TABLE OF CONTENTS

 

	Page
ARTICLE 1 Definitions and Other Provisions of General Application	2
SECTION 1.01Scope of Supplemental Indenture	2
SECTION 1.02Definitions	2
SECTION 1.03Incorporation by Reference of TIA	10
SECTION 1.04Rules of Construction	11
ARTICLE 2 The Notes	11
SECTION 2.01Designation, Amount and Issuance of Notes	11
SECTION 2.02Form of the Notes	11
SECTION 2.03Date and Denomination of Notes; Payment at Maturity; Payment of Interest	12
SECTION 2.04Paying Agent to Hold Money in Trust	16
SECTION 2.05Reporting Requirement	16
SECTION 2.06Transfer and Exchange	16
ARTICLE 3 Repurchase of Notes	17
SECTION 3.01Repurchase at Option of the Holder Upon a Fundamental Change	17
SECTION 3.02Withdrawal of Fundamental Change Repurchase Notice	19
SECTION 3.03Deposit of Fundamental Change Repurchase Price	19
SECTION 3.04Restrictions on Repurchases	20
SECTION 3.05Notes Repurchased in Part	20
SECTION 3.06Covenant to Comply with Securities Laws Upon Repurchase of Notes	20
SECTION 3.07Repayment to the Company.	20
ARTICLE 4 Covenants	20
SECTION 4.01Additional Interest	20
SECTION 4.02Repurchase and Cancellation	20

 

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ARTICLE 5 Successor Company	21
SECTION 5.01When Company May Merge or Transfer Assets	21
SECTION 5.02Successor to Be Substituted	21
SECTION 5.03Opinion of Counsel to Be Given Trustee	22
ARTICLE 6 Defaults and Remedies	22
SECTION 6.01Events of Default	22
SECTION 6.02Waiver of Past Defaults	23
SECTION 6.03Failure to Comply with Reporting Covenant	24
SECTION 6.04Acceleration	24
SECTION 6.05Limitation on Suits	24
SECTION 6.06Notice of Defaults	25
ARTICLE 7 Discharge	25
SECTION 7.01Discharge of the Supplemental Indenture	25
SECTION 7.02Application of Trust Money	25
SECTION 7.03Repayment to Company	26
SECTION 7.04Reinstatement	26
ARTICLE 8 Amendments	26
SECTION 8.01Without Consent of Holders	26
SECTION 8.02With Consent of Holders	27
ARTICLE 9 Conversion	27
SECTION 9.01Right to Convert	27
SECTION 9.02Conversion Procedures.	30
SECTION 9.03Payment Upon Conversion	31
SECTION 9.04Adjustment of Conversion Rate	34
SECTION 9.05Adjustment of Average Prices	41
SECTION 9.06Adjustments Upon Make-Whole Fundamental Changes and a Redemption Notice	42
SECTION 9.07Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	43

 

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SECTION 9.08Taxes on Shares Issued	45
SECTION 9.09Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock	45
SECTION 9.10Responsibility of Trustee	45
SECTION 9.11Notice to Holders Prior to Certain Actions	46
SECTION 9.12Stockholder Rights Plan	46
SECTION 9.13Company Determination Final	47
ARTICLE 10 Optional Redemption	47
SECTION 10.01Redemption Rights	47
SECTION 10.02Redemption Price	47
SECTION 10.03Redemption Notice	47
SECTION 10.04Payment of Notes Called for Redemption.	48
SECTION 10.05Restrictions on Redemption	49
ARTICLE 11 Miscellaneous	49
SECTION 11.01Rules by Trustee, Paying Agent and Registrar	49
SECTION 11.02No Recourse Against Others	49
SECTION 11.03Severability Clause	49
SECTION 11.04Calculations	49
SECTION 11.05Recitals	50
SECTION 11.06Ratification of Original Indenture	50
EXHIBITS
Exhibit A  -  Form of Note	A-1
Exhibit B  -  Form of Conversion Notice	B-1
Exhibit C  -  Form of Fundamental Change Repurchase Notice	C-1
Exhibit D  -  Form of Assignment	D-1

 

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SUPPLEMENTAL INDENTURE dated as of June 3, 2009 between TAKE-TWO INTERACTIVE SOFTWARE, INC., a Delaware corporation, as issuer (the “ Company ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (the “ Trustee ”) under the indenture dated as of June 3, 2009 between the Company and the Trustee (as amended and supplemented from time to time in accordance with the terms thereof, the “ Original Indenture ”).

