning specified in Section 8.04(f).
7 “ Reference Property ” shall have the meaning specified in Section 8.06(a). “ Scheduled Trading Day ” means any day that is scheduled to be a Trading Day. “ Settlement Amount ” shall have the meaning specified in Section 8.02. “ Significant Subsidiary ” shall mean any Subsidiary of the Company that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) and in addition, shall include any group of Subsidiaries of the Company that in the aggregate would constitute a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act). “ Spin-Off ” shall have the meaning specified in Section 8.04(c). “ Stock Price ” means (a) in the case of a Make-Whole Fundamental Change in which holders of Common Stock receive solely cash consideration in connection with such Make-Whole Fundamental Change, the amount of cash paid per share of the Common Stock and (b) in the case of all other Make-Whole Fundamental Changes, the average of the Last Reported Sale Prices per share of Common Stock over the period of ten consecutive Trading Days ending on the Trading Day immediately preceding the Effective Date of such Make-Whole Fundamental Change. The Board of Directors may make appropriate adjustments, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, during such ten consecutive Trading Days. “ Tax Original Issue Discount ” means the amount of ordinary interest income on a Note that must be accrued as original issue discount for U.S. federal income tax purposes pursuant to Treasury regulation Section 1.1275-4 or any successor thereto. “ Trading Day ” means a day during which trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange or quotation system on which the Common Stock is listed for trading and during which there is no Market Disruption Event; provided that if the Common Stock is not listed for trading on a U.S. national or regional securities exchange or quotation system, “ Trading Day ” will mean a Business Day. “ Trading Price ” with respect to the Notes, on any date of determination means the average of the secondary market bid quotations per Note obtained by the Bid Solicitation Agent for $5.0 million principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers 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. “ Trustee ” means the Person named as the “Trustee” in the first paragraph of this Supplemental Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Supplemental Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.
8 ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES Section 2.01 Designation and Amount: Ranking . The Notes shall be designated as the “3.0% Convertible Senior Notes due 2013.” The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $316,250,000, subject to Section 2.07 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.05, Section 2.07, Section 8.02, Section 9.03 hereof and Section 3.6 of the Original Indenture. Section 2.02 Form of Notes . The Notes and the Trustee’s Certificate of Authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which are incorporated in and made a part of this Supplemental Indenture. Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements 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 Supplemental Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject. The Global Note shall represent such principal amount of the Outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of Outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder of such Notes in accordance with this Supplemental Indenture. Payment of principal, accrued and unpaid interest, premium, if any (including any Fundamental Change Repurchase Price) and conversion proceeds, if any, on the Global Note shall be made to or upon the order of the holder of such Note on the date of payment, unless a record date or other means of determining holders eligible to receive payment is provided for herein. The terms and provisions contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
9 interest from the date specified on the face of the form of Note attached as Exhibit A hereto. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. The Person in whose name any Note (or its predecessor security) is registered on the Note Register at the close of business on any Interest Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office or agency of the Company maintained by the Company for such purposes in the United States, which shall initially be the office of the Paying Agent at The Bank of New York Trust Company, N.A., 2 N. LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Corporate Trust Administration. The Company shall pay interest (a) on any Notes in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Note Register (or upon written application by such Person to the Trustee and Paying Agent (if different from the Trustee) not later than the relevant Interest Record Date, by wire transfer in immediately available funds to such Person’s account within the United States, if such Person is entitled to interest on an aggregate principal in excess of $1,000,000, which application shall remain in effect until the Noteholder notifies the Trustee and Paying Agent to the contrary) or (b) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee. Section 2.04 Payments of Additional Interest . If required by Section 4.02, each Note shall bear Additional Interest in the manner set forth herein. Whenever in this Supplemental Indenture there is mentioned, in any context, the payment of the principal of, premium, if any, or interest on, or in respect of, any Note, such mention shall be deemed to include mention of the payment of “Additional Interest” provided for in Section 4.02 to the extent that, in such context, Additional Interest is, was or would be payable in respect thereof and express mention of the payment of Additional Interest (if applicable) in any provisions hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.
