Second Supplemental Indenture

 

 

Exhibit 4.2

EXECUTION COPY

 

TEREX CORPORATION

as Issuer

HSBC BANK USA, NATIONAL ASSOCIATION

as Trustee

 

Second Supplemental Indenture

Dated as of June 3, 2009

Supplemental to Indenture

Dated as of July 20, 2007

4.00% Convertible Senior Subordinated Notes Due 2015

 

 

 

 

 

TEREX CORPORATION

RECONCILIATION AND TIE BETWEEN TRUST

INDENTURE ACT OF 1939 AND INDENTURE

N.A. means not applicable.

____________________

Note:

This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Supplemental Indenture.

 

TABLE OF CONTENTS

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SECOND SUPPLEMENTAL INDENTURE, dated as of June 3, 2009, between TEREX CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware, as issuer (the “ Company ”) and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”) under the Indenture, dated as of July 20, 2007, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “ Base Indenture ”).

RECITALS OF THE COMPANY

WHEREAS, the Company and the Trustee entered into the Base Indenture to provide for the issuance from time to time of the Company’s unsecured subordinated indebtedness (including instruments in global, temporary or definitive form) to be issued in one or more series (hereinafter called the “ Securities ”) as the Base Indenture provides;

WHEREAS, Section 901 of the Base Indenture provides, among other things, that the Company and the Trustee may enter into indentures supplemental to the Base Indenture without the consent of any Holder of Securities, to establish the form of any Security, as permitted by Section 201 of the Base Indenture, and to provide for the issuance of the Notes (as defined below), as permitted by Section 301 of the Base Indenture, and to set forth the terms thereof;

WHEREAS, pursuant to Section 201 of the Base Indenture, the Company desires to execute this Supplemental Indenture to establish the form, and pursuant to Section 301 of the Base Indenture to provide for the issuance, of a series of its Securities designated as 4.00% Convertible Senior Subordinated Notes due 2015 (the “ Notes ”), in an initial aggregate principal amount of $172,500,000. The Notes are a series of Securities as referred to in Section 301 of the Base Indenture;

WHEREAS, the Company may, if permitted to do so pursuant to the terms of the Base Indenture and this Supplemental Indenture (collectively, the “ Indenture ”), the Notes and the terms of its other indebtedness existing on such future date, authorize the issuance of, if and when issued, Additional Notes (as defined in Section 2.01 herein) which may be offered subsequent to the issue date of the Notes in accordance with this Supplemental Indenture, pursuant to this Supplemental Indenture, and the Company and the Trustee have agreed that the Company shall issue and deliver, and the Trustee shall authenticate, the Notes, including any Additional Notes, pursuant to the terms of the Indenture and substantially in the form set forth as Exhibit A, attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture;

WHEREAS, this Supplemental Indenture shall be subject to and governed by the provisions of the Trust Indenture Act;

WHEREAS, the execution of this Supplemental Indenture has been duly authorized by the Board of Directors and all things necessary to make this Supplemental Indenture, when executed and delivered by the Company, a valid, binding and legal instrument according to its terms have been done and performed;

WHEREAS, all things necessary have been done to make the Notes, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, in accordance with their terms; and

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for 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 Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements.  The provisions of this Supplemental Indenture shall supersede any corresponding provisions in the Base Indenture.

 

 

 

 

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

(a)

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

(b)

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

(c)

all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them therein; and

(d)

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 5.04.

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

“ Additional Shares ” has the meaning specified in Section 4.06(a).

“ Agent Members ” has the meaning specified in Section 2.02(a).

“ Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

“ Base Indenture ” has the meaning specified in the first paragraph of this Supplemental Indenture.

“ Bid Solicitation Agent ” means the Company or such other Person as may be appointed, from time to time, by the Company without prior notice to the Holders of the Notes to solicit market bid quotations for the Notes in accordance with Section 4.01(a)(ii).

“ Business Day ” means, with respect to any Note, 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 to be closed.

“ Clause A Distribution ” has the meaning specified in Section 4.04(c).

“ Clause B Distribution ” has the meaning specified in Section 4.04(c).

“ Clause C Distribution ” has the meaning specified in Section 4.04(c).

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

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

“ Common Stock ” means the shares of common stock, par value $0.01 per share, of the Company as such common stock exists on the date of this Supplemental Indenture (or any subsequent common stock or other property included in Reference Property as set forth in Section 4.07).

“ Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who was:

(i)

a member of the Company’s Board of Directors on the date of the first issuance of the Notes; or

 

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(ii)

nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.

“ Conversion Agent ” means the Trustee or such other office or agency designated by the Company where Notes may be presented for conversion.  The Conversion Agent shall initially be the Trustee.

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

“ Conversion Notice ” has the meaning specified in Section 4.02(c).