 

RECITALS OF THE COMPANY

 

WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the future issuance of the Company’s unsecured Securities from time to time in one or more series as might be determined by the Company under the Original Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Original Indenture;

 

WHEREAS, Section 2.02 of the Original Indenture provides for the Company to establish Securities of any series pursuant to an indenture supplemental, and 9.01 of the Original Indenture provides for the Company and the Trustee to enter into such indenture supplemental to establish the form or terms of Securities of such series as permitted by Article 2 of the Original Indenture without the consent of any Holders;

 

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;

 

WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its “4.375% Convertible Senior Notes due 2014” (the “ Notes ”), the form and substance of the Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture; and

 

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid and legally binding instrument in accordance with its terms and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid and legally binding obligations of the Company, have been performed, and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects.

 

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

 

 

ARTICLE 1

 

Definitions and Other Provisions of General Application

 

SECTION 1.01 Scope of Supplemental Indenture .  The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes and shall not apply to any other Securities that may be issued under the Original Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements.  The provisions of this Supplemental Indenture shall supersede any corresponding provisions in the Original Indenture.

 

SECTION 1.02 Definitions .  For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(i)            the terms defined in this Article 1 shall have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(ii)           all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;

 

(iii)          all other terms used herein that are defined in the TIA, either directly or by reference therein, shall have the meanings assigned to them in the TIA;

 

(iv)          all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and

 

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

 

“ Additional Interest ” has the meaning specified in Section 6.03.

 

“ Additional Notes ” has the meaning specified in Section 2.01.

 

“ Additional Shares ” has the meaning specified in Section 9.06(a).

 

“ Adjustment Date ” has the meaning specified in Section 9.04.

 

“ Agent Members ” has the meaning specified in Section 2.03(d)(v).

 

“ Bid Solicitation Agent ” means the financial institution appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 9.01(a)(ii). The Company will initially act as the Bid Solicitation Agent.

 

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“ Board of Directors ” means the board of directors of the Company or any duly authorized committee of that board.

 

“ Business Day ” means, solely for purposes of this Supplemental Indenture and notwithstanding the definition thereof in Section 1.01 of the Original Indenture, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

 

“ Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

 

“ Cash Amount ” has the meaning specified in Section 9.03(a).

 

“ Cash Settlement ” has the meaning specified in Section 9.03(a).

 

“ close of business ” means 5:00 p.m. (New York City time).

 

“ Combination Settlement ” has the meaning specified in Section 9.03(a).

 

“ Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties at such time.

 

“ Common Equity ” of any Person means Capital Stock of such Person that is generally entitled to (i) vote in the election of directors of such Person or (ii) if such Person is not a corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

 

“ Common Stock ” means the common stock, par value $0.01 per share, of the Company, or such other Reference Property into which the Company’s common stock is reclassified or changed as set forth in Section 9.07.

 

“ Conversion Agent ” means the agency appointed by the Company to which Notes may be presented for conversion.  The Conversion Agent appointed by the Company shall initially be the Trustee.

 

“ Conversion Date ” has the meaning specified in Section 9.02(b).

 

“ Conversion Notice ” has the meaning specified in Section 9.02(b).

 

“ Conversion Price ” means, in respect of each $1,000 principal amount of Notes, as of any date, $1,000 divided by the Conversion Rate as of such date.

 

“ Conversion Rate ” means, initially 93.6768 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein.

 

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“ Corporate Trust Office ” means the principal corporate trust office of the Trustee, at which any particular time its corporate trust business shall be administered, which office as of the date hereof is located at 101 Barclay Street, 8W, New York, New York 10286 Attention:  Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

“ Daily Cash Amount ” has the meaning set forth in Section 9.03(d).

 

“ Daily Conversion Value ” means, in respect of each $1,000 principal amount of Notes and for each of the fifty (50) consecutive Trading Days during the Observation Period for such Notes, 2% of the product of (i) the Conversion Rate on such Trading Day and (ii) the Daily VWAP of Common Stock on such Trading Day.

 

“ Daily Settlement Amount ” has the meaning set forth in Section 9.03(d).

 

“ Daily VWAP ” means, for each of the fifty (50) consecutive Trading Days during the Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “TTWO.UQ <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for such purpose by the Company). The Daily VWAP will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

 

“ Depositary ” means initially DTC until a successor shall have been appointed and become such pursuant to the applicable provisions of this Supplemental Indenture, and thereafter, “ Depositary ” shall mean such successor.

 

“ DTC ” means The Depository Trust Company.

 

“ Effective Date ” has the meaning specified in Section 9.06(b).

 

“ Event of Default ” has the meaning set forth in the Original Indenture, as supplemented by the events set forth in Section 6.01 hereof.

 

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

 

“ Ex-Dividend Date ” means the first date on which the shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance or distribution in question.

 

“ Fair Market Value ” means the amount that a willing buyer would pay to a willing seller in an arms’ length transaction, as determined by the Board of Directors.

