5.25% Convertible Notes due 2014

Exhibit 4.2

ALCOA INC.

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

AS TRUSTEE

5.25% Convertible Notes due 2014

THIRD SUPPLEMENTAL INDENTURE

Dated as of March 24, 2009

to

INDENTURE

Dated as of September 30, 1993

THIRD SUPPLEMENTAL INDENTURE, dated as of March 24, 2009, by and between ALCOA INC., a corporation organized under the laws of the Commonwealth of Pennsylvania and having its principal office at 390 Park Avenue, New York, New York (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor trustee to J.P. Morgan Trust Company, N.A. (formerly known as Chase Manhattan Trust Company, National Association, as successor trustee to PNC Bank, National Association), a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”) to that certain Indenture dated as of September 30, 1993 between the Company and the Trustee.

RECITALS OF THE COMPANY

The Company and the Trustee are parties to an Indenture dated as of September 30, 1993, as amended by the first supplemental indenture dated as of January 25, 2007 and the second supplemental indenture dated as of July 15, 2008 (as so amended, the “Original Indenture”), relating to the issuance from time to time by the Company of one or more series of its Securities.

Sections 901 (3), (5), (7) and (9) of the Original Indenture provide that a supplemental indenture may be entered into by the Company and the Trustee, without the consent of any Holders, when properly authorized by a certified resolution adopted by the Board of Directors, (a) to add, change or eliminate any provisions of the Original Indenture in respect of one or more series of Securities (provided that such addition, change or elimination shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefits of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provisions); (b) to establish the form or terms of any series of Securities, (c) to add any additional Events of Default and (d) to make provision with respect to the conversion rights of the holders of Securities of any series pursuant to the requirements of Article Fifteen of the Original Indenture.

The Company has determined that this Third Supplemental Indenture complies with said Sections, does not affect the interests of the Holders of Securities Outstanding prior to the date of this Third Supplemental Indenture and does not require the consent of any Holders.

The Company represents and warrants that all things necessary to make this Third Supplemental Indenture a valid agreement of the Company and the Trustee, in accordance with the terms of the Original Indenture, and a valid amendment of and supplement to the Original Indenture have been done.

The Company has requested the Trustee to join with it in the execution and delivery of this third supplemental indenture (the “Third Supplemental Indenture”) in order to supplement and amend the Original Indenture, solely with respect to the establishment and issuance of a new series of Securities to be known as the 5.25% Convertible Notes due 2014 (the “Notes”) issued on the date hereof.

NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of Notes on the date hereof by the Holders thereof, it is mutually agreed, for the equal and ratable benefit of all Holders of the Notes, as follows:

ARTICLE I

ADDITIONAL DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions . For all purposes of the Original Indenture and this Third Supplemental Indenture relating to the series of Securities consisting of the Notes created hereby, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Article I shall have the meanings assigned to them in this Article I, (ii) any term that is defined in both the Original Indenture and this Third Supplemental Indenture shall have the meaning assigned to such term in this Third Supplemental Indenture, (iii) any capitalized term that is used in this Third Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture and (iii) as used in this Third Supplemental Indenture, the terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Third Supplemental Indenture.

For purposes of the Notes and this Third Supplemental Indenture, the following terms shall have the following definitions:

“ Additional Interest ” means all amounts, if any, payable pursuant to Section 3.02 hereof.

“ Beneficial Owner ” shall mean any person who is considered a beneficial owner of a security in accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act.

“ Business Day ” means any day other than a Saturday or Sunday that is not a day on which banking institutions are authorized or obligated by law or executive order to close in The City of New York.

“ Common Stock ” means the common stock, par value $1.00 per share, of the Company existing on the Issue Date or any other shares of capital stock into which such common stock shall be reclassified or changed.

“ Company ” means Alcoa Inc. or its successors and assigns.

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

“ Conversion Price ” means, in respect of each $1,000 principal amount of Notes, $1,000 divided by the Conversion Rate, as may be adjusted from time to time as set forth herein, and initially shall be $6.43.