(a) The Company shall cause to be kept at the corporate trust office a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 3.02 being herein sometimes collectively referred to as the “ Note Register ,” which Note Register shall constitute a Security Register (as such term is defined in the Original Indenture) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby appointed “ Note Registrar ” and shall constitute a Security Registrar (as such term is defined in the Original Indenture) for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-registrars in accordance with Section 3.02. Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 3.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
10 deliver, the Notes that the Noteholder making the exchange is entitled to receive, bearing registration numbers not contemporaneously Outstanding. None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 9 hereof. All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Supplemental Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Supplemental Indenture as the Notes surrendered upon such registration of transfer or exchange. (b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, all Notes shall be represented by one or more Notes in global form (each, a “ Global Note ”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Supplemental Indenture and the procedures of the Depositary therefor. Notwithstanding any other provisions of the Indenture (other than the provisions set forth in this Section 2.05(b)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global Note in certificated form made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section 2.05. The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Note. Initially, the Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as Custodian for the Depositary. If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 calendar days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 calendar days or (iii) an Event of Default in respect of the Notes has occurred and is continuing, and any Noteholder has requested that the Notes be issued in definitive form in exchange for a Global Note, the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery of Notes, will authenticate and deliver Notes in definitive form to each person that the Depositary identifies as a beneficial owner of the
11 related Notes (or a portion thereof) in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, and upon delivery of the Global Note to the Trustee such Global Note shall be canceled. Definitive Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(b) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such definitive Notes to the Persons in whose names such definitive Notes are so registered. At such time as all interests in a Global Note have been converted, canceled, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the Custodian, At any time prior to such cancellation, if any interest in a Global Note is exchanged for definitive Notes, converted, canceled, repurchased or transferred to a transferee who receives definitive Notes therefor or any definitive Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase. None of the Company, the Trustee, nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Section 2.06 CUSP Numbers . The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSP” numbers in all notices issued to Noteholders as a convenience to holders of the Notes; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers. Section 2.07 Additional Notes; Repurchases . The Company may, without the consent of the Noteholders and notwithstanding Section 2.01, reopen this Supplemental Indenture and issue additional Notes hereunder with the same terms and with the same CUSP number as the Notes initially issued hereunder in an unlimited aggregate principal amount, which will form the same series with the Notes initially issued hereunder; provided that no such additional Notes will be treated as part of the same series as the Notes unless such additional Notes will be part of the same issue as the Notes initially issued hereunder for U.S. federal income tax purposes. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 1.2 of the Original Indenture, as the Trustee shall reasonably request. The Company may also from time to
12 time repurchase the Notes in open market purchases or negotiated transactions without prior notice to Noteholders. Section 2.08 Provisions of the Indenture and Notes for the Sole Benefit of the Parties and the Holders . Nothing in this Indenture or in the Notes, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto, the Holders or any Note Registrar, paying agent, or conversion agent, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all its covenants, conditions and provisions being for the sole benefit of the parties hereto, the Holders and any Note Registrar, paying agent, and conversion agent. ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY Section 3.01 Payment of Principal, Premium and Interest . The Company covenants and agrees that it will cause to be paid the principal of and premium, if any (including the Fundamental Change Repurchase Price), and accrued and unpaid interest on each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes. Each installment of interest on the Notes, may be paid by mailing checks for the amount payable to Noteholders entitled thereto as they shall appear on the registry books of the Company; provided that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at the application of such holder in writing to the Trustee and Paying Agent (if different from the Trustee) not later than the relevant Interest Record Date, interest on such holder’s Notes shall be paid by wire transfer in immediately available funds to such holder’s account in the United States, which application shall remain in effect until the Noteholder notifies the Trustee and Paying Agent to the contrary; provided further that payment of interest made to the Depositary shall be paid by wire transfer in immediately available funds in accordance with such wire transfer instructions and other procedures provided by the Depositary from time to time. Section 3.02 Maintenance of Office or Agency . The Company will maintain in the United States, an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“ Paying Agent ”) or for conversion (“ Conversion Agent ”) and where notices and demands to or upon the Company in respect of the Notes and the Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the corporate trust office or the office or agency of the Trustee. The Company may also from time to time designate as co-registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such