 

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“ Fundamental Change ” means the occurrence after the original issuance of the Notes of any of the following events:

 

(a)           a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Subsidiaries or the employee benefit plans of the Company or any such Subsidiary of the Company, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity; or

 

(b)           consummation of (i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets or (ii) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries; provided , however , that a transaction where the holders of all classes of the Company’s Common Equity immediately prior to such transaction that is a share exchange, consolidation or merger own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such event shall not be a Fundamental Change; or

 

(c)           the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or

 

(d)           the Common Stock (or other common stock, American depositary receipts or American depositary shares underlying the Notes) ceases to be listed or quoted on The New York Stock Exchange or The NASDAQ Global Market.

 

provided , however , that a Fundamental Change as a result of clause (b) above will not be deemed to have occurred if at least 90% of the consideration received or to be received by the holders of the Company’s Common Stock, excluding cash payments for fractional shares, in connection with the transaction or transactions constituting the Fundamental Change consists of shares of Publicly Traded Securities and as a result of such transaction or transactions the Notes become convertible into such Publicly Traded Securities in accordance with Section 9.07, excluding cash payments for fractional shares (subject to the provisions set forth under Section 9.03).

 

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

 

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

 

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“ Fundamental Change Repurchase Expiration Time ” has the meaning specified in Section 3.01(a)(1).

 

“ Fundamental Change Repurchase Notice ” has the meaning specified in Section 3.01(a)(1).

 

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

 

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

 

“ Indebtedness ” means:

 

(i)            all of the Company’s indebtedness, obligations and other liabilities, contingent or otherwise, (A) for borrowed money, including overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection agreements and any loans or advances from banks, whether or not evidenced by notes or similar instruments, or (B) evidenced by credit or loan agreements, bonds, debentures, notes or similar instruments, whether or not the recourse of the lender is to the whole of the assets of the Company or to only a portion thereof, other than any account payable or other accrued current liability or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services;

 

(ii)           all of the Company’s reimbursement obligations and other liabilities, contingent or otherwise, with respect to letters of credit, bank guarantees or bankers’ acceptances;

 

(iii)          all of the Company’s obligations and liabilities, contingent or otherwise, in respect of leases required, in conformity with generally accepted accounting principles, to be accounted for as capitalized lease obligations on the Company’s balance sheet;

 

(iv)          all of the Company’s 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 the Company 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 the Company’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;

 

(v)           all of the Company’s obligations, contingent or otherwise, with respect to an interest rate or other swap, cap, floor or collar agreement or hedge agreement, forward contract or other similar instrument or agreement or foreign currency hedge, exchange, purchase or similar instrument or agreement;

 

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(vi)           all of the Company’s direct or indirect guaranties or similar agreements by us in respect of, and all of the Company’s obligations or liabilities to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of another person of the kinds described in clauses (i) through (v) above; and

 

(vii)          any and all deferrals, renewals, extensions, refinancings and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of the kinds described in clauses (i) through (vi) above.

 

“ Indenture ” means the Original Indenture, solely to the extent it governs the Notes, as supplemented by this Supplemental Indenture as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the TIA that are deemed to be a part of and govern this Supplemental Indenture and any such supplemental indenture, respectively.

 

“ Initial Notes ” has the meaning specified in Section 2.01.

 

“ Interest Payment Date ” has the meaning specified in Section 2.03(c).

 

“ Last Reported Sale Price ” of the Common Stock or any other security on any date means:

 

(i)             the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock or such other security is traded; or

 

(ii)            if the Common Stock or such other security is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the last quoted bid price for the Common Stock or such other security in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar organization; or

 

(iii)           if the Common Stock or such other security is not so quoted, the average of the mid-point of the last bid and ask prices for the Common Stock or such other security on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

“ Make-Whole Fundamental Change ” means any transaction or event that constitutes a Fundamental Change as described in the definition thereof (determined after giving effect to any exceptions or exclusions to such definition, but without regard to the proviso in clause (b) of such definition).  For the avoidance of doubt, any transaction(s) or event(s) described in clause (b) of the definition of Fundamental Change will not constitute a Make-Whole Fundamental Change if at least 90% of the consideration received or to be received by the holders of the Company’s Common Stock, excluding cash payments for fractional shares, in

 

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connection with the transaction or transactions constituting the Fundamental Change consists of shares of Publicly Traded Securities and as a result of such transaction or transactions the Notes become convertible into such Publicly Traded Securities in accordance with Section 9.07, excluding cash payments for fractional shares (subject to the provisions set forth under Section 9.03).

 

“ Market Disruption Event ” means (i) a failure by the primary United States national or regional 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., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock.

 

“ Maturity Date ” means June 1, 2014.

 

“ Measurement Period ” has the meaning set forth in Section 9.01(a)(ii).

