FIRST SUPPLEMENTAL INDENTURE

Exhibit 4.2

EXECUTION VERSION

FIRST SUPPLEMENTAL INDENTURE

by and between

AIRTRAN HOLDINGS, INC.,

AS ISSUER

AND

U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE

5.25% CONVERTIBLE SENIOR NOTES DUE 2016

DATED AS OF OCTOBER 14, 2009

SUPPLEMENTAL TO SENIOR INDENTURE FOR SENIOR DEBT SECURITIES

DATED AS OF OCTOBER 14, 2009

TABLE OF CONTENTS

 

 

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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of October 14, 2009 (the “ First Supplemental Indenture ”), is between AIRTRAN HOLDINGS, INC., a Nevada corporation (the “ Company ”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States, as trustee (in such capacity and not in its individual capacity, the “ Trustee ”).

WHEREAS, this First Supplemental Indenture is supplemental to the Base Indenture (as defined herein); and

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of the Securities (as defined herein), and in order to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this First Supplemental Indenture; and

WHEREAS, pursuant to Section 3.1 of the Base Indenture, the Company may establish one or more series of Securities (as such term is defined in the Base Indenture) from time to time as authorized by a supplemental indenture, of which the Securities shall be one such series; and

WHEREAS, the Form of Security, the certificate of authentication to be borne by each Security, the Assignment Form, the Form of Conversion Notice and the Form of Fundamental Change Repurchase Notice to be borne by the Securities are to be substantially in the forms hereinafter provided for; and

WHEREAS, all acts and things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder, the valid, binding and legal obligations of the Company, and to constitute these presents a valid agreement according to its terms, have been done and performed, and the execution of this First Supplemental Indenture and the issue hereunder of the Securities have in all respects been duly authorized.

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

In consideration of the premises and the purchase of the Securities by the Holders thereof, the parties hereto agree as follows for the equal and ratable benefit of the Holders of the Securities on the date hereof:

ARTICLE 1

S COPE ; D EFINITIONS AND I NCORPORATION BY R EFERENCE

Section 1.01 . Scope of First Supplemental Indenture . The changes, modifications and supplements to the Base Indenture effected by this First Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Securities, which shall initially be limited to $115,000,000 aggregate principal amount Outstanding and which may be issued from time to time, and shall not apply to any other Securities (as defined in the Base Indenture) that may be issued under the Base Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this First Supplemental Indenture shall supersede any corresponding or inconsistent provisions in the Base 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 First Supplemental Indenture and for purposes of the Base Indenture as it relates to the Securities shall have the respective meanings specified in this Section 1.02. Except as otherwise provided in this First Supplemental Indenture, all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the

same meaning herein as in the Base Indenture. All other terms used in this First 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 First Supplemental Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this First Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

“ Additional Interest ” has the meaning specified in Section 7.03.

“ Additional Securities ” has the meaning specified in Section 2.02(d).

“ Additional Shares ” has the meaning specified in Section 4.02(b).

“ Adjustment Date ” has the meaning specified in Section 4.02(c).

“ Agent ” means any Registrar, Paying Agent or Conversion Agent.

“ Applicable Procedures ” means, with respect to any transfer or exchange of beneficial ownership interests in a Global Security, the rules and procedures of the Depositary, in each case to the extent applicable to such transfer or exchange.

“ Bankruptcy Law ” has the meaning specified in Section 7.01.

“ Base Indenture ” means the indenture dated as of October 14, 2009 by and between the Company and the Trustee.

“ beneficial owner ” has the meaning specified in Section 3.01(a).

“ Cash ” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.

“ Certificated Security ” means a Security that is in substantially the form attached hereto as Exhibit A, except that such Security shall not bear any Global Security legends or notations.

“ Close of Business ” means 5:00 p.m. New York City time.

“ Closing Price ” means, on any Trading Day, the reported last sale price per share of the Common Stock or other security (or, if no last sale price is reported, the average of the bid and ask prices per share or per security, as applicable, or, if more than one in either case, the average of the average bid and the average ask prices per share or per security, as applicable) on such date reported by the NYSE or, if the Common Stock or such other security is not listed for trading on the NYSE, as reported by the principal national or regional securities exchange on which the Common Stock or such other security is listed for trading or otherwise as provided in this First Supplemental Indenture.

“ Common Stock ” means, subject to Section 4.09, shares of common stock of the Company, par value $0.001 per share, at the date of this First Supplemental Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and that have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and that are not subject to redemption by the Company; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the

 

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proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

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

“ Conversion Agent ” has the meaning specified in Section 2.03.

“ Conversion Date ” has the meaning specified in Section 4.03(a).

“ Conversion Notice ” has the meaning specified in Section 4.03(a).

“ Conversion Rate ” has the meaning specified in Section 4.02(a).

“ Custodian ” has the meaning specified in Section 7.01.

“ Default ” means, when used with respect to the Securities, any event which is or, after notice or passage of time or both, would be an Event of Default.

“ Depositary ” has the meaning specified in Section 2.01(b).

“ Distributed Property ” has the meaning specified in Section 4.06(c).

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

“ Ex-Dividend Date ” means the first date on which the Common Stock trades, regular way, on the relevant exchange, or in the relevant market from which the Closing Price was obtained, without the right to receive such dividend or distribution.