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

“ Conversion Rate ” means, initially, 61.5385 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein.

“ Custodian ” means the Trustee, as custodian with respect to the Notes (so long as the Notes constitute Global Securities), or any successor entity.

“ Daily Conversion Value ” means, for each of the 25 consecutive Trading Days during the Observation Period, 4% of the product of (i) the applicable Conversion Rate on such Trading Day and (ii) the Daily VWAP of the Common Stock on such Trading Day.

“ Daily Settlement Amount ” has the meaning specified in Section 4.03(b).

“ Daily Share Amount ” has the meaning specified in Section 4.03(b)(ii).

“ Daily VWAP ” means, for each of the 25 consecutive Trading Days during the Observation Period, the per share volume-weighted average price for Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “TEX <equity> AQR” (or its equivalent successor if such page is not applicable or 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.

“ Designated Senior Subordinated Indebtedness ” means the Company’s 8.00% Senior Subordinated Notes due 2017 and any other Indebtedness of the Company that is subordinate or junior in right of payment to any other Indebtedness of the Company pursuant to a written agreement to that effect; provided, however , that Designated Senior Subordinated Indebtedness shall not include the Company’s 7⅜% Senior Subordinated Notes due 2014.

“ DTC ” means The Depository Trust Company.

“ Effective Date ” has the meaning specified in Section 4.06(c).

“ Event of Default ” has the meaning specified in Section 5.01.

“ Ex-Dividend Date ” means, in respect of any dividend or distribution, the first date upon which the Common Stock trades on the applicable exchange or in the applicable market, regular way, without the right to receive such dividend or distribution.

 

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“ Fundamental Change ” will be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:

(i) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company or any Subsidiaries of the Company or any employee benefit plan of the Company or such Subsidiaries, 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 in the aggregate of all classes of common equity of the Company outstanding entitled to vote generally in elections of its directors;

(ii) consummation of (A) 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 exchanged for, stock, other securities, other property or assets or (B) any share exchange, consolidation or merger involving the Company pursuant to which the Common Stock will be exchanged for cash, securities or other property or any sale, lease or other transfer in one transaction or a series of related 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 its Subsidiaries other than any transaction:

(x)

involving a consolidation or merger that does not result in a reclassification, conversion, exchange or cancellation of the outstanding Common Stock;

(y)

where the holders of more than 50% of all classes of the Company’s common equity immediately prior to such transaction that is a statutory share exchange, consolidation or merger own, directly or indirectly, more than 50% of all classes of common equity of the continuing or surviving entity or transferee or the parent entity thereof immediately after such transaction; or

(z)

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

(iii) the Continuing Directors cease to constitute at least a majority of the Company’s Board of Directors;

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

(v) the Common Stock (or other capital stock underlying the Notes) ceases to be listed or quoted on the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their successors).

For the avoidance of doubt, in determining whether a Fundamental Change has occurred, any event or transaction that would constitute a Fundamental Change under both clause (i) and clause (ii) of this definition (determined without giving effect to the exception set forth in Section 3.01(b)), shall be analyzed solely pursuant to clause (ii) above.

“ Fundamental Change Company Notice ” has the meaning specified in Section 3.03.

“ Fundamental Change Purchase Date ” has the meaning specified in Section 3.01.

“ Fundamental Change Purchase Notice ” has the meaning specified in Section 3.02(a)(i).

“ Fundamental Change Purchase Price ” has the meaning specified in Section 3.01.

“ Indenture ” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture.

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

“ Interest Payment Date ” means, with respect to the payment of interest on the Notes, each June 1 and December 1 of each year, beginning on December 1, 2009.

 

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“ Last Reported Sale Price ” of Common Stock on any date means the closing sale price per share of the Common Stock (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 is traded.  If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “ Last Reported Sale Price ” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar organization.  If the Common Stock is not so quoted, the “ Last Reported Sale Price ” shall be the average of the mid-point of the last bid and ask prices for the Common Stock 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 described in clauses (i), (ii) or (v) of the definition of Fundamental Change (determined after giving effect to any exceptions or exclusions to such definition, but without regard to the exception in clause (ii) of such definition) other than a transaction that would not result in the Company being required to repurchase Notes as a result of Section 3.01(b).

“ Market Disruption Event ” means for the purposes of determining payment upon conversion (i) a failure by the principal U.S. national securities 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 for more than one half-hour period in the aggregate on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time.

“ Measurement Period ” has the meaning specified in Section 4.01(a)(ii).

“ Merger Event ” has the meaning specified in Section 4.07(a).

“ Note ” or “ Notes ” has the meaning specified in the third paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01 hereof.