 

“ Merger Event ” has the meaning set forth in Section 9.07.

 

“ Notes ” has the meaning set forth in the fourth paragraph of the recitals of this Supplemental Indenture.

 

“ Observation Period ” with respect to any converted Note means: (i) if the relevant Conversion Date occurs prior to December 1, 2013 and a Cash Settlement or a Combination Settlement applies to such conversion and the Company has not previously delivered a Redemption Notice, the fifty (50) consecutive Trading-Day period beginning on and including the second Trading Day after such Conversion Date, (ii) if the relevant Conversion Date occurs on or after December 1, 2013, and the Company has not previously delivered a Redemption Notice, and regardless of the Settlement Method, the fifty (50) consecutive Trading Days beginning on, and including, the 52 nd  Scheduled Trading Day immediately preceding the Maturity Date and (iii) if the relevant Conversion Date occurs on or after the date the Company has delivered a Redemption Notice (even if after December 1, 2013) and a Cash Settlement or Combination Settlement applies to such conversion, the fifty (50) consecutive Trading Days beginning on and including the 52nd Scheduled Trading Day immediately preceding the Redemption Date.

 

“ open of business ” means 9:00 a.m. (New York City time).

 

“ Outstanding ” shall have the meaning set forth in Section 2.10 of the Original Indenture other than any Notes repurchased by the Company as set forth in Section 4.02.

 

“ Paying Agent ” has the meaning set forth in the Original Indenture, which shall initially be the Trustee, and shall be the Person authorized by the Company to pay the principal amount of, interest on (including Additional Interest, if any), Redemption Price or Fundamental Change Repurchase Price of, any Notes on behalf of the Company.

 

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

 

“ Physical Settlement ” has the meaning specified in Section 9.03(a).

 

“ Preferred Stock ” as applied to the Capital Stock of any Person means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

 

“ Publicly Traded Securities ” means shares of common stock, American depositary receipts or American depositary shares traded on the New York Stock Exchange or The NASDAQ Global Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change.

 

“ Redemption Date ” means, with respect to any Note to be redeemed, the date fixed for redemption by the Company in accordance with Section 10.01.

 

“ Redemption Notice ” has the meaning set forth in Section 10.03.

 

“ Redemption Price ” has the meaning set forth in Section 10.02.

 

“ Reference Property ” has the meaning specified in Section 9.07.

 

“ Regular Record Date ” means, with respect to any Interest Payment Date of the Notes, the May 15 and November 15 preceding the applicable June 1 and December 1 Interest Payment Date, respectively.

 

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

 

“ Schedule TO ” means a Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Exchange Act.

 

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the primary United States national securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.

 

“ Security Register ” means the register of Securities kept by the Registrar in accordance with Section 2.05 of the Original Indenture.

 

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“ Settlement Method ” means each of a Physical Settlement, a Combination Settlement or a Cash Settlement.

 

“ Significant Subsidiary ” means any Subsidiary of the Company that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02(w) under Regulation S-X promulgated by the Commission.

 

“ Spin-off ” has the meaning specified in Section 9.04(c)

 

“ Stock Price ” has the meaning specified in Section 9.06(b).

 

“ Successor Company ” has the meaning specified in Section 5.01(a).

 

“ Trading Day ” means, except as provided in Section 9.03(g) hereof, a day on which (i) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not then listed on The NASDAQ Global Select Market, on the principal other United States national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a United States national or regional securities exchange, on the principal other market on which the Common Stock is then traded, and (ii) a Last Reported Sale Price for the Common Stock is available on such securities exchange or market. If the Common Stock (or other security for which a closing sale price must be determined) is not so listed or traded, “Trading Day” means a “Business Day.”

 

“ Trading Price ” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5 million principal amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects; provided that, if three such bids cannot reasonably be obtained by the bid solicitation agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used.  If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5 million principal amount of the Notes from a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate.

 

“ Trigger Event ” has the meaning specified in Section 9.04(b).

 

“ Underwriters ” mean J.P. Morgan Securities Inc., Barclays Capital Inc. and Citigroup Global Markets Inc.

 

“ Underwriting Agreement ” means the Underwriting Agreement, dated May 28, 2009, entered into by the Company and the Underwriters.

 

“ Valuation Period ” has the meaning set forth in Section 9.04(c).

 

SECTION 1.03 Incorporation by Reference of TIA .  This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture.  The following TIA terms have the following meanings:

 

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“indenture securities” means the Notes.

 

“indenture security holder” means a Holder or Securityholder.

 

“indenture to be qualified” means this Indenture.

 

“indenture trustee” or “institutional trustee” means the Trustee.

 

“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.

 

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meanings assigned to them by such definitions.