“ Conversion Rate ” means, in respect of each $1,000 principal amount of Notes, initially 155.4908 shares of Common Stock, subject to adjustment as set forth herein.

“ Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“ Definitive Notes ” means certificated Notes that are not Global Notes.

“ DTC ” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company pursuant to the terms of this Third Supplemental Indenture.

 

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“ Ex-Dividend Date ” means the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant dividend, issuance or distribution from the seller of the Common Stock to its buyer.

“ Fair Market Value ” means the amount that a willing buyer would pay a willing seller in an arm’s length transaction.

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

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, any Subsidiary of the Company or any employee benefit plans of the Company or a Subsidiary of the Company files a Schedule 13D or Schedule TO (or any successor schedule, form or report) pursuant to the Exchange Act disclosing that such person 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 all shares of the Company’s common equity entitled to vote generally in the election of directors of the Company, unless such beneficial ownership arises as a result of a revocable proxy delivered in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act; provided, that no person or group shall be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or group until such tendered securities are accepted for purchase or exchange under such offer; or

(2) 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 converted into, or exchanged for, stock, other securities, other property or assets or (B) any statutory share exchange, consolidation or merger involving 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 related transactions of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole, to any person other than one or more of the Company’s Subsidiaries, other than any transaction:

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

(II) 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

(III) 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; or

(3) the Common Stock (or other capital stock into which the Notes are then convertible pursuant to the terms of this Third Supplemental Indenture) ceases to be listed on the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market (or their respective successors);

provided, however , that a Fundamental Change as a result of clause (1) or (2) above will not be deemed to have occurred if 90% or more of the consideration received or to be received by the holders of

 

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Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in connection with the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market (or their respective successors) or which will be so traded when issued or exchanged in connection with the transaction that would otherwise be a Fundamental Change (these securities being referred to as “Publicly Traded Securities”) and as a result of this transaction or transactions the Notes become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares, pursuant to the terms of this Third Supplemental Indenture.

“ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession as in on the date of this Third Supplemental Indenture.

“ Global Notes ” means certificated Notes in global form, without interest coupons, substantially in the form of Exhibit A hereto and registered in the name of DTC or a nominee of DTC.

“ Holder ” or “ Noteholder ” means the Person in whose name a Note is registered in the Security Register.

“ Interest Payment Date ” means March 15 and September 15 of each year.

“ Issue Date ” means March 24, 2009.

“ Last Reported Sale Price ” of the Common Stock on any Trading Day means 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 average ask prices) of the Common Stock on that Trading Day as reported in composite transactions for the principal United States national or regional securities exchange on which the Common Stock is traded or, if the Common Stock is not listed for trading on a United States national or regional securities exchange on the relevant Trading Day, the Last Reported Sale Price will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant Trading Day as reported by the National Quotation Bureau or similar organization selected by the Company. If the Common Stock is not so listed or 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 such purpose.

“ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer or the Secretary of the Company.

“ Original Indenture ” is as defined in the introductory paragraphs of this Third Supplemental Indenture.

“ Prospectus Supplement ” means the prospectus supplement, dated March 18, 2009 to the prospectus dated March 10, 2008, relating to the offering by the Company of the Notes.

“ Publicly Traded Securities ” has the meaning provided in the definition of Fundamental Change in this Section 1.01.

 

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“ Record Date ” means, in respect of a dividend or distribution to holders of Common Stock, the date fixed for determination of holders of Common Stock entitled to receive such dividend or distribution.

“ Regular Record Date ” for the payment of interest on the Notes (including Additional Interest, if any), means the March 1 (whether or not a Business Day) next preceding the Interest Payment Date on March 15 and the September 1 (whether or not a Business Day) next preceding the Interest Payment Date on September 15.

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

“ SEC ” means the United States Securities and Exchange Commission.

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

“ Securities Custodian ” means the custodian with respect to the Global Notes (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee.