“ Observation Period ” means, with respect to any Note:

(i)

if the relevant Conversion Date occurs prior to the 30 ^th  Scheduled Trading Day preceding June 1, 2015, the 25 consecutive Trading Day period beginning on and including the second Scheduled Trading Day after such Conversion Date; and

(ii)

if the relevant Conversion Date occurs on or after the 30 ^th  Scheduled Trading Day preceding June 1, 2015, the 25 consecutive Trading Days beginning on and including the 27 ^th  Scheduled Trading Day immediately preceding June 1, 2015.

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

“ Paying Agent ” has the meaning set forth in the Base Indenture, which shall initially be the Trustee, and shall be the Person authorized by the Company to pay the principal amount of, interest on, or Fundamental Change Purchase Price of, any Notes on behalf of the Company.

“ Physical Notes ” means certificated Notes that are not in global form and are Registered Securities issued in denominations of $1,000 principal amount and multiples thereof.

“ Place of Payment ” means, for purposes of the Notes, New York City, New York.

“ Prospectus Supplement ” means the final Prospectus Supplement of the Company, dated May 28, 2009, relating to the Notes.

 

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“ Publicly Traded Securities ” means, in respect of a transaction described in clause (ii) of the definition of Fundamental Change, capital stock traded on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any or their respective successors) or which will be so traded or quoted when issued or exchanged in connection with such a Fundamental Change.

“ Reference Property ” has the meaning specified in Section 4.07(a).

“ Registered Security ” means any Security registered in the Security Register.

“ Regular Record Date ” means, with respect to the payment of interest on the Notes, the May 15 (whether or not a Business Day) immediately preceding an Interest Payment Date on June 1 and the November 15 (whether or not a Business Day) immediately preceding an Interest Payment Date on December 1.

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional 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.

“ Settlement Amount ” has the meaning specified in Section 4.03(a).

“ Significant Subsidiary ” means any Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission as in effect on the issue date of the Notes.

“ Spin-Off ” has the meaning specified in Section 4.04(c)(iii).

“ Stated Maturity ” means, with respect to any Note and the payment of the principal amount thereof, June 1, 2015.

“ Stock Price ” has the meaning specified in Section 4.06(c).

“ Subsidiary Guarantee ” means a Guarantee by a Subsidiary Guarantor of the Company’s obligations with respect to the Notes.

“ Subsidiary Guarantor ” means any Subsidiary of the Company that Guarantees the Company’s obligations with respect to the Notes.

“ Trading Day ” means, except as otherwise provided in Section 4.03(e), a day on which (i) trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S.national or regional securities exchange, in 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 selected by the Company; provided that, if three bids cannot reasonably be obtained by the Bid Solicitation Agent but only 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.

“ Trading Price Condition ” has the meaning specified in Section 4.01(a)(ii).

“ Trigger Event ” has the meaning specified in Section 4.04(c).

 

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“ Unit of Reference Property ” has the meaning specified in Section 4.07(a).

“ U.S. ” means the United States of America.

“ Valuation Period ” has the meaning specified in Section 4.04(c).

ARTICLE 2

THE SECURITIES

Section 2.01.   Designation, Principal Amount and Terms.   There is hereby authorized and established pursuant to Section 301 of the Base Indenture, a series of Securities designated as the “4.00% Convertible Senior Subordinated Notes Due 2015,” and initially limited in aggregate principal amount to $172,500,000.  The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiples thereof.

The principal amount of Notes then outstanding shall be payable at Stated Maturity.

The Company may, at any time, without the consent of the Holders of the Notes, hereafter issue additional notes of the same series as the Notes (“ Additional Notes ”) under the Indenture in the same currency and having the same interest rate, maturity and other terms (other than the payment of interest accruing prior to the issue date of such Additional Notes and, at the option of the Company, the first payment of interest following the issue date of such Additional Notes) and 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; provided that such Additional Notes must be part of the same issue as the Initial Notes for U.S. federal income tax purposes.  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. All provisions of the Indenture shall be construed and interpreted to permit the issuance of such Additional Notes and to allow such Additional Notes to become fungible and interchangeable with the Initial Notes issued under the Indenture. No Additional Notes may be issued if an Event of Default under the Indenture has occurred and is continuing with respect to the Notes.

The Form of Note, the Form of Notice of Conversion, the Form of Fundamental Change Purchase Notice, the Form of Assignment and Transfer and the Form of Subsidiary Guarantee, shall be substantially as set forth in Exhibits A, B, C, D and E, respectively, hereto, which are incorporated into and shall be deemed a part of this Supplemental Indenture, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and the Notes may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the officers of the Company executing such Notes, as evidenced by their execution of the Notes.

Section 2.02.   Book-entry Provisions for Global Securities.   (a)    The Notes initially shall be issued in the form of one or more Global Securities without interest coupons (i) registered in the name of Cede & Co., as nominee of the Depositary and (ii) delivered to the Trustee as custodian for the Depositary.