“ First Supplemental Indenture ” means this First Supplemental Indenture as amended or supplemented from time to time.

“ Fundamental Change ” has the meaning specified in Section 3.01(a).

“ Fundamental Change Company Notice ” has the meaning specified in Section 3.01(c).

“ Fundamental Change Repurchase Date ” has the meaning specified in Section 3.01(a).

“ Fundamental Change Repurchase Notice ” has the meaning specified in Section 3.01(d).

“ Fundamental Change Repurchase Price ” has the meaning specified in Section 3.01(a).

 

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“ Global Security ” means a permanent Global Security that is in substantially the form attached hereto as Exhibit A and which is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee.

“ Indenture ” means the Base Indenture, as amended or supplemented by this First Supplemental Indenture, and, if further amended or supplemented as herein provided, as so amended or supplemented.

“ Initial Conversion Rate ” has the meaning specified in Section 4.02(a).

“ Initial Securities ” means the Securities issued on the date hereof in the aggregate principal amount of $115,000,000 and any Securities issued in replacement thereof.

“ Interest Payment Record Date ” has the meaning set forth in the Securities.

“ Issue Date ” means October 14, 2009.

“ Make-Whole Fundamental Change ” has the meaning specified in Section 3.01(a).

“ 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 prior to 1:00 p.m., New York City time, on any Trading Day for the Common Stock of an aggregate one half hour period, 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.

“ Maturity Date ” means November 1, 2016.

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

“ NYSE ” means the New York Stock Exchange.

“ Officers’ Certificate ” means a certificate signed by at least two Officers of the Company; provided, however , that for purposes of Section 5.03 hereof, “Officers’ Certificate” means a certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company.

“ Open of Business ” means 9:00 a.m. New York City time.

“ Paying Agent ” has the meaning specified in Section 2.03.

“ Principal Amount ” of a Security means the Principal Amount as set forth on the face of the Security.

“ Prospectus ” means that final prospectus supplement dated October 8, 2009 relating to the Securities.

 

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“ Record Date ” means (i) with respect to any payment of interest on the Securities, the Interest Payment Record Date and (ii) with respect to the events specified in Section 4.06 hereof, the meaning specified in Section 4.06.

“ Reference Property ” has the meaning specified in Section 4.09.

“ Register ” has the meaning specified in Section 2.03.

“ Registrar ” has the meaning specified in Section 2.03.

“ Reporting Obligations ” has the meaning specified in Section 7.03.

“ Reorganization Event ” has the meaning specified in Section 4.09.

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day.

“ Security ” or “ Securities ” means the Company’s 5.25% Convertible Senior Notes due 2016, as amended or supplemented from time to time pursuant to the terms of this First Supplemental Indenture, that are issued under this First Supplemental Indenture.

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

“ Spin-Off ” has the meaning specified in Section 4.06(c).

“ Stock Price ” has the meaning specified in Section 4.02(c).

“ Trading Day ” means a day during which (i) trading in the Common Stock generally occurs and (ii) there is no Market Disruption Event.

“ Trigger Event ” has the meaning specified in Section 4.06(c).

“ Trustee ” means U.S. Bank National Association, not in its individual capacity, but solely in its capacity as trustee hereunder, until a successor replaces it pursuant to the applicable provisions of the Indenture and, thereafter, shall mean such successor Trustee.

“ Underwriters ” means Morgan Stanley & Co. Incorporated and Raymond James & Associates, Inc.

“ Underwriting Agreement ” means the underwriting agreement dated as of October 7, 2009, among the Company and the Underwriters relating to the initial purchase and sale of the Securities.

ARTICLE 2

T HE S ECURITIES

Section 2.01 . Form and Dating . (a) The Securities and the corresponding Trustee’s certificate of authentication shall be substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this First Supplemental Indenture. The Securities may have notations, legends or endorsements required by law, exchange rule, Applicable Procedures or usage. The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication.

 

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The terms and provisions contained in the Securities shall constitute, and are hereby expressly made, a part of the Indenture and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby; provided , however , to the extent permitted by applicable law, if any provision of any Security conflicts with the express provisions of this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall govern and be controlling.

(b) Global Securities . All of the Securities shall be issued initially in the form of one or more Global Securities, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Securities Custodian, as custodian for the depositary, The Depository Trust Company (such depositary, or any successor thereto, being hereinafter referred to as the “ Depositary ”), and registered in the name of its nominee, Cede & Co., or as otherwise instructed by the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Securities Custodian and the Depositary as hereinafter provided, subject in each case to compliance with the Applicable Procedures and the provisions of this First Supplemental Indenture.

(c) Global Securities In General . Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each 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 reduced or increased, as appropriate, to reflect exchanges, purchases or conversions of such Securities, in each case in accordance with this First Supplemental Indenture. Any adjustment of the aggregate principal amount 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 in accordance with instructions given by the Holder thereof as required by Section 2.09 hereof, or otherwise in accordance with the Indenture, and shall be made on the records of the Trustee and the Depositary.

The Company shall issue and the Trustee shall, upon receipt of an Order from the Company, authenticate and deliver in accordance with Section 2.02 hereof, initially one or more Global Securities that (i) shall be registered in the name of Cede & Co. or as otherwise instructed by the Depositary, (ii) shall be delivered by the Trustee to the Depositary or to the Securities Custodian pursuant to the Depositary’s instructions and (iii) shall bear legends required for Global Securities as set forth in Exhibit A hereto.

