First Supplemental Indenture

Exhibit 4.2

EXECUTION VERSION

MASSEY ENERGY COMPANY

AND

THE GUARANTORS PARTY HERETO

 

First Supplemental Indenture

Dated as of August 12, 2008

 

Wilmington Trust Company,

Trustee

3.25% Convertible Senior Notes due 2015

TABLE OF CONTENTS

 

 

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THIS FIRST SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”) is made as of the 12 ^th day of August, 2008, by and among MASSEY ENERGY COMPANY, a Delaware corporation, having its principal office at 4 North 4th Street, Richmond, Virginia 23219 (the “ Company ”), the guarantors listed on the signature pages hereto, and Wilmington Trust Company, a Delaware banking corporation, as trustee (herein called the “ Trustee ”).

WITNESSETH:

WHEREAS, the Company and the Guarantors have heretofore entered into an Indenture, dated as of August 12, 2008 (the “ Base Indenture ”), with the Trustee;

WHEREAS, the Base Indenture is incorporated herein by this reference and the Base Indenture, as may be amended and supplemented to the date hereof, including by this First Supplemental Indenture, is herein called the “ Indenture ”;

WHEREAS, under the Indenture, a new series of Securities may at any time be established in accordance with the provisions of the Indenture and the terms of such series may be described by a supplemental indenture executed by the Company and the Trustee;

WHEREAS, the Company hereby proposes to create under the Indenture a new series of Securities; and

WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental Indenture and to make it a valid and binding obligation of the Company and the Guarantors have been done or performed.

NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

Definitions and Incorporation by Reference

Section 1.01 Establishment .

There is hereby established a new series of Securities to be issued under the Indenture, to be designated as the Company’s 3.25% Convertible Senior Notes due 2015 (the “ Notes ”).

The Notes and the form of the Trustee’s Certificate of Authentication for the Notes shall be in substantially the form set out in Exhibit A hereto.

Each Note shall be dated the date of authentication thereof and shall bear interest from the date of original issuance thereof or from the most recent Interest Payment Date to which interest has been paid or duly provided for.

Section 1.02 Definitions .

Capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Base Indenture. The following definitions supplement, and, to the extent inconsistent with, replace the definitions in Article One of the Base Indenture:

“ Asset Sale Make-Whole Fundamental Change ” means a sale, transfer, lease, conveyance or other disposition of all or substantially all of the Company’s property or assets to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (other than a Listed Stock Business Combination).

“ Bid Solicitation Agent ” means a Company-appointed agent that performs calculations as set forth in Article X hereof.

“ Capital Stock ” of any Person means any and all shares, interests, participations or other equivalents (however designated) of equity securities of such Person and all warrants or options to acquire such equity securities but excluding debt securities convertible or exchangeable for such equity securities.

“ Closing Sale Price ” means the price of a share of Common Stock on the relevant date, determined (a) on the basis of the closing sale price per share of Common Stock (or if no closing sale price per share of Common Stock is reported, the average of the bid and ask prices per share of Common Stock or, if more than one in either case, the average of the average bid and the average ask prices per share of Common Stock) on such date on the U.S. principal national securities exchange on which the Common Stock is listed; or (b) if the Common Stock is not listed on a U.S. national securities exchange, as reported by Pink Sheets LLC or a similar organization. In the absence of a quotation, the Closing Sale Price shall be such price as the Company shall reasonably determine on the basis of such quotations as most accurately reflecting the price that a fully informed buyer, acting on his own accord, would pay to a fully informed seller, acting on his own accord in an arm’s-length transaction, for a share of such Common Stock.

“ Common Stock ” means the common stock, $0.625 par value per share, of the Company, or such other Capital Stock of the Company into which the Company’s common stock is reclassified or changed.

“ Common Stock Change Make-Whole Fundamental Change ” means any transaction or series of related transactions (other than a Listed Stock Business Combination), in connection with which (whether by means of an exchange offer, liquidation, tender offer, consolidation, amalgamation, statutory arrangement, merger, combination, reclassification, recapitalization or otherwise) the Common Stock is exchanged for, converted into, acquired for or constitutes solely the right to receive other securities, other property, assets or cash.

“ Conversion Date ” means, with respect to a Note to be converted in accordance with Article X, the date on which the Holder of such Note satisfies all the requirements for such conversion set forth in Article X; provided , however , that if such date is not a Trading Day, then the Conversion Date shall be deemed to be the next day that is a Trading Day.

 

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“ Conversion Price ” means, as of any date of determination, the dollar amount derived by dividing one thousand dollars ($1,000) by the Conversion Rate in effect on such date.

“ Conversion Rate ” shall initially be 11.4106 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as provided in Article X.

“ DTC ” means The Depository Trust Company, its nominees and successors.