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Supplemental Indenture or the Base Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and Cede & Co., or such other Person designated by the Depositary as its nominee, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security 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 impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.

(b)

If DTC continues as depositary for the Common Stock, each Holder of Physical Notes must rely on the procedures of DTC with respect to payment and delivery of Common Stock, if any, received by such Holder upon exercise of its Conversion Rights (and, if the Holder is not an Agent Member, on the procedures of the Agent Members through which the Holder owns its interest).

 

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Section 2.03.   Reporting Requirement.   Section 704 of the Base Indenture shall be deleted in its entirety and replaced with the following:

Section 704. Reports by Company. The Company shall deliver to the Trustee within 15 days after the same are required to be filed with the Commission, copies of the quarterly and annual reports and of the information, documents and other reports, if any, that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act), and the Company shall otherwise comply with the requirements of Trust Indenture Act Section 314(a).  Any quarterly or annual report or other information, document or other report that the Company files with the Commission pursuant to Section 13 or 15(d) of the Exchange Act on the Commission’s EDGAR system (or any successor system) shall be deemed to constitute delivery of such filing to the Trustee as of the time such documents are filed via EDGAR or any successor system.  

ARTICLE 3

FUNDAMENTAL CHANGES AND PURCHASES THEREUPON

Section 3.01.   Purchase at the Option of Holders Upon a Fundamental Change.   (a)  If a Fundamental Change occurs at any time, then each Holder of Notes shall have the right, at such Holder’s option, to require the Company to purchase 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 specified by the Company that is no earlier than the 30th calendar day following the date of, and no later than the 60th calendar day following the date of, delivery of the Fundamental Change Company Notice (the “ Fundamental Change Purchase Date ”), at a purchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, including any Additional Interest thereon, to, but excluding, the Fundamental Change Purchase Date (the “ Fundamental Change Purchase Price ”); provided, however , that if a Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which such Regular Record Date relates, then the full amount of accrued and unpaid interest payable in respect of such Interest Payment Date shall be payable to the Holders of record as of the corresponding Regular Record Date and the Fundamental Change Purchase Price shall be equal to 100% of the principal amount of the Notes to be purchased pursuant to this Article 3.  The requirement for the Company to purchase any Notes on the Fundamental Change Purchase Date will be subject to extension to comply with applicable law.

(b)

Notwithstanding the foregoing, a Holder shall not have the right to require the Company to repurchase its Notes as a result of a Fundamental Change set forth in clause (ii) of the definition thereof if at least 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares, in connection with the transaction or transactions constituting the Fundamental Change consists of Publicly Traded Securities and, as a result of such transaction or transactions, the Notes become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares, subject to the provisions set forth under Section 4.03 of this Supplemental Indenture.

Section 3.02.   Fundamental Change Purchase Notice.   (a)    Purchases of Notes under Section 3.01 shall be made, at the option of the Holder thereof, upon:

(i)

delivery to the Paying Agent by a Holder of a duly completed notice (the “ Fundamental Change Purchase Notice ”) in the form set forth on the reverse of the Note as Exhibit C thereto entitled “Form of Fundamental Change Purchase Notice”, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for tendering interests in Global Securities, if the Notes are not Physical Notes, in each case, at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Purchase Date; and

(ii)

delivery of the Notes, in the case of Physical Notes, to the Paying Agent appointed by the Company (together with all necessary endorsements for transfer), or book-entry transfer of the Notes, in compliance with the procedures of the Depositary, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.

 

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(b)

The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:

(i)

if such Notes are Physical Notes, the certificate numbers of such Notes;

(ii)

the portion of the principal amount of such Notes to be purchased, which must be $1,000 or a multiple thereof; and

(iii)

that such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture;

provided, however , that if such Notes are represented by Global Securities, the Fundamental Change Purchase Notice must also comply with appropriate procedures of the Depositary.

(c)

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Purchase Notice contemplated by this Section 3.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.06.

(d)

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

Section 3.03.   Fundamental Change Company Notice.   (a)    At any time on or before the 15 ^th Business Day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of record of the Notes, the Trustee and the Paying Agent (in the case of any Paying Agent other than the Trustee) a notice (the “ Fundamental Change Company Notice ”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders arising as a result thereof.  Such notice shall be sent by first class mail or, in the case of any Global Securities, in accordance with the procedures of the Depositary for providing notices.  Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in New York City, New York or shall publish such information on the Company’s website or through such other public medium as the Company may use at such time.

(b)

Each Fundamental Change Company Notice shall specify:

(i)

the events causing a Fundamental Change;

(ii)

the date of the Fundamental Change;

(iii)

the last date on which a Holder of Notes may exercise the repurchase right pursuant to this Article 3;

(iv)

the Fundamental Change Purchase Price;

(v)

the Fundamental Change Purchase Date;

(vi)

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

(vii)

if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;

(viii)

if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with the Indenture; and

(ix)

the procedures that Holders must follow to require the Company to purchase their Notes.