(d) Certificated Securities . Certificated Securities shall be issued only under the circumstances provided in Section 2.09(a)(i) hereof.

Section 2.02 . Execution and Authentication. (a) A duly authorized Officer of the Company shall sign the Securities for the Company by manual or facsimile signature.

(b) If an Officer of the Company 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.

(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 the Indenture.

(d) The Trustee shall initially authenticate and make available for delivery Securities for original issue in the aggregate principal amount of $115,000,000 upon receipt of an Order of the Company in accordance with Section 3.3 of the Base Indenture. The Company may, without the consent of the Holders, re-open the Securities and issue additional Securities (the “ Additional Securities ”) with the same terms

 

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and with the same CUSIP number as the Securities in an unlimited aggregate principal amount; provided, however that no such Additional Securities may be issued unless fungible with the Securities offered hereby for U.S. federal income tax purposes. The Trustee shall authenticate Additional Securities thereafter in unlimited aggregate principal amount (so long as permitted by the terms of the Indenture) for original issue upon an Order of the Company in aggregate principal amount as specified in such order (except as provided in Section 2.06 hereof). Each such Order of the Company shall specify the amount of Securities to be authenticated and the date on which the Securities are to be authenticated. Such Additional Securities shall have identical terms to the Initial Securities except for issuance dates and prices and with respect to interest accruing prior to their date of issuance, and will constitute the same series as the Initial Securities for all purposes hereunder, including, without limitation, waivers, amendments and offers to purchase.

(e) The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this First Supplemental Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent shall have the same rights as an Agent to deal with the Company or an Affiliate of the Company.

The Securities shall be issuable only in registered form without coupons and only in denominations of $1,000 principal amount and any integral multiple thereof.

Section 2.03 . Registrar, Paying Agent and Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“ Registrar ”), an office or agency in the United States where Securities may be presented for purchase or payment (“ Paying Agent ”), an office or agency where Securities may be presented for conversion (“ Conversion Agent ”), and an office or agency where notices and demands to or upon the Company in respect of the Securities and the Indenture may be served. The Registrar shall keep a register of the Securities (“ Register ”) and of their transfer and exchange.

The Company may have one or more co-registrars, one or more additional paying agents, and one or more additional conversion agents. The term “Registrar” includes any co-registrar, including any named pursuant to Section 10.02 of the Base Indenture. The term “Paying Agent” includes any additional paying agent, including any named pursuant to Section 10.02 of the Base Indenture. The term “Conversion Agent” includes any additional conversion agent, including any named pursuant to Section 10.02 of the Base Indenture.

The Company shall enter into an appropriate agency agreement with any Agent not a party to this First Supplemental Indenture. The agreement shall implement the provisions of the Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this First Supplemental Indenture. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent or agent for service of notices and demands in any place required by the Indenture, or fails to give the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent.

The Company hereby initially appoints the Trustee as Registrar, Paying Agent and Conversion Agent in connection with the Securities.

Section 2.04 . Paying Agent to Hold Money and Securities in Trust. On or prior to 11:00 a.m., New York City time, on each due date of payments of Cash or shares of Common Stock in respect of the Securities, as applicable and as provided herein, the Company shall deposit with the Paying Agent Cash (in immediately available funds if deposited on the due date) or with the Conversion Agent such number of shares of Common Stock, Cash or other consideration sufficient to make such payments or deliveries when so becoming due. The Company shall require each Paying Agent or Conversion Agent, as applicable (other than

 

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the Trustee), to agree in writing that such Agent shall hold in trust for the benefit of Securityholders or the Trustee all Cash, Common Stock or other consideration, as applicable, held by such Agent for the making of payments or deliveries in respect of the Securities and shall notify the Trustee in writing of any default by the Company in making any such payment or delivery. If the Company or an Affiliate of the Company acts as Paying Agent or Conversion Agent, as applicable, it shall segregate the Cash, Common Stock and other consideration, as applicable, held by it as Paying Agent or Conversion Agent, as applicable, and hold it as a separate trust fund.

The Company at any time may require a Paying Agent or Conversion Agent, as applicable, to pay all Cash, Common Stock or other consideration, as applicable, held by it to the Trustee, and the Trustee may at any time during the continuance of any Default, upon written request to the Paying Agent or the Conversion Agent, as applicable, require such Paying Agent or Conversion Agent, as applicable, to pay forthwith to the Trustee all Cash, Common Stock or other consideration, as applicable, so held in trust by such Paying Agent or Conversion Agent. Upon doing so, the Paying Agent or the Conversion Agent, as applicable, shall have no further liability for such Cash, Common Stock or other consideration, as applicable.

Section 2.05 . Transfer and Exchange. (a) Subject to compliance with any applicable additional requirements contained in Section 2.09 hereof, when a Security is presented to a Registrar with a request to register a transfer thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested; provided , however , that every Security presented or surrendered for registration of transfer or exchange shall, if such Security is a Certificated Security, be duly endorsed or accompanied by an assignment form, in the form included in Exhibit A attached hereto and, if applicable, a transfer certificate, in the form included in Exhibit A attached hereto, and in form reasonably satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.03 hereof, the Company shall execute and the Trustee shall, upon receipt of an Order of the Company, authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto, other than exchanges pursuant to Section 3.4 of the Base Indenture or Section 8.04, Article 3 or Article 4 of this First Supplemental Indenture, in each case, not involving any transfer.