“ Stock Price ” means, with respect to a Fundamental Change, the price per share of Common Stock paid or deemed paid in connection with such Fundamental Change if such Fundamental Change is a transaction described in clause (1) or (2) of the definition thereof and Holders of the Common Stock receive only cash as a result of such Fundamental Change, or otherwise, 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 Effective Date.

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

“ Trading Day ” means a day during which trading in securities generally occurs on the principal United States national or regional securities exchange on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not then listed or admitted to trading on a United States national or regional securities exchange, in the principal other market on which the Common Stock is then traded; provided that if the Common Stock is not so listed or traded, “Trading Day” means a “Business Day”.

“ Trust 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 having direct responsibility for the administration of this Third Supplemental Indenture.

 

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Other Definitions.

 

 

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ARTICLE II

THE NOTES

Section 2.01 Title; Amount and Issue of Notes; Principal and Interest .

(a) Pursuant to the terms hereof and Section 301 of the Original Indenture, the Company hereby creates a series of Securities designated as the “5.25% Convertible Notes due 2014” of the Company (the “Notes”) which Notes shall be deemed “Securities” for all purposes under the Original Indenture. The aggregate principal amount of Notes which may be authenticated and delivered under this Third Supplemental Indenture is initially $575,000,000, not inclusive of Notes to be authenticated and delivered upon registration of transfer of or in exchange for, or in lieu of such Notes pursuant to the terms of this Third Supplemental Indenture and the Original Indenture. The Notes shall be issuable in registered form and in denominations of $1,000 and integral multiples thereof.

(b) The Notes shall mature on March 15, 2014.

(c) Interest on the Notes shall accrue at a rate of 5.25% per annum, from and including the date specified on the face of such Notes until the principal thereof is paid, deemed paid, or made available for payment. Interest shall be payable semi-annually in arrears on March 15 and September 15 in each year, commencing September 15, 2009. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date falls on a day that is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding Business Day and no interest on such payment will accrue for the period from the Interest Payment Date to such next succeeding Business Day. If the Stated Maturity would fall on a day that is not a Business Day, the required payment of interest, if any, and principal (and Additional Interest, if any), will be made on the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Stated Maturity to such next succeeding Business Day. If a Fundamental Change Purchase Date would fall on a day that is not a Business Day, the Company will purchase the Notes tendered for purchase on the next succeeding Business Day and no interest or Additional Interest on such Notes will accrue for the period from and after the earlier Fundamental Change Purchase Date to such next succeeding Business Day. The Company will pay the Fundamental Change Purchase Price promptly following the later of (i) such next succeeding Business Day or (ii) the time of book entry transfer or the delivery of the Notes.

(d) A Holder of any Notes after 5:00 p.m., New York City time, on a Regular Record Date shall be entitled to receive interest (including any Additional Interest), on such Notes on the corresponding Interest Payment Date. Holders of Notes at 5:00 p.m., New York City time, on a Regular Record Date will receive payment of interest (including any Additional Interest) payable on the corresponding Interest Payment Date notwithstanding the conversion of such Notes at any time after 5:00 p.m., New York City time on such Regular Record Date. Notes surrendered for conversion during the period after 5:00 p.m., New York City time, on any Regular Record Date to 9:00 a.m., New York City time, on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest (including any Additional Interest) that the Holder is to receive on the Notes on such Interest Payment Date.

Notwithstanding the foregoing, no such payment of interest (including any Additional Interest) need be made by any converting Holder (i) for conversions following the Regular Record Date immediately preceding the Stated Maturity, (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 (including any overdue Additional Interest) existing at

 

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the time of conversion of such Note. Except where Notes surrendered for conversion must be accompanied by payment as described above, no interest or Additional Interest on converted Notes will be payable by the Company on any Interest Payment Date subsequent to the Conversion Date and delivery of the shares of Common Stock pursuant to Article VI of this Third Supplemental Indenture, together with any cash payment for any fractional shares, upon conversion will be deemed to satisfy the Company’s obligation to pay the principal amount of the Notes and accrued and unpaid interest and Additional Interest, if any, to, but not including, the related Conversion Date.