 

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(c)

No failure of the Company to give the foregoing notices and no defect therein shall limit the purchase rights of the Holders of Notes or affect the validity of the proceedings for the purchase of the Notes pursuant to this Article 3.

Section 3.04.   No Payment Following Acceleration of the Notes .   There shall be no purchase of any Notes pursuant to this Article 3 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded on or prior to the Fundamental Change Purchase Date.  The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it following acceleration of the Notes and shall deem canceled any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary, in which case, upon such return and cancelation, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

Section 3.05.   Effect of Fundamental Change Purchase Notice.   Upon receipt by the Paying Agent of the Fundamental Change Purchase Notice specified in Section 3.02, the Holder of the Note in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 3.06) thereafter be entitled to receive solely the Fundamental Change Purchase Price in cash with respect to such Note.  Such Fundamental Change Purchase Price shall be paid in cash to such Holder, subject to receipt of funds by the Paying Agent, on the later of (x) the Fundamental Change Purchase Date with respect to such Note ( provided the conditions in Section 3.02 have been satisfied) and (y) the time of delivery or book-entry transfer of such Note to the Paying Agent by the Holder thereof in the manner required by Section 3.02.

Section 3.06.   Withdrawal of Fundamental Change Purchase Notice.   A Fundamental Change Purchase Notice delivered pursuant to Section 3.02 may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Company Notice at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Purchase Date, specifying:

(a)

the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;

(b)

if Physical Notes have been issued, the certificate numbers of the withdrawn Notes; and

(c)

the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000;

provided, however , that if the Notes are represented by Global Securities, the notice of withdrawal must also comply with appropriate procedures of the Depositary.

The Paying Agent will promptly return to the respective Holders thereof any Physical Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 3.06. If the Notes are represented by Global Securities, such return must comply with the appropriate procedures of the Depositary.

Section 3.07.   Deposit of Fundamental Change Purchase Price.   At any time prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of money or securities (in immediately available funds if deposited on such Business Day) sufficient to pay the Fundamental Change Purchase Price of all the Notes or portions thereof that are to be purchased as of the Fundamental Change Purchase Date.  If the Paying Agent holds money or securities sufficient to pay the Fundamental Change Purchase Price of the Notes for which a Fundamental Change Purchase Notice has been tendered and not withdrawn in accordance with this Supplemental Indenture on the Fundamental Change Purchase Date, then as of such Fundamental Change Purchase Date, (a) such Notes will cease to be outstanding and interest (including any Additional Interest) will cease to accrue thereon (whether or not book-entry transfer of such Notes is made or such Notes have been delivered to the Paying Agent) and (b) all other rights of the Holders of such Notes in respect thereof will terminate (other than the right to receive the Fundamental Change Purchase Price).

 

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Section 3.08.   Notes Purchased in Whole or in Part.   Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires in the case of Physical Notes, 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 such Holder’s attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.

Section 3.09.   Covenant to Comply With Applicable Laws Upon Purchase of Notes.   In connection with any offer to purchase Notes under Section 3.01 hereof, the Company shall, in each case if required, (a) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable, (b) file a Schedule TO or any other required schedule under the Exchange Act and (c) otherwise comply with all federal and state securities laws so as to permit the rights and obligations under Section 3.01 to be exercised in the time and in the manner specified in Section 3.01, and shall not be deemed to have breached its obligations under the Indenture by virtue of its compliance with such securities laws or regulations.

Section 3.10.   Repayment to the Company.   To the extent that the aggregate amount of money or securities deposited by the Company pursuant to Section 3.07 exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions thereof that the Company is obligated to purchase as of the Fundamental Change Purchase Date, then, following the Fundamental Change Purchase Date, the Paying Agent shall promptly return any such excess to the Company.

ARTICLE 4

CONVERSION

Section 4.01.   Right to Convert.   (a)    Subject to and upon compliance with the provisions of the Indenture, each Holder of Notes shall have the right, at such Holder’s option, to convert the principal amount of any such Notes, or any portion of such principal amount equal to $1,000 or a multiple of $1,000 thereof, at the Conversion Rate then in effect for such Notes (x) prior to the Close of Business on the Business Day immediately preceding December 1, 2014, only upon satisfaction of one or more of the conditions described in clauses (i) through (iv) below and (y) on or after December 1, 2014, at any time prior to the Close of Business on the second Scheduled Trading Day immediately preceding June 1, 2015, irrespective of the conditions described in clauses (i) through (iv) below.