 

SECTION 1.04 Rules of Construction .  Unless the context otherwise requires:

 

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

 

(2)            “or” is not exclusive; and

 

(3)            “including” means including without limitation.

 

ARTICLE 2

 

The Notes

 

SECTION 2.01 Designation, Amount and Issuance of Notes .  The Notes shall be designated as “4.375% Convertible Senior Notes due 2014.”  The Notes will initially not exceed the aggregate principal amount of $138,000,000 except for Notes authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of, other Notes pursuant to Section 2.09 of the Original Indenture.  Upon the execution of this Supplemental Indenture, or from time to time thereafter, Notes may be executed by the Company and delivered to the Trustee for authentication.

 

The Company may, without the consent of the Holders of the Notes, hereafter issue additional notes (“ Additional Notes ”) under the Indenture with the same terms and, if permissible as a “qualified reopening” for U.S. federal income tax purposes, with the same CUSIP numbers as the Notes issued on the date of this Supplemental Indenture (the “Initial Notes” ) in an unlimited aggregate principal amount.  Any such Additional Notes shall constitute a single series together with the Initial Notes for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Notes and any offers to purchase the Notes.

 

SECTION 2.02 Form of the Notes .  The Notes and the Trustee’s certificate of authentication to be borne by such Notes, the Conversion Notice, Fundamental Change Repurchase Notice and Assignment shall be substantially in the forms set forth in Exhibits A, B, C and D, respectively, hereto.  The terms and provisions contained in the form of Notes attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and, to the extent

 

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applicable, the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of the Indenture, or as may be required by the custodian for the Global Notes, the Depositary or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

So long as the Notes are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.03(d), all of the Notes will be represented by one or more Global Notes.  The transfer and exchange of beneficial interests in any such Global Notes shall be effected through the Depositary in accordance with the Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.03(d), beneficial owners of a Global Note shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered holders of such Global Note.

 

Any Global Notes shall represent such of the Outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate amount of Outstanding Notes from time to time endorsed thereon and that the aggregate amount of Outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes represented thereby shall be made by the Trustee or the custodian for the Global Note, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture.  The Company has initially designated the Trustee as its Paying Agent and Registrar in respect of the Notes and the Corporate Trust Office as a place where Notes may be presented for payment or for registration of transfer.  The Company may, however, change the Paying Agent or Registrar for the Notes without prior notice to the Holders, and the Company may act as Paying Agent or Registrar for the Notes.

 

SECTION 2.03 Date and Denomination of Notes; Payment at Maturity; Payment of Interest .

 

(a)            Date and Denomination .  The Notes initially shall be issued in the form of one or more Global Notes without interest coupons in denominations of $1,000 principal amount and integral multiples thereof (i) registered in the name of Cede & Co., as nominee of the Depositary and (ii) delivered to the Trustee as custodian for the Depositary.  Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Notes attached as Exhibit A hereto.

 

(b)            Payment at Maturity .  The Notes shall mature on June 1, 2014, unless earlier redeemed, converted or repurchased in accordance with the provisions hereof.  On the Maturity

 

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Date, each Holder shall be entitled to receive on such date $1,000 in cash for each $1,000 principal amount of Notes, together with accrued and unpaid interest (including Additional Interest, if any) to, but not including, the Maturity Date.  With respect to Global Notes, principal and interest (including Additional Interest, if any) will be paid to the Depositary in immediately available funds.  With respect to any Physical Notes, principal and interest (including Additional Interest, if any) will be payable at the Company’s office or agency in New York City, which initially will be the Corporate Trust Office.  If the Maturity Date is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue in respect of the delay.

 

(c)            Payment of Interest .  Interest on the Notes will accrue at the rate of 4.375% per annum, from June 3, 2009 until the principal thereof is paid or made available for payment.  Interest shall be payable on June 1 and December 1 of each year (each, an “ Interest Payment Date ”), commencing on December 1, 2009, to the Person in whose name a Note is registered on the Security Register at the close of business on any Regular Record Date immediately preceding the applicable Interest Payment Date.  If Notes are converted after the close of business on a Regular Record Date, Holders of such Notes at the close of business on such Regular Record Date will receive the interest and Additional Interest, if any, payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion.  Notwithstanding the foregoing, any Notes or portion thereof surrendered for conversion after 5:00 p.m., New York City time, on the Regular Record Date for an Interest Payment Date but prior to 9:00 a.m., New York City time, on the immediately following Interest Payment Date shall be accompanied by payment, in immediately available funds or other funds acceptable to the Company, of an amount equal to the interest and Additional Interest, if any, otherwise payable on such Interest Payment Date on the principal amount being converted; provided that no such payment need be made:

 

(i)  with respect to Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date;

 

(ii)  if the Company has specified a Redemption Date pursuant to Section 10.01 that is after a Regular Record Date and on or prior to the third Scheduled Trading Day immediately following the corresponding Interest Payment Date;

 

(iii) if the Company has specified a Fundamental Change Repurchase Date pursuant to Section 3.01(a) that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or

 

(iv)  to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to converted Notes.