“ Guarantors ” means (i) initially each party listed on the signature pages hereto and (ii) each of the Company’s Subsidiaries that becomes a Guarantor of the Notes pursuant to the provisions of this Indenture, in each case until released pursuant to the applicable provisions of this Indenture.

“ Indebtedness ” of a person means the principal of, premium, if any, and interest on, and all other obligations in respect of (a) all indebtedness of such person for borrowed money (including all indebtedness evidenced by notes, bonds, debentures or other securities), (b) all obligations (other than trade payables) incurred by such person in the acquisition (whether by way of purchase, merger, consolidation or otherwise and whether by such person or another person) of any business, real property or other assets, (c) all reimbursement obligations of such person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such person, (d) all capital lease obligations of such person, (e) all net obligations of such person under interest rate swap, currency exchange or similar agreements of such person, (f) all obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase agreement, conditional sale or other title retention agreement, in connection with the lease of real property or improvements thereon (or any personal property included as part of any such lease) which provides that such person is contractually obligated to purchase or cause a third party to purchase the leased property or pay an agreed-upon residual value of the leased property, including such person’s obligations under such lease or related document to purchase or cause a third party to purchase such leased property or pay an agreed-upon residual value of the leased property to the lessor, (g) guarantees by such person of indebtedness described in clauses (a) through (f) of another person, and (h) all renewals, extensions, refundings, deferrals, restructurings, amendments and modifications of any indebtedness, obligation, guarantee or liability of the kind described in clauses (a) through (g).

“ Issue Date ” means August 12, 2008.

“ Make-Whole Fundamental Change ” means an Asset Sale Make-Whole Fundamental Change or a Common Stock Change Make-Whole Fundamental Change.

“ Market Disruption Event ” means either (i) a failure by the primary United States national securities exchange or market on which the Common Stock is listed or admitted to trading to open for trading during its regular trading session; or (ii) the occurrence or existence prior to 1:00 p.m. on any Trading Day for the Common Stock for an aggregate of at least thirty (30) minutes 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 futures contracts relating to the Common Stock.

 

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“ Maturity Date ” means August 1, 2015.

“ Note Guarantee ” means a guarantee of the Notes by a Guarantor.

“ Notes ” means the 3.25% Convertible Senior Notes due 2015 established by this Supplemental Indenture and issued by the Company pursuant to the Indenture.

“ Notes Agent ” means any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or co-Registrar or co-agent.

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

“ Purchase Notice ” means a Purchase Notice in the form set forth in the Notes.

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

“ SEC ” means the Securities and Exchange Commission and any successor agency or regulatory body.

“ Trading Day ” means any day during which all of the following conditions are satisfied: (i) trading in the Common Stock generally occurs; and (ii) there is no Market Disruption Event.

“ Trading Price ” means, on any date, the average of the secondary market bid quotations for the Notes obtained by the Bid Solicitation Agent for five million dollars ($5,000,000) principal amount of Notes at approximately 4:00 p.m., New York City time, on such day, from three (3) independent nationally recognized securities dealers selected by the Company; provided , that if the Bid Solicitation Agent can reasonably obtain only two (2) such bids, then the average of such two (2) bids shall instead be used; provided further , that if the Bid Solicitation Agent can reasonably obtain only one (1) such bid, then such bid shall instead be used; provided further , that if, on a given date, the Bid Solicitation Agent cannot reasonably obtain at least one (1) bid for five million dollars ($5,000,000) principal amount of Notes from an independent nationally recognized securities dealer selected by the Company, or if, in the reasonable, good faith judgment of the Board of Directors, which judgment shall be described in a Board Resolution, the bid quotation or quotations so obtained by the Bid Solicitation Agent are not indicative of the secondary market value of the Notes, then, in each case, the Trading Price per $1,000 principal amount of Notes on such date shall be deemed to be equal to 97% the product of (I) the Closing Sale Price on such date and (II) the Conversion Rate in effect on such date.

“ Voting Stock ” of any Person means the total voting power of all classes of the Capital Stock of such Person then outstanding entitled to vote generally in the election of directors of such Person.

 

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Section 1.03 Other Definitions .

 

 

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Section 1.04 Incorporation by Reference of Trust Indenture Act .

Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.

The following Trust Indenture Act terms used in this Indenture have the following meanings:

“ Commission ” means the SEC;

“ indenture securities ” means the Notes;

“ indenture security holder ” means a Holder;

“ indenture to be qualified ” means this Indenture;

“ indenture trustee ” or “ institutional trustee ” means the Trustee; and

“ obligor ” on the indenture securities means the Company, the Guarantors or any of their successors.

All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by the Trust Indenture Act by reference to another statute or defined by SEC rule under the Trust Indenture Act and not otherwise defined herein have the meanings so assigned to them.

Section 1.05 Rules of Construction .