(i)

Prior to the Close of Business on the Business Day immediately preceding December 1, 2014, a Holder of Notes may surrender all or a portion of its Notes for conversion during any fiscal quarter (and only during such fiscal quarter) commencing after June 30, 2009 if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding fiscal quarter is greater than or equal to 130% of the applicable Conversion Price in effect on each applicable Trading Day.  The Company shall notify the Trustee and the Conversion Agent if the Notes become convertible in accordance with this Section 4.01(a)(i).

(ii)

Prior to the Close of Business on the Business Day immediately preceding December 1, 2014, a Holder of Notes may surrender its Notes for conversion during the five Business Day period after any 10 consecutive Trading Day period (the “ Measurement Period ”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures set forth in this Section 4.01(a)(ii), for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate on such Trading Day (the “ Trading Price Condition ”).  The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Notes in accordance with this Section 4.01(a)(ii) unless requested by the Company, and the Company shall have no obligation to make such request unless a Holder of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the

 

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applicable Conversion Rate.  The Company shall instruct the Bid Solicitation Agent to determine (or, if the Company is then acting as Bid Solicitation Agent, the Company shall determine) the Trading Price of the Notes beginning on the next Trading Day promptly following the receipt of such evidence and on each successive Trading Day until such Trading Day on which the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate.  If the Company does not so instruct the Bid Solicitation Agent to obtain (or, if the Company is then acting as Bid Solicitation Agent, the Company does not obtain) bids when required, the Trading Price per $1,000 principal amount of the 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 on each day the Company fails to do so.  If the Trading Price Condition has been met, the Company shall so notify Holders of the Notes, the Trustee and the Conversion Agent.  If, at any time after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the Holders of the Notes, the Trustee and the Conversion Agent.

(iii)

If the Company elects to:

(A)

issue to all or substantially all holders of Common Stock certain rights or warrants described in Section 4.04(b); or

(B)

distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined in good faith by the Company’s Board of Directors, exceeding 10% of the Last Reported Sale Price of Common Stock on the Trading Day preceding the date of announcement for such distribution,

then, in each case, the Company shall notify the Trustee and the Holders of the Notes at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution.  Once the Company has given such notice, Holders may surrender Notes for conversion at any time until the earlier of the Close of Business on the Business Day immediately prior to such Ex-Dividend Date or the Company’s announcement that such issuance or distribution will not take place, even if the Notes are not otherwise convertible at such time.  Notwithstanding the foregoing, a Holder of Notes may not convert its Notes under the provisions of this Section 4.01(a)(iii) if such Holder will participate in such issuance or distribution, at the same time and upon the same terms as a holder of Common Stock, as if such Holder held, for each $1,000 principal amount of Notes, a number of shares of Common Stock equal to the Conversion Rate in effect immediately prior to the Ex-Dividend Date.

(iv)

If (A) a transaction or event that constitutes a Fundamental Change occurs, determined without regard to Section 3.01(b) and regardless of whether a Holder has the right to require the Company to purchase the Notes pursuant to Article 3, or (B) any consolidation, merger or binding share exchange involving the Company, or any sale, transfer or lease of all or substantially all of the Company’s assets occurs, in each case, pursuant to which shares of the Common Stock would be exchanged for or converted into cash, securities or other assets, then Holders may surrender Notes for conversion at any time from or after the date which is 30 Scheduled Trading Days prior to the anticipated effective date of such transaction until 35 Trading Days after the actual effective date of such transaction (or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Purchase Date).  The Company shall notify Holders and the Trustee as promptly as practicable following the date it publicly announces such transaction, but in no event less than 30 Scheduled Trading Days prior to the anticipated effective date of such transaction (or, if the Company is not a party to such transaction, promptly following the date the Company becomes aware of the consummation of such transaction).

Failure by the Company to give any notice required by Section 4.01, or any defect therein, shall not affect the legality or validity of the relevant transaction or event in this Section 4.01.

(b)

Notes may not be converted after the Close of Business on the second Scheduled Trading Day immediately preceding June 1, 2015.

 

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Section 4.02.   Conversion Procedures.   (a)    Each Note shall be convertible at the office of the Conversion Agent and, if applicable, in accordance with the procedures of the Depositary.

(b)

In order to exercise the conversion privilege with respect to any interest in a Global Security, the Holder must complete the appropriate instruction form for conversion pursuant to the Depositary’s book-entry exchange program, furnish appropriate endorsements and transfer documents if required by the Company or the Conversion Agent, and pay the funds, if any, required by Section 4.03(c) and any taxes or duties if required pursuant to Section 4.08, and the Conversion Agent must be informed of the conversion in accordance with the customary practice of the Depositary.  