(e) Principal of and interest (including Additional Interest, if any) on, Global Notes shall be payable in immediately available funds.

(f) Principal on Definitive Notes shall be payable at the office or agency of the Company maintained for such purpose, initially the principal office of the Trustee in Pittsburgh, Pennsylvania. Interest (including Additional Interest, if any), on Definitive Notes shall be payable (i) to each Holder of Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to such Holder and (ii) to each Holder of Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to such Holder or, upon application by such Holder to the Security 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, in writing, the Security Registrar to the contrary.

(g) The aggregate principal amount of Notes that shall be issued on the date of this Third Supplemental Indenture is $575,000,000. The Company may from time to time, without notice to, or consent of, the Holders of the Notes, create and issue additional Notes under this Third Supplemental Indenture equal in rank in all respects to the Notes initially issued (or in all respects except for the issue date, conversion price, conversion rate and public offering price of such additional Notes, the payment of interest accruing before the issue date on such Notes, or the first payment of interest following the issue date of such Notes) under this Third Supplemental Indenture in an unlimited principal amount (“Additional Notes”); provided that any such Additional Notes must be part of the same issue as the Notes initially issued under this Third Supplemental Indenture for U.S. federal income tax purposes.

Section 2.02 Form of Notes .

(a) Except as otherwise provided pursuant to this Section 2.02, the Notes shall be issued as Registered Securities without coupons in substantially the form of Exhibit A hereto, with such applicable legends as are provided for in Section 2.03. The Notes are not issuable in bearer form. The terms and provisions contained in the form of Note shall constitute, and are hereby expressly made, a part of this Third Supplemental Indenture and to the extent applicable, the Company and the Trustee, by their execution and delivery of this Third 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 and endorsements as the Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage.

(b) The Notes shall be issued initially in the form of one or more permanent Global Notes, with such applicable legends as are provided for in Section 2.03. Each Global Note shall be duly executed by the Company and authenticated and delivered by the Trustee, and shall be registered in the name of DTC or its nominee and retained by the Trustee, as Securities Custodian, at its Corporate Trust Office, for credit to the accounts of the members of, or participants in, DTC, holding the Notes evidenced thereby.

 

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The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Securities Custodian, and of DTC or its nominee, as hereinafter provided.

Section 2.03 Legends .

(a) Global Note Legend .

Each Global Note shall bear the following legend (the “Global Note Legend”) on the face thereof:

“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE THIRD SUPPLEMENTAL INDENTURE AND THE ORIGINAL INDENTURE.”

(b) Legend for Definitive Notes .

Definitive Notes will bear a legend substantially in the following form:

“THIS NOTE WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL NOTE UNLESS THE HOLDER OF THIS NOTE, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD NO NOTES.”

Section 2.04 Security Registrar, Paying Agent, Withholding Agent, Securities Custodian and Conversion Agent . The Company initially appoints the Trustee as Security Registrar, Paying Agent, Securities Custodian and Conversion Agent for the Notes. The Company may remove any Security Registrar, Paying Agent, Securities Custodian or Conversion Agent upon written notice to such Security Registrar, Paying Agent, Securities Custodian or Conversion Agent and to the Trustee; provided , however, that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Security Registrar, successor Paying Agent, successor Securities Custodian or successor Conversion Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee or the Company shall serve as Security Registrar, Paying Agent, Securities Custodian or Conversion Agent until the appointment of a successor in accordance with clause (i) above. The Security Registrar, Paying Agent, Securities Custodian and Conversion Agent may resign at any time upon written notice to the Company and the Trustee. Any corporation into which any Security Registrar, Paying Agent, Securities Custodian or Conversion Agent appointed hereunder may be merged or with which it may be consolidated or to which the assets of such entity may be sold or otherwise transferred as a whole or substantially as a whole, or any corporation resulting from any merger, consolidation or transfer to which

 

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any Security Registrar, Paying Agent, Securities Custodian or Conversion Agent hereunder shall be a party, shall be the successor Security Registrar, successor Paying Agent, successor Securities Custodian and successor Conversion Agent, as applicable, under this Third Supplemental Indenture, without the execution or filing of any paper or any further act on the part of the parties hereto, anything herein to the contrary notwithstanding

If withholding or backup withholding applies to any payments made or deemed made by the Company to a Holder in respect of the Notes, the Paying Agent shall also act as withholding agent (“Withholding Agent”) to withhold the appropriate amount from any such payments to a Holder.