Unless the context otherwise requires:

(i) a term has the meaning assigned to it;

(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in effect from time to time;

(iii) “or” is not exclusive;

(iv) “including” means “including without limitation”;

(v) words in the singular include the plural and in the plural include the singular;

 

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(vi) provisions apply to successive events and transactions;

(vii) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture; and

(viii) references to currency shall mean the lawful currency of the United States of America, unless the context requires otherwise.

Section 1.06 Relation to Base Indenture .

The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided. In the event that conflict arises between the terms of the Base Indenture and the terms of this Supplemental Indenture, the terms of this Supplemental Indenture shall be controlling and supersede such conflicting terms of the Base Indenture. Unless otherwise specifically modified or amended hereby, the terms of the Base Indenture shall be in full force and effect with respect to the Notes.

ARTICLE II

The Notes

Section 2.01 Form and Dating .

The Notes and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in and forms a part of this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication.

The Notes shall be issued initially in the form of one or more Global Notes, substantially in the form set forth in Exhibit A (the “ Global Note ”), deposited with the Trustee, as custodian for DTC (who shall be the initial Depositary with respect to the Notes), duly executed by the Company and authenticated by the Trustee and bearing the legend set forth in Exhibit B. The aggregate principal amount of any Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided; provided , that, except as permitted by Section 2.13, in no event shall the aggregate principal amount of the Global Note or Notes exceed $690,000,000.

Notes issued in exchange for interests in a Global Note pursuant to Section 2.13 may be issued in the form of permanent certificated Notes in registered form in substantially the form set forth in Exhibit A (the “ Physical Notes ”) and, if applicable, bearing any legends required hereby but not bearing the legend set forth in Exhibit B.

The Notes shall be denominated in U.S. dollars, and all payments due thereon shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts or such other form of consideration as set forth herein. All references herein and in the Notes to “dollars” or “$” are to U.S. dollars or such other coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Notes

 

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

Section 2.02 Execution and Authentication of Notes .

Upon a Company Order, the Trustee shall authenticate Notes for original issue in the aggregate principal amount of $690,000,000.

Section 2.03 Registrar, Paying Agent and Conversion Agent .

The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”), an office or agency where Notes may be presented for payment (“ Paying Agent ”) and an office or agency where Notes may be presented for conversion (“ Conversion Agent ”). The Corporate Trust Office shall serve as the office or agency for the aforementioned purposes. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint or change one or more co-Registrars, one or more additional paying agents and one or more additional conversion agents without notice and may act in any such capacity on its own behalf. The term “ Registrar ” includes any co-Registrar; the term “ Paying Agent ” includes any additional paying agent; and the term “ Conversion Agent ” includes any additional conversion agent.

The Company shall enter into an appropriate agency agreement with any Notes Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Notes Agent. The Company shall notify the Trustee of the name and address of any Notes Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such.

The Company initially appoints the Trustee as Paying Agent, Bid Solicitation Agent, Registrar and Conversion Agent.

For avoidance of doubt, this Section 2.03 shall, for purposes of the Notes, replace Section 1002 of the Base Indenture to the extent this Section 2.03 is inconsistent or conflicts with such Section 1002.

Section 2.04 Paying Agent to Hold Money in Trust .

Each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all moneys held by the Paying Agent for the payment of the Notes, and shall notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for such money. If the Company acts as Paying Agent, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent.

 

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Section 2.05 Transfer and Exchange .

No service charge shall be made for any transfer, exchange or conversion of Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Section 304 or 906 of the Base Indenture not involving any transfer or Sections 10.02 or 10.05, or Article III, not involving any transfer. This paragraph shall replace the sixth (6 ^th ) paragraph of Section 305 of the Base Indenture for purposes of the Notes.

The Company or the Trustee, as the case may be, shall not be required to register the transfer of or exchange any Note for which a Purchase Notice has been delivered, and not withdrawn, in accordance with this Indenture, except the unrepurchased portion of Notes being repurchased in part. This paragraph shall replace the seventh (7 ^th ) paragraph of Section 305 of the Base Indenture for purposes of the Notes.

Section 2.06 Outstanding Notes .

If the Paying Agent (other than the Company) holds on a Fundamental Change Repurchase Date or Maturity Date, money sufficient to pay the aggregate Fundamental Change Repurchase Price or principal amount, as the case may be, with respect to all Notes to be paid upon Repurchase Upon Fundamental Change upon the exercise by Holders of their repurchase rights or maturity, as the case may be, in each case plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Fundamental Change or maturity in accordance with the terms of this Indenture, then (unless there shall be a Default in the payment of such aggregate Fundamental Change Repurchase Price or principal amount, or of such accrued and unpaid interest), except as otherwise provided herein, on and after such date such Notes shall be deemed to be no longer outstanding, interest on such Notes shall cease to accrue, and such Notes shall be deemed paid whether or not such Notes are delivered to the Paying Agent. Thereafter, all rights of the Holders of such Notes shall terminate with respect to such Notes, other than the right to receive the Fundamental Change Repurchase Price or principal amount, as the case may be, plus, if applicable, such accrued and unpaid interest, in accordance with this Indenture.