 

Interest on the Notes will be computed on the basis of a three hundred sixty (360)-day year comprised of twelve (12) thirty (30)-day months.

 

The Company shall pay interest, including Additional Interest, if any, on:

 

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

 

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(ii)  any Physical Notes having a principal amount of $5,000,000 or less, by check mailed to each Holder at its address in the Security Register; and

 

(iii)  any Physical Notes having a principal amount of more than $5,000,000, either by check mailed to each Holder at its address in the Security Register or, upon application by a Holder to the Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder notifies the Registrar to the contrary.

 

If an Interest Payment Date is not a Business Day, payment shall instead be made on the next succeeding Business Day, and no additional interest shall accrue in respect of the delay.

 

All references to “interest” in this Indenture shall be deemed to include Additional Interest, if any, that accrues in connection with the Company’s failure to comply with Section 2.05, if applicable, as provided by Section 6.03.

 

(d)            The following provisions shall apply only to Global Notes:

 

(i)             Notwithstanding any other provision in the Indenture, no Global Note may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless the Depositary (x) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act, and in each case a successor Depositary has not been appointed by the Company within ninety (90) calendar days.  Any Global Note exchanged pursuant to this Section 2.03(d)(i) shall be so exchanged in whole and not in part.

 

(ii)            In addition, Physical Notes will be issued in exchange for beneficial interests in a Global Note upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner following the occurrence and continuation of an Event of Default.

 

(iii)           Notes issued in exchange for a Global Note or any portion thereof pursuant to clause (i) or (ii) above shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Notes or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary, pursuant to instructions form its direct or indirect participants or otherwise, shall designate and shall bear any legends required hereunder.  Any Global Notes to be exchanged shall be surrendered by the Depositary to the Trustee, as Registrar; provided that pending completion of the exchange of a Global Note, the Trustee acting as custodian for the Global Notes for the Depositary or its nominee with respect to such Global Notes, shall reduce the

 

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principal amount thereof, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the Trustee shall authenticate and make available for delivery the Notes issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

 

(iv)           In the event of the occurrence of any of the events specified in clause (i) above or upon any request described in clause (ii) above, the Company will promptly make available to the Trustee a sufficient supply of Physical Notes in definitive, fully registered form, without interest coupons.

 

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

 

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

 

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

 

(viii)         None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a

 

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Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.  None of the Trustee, the Paying Agent or the Registrar shall have any responsibility for any actions taken or not taken by the Depositary or any Agent Member.

 

SECTION 2.04 Paying Agent to Hold Money in Trust .  Prior to each due date of the principal and interest (including Additional Interest, if any) on any Note, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary of the Company is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such principal and interest (including Additional Interest, if any) when so becoming due.  The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest (including Additional Interest, if any) on the Notes and shall notify the Trustee of any Default by the Company in making any such payment.  If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent.  Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.

 

SECTION 2.05 Reporting Requirement The first paragraph of Section 4.02 of the Original Indenture shall not apply to the Notes.  Instead, the Company shall file with the Trustee, within fifteen (15) calendar days after it is required to file them with the Commission (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act), documents or reports which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.  Documents filed by the Company with the Commission via its EDGAR system will be deemed to be filed with the Trustee as of the time such documents are filed via EDGAR.  The Company also shall comply with the other provisions of Section 314(a) of the TIA.

 

SECTION 2.06 Transfer and Exchange The Registrar and the Trustee may require a Holder who transfers or exchanges a Note in accordance with Section 2.08 of the Original Indenture, among other things, to furnish appropriate endorsements and transfer documents.  No service charge shall be made to any Holder for any registration of, transfer or exchange of Notes, but the Company may require payment by the Holder of a sum sufficient to cover any transfer tax or other similar governmental charge required by law or permitted by the Indenture. Neither the Company nor the Trustee nor any Security Registrar shall be required to exchange, issue or register a transfer of (a) any Notes surrendered for conversion (b) any Notes tendered for repurchase (and not withdrawn) or (c) any Notes selected for redemption.