The Company shall enter into an appropriate agency agreement with any Security Registrar, Paying Agent, Securities Custodian, Conversion Agent or co-registrar not a party to this Third Supplemental Indenture, which shall incorporate the terms of the Trust Indenture Act, except in the case of a Paying Agent that acts as Paying Agent solely in connection with an offer to purchase the Notes pursuant to Article V of this Third Supplemental Indenture. The agreement shall implement the provisions of this Third Supplemental Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Security Registrar, Paying Agent, Securities Custodian or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor. The Company or any of its domestically organized, wholly-owned Subsidiaries may act as Paying Agent, Security Registrar, Securities Custodian, Conversion Agent co-registrar or transfer agent.

Section 2.05 No Sinking Fund . No sinking fund will be provided with respect to the Notes issued under this Third Supplemental Indenture.

Section 2.06 Redemption of Notes . The Notes issued under this Third Supplemental Indenture shall not be redeemable at the election of the Company prior to their Stated Maturity.

Section 2.07 Discharge of Indenture, Defeasance . The Notes issued under this Third Supplemental Indenture shall not be subject to the provisions of Article Four or Article Thirteen of the Original Indenture.

Section 2.08 Ranking . The Notes are general unsecured obligations and rank senior in right of payment to indebtedness of the Company that is expressly subordinated in right of payment to the Notes and equally in right of payment with its existing and future unsecured indebtedness and liabilities that are not so subordinated.

ARTICLE III

ADDITIONAL DEFAULTS AND REMEDIES

Section 3.01 Additional Events of Default . For purposes only of this Third Supplemental Indenture in respect of the Notes issued hereunder, the provisions of Section 501 of Article Five of the Original Indenture are hereby amended by replacing the period at the end of subparagraph (8) thereof with “; or” and adding the following subparagraphs thereafter:

(9) the Company shall fail to comply with its obligation to convert the Notes in accordance with the provisions of this Third Supplemental Indenture upon exercise of a Holder’s conversion right which default shall continue for a period of three Business Days after there has been given to, and received by the Company, by registered or certified mail, by the Trustee or by such Holder, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” under the Original Indenture; or

 

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(10) the Company shall fail to deliver a notice of Fundamental Change in accordance with Section 5.01(b) of this Third Supplemental Indenture when due.

Section 3.02 Exception to Remedies . Notwithstanding anything in this Third Supplemental Indenture or the Original Indenture to the contrary, to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure by the Company to comply with the reporting obligations set forth in Section 704 of the Original Indenture and for any failure to comply with §314(a)(1) of the Trust Indenture Act, will for the first 120 days after the occurrence of such an Event of Default, consist exclusively of the right of Holders to receive Additional Interest on the Notes at an annual rate equal to 0.25% of the principal amount of the Notes. If the Company so elects, such Additional Interest will be payable in the same manner and on the same dates as the stated interest payable on the Notes. The Additional Interest will accrue on all outstanding Notes from and including the date on which such Event of Default first occurs to but not including the 120th day thereafter (or such earlier date on which such Event of Default shall have been cured or waived). On such 120th day after such Event of Default (if the Event of Default relating to such obligation is not cured or waived prior to such 120th day), such Additional Interest will cease to accrue and the Notes will be subject to acceleration as provided in the Original Indenture. The provisions of this Section 3.02 shall not affect the rights of Holders in the event of the occurrence of any other Event of Default. In the event the Company does not elect to pay the Additional Interest upon such Event of Default in accordance with this Section 3.02, the Notes shall be subject to acceleration as provided in the Original Indenture. In order to elect such Additional Interest remedy pursuant to this Section 3.02, the Company must notify all Holders, the Trustee and the Paying Agent of such election on or before the close of business on the date on which such Event of Default first occurs, stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable.