If a Note is converted in accordance with Article X, then, from and after the time of such conversion on the Conversion Date, such Note shall cease to be outstanding, and interest, if any, shall cease to accrue on such Note unless there shall be a Default in the payment or delivery of the consideration payable hereunder upon such conversion.

For purposes of the Notes, this Section 2.06 shall supersede and modify the definition of “Outstanding” under the Base Indenture to the extent this Section 2.06 is inconsistent or conflicts with such definition.

Section 2.07 Payment of Principal and Interest .

(A) The principal of the Notes shall be due at the Maturity Date (unless earlier converted or repurchased by the Company). The unpaid principal amount of the Notes shall bear interest at the rate of 3.25% per annum until paid or duly provided for, such interest to accrue from August 12, 2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided for.

 

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Interest shall be paid semi-annually in arrears, commencing on February 1, 2009, on February 1 and August 1 of each calendar year (each, an “ Interest Payment Date ”) to the Person or Persons in whose name the Notes are registered on the immediately preceding January 15 and July 15 of each calendar year (each, the “ Regular Record Date ” for the respective Interest Payment Date). Any such interest that is not so punctually paid or duly provided for shall forthwith cease to be payable to the Holders on such Regular Record Date and may either be paid to the Person or Persons in whose name the Notes are registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee (“ Special Record Date ”), notice whereof shall be given to Holders of the Notes not less than ten (10) days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange, if any, on which the Notes may be listed, and upon such notice as may be required by any such exchange, all as more fully provided in the Base Indenture.

(B) Payments of interest on the Notes shall include interest accrued to but excluding the respective Interest Payment Dates or, to the extent applicable, the Fundamental Change Repurchase Date, as the case may be. Payments of interest for the Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date shall be made on the next succeeding day that is a Business Day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable and no additional interest will accrue on that payment from and after the date on which the interest is payable to the date of that payment on the next succeeding Business Day.

(C) Payments of principal of and interest on Notes represented by a Global Note shall be made by wire transfer of immediately available funds to the account designated by the Depositary for the Notes or its nominee. In the case of a Note that is held, other than global form, by a Holder of more than five million dollars ($5,000,000) in aggregate principal amount of Notes, payments of principal and interest shall be made by wire transfer of immediately available funds to the account specified by such Holder or, if such Holder does not specify an account, by mailing a check to the address of such Holder set forth in the register of the Registrar. In the case of a Note that is held, other than global form, by a Holder of five million dollars ($5,000,000) or less in aggregate principal amount of Notes, payments of principal and interest shall be made by mailing a check to the address of such Holder set forth in the register of the Registrar.

(D) If any payment date, whether an Interest Payment Date, a date on which payment is due at Maturity, or a date on which payment is due upon a Fundamental Change Repurchase Date, falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business Day with the same force and effect as if made on the date that the payment was due and no additional interest will accrue on that payment for the period from and after such payment date that is not a Business Day to the date of that payment on the next succeeding Business Day.

 

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Section 2.08 No Sinking Fund .

There shall be no sinking fund with respect to the Notes, and Article Twelve of the Base Indenture shall not apply to the Notes.

Section 2.09 Defaulted Interest .

If and to the extent the Company defaults in a payment of interest on the Notes, the Company shall pay in cash the defaulted interest in any lawful manner plus, to the extent not prohibited by applicable statute or case law, interest on such defaulted interest at the rate provided in the Notes. The Company may pay the defaulted interest (plus interest on such defaulted interest to the extent lawful) to the persons who are Holders on a subsequent Special Record Date as provided in 307 of the Base Indenture.

Section 2.10 Deposit of Moneys .

Prior to 11:00 A.M., New York City time, on each Interest Payment Date, Maturity Date or Fundamental Change Repurchase Date, the Company shall have deposited with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 1003 of the Base Indenture) money, in funds immediately available on such date, sufficient to make cash payments, if any, due on such Interest Payment Date, Maturity Date or Fundamental Change Repurchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date or Fundamental Change Repurchase Date, as the case may be. For purposes of the Notes, the terms “at or prior to 11:00 A.M., New York City time, on” shall be deemed to replace the first instance, in each case, of the words “on or before” in the first paragraph of Section 1003 of the Base Indenture and “on or prior to” in the second paragraph of Section 1003 of the Base Indenture.

Section 2.11 Book-Entry Provisions for Global Notes .

(A) The Global Notes initially shall (i) be registered in the name of the Depositary for the Notes or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as required hereby.

Members of, or participants in, the Depositary for the Notes (“ Participants ”) shall have no direct rights under this Indenture with respect to any Global Note held on their behalf by such Depositary, or the Trustee as its custodian, or under the Global Note, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by such Depositary or impair, as between such Depositary and Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Note.