 

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ARTICLE 3

 

Repurchase of Notes

 

SECTION 3.01 Repurchase at Option of the Holder Upon a which Fundamental Change .  (a)  If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash any or all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or a multiple of $1,000, on a date (the “ Fundamental Change Repurchase Date ”) of the Company’s choosing that is not less than twenty (20) or more than thirty-five (35) calendar days after the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest (including Additional Interest, if any) thereon to, but excluding, the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Price ”).  If such Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest (including Additional Interest, if any) payable on such Interest Payment Date to the holder of record on the close of business on the corresponding Regular Record Date and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of the Notes to be repurchased.  Repurchases of Notes under this Section 3.01 shall be made, at the option of the holder thereof, upon:

 

(1)            delivery to the Paying Agent by a Holder of a duly completed notice (the “ Fundamental Change Repurchase Notice ”) in the form set forth on the reverse of the Note by the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Expiration Time ”); and

 

(2)            delivery or book-entry transfer of the Notes to the Paying Agent by the Fundamental Change Repurchase Expiration Time (together with all necessary endorsements) at the Corporate Trust Office of the Paying Agent in New York City, such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.

 

The Fundamental Change Repurchase Notice shall state:

 

(i)             if certificated, the certificate numbers of the Notes to be delivered for repurchase, or if not certificated, such Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures;

 

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

 

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

 

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Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the payment of the Fundamental Change Repurchase Price to the relevant Holders promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Notes.  If the such required repurchase date falls on a day that is not a Business Day, the Fundamental Change Repurchase Price shall be paid on the next succeeding Business Day, and no additional interest shall accrue in respect of the delay.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.01 shall have the right to withdraw, in whole or in part, 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 below.

 

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

 

(b)            On or before the tenth (10th) calendar day after the occurrence of a Fundamental Change, the Company shall mail or cause to be mailed to all Holders of the Notes, and to beneficial owners as required by applicable law, a notice (the “ Fundamental Change Company Notice ”) of the occurrence of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof.  Such mailing shall be by first class mail.  The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent.  Simultaneously with providing such notice, the Company will publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time.

 

Each Fundamental Change Company Notice shall specify:

 

(i)             the events causing the Fundamental Change;

 

(ii)            the date of the Fundamental Change;

 

(iii)           the last date on which a Holder may exercise the repurchase right pursuant to this Article 3;

 

(iv)           the Fundamental Change Repurchase Price;

 

(v)            the Fundamental Change Repurchase Date;

 

(vi)           the name and address of the Paying Agent and the Conversion Agent, if applicable;

 

(vii)          the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;

 

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

 

(ix)            the procedures that Holders must follow to require the Company to repurchase their Notes pursuant to this Article 3; and

 

(x)             the CUSIP, ISIN or other similar numbers, if any, assigned to the Notes.

 

No failure of the Company to give the foregoing notices and no defect therein shall limit the repurchase rights of Holders or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.01.

 

SECTION 3.02 Withdrawal of Fundamental Change Repurchase Notice .  A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with the Fundamental Change Repurchase Notice at any time prior to the Fundamental Change Repurchase Expiration Time, specifying:

 

(1)            if Physical Notes have been issued, the certificate numbers of the Notes in respect of which such notice of withdrawal is being submitted, or if Physical Notes have not been issued, such notice of withdrawal must comply with appropriate Depositary procedures;

 

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

 

(3)            the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amount of $1,000 or an integral multiple thereof.

 

SECTION 3.03 Deposit of Fundamental Change Repurchase Price .  Prior to 10:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.06 of the Original Indenture, an amount of cash (in immediately available funds if deposited on the Fundamental Change Repurchase Date), sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Notes or portions thereof that are to be repurchased as of the Fundamental Change Repurchase Date.

 

If on the Fundamental Change Repurchase Date the Paying Agent holds cash or securities sufficient to pay the Fundamental Change Repurchase Price of the Notes that Holders have elected to require the Company to repurchase in accordance with Section 3.01, then, on the Fundamental Change Repurchase Date, such Notes will cease to be Outstanding, interest (including any Additional Interest, if any) will cease to accrue (whether or not book-entry transfer of the Notes is made or the Note is delivered to the Paying Agent) and all other rights of

 

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the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or book-entry transfer of the Notes).  This will be the case whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Paying Agent.

 

SECTION 3.04 Restrictions on Repurchases .  No Notes may be repurchased at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date.

 

SECTION 3.05 Notes Repurchased in Part .  Upon presentation of any Notes repurchased only in part, the Company shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Note or Notes, of any authorized denomination, in aggregate principal amount equal to the portion of the Notes presented that is not repurchased.

 

SECTION 3.06 Covenant to Comply with Securities Laws Upon Repurchase of Notes .  The Company will, to the extent applicable, comply with the provisions of Rule 13e-4 and any other tender offer rules under the Exchange Act that may be applicable at the time of the offer to repurchase the Notes, file the related Schedule TO or any other schedule required in connection with any offer by the Company to repurchase the Notes and comply with all other federal and state securities laws in connection with any offer by the Company to repurchase the Notes.