Neither the Company, any Registrar nor the Trustee shall be required to exchange or register a transfer of any Securities or portions thereof in respect of which a Fundamental Change Repurchase Notice has been delivered and not validly withdrawn by the Holder thereof (except, in the case of the purchase of a Security in part, the portion thereof not to be purchased).

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

(b) Any Registrar appointed pursuant to Section 2.03 hereof or Section 10.2 of the Base Indenture shall provide to the Trustee such information as the Trustee may reasonably request in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities.

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of such opinions of counsel, certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by

 

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the terms of, the Indenture (including if so requested by the Company exercising a right to require the delivery of such items), and to examine the same to determine substantial compliance as to form with the express requirements hereof.

Any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book-entry system maintained by the Depositary (or its agent), and that ownership of a beneficial interest in a Global Security shall be required to be reflected in a book-entry system.

Section 2.06 . Replacement Securities. If (a) any mutilated Security is surrendered to the Company, a Registrar or the Trustee, or (b) the Company, the Registrar and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and, in either case, there is delivered to the Company, the Registrar and the Trustee such security or indemnity as shall be reasonably required by them to save each of them harmless, then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has been acquired by a bona fide or protected purchaser, the Company shall issue, and the Trustee shall, upon receipt of an Order of the Company (which the Company agrees to deliver promptly), authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or purchased by the Company pursuant to Article 3 hereof, the Company in its discretion may, instead of issuing a new Security, pay or purchase such Security, as the case may be, in accordance herewith.

Upon the issuance of any new Securities under this Section 2.06, the Company may require the payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the reasonable fees and expenses of the Trustee or the Registrar) in connection therewith.

Every new Security issued pursuant to this Section 2.06 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of the Indenture equally and proportionately with any and all other Securities duly issued and outstanding hereunder.

The provisions of this Section 2.06 are (to the extent lawful) exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

Section 2.07 . Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee, except for those canceled by it, those paid or repurchased pursuant to Section 2.06 hereof, those delivered to it for cancellation and those described in this Section 2.07 as not outstanding.

If a Security is replaced pursuant to Section 2.06 hereof (other than a mutilated Security surrendered for replacement), it ceases to be outstanding unless the Trustee receives, subsequent to the new Security’s authentication, proof satisfactory to the Company that the replaced Security is held by a bona fide or protected purchaser. A mutilated Security ceases to be outstanding upon surrender and replacement thereof pursuant to Section 2.06 hereof.

If the Paying Agent holds, in accordance with the terms of the Indenture, at 11:00 a.m., New York City time, on the Maturity Date or on a Fundamental Change Repurchase Date, as the case may be, Cash sufficient to pay all Initial Securities and all Additional Securities then payable, then on and after such Maturity Date or

 

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Fundamental Change Repurchase Date, as the case may be, such Securities shall cease to be outstanding and interest on such Securities shall cease to accrue.

If a Security is converted in accordance with Article 4 hereof, then on the Conversion Date, such Security shall cease to be outstanding and interest on such Security shall cease to accrue, unless there shall be a default in the delivery of the consideration payable hereunder upon such conversion.

Subject to the restrictions contained in Section 2.08 hereof, a Security does not cease to be outstanding solely because the Company or an Affiliate of the Company holds the Security.

Section 2.08 . Treasury Securities. In determining whether the Holders of the required principal amount of Securities have given or concurred in any notice, request, demand, authorization, direction, waiver or consent, Securities owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding for such purposes, except that, for purposes of determining whether the Trustee shall be protected in relying on any such notice, request, demand, authorization, direction, waiver or consent, only Securities which a Trust Officer actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Securities and that the pledgee is not, and is not acting on the behalf of, the Company or any other obligor on the Securities or any Affiliate of the Company or of such other obligor. If requested by the Trustee, the Company agrees to notify the Trustee in writing of the existence of any such Treasury Securities or Securities owned by the Company, any other obligor on the Securities, or, to the knowledge of the Company, any Affiliate of the Company.

Section 2.09 . Legend; Additional Transfer and Exchange Requirements. (a)  Transfer and Exchange of Global Securities .

(i) Certificated Securities shall be issued in exchange for interests in the Global Securities only (x) if the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Securities or if it at any time ceases to be a “clearing agency” registered under the Exchange Act, if so required by applicable law or regulation, and a successor Depositary is not appointed by the Company within 90 days of such notice, (y) the Company delivers to the Trustee and the Registrar an Officers’ Certificate stating that such Global Security shall be so exchangeable or (z) if an Event of Default has occurred and is continuing, in each case in accordance with the Applicable Procedures. In any such case, the Company shall execute, and the Trustee shall, upon receipt of an Order of the Company (which the Company agrees to deliver promptly), authenticate and deliver Certificated Securities in an aggregate principal amount equal to the principal amount of such Global Securities in exchange therefor. Certificated Securities issued in exchange for beneficial interests in Global Securities shall be registered in such names and shall be in such authorized denominations as the Depositary, pursuant to instructions from its Agent Members or otherwise in accordance with the Applicable Procedures, shall instruct the Trustee. The Trustee shall deliver or cause to be delivered such Certificated Securities to the Persons in whose name such Securities are so registered. Such exchange shall be effected in accordance with the Applicable Procedures. In the event that the Certificated Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Depositary to issue such Certificated Securities, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 7.05 or 7.06 hereof, the right of any beneficial holder of Securities to pursue such remedy pursuant to the terms of such sections with respect to the portion of the Global Security that represents such beneficial owner’s Securities as if such Certificated Securities had been issued.