(B) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the Depositary for the Notes, its successors or their respective nominees. Notwithstanding clause (2) of the eighth (8 ^th ) paragraph of Section 305 of the Base Indenture, Physical Notes shall be transferred to all beneficial owners, as identified by such Depositary, in exchange for their beneficial interests

 

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in Global Notes only if (i) such Depositary notifies the Company that such Depositary is unwilling or unable to continue as depositary for any Global Note (or such Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by the Company within ninety (90) days of such notice or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from such Depositary to issue Physical Notes. This Section 2.11(B) shall replace clause (2) of the eighth (8 ^th ) paragraph of Section 305 of the Base Indenture for purposes of the Notes.

(C) In connection with the transfer of a Global Note in its entirety to beneficial owners pursuant to Section 2.11(B), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written instructions from the Company authenticate and deliver, to each beneficial owner identified by the Depositary for the Notes in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations.

(D) The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Notes.

Section 2.12 Ranking .

The Indebtedness of the Company arising under or in connection with this Indenture and every outstanding Note issued under this Indenture from time to time constitutes and will constitute a senior unsecured obligation of the Company, ranking equally with other existing and future senior unsecured Indebtedness of the Company and ranking senior to any existing or future subordinated Indebtedness of the Company.

Section 2.13 Additional Notes .

The Company may, without the consent of the Holders and notwithstanding Sections 2.01 and 2.02 hereof, reopen the Notes and issue “ Additional Notes ” hereunder with the same terms and conditions (except for any difference in the issue price therefor and interest accrued prior to the date of issuance thereof) and with the same CUSIP 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 such Additional Notes constitute the same issue as the Notes initially issued hereunder for U.S. federal income tax purposes. The Notes initially issued hereunder and any such Additional Notes would rank equally and ratably and would be treated as a single series of debt securities for all purposes under the Indenture.

ARTICLE III

Redemption and Repurchase

This Article III shall apply to the Notes in lieu of Article Eleven of the Base Indenture, which shall be deemed to be replaced in its entirety by this Article III for purposes of the Notes.

 

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Section 3.01 No Right of Redemption .

(A) The Notes are not subject to redemption at the Company’s option, and Article Eleven of the Base Indenture shall not apply to the Notes.

Section 3.02 Repurchase at Option of Holder Upon a Fundamental Change .

(A) In the event any Fundamental Change shall occur, each Holder of Notes shall have the right (the “ Fundamental Change Repurchase Right ”), at such Holder’s option, to require the Company to repurchase (a “ Repurchase Upon Fundamental Change ”) all of such Holder’s Notes (or portions thereof that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the “ Fundamental Change Repurchase Date ”), which Fundamental Change Repurchase Date shall be no later than thirty-five (35) days, nor earlier than twenty (20) days, after the date the Fundamental Change Notice (as defined below) is mailed in accordance with Section 3.02(B), at a price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Notes (or portions thereof) to be so repurchased (the “ Fundamental Change Repurchase Price ”), plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, upon:

(i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice, no later than the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth in the Notes or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:

(a) the certificate number(s) of the Notes which the Holder will deliver to be repurchased, if such Notes are in certificated form;

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

(c) that such principal amount of Notes are to be repurchased pursuant to the terms and conditions specified in this Indenture; and

(ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice, at any time after the delivery of such Purchase Notice, of such Notes (together with all necessary endorsements) with respect to which the Fundamental Change Repurchase Right is being exercised;

provided , however , that if such Fundamental Change Repurchase Date is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be paid on such Interest Payment Date to the Holder of record of such Notes at the close of business on such Regular Record Date (without any surrender of such Notes by such Holder), and the Holder surrendering such Notes for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Notes at the close of business on such Regular Record Date.

 

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If such Notes are held in book-entry form through the Depositary for the Notes, the Purchase Notice and any notice of withdrawal shall comply with applicable procedures of such Depositary.

Upon such delivery of Notes to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery.

Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section 3.02(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.02(B)(xi).

The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.

(B) Within twenty (20) Business Days after the occurrence of a Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Notes at their addresses shown in the securities register of the Registrar, and to beneficial owners as required by applicable law, a notice (the “ Fundamental Change Notice ”) of the occurrence of such Fundamental Change and the Fundamental Change Repurchase Right arising as a result thereof. The Company shall deliver a copy of the Fundamental Change Notice to the Trustee and shall cause a copy to be published at the expense of the Company in T HE N EW Y ORK T IMES or T HE W ALL S TREET J OURNAL or another newspaper of national circulation.