 

SECTION 3.07 Repayment to the Company .  To the extent that the aggregate amount of cash deposited by the Company pursuant to 0 exceeds the aggregate Fundamental Change Repurchase Price of the Notes or portions thereof that the Company is obligated to repurchase as of the Fundamental Change Repurchase Date, then, following the Fundamental Change Repurchase Date, the Paying Agent shall promptly return any such excess to the Company.

 

ARTICLE 4

 

Covenants

 

SECTION 4.01 Additional Interest .  If Additional Interest is payable by the Company, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (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 receives such a certificate, the Trustee may assume without inquiry that no Additional Interest is payable.

 

SECTION 4.02 Repurchase and Cancellation .  To the extent permitted by law, the Company may repurchase any Notes in the open-market or by tender offer at any price or by private agreement.  The Company shall surrender any Notes repurchased by the Company to the Trustee for cancellation as provided by Section 2.12 of the Original Indenture and any such Notes repurchased by the Company shall be deemed to be no longer Outstanding.  Any Notes surrendered for cancellation by the Company shall not be reissued or resold.

 

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ARTICLE 5

 

Successor Company

 

SECTION 5.01 When Company May Merge or Transfer Assets .  Notwithstanding Section 5.01 of the Original Indenture, the Company shall not consolidate with or merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to, another Person, unless:

 

(a)            the resulting, surviving or transferee Person (if not the Company) (the “ Successor Company ”) is a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia and such Successor Company (if not the Company) expressly assumes, by a supplemental indenture, all of the Company’s obligations under the Notes and the Indenture;

 

(b)            if as a result of such transaction the Notes become convertible into common stock or other securities issued by a third party, such third party fully and unconditionally guarantees all obligations of the Company or such Successor Company under the Notes and the Supplemental Indenture;

 

(c)            immediately after giving effect to such transaction, no Default or Event of Default has occurred and is continuing under the Indenture; and

 

(d)            the Company has delivered to the Trustee the Officers’ Certificate and Opinion of Counsel pursuant to Section 5.03.

 

SECTION 5.02 Successor to Be Substituted .  In case of any such consolidation, merger, sale, conveyance, transfer or lease in which the Company is not the surviving corporation and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee, of the due and punctual payment of the principal of and interest (including Additional Interest, if any) on all of the Notes, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed or satisfied by the Company, except in the case of a lease of all or substantially all of the Company’s properties and assets, such Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company, with the same effect as if it had been named herein as the party of this first part, and the Company shall be discharged from its obligations under the Notes and the Indenture.  Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes, issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in the Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose.  All the Notes so issued shall in all respects have the same legal rank and benefit under the Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued

 

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at the date of the execution hereof.  In the event of any such consolidation, merger, sale, conveyance or transfer, upon compliance with this Article 5 the Person named as the “Company” in the first paragraph of this Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 5 may be dissolved, wound up and liquidated at any time thereafter and such Person shall be discharged from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture.

 

SECTION 5.03 Opinion of Counsel to Be Given Trustee .  Prior to execution of any supplemental indenture pursuant to this Article 5, the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption complies with the provisions of this Article 5.

 

ARTICLE 6

 

Defaults and Remedies

 

SECTION 6.01 Events of Default .  Each of the following events shall be an “ Event of Default ” with respect to the Notes:

 

(a)            default in the payment of interest, including any Additional Interest, if any, on any Note when due and payable and the default continues for a period of 30 days;

 

(b)            default in the payment of the principal amount of any Note when due and payable on the Maturity Date, upon a redemption pursuant to Article 10, upon a repurchase at the option of the Holders pursuant to Article 3, upon declaration or otherwise;

 

(c)            failure by the Company to comply with its obligation to convert the Notes in accordance with Section 9.02 upon exercise of a Holder’s conversion right and such conversion default is not cured or such conversion is not rescinded within five (5) days;

 

(d)            failure by the Company to comply with its obligations under Article 5;

 

(e)            failure by the Company to mail a Fundamental Change Company Notice or notice to Holders required pursuant to Section 9.01(a)(ii), in each case when due;

 

(f)             failure by the Company for sixty (60) days after written notice from the Trustee or the holders of at least 25% in principal amount of the Notes then Outstanding (a copy of which notice, if given by holders, also to be given to the Trustee) has been received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;

 

(g)            default by the Company or any Significant Subsidiary with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any Indebtedness for money borrowed in excess of $10 million in the aggregate of the Company and/or any such Significant Subsidiary, whether such Indebtedness now exists or shall hereafter be created (i) resulting in such Indebtedness becoming or being declared due and payable (unless rescinded) or (ii) constituting a failure to

 

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pay the principal or interest of any such Indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration or otherwise;

 

(h)            (i) the entry by