(ii) Notwithstanding any other provisions of the Indenture other than the provisions set forth in Section 2.09(a)(i) hereof, a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the

 

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Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(b) Transfer and Exchange of Certificated Securities . In the event that Certificated Securities are issued in exchange for beneficial interests in Global Securities in accordance with Section 2.09(a)(i) hereof, and, on or after such event, Certificated Securities are presented by a Holder to the Registrar with a request:

(x) to register the transfer of the Certificated Securities to a person who shall take delivery thereof in the form of Certificated Securities only; or

(y) to exchange such Certificated Securities for an equal principal amount of Certificated Securities of other authorized denominations,

such Registrar shall register the transfer or make the exchange as requested; provided, however , that the Certificated Securities presented or surrendered for register of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso to the first sentence of Section 2.05(a) hereof.

(c) Transfers of Certificated Securities for Beneficial Interests in Global Securities . In the event that Certificated Securities are issued in exchange for beneficial interests in Global Securities and, thereafter, the events or conditions specified in Section 2.09(a)(i) hereof which required such exchange shall cease to exist, the Company shall mail notice to the Trustee and to the Holders (i) stating that Holders may exchange Certificated Securities for interests in Global Securities by complying with the procedures set forth in the Indenture and (ii) briefly describing such procedures and the events or circumstances requiring that such notice be given. Thereafter, if Certificated Securities are presented by a Holder to a Registrar with a request:

(x) to register the transfer of such Certificated Securities to a Person who will take delivery thereof in the form of a beneficial interest in a Global Security; or

(y) to exchange such Certificated Securities for an equal principal amount of beneficial interests in a Global Security, which beneficial interests will be owned by the Holder transferring such Certificated Securities,

the Registrar shall register the transfer or make the exchange as requested by canceling such Certificated Security and causing the aggregate principal amount of the applicable Global Security to be increased accordingly and, if no such Global Security is then outstanding, the Company shall issue and the Trustee shall, upon receipt of an Order of the Company (which the Company agrees to deliver promptly), authenticate and deliver a new Global Security; provided , however , that the Certificated Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso to the first sentence of Section 2.05(a) hereof.

(d) Transfers to the Company . Nothing contained in the Indenture or in the Securities shall prohibit the sale or other transfer of any Securities (including beneficial interests in Global Securities) to the Company, or any of its Subsidiaries or any of its Affiliates.

Section 2.10 . CUSIP Numbers. The Company in issuing the Securities may use one or more “CUSIP,” “ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP,” “ISIN” or other similar numbers in notices of purchase as a convenience to Holders; provided , however , 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 purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such purchase shall not be affected by any defect in or

 

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omission of such numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP,” “ISIN” or other similar numbers.

ARTICLE 3

R EPURCHASE OF S ECURITIES AT O PTION OF H OLDERS

Section 3.01 . Purchase of Securities at Option of the Holder upon a Fundamental Change. Article 12 of the Base Indenture shall not apply to the Securities. (a) In the event a Fundamental Change shall occur at any time when any Securities remain outstanding, each Holder shall have the right, at such Holder’s option, to require the Company to purchase all of such Holders’ Securities or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof on a date specified by the Company (the “ Fundamental Change Repurchase Date ”) that is not less than 20 nor more than 30 Business Days after the date the Company mails the Fundamental Change Company Notice pursuant to Section 3.01(b) below, at a purchase price in Cash equal to 100% of the principal amount of the Securities tendered for purchase, plus accrued and unpaid interest (including any Additional Interest) (the “ Fundamental Change Repurchase Price ”) to, but not including, the Fundamental Change Repurchase Date, subject to satisfaction by or on behalf of any Holder of the requirements set forth in Section 3.01(d) below. If the Fundamental Change Repurchase Date is after a Record Date and on or prior to the related Interest Payment Date, the interest payable on such Interest Payment Date will be paid to the Holder of record of the Securities on the relevant Record Date (which may or may not be the same Person to whom the Company shall pay the Fundamental Change Repurchase Price) and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of the Securities tendered for purchase. No Securities may be purchased at the option of the Holders upon a Fundamental Change if there has occurred and is continuing an Event of Default other than an Event of Default that is cured by the payment of the Fundamental Change Repurchase Price of the Securities.