(c)

In order to exercise the conversion privilege with respect to any Physical Notes, the Holder of any such Notes to be converted, in whole or in part, shall:

(i)

complete and manually sign the conversion notice provided on the back of the Note and attached hereto as Exhibit B entitled “Form of Notice of Conversion”(the “ Conversion Notice ”) or a facsimile of the Conversion Notice;

(ii)

deliver the Conversion Notice, which is irrevocable, and the Physical Notes to the Conversion Agent;

(iii)

if required, furnish appropriate endorsements and transfer documents,

(iv)

if required, pay all transfer or similar taxes as set forth in Section 4.08; and

(v)

make any payment required under Section 4.03(c).

The date on which the Holder satisfies all of the applicable requirements set forth above is the “ Conversion Date .” The Conversion Agent will, as promptly as possible, and in any event within two Business Days of the receipt thereof, provide the Company with notice of any conversion by a Holder of the Notes.

(d)

Subject to Section 2.02(b), each Conversion Notice shall state the name or names (with address or addresses) in which any certificate or certificates for Common Stock, if any shall be issuable on such conversion, shall be issued.  All such Notes surrendered for conversion shall, unless the shares issuable on conversion, if any, are to be issued in the same name as the registration of such Notes, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the Holder or his duly authorized attorney.

(e)

In case any Notes of a denomination greater than $1,000 shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of the Notes so surrendered, without charge, new Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Notes.

Each conversion shall be deemed to have been effected as to any such Notes (or portion thereof) surrendered for conversion on the relevant Conversion Date; provided, however , that the Person in whose name the certificate or certificates for shares of Common Stock, if any, shall be issuable upon such conversion in respect of any Trading Day during an Observation Period shall become the Holder of record of such shares of Common Stock as of the Close of Business on the last Trading Day of such Observation Period.  

(f)

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

(g)

Notwithstanding the foregoing, a Note in respect of which a Holder has delivered a Fundamental Change Purchase Notice exercising such Holder’s option to require the Company to purchase such Note may be converted only if such notice of exercise is withdrawn in accordance with Section 3.06 hereof prior to the Close of Business on the Business Day immediately preceding the relevant Fundamental Change Purchase Date.

 

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Section 4.03.   Payments Upon Conversion.   (a)    Except as provided in Section 4.06(b), upon conversion of any Note, on the third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall deliver to converting Holders, in respect of each $1,000 principal amount of Notes being converted, a “ Settlement Amount ” equal to the sum of the Daily Settlement Amounts for each of the 25 Trading Days during the applicable Observation Period for such Note.

(b)

The “ Daily Settlement Amount ,” for each of the 25 Trading Days during the Observation Period, shall consist of:

(i)

cash equal to the lesser of $40 and the Daily Conversion Value; and

(ii)

to the extent the Daily Conversion Value exceeds $40, a number of shares of Common Stock (the “ Daily Share Amount ”) equal to (x) the difference between the Daily Conversion Value and $40, divided by (y) the Daily VWAP for such day.

(c)

Upon the conversion of any Notes, the Holder of such Notes will not be entitled to receive any separate cash payment for accrued and unpaid interest or Additional Interest, if any, except to the extent specified below.  The Company’s delivery to such Holder of cash or a combination of cash and shares of Common Stock, if applicable, together with any cash payment for any fractional share of Common Stock, into which a Note is convertible will be deemed to satisfy in full the Company’s obligation to pay the principal amount of the Notes so converted and accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date.  As a result, accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date will be deemed to be paid in full rather than cancelled, extinguished or forfeited.  Notwithstanding the foregoing, if Notes are converted after the Close of Business on a Regular Record Date for the payment of interest, 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.  Notes surrendered for conversion during the period from the Close of Business on any Regular Record Date to the Open of Business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest and Additional Interest, if any, payable on the Notes so converted; provided that no such payment need be made (i) for conversions following the Regular Record Date immediately preceding June 1, 2015, (ii) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, or (iii) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.

(d)

The Company shall not issue fractional shares of Common Stock upon conversion of Notes.  If any fractional share of Common Stock would be issuable upon the conversion of any Notes, the Company shall make payment therefor in cash in lieu of fractional shares of Common Stock based on the Daily VWAP of the Common Stock on the final Trading Day of the applicable Observation Period.

(e)

Solely for purposes of determining the payments and deliveries due upon conversion under this Section 4.03, and notwithstanding the definition of “Trading Day” contained in Section 1.02, “ Trading Day ” means a day on which (i) there is no Market Disruption Event and (ii) trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded.  If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or traded, “ Trading Day ” means a Business Day.

Section 4.04.   Adjustment of Conversion Rate.   The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company will not make any adjustment to the Conversion Rate under Section 4.04(a) (but only with respect to stock dividends or distributions), Section 4.04(b), Section 4.04(c), or Section 4.04(d), if Holders of Notes participate in any of the transactions described below, at the same time as holders of Common Stock participate and as a result of holding the Notes, without having to convert their Notes, as if such Holders held a number of shares of Common Stock equal to the Conversion Rate in effect for such Notes immediately prior to the Ex-Dividend Date for such event.