Each Fundamental Change Notice shall state:

(i) the events causing the Fundamental Change;

(ii) the date of such Fundamental Change;

(iii) the Fundamental Change Repurchase Date;

(iv) the date by which the Fundamental Change Repurchase Right must be exercised;

(v) the Fundamental Change Repurchase Price;

(vi) that there will be paid accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date (except as provided in clause (x) below);

 

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

(viii) a description of the procedures which a Holder must follow to exercise the Fundamental Change Repurchase Right;

(ix) that, in order to exercise the Fundamental Change Repurchase Right, the Notes must be surrendered (together with all necessary endorsements) for payment of the Fundamental Change Repurchase Price plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Fundamental Change;

(x) that the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, for any Note as to which a Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event later than the later of such Fundamental Change Repurchase Date and the time of delivery of the Note (together with all necessary endorsements) as described in clause (viii) above; provided , however , that if such Fundamental Change Repurchase Date is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be paid on such Interest Payment Date to the Holder of record of such Note at the close of business on such Regular Record Date (without any surrender of such Notes by such Holder), and the Holder surrendering such Note for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Note at the close of business on such Regular Record Date;

(xi) that, except as otherwise provided herein, on and after such Fundamental Change Repurchase Date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change), interest on Notes subject to Repurchase Upon Fundamental Change will cease to accrue, and all rights of the Holders of such Notes shall terminate, other than the right to receive, in accordance herewith, the consideration payable as herein provided upon Repurchase Upon Fundamental Change;

(xii) that a Holder will be entitled to withdraw its election in the Purchase Notice if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, or such longer period as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to have Notes purchased by the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the certificate number(s) of such Notes to be so withdrawn, if such Notes are in certificated form, (IV) the principal amount of the Notes of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the principal amount, if any, of the Notes of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.02, which amount must be $1,000 or an integral multiple thereof;

 

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(xiii) the Conversion Rate and any adjustments to the Conversion Rate that will result from such Fundamental Change;

(xiv) that Notes with respect to which a Purchase Notice is given by a Holder may be converted pursuant to Article X, if otherwise convertible in accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this Section 3.02 or if there shall be a Default in the payment of the Fundamental Change Repurchase Price or in the accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Fundamental Change; and

(xv) the CUSIP number or numbers, as the case may be, of the Notes.

At the Company’s request, upon reasonable prior notice, the Trustee shall mail such Fundamental Change Notice in the Company’s name and at the Company’s expense; provided , however , that the form and content of such Fundamental Change Notice shall be prepared by the Company.

No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right to exercise a Fundamental Change Repurchase Right. In the event that the Company fails to give a Fundamental Change Notice, the Holders may exercise their Fundamental Change Repurchase Rights from the final date upon which the Company was required to give the Fundamental Change Notice.

(C) Subject to the provisions of this Section 3.02, the Company shall pay, or cause to be paid, the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, with respect to each Note as to which the Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as promptly as practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the time such Note is surrendered to the Paying Agent; provided , however , that if such Fundamental Change Repurchase Date is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be paid on such Interest Payment Date to the Holder of record of such Note at the close of business on such record date, and the Holder surrendering such Note for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Note at the close of business on such Regular Record Date.

(D) Prior to 11:00 A.M., New York City time on a Fundamental Change Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 1003 of the Base Indenture) money, in funds immediately available on the Fundamental Change Repurchase Date, sufficient to pay the consideration payable as herein provided upon Repurchase Upon Fundamental Change for all of the Notes that are to be repurchased by the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change. The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

 

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(E) Once the Fundamental Change Notice and the Purchase Notice have been duly given in accordance with this Section 3.02, the Notes to be repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the Fundamental Change Repurchase Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change), except as otherwise herein provided, such Notes shall cease to be outstanding and to bear interest, and all rights of the Holders of such Notes shall terminate, other than the right to receive, in accordance herewith, such consideration.

(F) Notes with respect to which a Purchase Notice has been duly delivered in accordance with this Section 3.02 may be converted pursuant to Article X, if otherwise convertible in accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this Section 3.02 or if there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change.

(G) If any Note shall not be paid upon surrender thereof for Repurchase Upon Fundamental Change, the principal of, and accrued and unpaid interest on, such Note shall, until paid, bear interest, payable in cash, at the rate borne by such Note on the principal amount of such Note, and such Note shall continue to be convertible pursuant to Article X.

(H) Any Note which is to be submitted for Repurchase Upon Fundamental Change only in part shall be delivered pursuant to this Section 3.02 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Note not duly submitted for Repurchase Upon Fundamental Change.

(I) Notwithstanding anything herein to the contrary, there shall be no purchase of any Notes pursuant to this Section 3.02 if the principal amount of the Notes has been accelerated pursuant to Section 502 of the Base Indenture and such acceleration shall not have been rescinded on or before the applicable Fundamental Change Repurchase Date. The Paying Agent will promptly return to the respective Holders thereof any Notes tendered to it for Repurchase Upon Fundamental Change during the continuance of such an acceleration.