A “ Fundamental Change ” shall be deemed to have occurred upon the occurrence of any of the following:

(i) 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 (A) files a Schedule 13D or Schedule TO or any other schedule, form or report under the Exchange Act disclosing such beneficial ownership or (B) the Company otherwise becomes aware of any such person or group; or

(ii) the Common Stock into which the Securities are then convertible ceases to be listed for trading on the NYSE, the NASDAQ Global Select Market or NASDAQ Global Market or another national securities exchange and is not then quoted on an established automated over-the-counter trading market in the United States; or

(iii) 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:

(A) any transaction:

(1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s Capital Stock; and

(2) pursuant to which holders of the Company’s Capital Stock immediately prior to the transaction have the entitlement to exercise, directly or

 

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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 immediately after giving effect to such transaction in substantially the same proportion as their entitlement to exercise, directly or indirectly, voting power of shares of the Company’s Capital Stock entitled to vote generally in elections of the Company’s directors immediately prior to such transaction; or

(B) any transaction 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

(C) any transaction 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 with the intention of, 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.

(iv) the Company’s shareholders approve any plan or proposal for the Company’s liquidation or dissolution.

However, 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 (iii) above consists of shares of common stock, depositary receipts or other certificates representing common equity interests traded or to be traded immediately following such transaction on a U.S. national securities exchange and, as a result of the transaction or transactions, the Securities become convertible into such common stock, depositary receipts or other certificates representing common equity interests (and any rights attached thereto) and other applicable consideration.

A “ Make-Whole Fundamental Change ” shall be deemed to have occurred upon the occurrence of a Fundamental Change described in clause (i) or clause (iii) of the definition of Fundamental Change above (including the preceding paragraph).

For purposes of this Section 3.01, “ person ” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

(b) Notice of Make-Whole Fundamental Change . The Company will give notice of an anticipated Make-Whole Fundamental Change to each Holder (and to beneficial owners as required by applicable law) (to the extent the date of such Make-Whole Fundamental Change may reasonably be anticipated) no later than the 15 ^th Scheduled Trading Day prior to the date on which a Make-Whole Fundamental Change is anticipated to become effective.

(c) Notice of Fundamental Change . Within 15 Business Days after the effective date of each Fundamental Change, the Company shall notify the Trustee of the Fundamental Change Repurchase Date and shall mail or cause to be mailed a written notice of the Fundamental Change (each such notice, a “ Fundamental Change Company Notice ”) to each Holder (and to beneficial owners as required by applicable law) in accordance with Section 1.8 of the Base Indenture. The notice shall include the form of a Fundamental Change Repurchase Notice to be completed by the Holder and shall state, as applicable:

 

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(i) the events causing such Fundamental Change, the Adjustment Date of the Fundamental Change (in the case of a Make-Whole Fundamental Change) and the date of effectiveness of such Fundamental Change;

(ii) that the Holder has a right to require the Company to purchase the Holder’s Securities;

(iii) the date by which the Fundamental Change Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the Fundamental Change purchase right;

(iv) the Fundamental Change Repurchase Date;

(v) the Fundamental Change Repurchase Price;

(vi) the procedures that the Holder must follow to exercise its Fundamental Change purchase right under this Section 3.01;

(vii) the names and addresses of the Paying Agent and the Conversion Agent;

(viii) that the Securities must be surrendered to the Paying Agent to collect payment of the Fundamental Change Repurchase Price;

(ix) that the Fundamental Change Repurchase Price for any Security as to which a Fundamental Change Repurchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Fundamental Change Repurchase Date and the time of surrender of such Security;

(x) the Conversion Rate (after giving effect to any change in the Conversion Rate that resulted from the Fundamental Change);

(xi) that the Securities with respect to which a Fundamental Change Repurchase Notice has been given may be converted pursuant to Article 4 of this First Supplemental Indenture only if either (i) the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this First Supplemental Indenture or (ii) there shall be a default in the payment of the Fundamental Change Repurchase Price;

(xii) the procedures for withdrawing a Fundamental Change Repurchase Notice;

(xiii) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price, interest on Securities surrendered for purchase by the Company shall cease to accrue on and after the Fundamental Change Repurchase Date; and

(xiv) subject to Section 2.10 hereof, the CUSIP number(s) of the Securities.

If any of the Securities are in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures for repurchases.

At the Company’s request, the Trustee shall give the Fundamental Change Company Notice on behalf of the Company and at the Company’s expense; provided , however , that the Company makes such request at least three Business Days (unless a shorter period shall be consented to by the Trustee) prior to the date by

 

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which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 3.01(c); provided further , however , that the text of such notice shall be prepared by the Company.

(d) Fundamental Change Repurchase Notice . A Holder may exercise its right specified in Section 3.01(a) above upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Applicable Procedures) of the exercise of such rights (a “ Fundamental Change Repurchase Notice ”) to, and such Fundamental Change Repurchase Notice must be received by, the Paying Agent no later than the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date. The Fundamental Change Repurchase Notice must state:

(i) if Certificated Securities are to be delivered, the certificate numbers of the Securities that the Holder shall deliver to be purchased;

(ii) the portion of the principal amount of the Securities that the Holder shall deliver to be purchased, which portion must be in principal amounts of $1,000 or an integral multiple thereof; and

(iii) that such Securities are being tendered for and shall be purchased by the Company on the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in this First Supplemental Indenture.

The book-entry transfer or delivery of such Security to the Paying Agent (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price; provided , however , that such Fundamental Change Repurchase Price shall be paid pursuant to this Section 3.01 only if the Security so transferred by book-entry or delivered to the Paying Agent shall conform in all material respects to the description thereof in the related Fundamental Change Repurchase Notice.