 

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(a)

If the Company, at any time or from time to time while any of the Notes are outstanding, issues Common Stock as a dividend or distribution on the Common Stock, or if the Company effects a share split or share combination, then the Conversion Rate will be adjusted based on the following formula:

where,

CR ₀

=

the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the effective date of such share split or share combination, as applicable;

CR ₁

=

the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or such effective date, as applicable;

OS ₀

=

the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such effective date, as applicable; and

OS ₁

=

the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such effective date, as applicable, after giving effect to such dividend, distribution, share split or share combination.

Such adjustment shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution or the effective date for such share split or share combination.  If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.

(b)

If the Company, at any time or from time to time while any of the Notes are outstanding, issues to all or substantially all holders of Common Stock any rights or warrants entitling them for a period of not more than 45 calendar days to subscribe for or purchase shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, then the Conversion Rate shall be adjusted based on the following formula:

where,

CR ₀

=

the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance;

CR ₁

=

the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

OS ₀

=

the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date;

X

=

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

Y

=

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

 

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Such adjustment shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance. To the extent such rights or warrants are not exercised prior to their expiration or termination, the Conversion Rate shall be readjusted to the Conversion Rate which would be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered.  In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed.  For the purposes of this Section 4.04(b), in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate exercise price payable for such Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on the exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Company’s Board of Directors.

(c)

If the Company, at any time or from time to time while the Notes are outstanding, distributes shares of any class of its capital stock, evidences of its Indebtedness, other assets or property of the Company or rights or warrants to acquire the Company’s capital stock or other securities to all or substantially all holders of Common Stock, excluding:

(i)

dividends or distributions and rights or warrants as to which an adjustment was effected pursuant to Section 4.04(a) or Section 4.04(b);

(ii)

dividends or distributions paid exclusively in cash; and

(iii)

Spin-Offs to which the provisions set forth below in this Section 4.04(c) shall apply;

then the Conversion Rate shall be adjusted based on the following formula:

where,

CR ₀

=

the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution;

CR ₁

=

the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

SP ₀

=

the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

FMV

=

the fair market value (as determined by the Company’s Board of Directors) of the shares of capital stock, evidences of Indebtedness, assets, property, rights or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution.

Such adjustment shall become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution.  If the Company’s Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 4.04(c) by reference to the actual or when-issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the average of the Last Reported Sale Prices of Common Stock.  Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP ₀ ” (as defined above), in lieu of the foregoing adjustment, each Holder of Notes shall receive, at the same time and upon the same terms as holders of Common Stock, the amount and kind of securities and assets such Holder would have received as if such Holder owned a number of Common Stock equal to the Conversion Rate in effect immediately prior to the Ex-Dividend Date for the distribution of the securities or assets.

 

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With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company and such equity interests are listed for trading on a securities exchange (a “ Spin-Off ”), the Conversion Rate shall be adjusted based on the following formula:

where,

CR ₀

=

the Conversion Rate in effect immediately prior to the end of the Valuation Period (as defined below);

CR ₁

=

the Conversion Rate in effect immediately after the end of the Valuation Period;

FMV ₀

=

the average of the Last Reported Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such capital stock or similar equity interest were Common Stock) over the first ten consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “ Valuation Period ”); and

MP ₀

=

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

The adjustment to the Conversion Rate under the preceding paragraph will occur on the last day of the Valuation Period; provided that in respect of any Trading Day in an Observation Period that occurs during the Valuation Period, references above to ten Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the applicable Trading Day during the Observation Period in determining the applicable Conversion Rate.

For the purposes of this Section 4.04(c) (and subject in all respects to Section 4.12), rights or warrants distributed by the Company to all holders of Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “ Trigger Event ”):  (1) are deemed to be transferred with such Common Stock; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.04(c), (and no adjustment to the Conversion Rate under this Section 4.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 4.04(c).  If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Supplemental Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of Indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date of such deemed distribution (in which case the original rights or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders).  In addition, in the event of any distribution or deemed distribution of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 4.04(c) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, upon such final redemption or repurchase (x) the Conversion Rate shall be readjusted as if such rights or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by holders of Common Stock with respect to such rights or warrants (assuming each such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.

 

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For the purposes of this Section 4.04(c) and subsections (a) and (b) of this Section 4.04, any dividend or distribution to which this Section 4.04(c) applies which also includes one or both of:

(A)

a dividend or distribution of Common Stock to which Section 4.04(a) applies (the “ Clause A Distribution ”);

(B)

a dividend or distribution of rights or warrants to which Section 4.04(b) applies (the “ Clause B Distribution ”),

then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) applies (the “ C