13 other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable. The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the corporate trust office and the office or agency of the Trustee each shall be considered as one such office or agency of the Company for each of the aforesaid purposes. Section 3.03 Existence . Except as permitted by Section 7.01, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. For purposes of the Notes, this Section 3.03 supersedes and replaces Section 10.5 of the Original Indenture in its entirety. Section 3.04 Stay, Extension and Usury Laws . The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of the Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. Section 3.05 Compliance Certificate; Statements as to Defaults . The Company shall deliver to the Trustee within 120 calendar days after the end of each fiscal year of the Company (beginning with the fiscal year ending on June 30, 2009) an Officers’ Certificate stating whether or not each signer thereof has knowledge of any failure by the Company to comply in all material respects with all conditions and covenants then required to be performed under the Indenture and, if so, specifying each such failure and the nature thereof. In addition, the Company shall deliver to the Trustee, as soon as possible and in any event within 30 calendar days after the Company becomes aware of the occurrence of any Event of Default or Default, an Officers’ Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company proposes to take with respect thereto. Section 3.06 Additional Interest . If Additional Interest is payable by the Company, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (a) the amount of such Additional Interest that is payable and (b) the date on which such interest is payable. Unless and until a responsible officer of the Trustee receives at the corporate trust office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. Section 3.07 Further Instruments and Acts . Upon request of the Trustee or as necessary, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
14 Section 3.08 Reporting Obligations . (a) The Company shall provide the Trustee with a copy of the reports the Company must file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act no later than 15 calendar days after those reports are filed with the Commission. (b) The Company also shall comply with the other provisions of Section 3 14(a) of the Trust Indenture Act. (c) For purposes of the Notes, the provisions of this Section 3.08 supersede and replace in their entirety the provisions of Section 7.4 of the Original Indenture. ARTICLE IV
Section 4.01 Events of Default . In replacement of those Events of Default set forth in Section 5.1 of the Original Indenture, the following events shall be the only Events of Default with respect to the Notes: (a) default in the payment of the principal of the Notes when the same shall become due and payable, whether at maturity or otherwise; or (b) failure by the Company to pay the cash and issue the shares (if any) owing upon conversion of any Note (including any Additional Shares) within the time period required under Article VIII; or (c) failure to pay any interest amounts on any Note when due if such failure continues for 30 days; (d) failure by the Company to comply with its obligations upon consolidation, merger, or convey, transfer or lease of all or substantially all of the Company’s properties and assets as required under Article VII; or (e) failure by the Company to issue a Fundamental Change Company Notice when such notice becomes due in accordance with Section 9.01(b); or (f) failure by the Company to comply with its obligations to repurchase the Notes as required under Article IX; or (g) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in this Indenture applicable to the Notes (other than a covenant or agreement, the default in the performance of which is elsewhere in this Section specifically dealt with), but other than a covenant included in the Indenture solely for the benefit of a different series of the Company’s debt securities, which failure to comply continues for a period of 90 days after the date on which written notice stating that it is a “Notice of Default,” specifying such failure and requiring the Company to remedy the same shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
15 Trustee by the Holders of at least 25% in aggregate principal amount of the Notes at the time Outstanding; or (h) any indebtedness for borrowed money of the Company or one of the Company’s Significant Subsidiaries in an outstanding principal amount in excess of $20 million is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default, and such indebtedness is not discharged, and such default remains uncured or such acceleration is not rescinded within 60 days after the date on which written notice stating that it is a “Notice of Default,” specifying such failure and requiring the Company to remedy the same shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes at the time Outstanding; or (i) failure by the Company or one of the Company’s Significant Subsidiaries to pay, discharge or stay one or more final and non-appealable judgments entered by a court or courts of competent jurisdiction, the aggregate uninsured or unbonded portion of which is in excess of $50 million, within 60 days after the date on which written notice stating that it is a “Notice of Default,” specifying such failure and requiring the Company to remedy the same shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes at the time Outstanding; or (j) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or any of its Significant Subsidiaries a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any of its Significant Subsidiaries under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any of its Significant Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (k) the commencement by the Company or any of its Significant Subsidiaries of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or any of its Significant Subsidiaries, or the filing by the Company or any of its Significant Subsidiaries of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any of its Significant Subsidiaries or of