The Company shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Section 3.01 that apply to the purchase of all of a Security also apply to the purchase of such a portion of such Security.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.01(d) shall have the right to withdraw such Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.02(b) below.

The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notices or written notices of withdrawal thereof.

(e) Notwithstanding anything herein to the contrary, in the case of Global Securities, any Fundamental Change Repurchase Notice may be delivered or withdrawn, and such Securities may be surrendered or transferred by book-entry or delivered for purchase, in accordance with the Applicable Procedures.

Section 3.02 . Effect of Fundamental Change Repurchase Notice. (a) Upon receipt by the Paying Agent of a Fundamental Change Repurchase Notice, the Holder of the Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice

 

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is withdrawn as specified below) thereafter be entitled to receive the Fundamental Change Repurchase Price with respect to such Security. Such Fundamental Change Repurchase Price shall be paid to such Holder on the later of (i) the Fundamental Change Repurchase Date ( provided such Holder has satisfied the conditions in Section 3.01(d) above with respect to such Security) and (ii) the time of book-entry transfer or delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 3.01(d) above. A Security in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 4 hereof on or after the date of the delivery of such Fundamental Change Repurchase Notice, unless either (i) such Fundamental Change Repurchase Notice has first been validly withdrawn in accordance with Section 3.02(b) below; or (ii) there shall be a default in the payment of the Fundamental Change Repurchase Price, provided , that the conversion right with respect to such Security shall terminate at the Close of Business on the date such default is cured and such Security is purchased in accordance herewith.

(b) A Fundamental Change Repurchase Notice may be withdrawn by any Holder delivering such Fundamental Change Repurchase Notice upon delivery of a written notice of withdrawal (which may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Applicable Procedures) to and such notice of withdrawal must be received by the Paying Agent at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:

(i) if Certificated Securities are to be withdrawn, the certificate numbers of the Securities in respect of which such notice of withdrawal is being submitted;

(ii) the principal amount of the Securities in respect of which such notice of withdrawal is being submitted, which principal amount must be $1,000 or an integral multiple thereof; and

(iii) the principal amount, if any, of the Securities that remains subject to the original Fundamental Change Repurchase Notice and that has been or shall be delivered for purchase by the Company.

Section 3.03 . Deposit of Fundamental Change Repurchase Price. On or prior to 11:00 a.m., New York City time, on a Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04 hereof) an amount in Cash (in immediately available funds if deposited on such Fundamental Change Repurchase Date) sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Securities or portions thereof that are to be purchased on that Fundamental Change Repurchase Date.

If the Paying Agent holds, in accordance with the terms hereof, at 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, Cash sufficient to pay the aggregate Fundamental Change Repurchase Price of all Securities for which a Fundamental Change Repurchase Notice has been delivered and not validly withdrawn in accordance with this First Supplemental Indenture, then, on and after such Fundamental Change Repurchase Date, such Securities shall cease to be outstanding and interest (including any Additional Interest) on such Securities shall cease to accrue, whether or not such Securities are transferred by book-entry or delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery of such Securities by their Holders to the Paying Agent).

Section 3.04 . Securities Purchased in Part. Any Certificated Security that is to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due

 

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endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and promptly after a Fundamental Change Repurchase Date, the Company shall issue and the Trustee shall, upon receipt of an Order from the Company (which the Company agrees to deliver promptly), authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of such authorized denomination or denominations as may be requested by such Holder, in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered that is not purchased.

Section 3.05 . Repayment to the Company. To the extent that the aggregate amount of Cash deposited by the Company pursuant to Section 3.03 above exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof that the Company is obligated to purchase on the Fundamental Change Repurchase Date, then, within one Business Day after the Fundamental Change Repurchase Date, the Paying Agent shall return any such excess Cash to the Company.

Section 3.06 . Compliance with Securities Laws upon Purchase of Securities. When complying with the provisions of Article 3 hereof ( provided that such offer or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or purchase), and subject to any exemptions available under applicable law, the Company shall:

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

(b) otherwise comply with all federal and state securities laws so as to permit the rights and obligations in connection with any purchase pursuant to this Article 3 to be exercised in the time and in the manner specified herein.

ARTICLE 4

C ONVERSION

Section 4.01 . Conversion Privilege. The Securities shall be convertible in accordance with their terms and in accordance with and subject to this Article 4 into a number of shares of Common Stock equal to the Conversion Rate, subject to the provisions of Section 4.02 below regarding fractional shares, at any time prior to the Close of Business on the Business Day immediately preceding the Maturity Date. Securities may be converted only in denominations of $1,000 principal amount and integral multiples thereof.

Section 4.02 . Conversion Rate. (a) The Securities shall be convertible into a number of shares of Common Stock at an initial conversion rate (the “ Initial Conversion Rate ”) of 164.0420 shares of Common Stock (subject to adjustments as provided in Section 4.02(c), Section 4.06 and Section 4.11 of this First Supplemental Indenture, as so adjusted from time to time, the “ Conversion Rate ”) per $1,000 principal amount of Securities.

A Holder of a Security otherwise entitled to a fractional share will receive Cash in an amount equal to the value of such fractional share based on the Closing Price of the Common Stock on the related Conversion Date.