(J) Notwithstanding anything herein to the contrary, if the option granted to Holders to require the repurchase of the Notes upon the occurrence of a Fundamental Change is determined to constitute a tender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

(K) As used herein and in the Notes, a “ Fundamental Change ” shall be deemed to have occurred upon the occurrence of either a “Change in Control” or a “Termination of Trading.”

 

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(i) A “ Change in Control ” shall be deemed to have occurred at such time as:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total outstanding voting power of all of the Company’s Voting Stock; or

(b) there occurs a sale, transfer, lease, conveyance or other disposition of all or substantially all of the Company’s property or assets to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act; or

(c) the Company consolidates with, or merges with or into, another person or any person consolidates with, or merges with or into, the Company, unless either:

(1) the persons that “beneficially owned” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, the shares of the Company’s Voting Stock immediately prior to such consolidation or merger, “beneficially own,” directly or indirectly, immediately after such consolidation or merger, shares of the surviving or continuing corporation’s Voting Stock representing at least a majority of the total outstanding voting power of all Voting Stock of the surviving or continuing corporation in substantially the same proportion as such ownership immediately prior to such consolidation or merger; or

(2) at least ninety percent (90%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in such consolidation or merger consists of common stock and any associated rights (or depositary receipts representing such securities) traded on a U.S. national securities exchange (or which will be so traded when issued or exchanged in connection with such consolidation or merger), and, as a result of such consolidation or merger, the Notes become convertible into cash and, if applicable, solely such common stock and associated rights (subject to Section 10.02) (such a consolidation or merger that satisfies the conditions set forth in this clause (2), a “ Listed Stock Business Combination ”); or

(d) the following persons cease for any reason to constitute a majority of the Company’s Board of Directors:

(1) individuals who on the Issue Date constituted the Company’s Board of Directors; and

(2) any new directors whose election to the Company’s Board of Directors or whose nomination for election by the Company’s stockholders was approved by at least a majority of the directors of the Company then still in office either who were directors of the Company on the Issue Date or whose election or nomination for election was previously so approved; or

 

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(e) the Company is liquidated or dissolved or the holders of the Company’s Capital Stock approve any plan or proposal for the liquidation or dissolution of the Company.

(ii) A “ Termination of Trading ” shall occur if the Common Stock of the Company (or other common stock or depositary shares or other securities into which the Notes are then convertible) is no longer listed for trading on a U.S. national securities exchange.

ARTICLE IV

Covenants

Section 4.01 Payment of Notes .

This Section 4.01 shall apply to the Notes in lieu of Section 1001 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 4.01 for purposes of the Notes.

(A) The Company shall pay all amounts due with respect to the Notes on the dates and in the manner provided in the Notes. All such amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Company is acting as Paying Agent, the Company has segregated and holds in trust in accordance with Section 1003 of the Base Indenture) on that date money sufficient to pay the amount then due with respect to the Notes (unless there shall be a Default in the payment of such amounts to the respective Holder(s)).

(B) The Company shall pay, in cash, interest on any overdue amount (including, to the extent permitted by applicable law, overdue interest) at the rate borne by the Notes.

Section 4.02 Waiver of Certain Covenants .

For purposes of the Notes, Section 1006 of the Base Indenture shall be subject to Sections 5.02 and 9.02 hereof, and Section 1006 of the Base Indenture shall not apply to, and waivers pursuant thereto shall be ineffective as to, (A) the payment of the principal of or interest on, any Note, or in the payment of the Fundamental Change Repurchase Price (or accrued and unpaid interest, if any, payable as herein provided, upon Repurchase Upon Fundamental Change); (B) the Company’s obligations hereunder to convert any Notes in accordance with this Indenture; or (C) any provision, or any obligation of the Company pursuant to any provision, of this Indenture or the Notes which, pursuant hereto, cannot be modified or amended without the consent of the Holder of each outstanding Note affected.

 

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Section 4.03 Further Instruments and Acts .

Upon request of the Trustee, the Company shall 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.

ARTICLE V

Defaults and Remedies

This Article V shall apply to the Notes in addition to the provisions set forth in Article Five of the Base Indenture.

Section 5.01 Additional Events of Default; Inapplicability of Certain Events of Default .

In addition to the Events of Default enumerated in Section 501 of the Base Indenture, an “ Event of Default ” with respect to the Notes shall also mean any of the following events:

(i) the Company fails to timely provide a Fundamental Change Notice, as required by the provisions of this Indenture or the Company fails to pay the principal of and, to the extent otherwise required, interest on any Note when the same becomes due and payable on a Fundamental Change Repurchase Date with respect to a Repurchase Upon Fundamental Change or otherwise; or

(ii) the Company fails to satisfy its conversion obligations upon exercise of a Holder’s conversion rights pursuant hereto or fails to timely provide any notice pursuant to, and in accordance with, Section 10.14(E).

Section 5.02 Acceleration .