16 any substantial part of its property, or the making by the Company or any of its Significant Subsidiaries of an assignment for the benefit of creditors, or the admission by the Company or any of its Significant Subsidiaries in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any of its Significant Subsidiaries in furtherance of any such action. Section 4.02 Sole Remedy for Failure to Report . Notwithstanding any other provision of the Indenture, if the Company so elects, the sole remedy for an Event of Default relating to the failure to comply with the reporting obligations under Section 3.08 will, for the period beginning on the 91st calendar day and ending on the 180th day after the written notice of the occurrence of such failure to report from the Trustee or holders of 25% of the Outstanding principal amount of the Notes, consist exclusively of the right to receive additional interest on the Notes at a rate equal to 0.25% per annum of the principal amount of the Notes and, if the Company so elects, for the period beginning on the 181st calendar day and ending on the 360th day after the written notice of the occurrence of such failure to report from the Trustee or holders of 25% of the Outstanding principal amount of the Notes, consist exclusively of the right to receive additional interest on the Notes at a rate equal to 0.50% per annum of the principal amount of the Notes (the “ Additional Interest ”). This Additional Interest will be payable in the same manner and on the same dates as the stated interest payable on the Notes. If the Company so elects, this Additional Interest will accrue on all Outstanding Notes from and including the 91st day following the date of such written notice of the failure to comply with Section 3.08 to but not including the date on which the Event of Default relating to the reporting obligations as set forth in Section 3.08 shall have been cured or waived. On the 270th calendar day after the Commencement of such Additional Interest (if such violation is not cured or waived prior to such 270th calendar day), the Notes will be subject to acceleration as provided in Section 5.2 of the Original Indenture. In order to exercise the extension right and elect to pay the Additional Interest as the sole remedy following the occurrence of any Event of Default relating to the failure to comply with Section 3.08 in accordance with the preceding paragraph, the Company must notify all Noteholders and the Trustee and Paying Agent of such election prior to the close of business on the 91st calendar day after the written notice to the Company of such failure to report (or, if such date is not a Business Day, on the first Business Day thereafter). Upon the Company’s failure to timely give such notice, the Notes will be subject to acceleration as provided in Section 5.2 of the Original Indenture. For the avoidance of doubt, the provisions of this Section 4.02 will not affect the rights of Noteholders in the event of the occurrence of any other Event of Default. ARTICLE V
ARTICLE VI
17 Section 6.01 Modifications and Amendments Without Consent of Noteholders . In addition to the matters described in Section 9.1 of the Original Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture, supplemental indenture or amendment to this Supplemental Indenture (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Noteholders: (a) to cure any ambiguity, omission, defect or inconsistency in the Indenture or conform the terms of the Indenture to the “Description of the Notes” in the Prospectus Supplement dated June 18, 2008; or (b) to provide for succession as contemplated in Article VII hereof and Article 8 of the Original Indenture; or
(d) to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act as then in effect; or Any indenture, supplemental indenture or amendment to this Supplemental Indenture authorized by the provisions of this Section 6.01 may be executed by the Company and the Trustee without the consent of the holders of any of the Outstanding Notes, notwithstanding any of the provisions of Section 6.02 hereof or Section 9.2 of the Original Indenture. Section 6.02 Modifications and Amendments With Consent of Noteholders . With the consent (evidenced as provided in Section 1.4 of the Original Indenture or in accordance with the procedures of the Depositary) of the holders of at least a majority of Outstanding principal amount of the Notes (determined in accordance with Section 1.4 of the Original Indenture and including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), the Company, when authorized by a Board Resolution and the Trustee, at the Company’s expense, may from time to time enter into an indenture, supplemental indenture or amendment to this Supplemental Indenture or the Notes for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Supplemental Indenture or any supplemental indenture or of modifying in any manner the rights of the holders of the Notes; provided, however , that in addition to the matters described in the proviso to Section 9.2 of the Original Indenture, with respect to the Notes, no such amendment shall, without the consent of each Noteholder affected hereby: (a) make any change that impairs or adversely affects the conversion rights of any Notes; (b) reduce any amount payable upon repurchase of any Note (including the Fundamental Repurchase Price) or change the time at which or circumstances under which the Notes may or shall be repurchased; or (c) reduce the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the holders of the Notes the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise; or
18 (d) change the ranking of the Notes within the Company’s Indebtedness; or (e) impair the right of a Noteholder of the Notes to receive payment of principal of and interest on such Noteholder’s Notes on or after the due dates therefor; or (f) modify any of the provisions of this Section which require each Noteholder’s consent or provision in the Indenture that require waiver by the Noteholders. Section 6.03 Amendment Notification . Upon the effectiveness of any amendment to this Supplemental Indenture or the Notes, the Company will deliver (or cause the Trustee to deliver) to the holders of Notes a notice briefly describing such amendment, provided, that the failure to deliver such notice to all of the holders of Notes, or any defect in such notice, will not impair or otherwise affect the validity of such amendment. ARTICLE VII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE Section 7.01 Company May Consolidate, Etc. on Certain Terms . Notwithstanding anything to the contrary in Section 8.1 of the Original Indenture, which Section is hereby superseded and replaced in its entirety by this Section 7.01 for purposes of the Notes, the Company shall not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of the Company’s properties and assets to any successor Person in a single transaction or series of transactions, unless:
(i) the resulting, continuing, surviving or transferee Person is the Company;
or (ii) the resulting, continuing, surviving or transferee Person, if other than the Company, is organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Notes and the Indenture; (b) & |
AGREEMENTS / CONTRACTS
CLAUSES
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