A Security for which a Holder has delivered a Fundamental Change Repurchase Notice requiring the Company to purchase the Securities may be surrendered for conversion only if such notice is withdrawn in accordance with this First Supplemental Indenture.

 

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(b) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, then the Conversion Rate of the Securities being converted by such Holder shall be increased by an additional number of shares of Common Stock (the “ Additional Shares ”) set forth in Exhibit B. For the avoidance of doubt, the increases provided for in this Section 4.02(b) shall only be made with respect to the Securities being converted in connection with such Make-Whole Fundamental Change and shall not be effective as to any Securities not so converted. For purposes of this Section 4.02(b), a conversion shall be deemed to be “in connection” with a Make-Whole Fundamental Change if it occurs during the period that begins on (and includes) the 15th Scheduled Trading Day prior to the anticipated effective date of such Make-Whole Fundamental Change, as specified pursuant to the notice provided pursuant to Section 3.01(b) hereof, and ends on (and includes) the Fundamental Change Repurchase Date relating to such Make-Whole Fundamental Change as set forth in Article 3 hereof.

(c) The increase in the Conversion Rate, expressed as a number of Additional Shares to be received per $1,000 principal amount of Securities, will be determined by the Company by reference to the table attached as Exhibit B hereto, based on the earliest of the date on which the Make-Whole Fundamental Change is publicly announced, occurs or becomes effective (the “ Adjustment Date ”) and the price paid or deemed to be paid per share of Common Stock in the transaction constituting the Make-Whole Fundamental Change (the “ Stock Price ”) subject to adjustment as set forth in the next paragraph; provided that if a Holder of the Common Stock receives only Cash in connection with such transaction, the Stock Price shall be the Cash amount paid per share. In all other cases, the Stock Price will be the average of the Closing Prices of the Common Stock over the thirty consecutive Trading Days prior to, but not including, the date of effectiveness of the Make-Whole Fundamental Change. If the Stock Price is between two Stock Prices in the table or the Adjustment Date is between two Adjustment Dates in the table, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Adjustment Dates based on a 365-day year, as applicable. If the Stock Price is in excess of $50.00 per share (subject to adjustment in the same manner as the Stock Price), no increase in the Conversion Rate will be made and if the Stock Price is less than $5.08 per share (subject to adjustment in the same manner as the Stock Price), no increase in the Conversion Rate will be made. Notwithstanding anything to the contrary, in no event will the number of Additional Shares to be added to the Conversion Rate pursuant to Section 4.02(b) above and this Section 4.02(c) exceed 32.8084 shares (subject to adjustment in the same manner in which the Conversion Rate is adjusted, as set forth in Section 4.06 hereof) per $1,000 principal amount of Securities.

The Stock Prices set forth in the first row of the table attached as Exhibit B hereto will be adjusted as of any date on which the Conversion Rate is adjusted, as set forth in Section 4.06 hereof. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate 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 will be adjusted in the same manner as the Conversion Rate as set forth in Section 4.06 hereof.

Securities surrendered for conversion in connection with a Make-Whole Fundamental Change will be settled as follows:

 

•

If the Conversion Date occurs prior to the date of effectiveness of such Make-Whole Fundamental Change, settlement shall occur on the third Trading Day immediately following such date of effectiveness; and

 

•

If the Conversion Date occurs on or following the date of effectiveness of such Make-Whole Fundamental Change, settlement shall occur on the third Trading Day immediately following such Conversion Date.

 

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The Company will settle such conversions by delivering Reference Property equivalent to shares of the Common Stock based on the increased Conversion Rate resulting from such Make-Whole Fundamental Change.

Notwithstanding the foregoing, if the Reference Property with respect to a Make-Whole Fundamental Change consists entirely of Cash, (i) the applicable Stock Price used to determine the amount of Cash payable upon conversion of the Securities in connection with a Make-Whole Fundamental Change will be the actual amount of Cash paid per share of Common Stock in such Make-Whole Fundamental Change and (ii) Securities surrendered for conversion in connection with such Make-Whole Fundamental Change will be settled as follows:

 

•

If the Conversion Date occurs prior to the date of effectiveness of such Make-Whole Fundamental Change, settlement shall occur on the third Business Day immediately following such date of effectiveness; and

 

•

If the Conversion Date occurs on or following the date of effectiveness of such Make-Whole Fundamental Change, settlement shall occur on the third Business Day following such Conversion Date.

For the avoidance of doubt, in the event Securities are surrendered for conversion in connection with an anticipated Make-Whole Fundamental Change and such Make-Whole Fundamental Change does not in fact occur, no Additional Shares will be added to the Conversion Rate and no additional Cash or Reference Property will be paid as a result of the related anticipated Make-Whole Fundamental Change, and settlement shall occur on the third Business Day following the date on which the transaction giving rise to the anticipated Make-Whole Fundamental Change is terminated or abandoned.

Section 4.03 . Conversion Procedure. (a) The right of conversion attaching to any Security may be exercised at any time during which conversion is permitted in accordance with Section 4.01 hereof (i) if such Security is represented by a Global Security, by book-entry transfer to the Conversion Agent through the facilities of the Depositary in accordance with the Applicable Procedures, or (ii) if such Security is represented by a Certificated Security, by delivery of such Security at the specified office of the Conversion Agent, accompanied, in either case, by