In addition to the provisions set forth in Section 502 of the Base Indenture, with respect to the Notes, the following paragraph shall be inserted as a new second paragraph of Section 502 and the current second and third paragraphs of the Base Indenture shall become the third and fourth paragraphs.

Notwithstanding anything herein to the contrary, to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure by the Company to comply with the obligation set forth in Section 704 of the Base Indenture and for any failure to comply with Section 314(a)(1) of the Trust Indenture Act will for the first 120 days after the occurrence of such an Event of Default consist exclusively of the right for Holders to receive additional interest on the Notes equal to 0.25% per annum of the principal amount of the Notes. If the Company so elects, such additional interest will be payable in the same manner and on the same dates as the stated Interest Payment Dates on the Notes. The additional interest will accrue on all outstanding Notes from and including the date on which such Event of Default first occurs to but not including the 120th day thereafter (or such earlier date on which such Event of Default shall have been cured or waived by Holders of a majority of the principal amount of Outstanding Notes). On such 120th day after such Event of Default (if the Event of Default relating to such obligation is not cured or waived by the Holders of not less than a majority in principal amount of Outstanding Notes prior to such 120th day), such additional interest will

 

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cease to accrue and the Notes will be subject to acceleration as provided in the Indenture. The provisions of this paragraph will not affect the rights of Holders in the event of the occurrence of any other Event of Default. In the event the Company does not elect to pay the additional interest upon such Event of Default in accordance with this paragraph, the Notes will be subject to acceleration as provided in the Indenture.

In order to elect to pay the additional interest as the sole remedy during the first 120 days after the occurrence of an Event of Default relating to the failure by the Company to comply with the obligation set forth in Section 704 of the Base Indenture or any failure to comply with Section 314(a)(1) of the Trust Indenture Act in accordance with the immediately preceding paragraph, the Company must notify all Holders, the Trustee and the Paying Agent of such election by delivering to the Trustee an Officers’ Certificate as provided below on or before the close of business on the date on which such Event of Default first occurs. Upon the Company’s failure to deliver such Officers’ Certificate or pay the additional interest specified in the immediately preceding paragraph, the Notes will be subject to acceleration as provided in the Indenture.

If additional interest is payable by the Company, the Company shall deliver to the Trustee an Officers’ Certificate to the effect stating that (i) the amount of such additional interest that is payable and (ii) the date on which such additional interest is payable. Unless and until a Responsible Officer of the Trustee receives certificate, the Trustee may assume without inquiry that no additional interest is payable. If the Company has paid additional interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

As contemplated by Section 301 and the definition of “Event of Default” in Section 501 of the Base Indenture, Section 501(3) of the Base Indenture shall be inapplicable to the Notes.

Section 5.03 Rights of Holders to Receive Payment .

In addition to the provisions set forth in Section 508 of the Base Indenture, with respect to the Notes, the following paragraph shall be inserted as a new second paragraph of Section 508 of the Base Indenture:

“Notwithstanding any other provision of this Indenture, the right of any Holder to convert the Note in accordance with this Indenture, or to bring suit for the enforcement of such right, shall not be impaired or affected without the consent of the Holder.”

Section 5.04 Waiver of Past Defaults .

For purposes of the Notes, the phrase “or in the payment of the Fundamental Change Repurchase Price (or accrued and unpaid interest, if any, payable as provided in the Indenture, upon Repurchase Upon Fundamental Change),” shall be inserted at the end of Section 513(1) of the Base Indenture before “; or.”

 

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ARTICLE VI

Trustee

This Article VI shall apply to the Notes in addition to Article Six of the Base Indenture.

If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

For purposes of the Notes, the phrase, “or Bid Solicitation Agent” shall be inserted immediately following the term “Conversion Agent” in Section 607(3) of the Base Indenture.

For purposes of the Notes, the phrase “, Paying Agent, Security Registrar, Bid Solicitation Agent or Conversion Agent” shall be inserted immediately following the term “Authenticating Agent” in the first and third sentences of Section 604 of the Base Indenture. For purposes of the Notes, the phrase “, any Bid Solicitation Agent, any Conversion Agent” shall be inserted immediately following the term “Security Registrar” the first time it appears in Section 605 of the Base Indenture and “, Bid Solicitation Agent, Conversion Agent” immediately following the term “Security Registrar” the second time it appears in Section 605 of the Base Indenture.

ARTICLE VII

No Defeasance or Covenant Defeasance

Article Thirteen of the Base Indenture shall not apply to the Notes.

ARTICLE VIII

Discharge of Supplemental Indenture

This Article VIII shall apply to the Notes to Article Four of the Base Indenture.

Section 8.01 Satisfaction and Discharge of Supplemental Indenture .

For the purposes of the Notes, the following paragraph shall replace the first paragraph of Section 401 of the Base Indenture in its entirety.

When (1) the Company shall deliver