ARTICLE IV

AMENDMENTS

Section 4.01 Amendments . For purposes only of this Third Supplemental Indenture in respect of the Notes issued hereunder, Section 902 of the Original Indenture is hereby amended by replacing the period at the end of subparagraph (4) with “;or” and adding the following thereafter:

(5) make any change that adversely affects the conversion rights of any Notes; or

(6) reduce the Fundamental Change Purchase Price of any Note or amend or modify in any manner adverse to Holders the Company’s obligation to make such payment, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise.

ARTICLE V

PURCHASE OF NOTES AT THE OPTION OF

HOLDERS UPON A FUNDAMENTAL CHANGE

Section 5.01 Purchase of Notes at the Option of the Holder Upon a Fundamental Change .

(a) Purchase of Notes at the Option of the Holder . If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to purchase any or

 

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all of the Holder’s Notes, or any portion of the principal amount thereof, that is equal to $1,000 or an integral multiple thereof at a purchase price equal to 100% of the principal amount of the Notes to be purchased plus accrued and unpaid interest, including Additional Interest, if any, to but excluding the Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”); provided, that, if the Fundamental Change Purchase Date occurs after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest plus Additional Interest, if any, to but excluding the Fundamental Change Purchase Date to the record Holder on the Regular Record Date corresponding to such Interest Payment Date and the Fundamental Change Purchase Price payable to the Holder who presents the Note for repurchase will be 100% of the principal amount of such Note. The Fundamental Change Purchase Date shall be a date specified by the Company that is no later than the 35th calendar day following the date of the Company Notice delivered in connection with such Fundamental Change pursuant to Section 5.01(b) (subject to extension to comply with applicable law, as provided in Section 5.02(d)) (the “Fundamental Change Purchase Date”). Any Notes purchased by the Company shall be paid for in cash.

(b) Notice of Fundamental Change . The Company shall deliver, or cause to be delivered in accordance with the last paragraph of this Section 5.01(b), notices of the occurrence of a Fundamental Change and of the purchase rights arising as a result thereof (each, a “Company Notice”) to the Holders at their addresses shown in the Security Register maintained by the Security Registrar, and to the Trustee and the Paying Agent, on or before the 20th calendar day after the occurrence of the Fundamental Change (each such date of delivery, a “Company Notice Date”). Each Company Notice shall include a form of Fundamental Change Purchase Notice to be completed by a Holder and shall state:

(i) the events causing the Fundamental Change;

(ii) the date of the Fundamental Change;

(iii) the last date on which a Holder may exercise its repurchase rights under Section 5.01;

(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;

(vii) the applicable Conversion Rate and, if applicable, any adjustments to the applicable Conversion Rate as a result of such Fundamental Change;

(viii) 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 terms of this Third Supplemental Indenture; and

(ix) the procedures the Holder must follow to require the Company to purchase its Notes pursuant to Section 5.01.

Simultaneously with providing such Company Notice, the Company will publish a notice containing the information in such Company Notice in a newspaper of general circulation in The City of New York or publish such information on its then existing website or through such other public medium as it may use at the time.

 

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At the Company’s request, made at least three Business Days (or such lesser period as agreed to by the Trustee) prior to the date upon which such notice is to be mailed, and at the Company’s expense, the Trustee shall give the Company Notice in the Company’s name; provided , however , that, in all cases, the text of the Company Notice shall be prepared by the Company.

(c) Exercise of Option . For a Note to be so purchased at the option of the Holder, the Holder must deliver, on or before the Business Day immediately preceding the Fundamental Change Purchase Date, subject to extension to comply with applicable law, the Notes to be purchased, duly endorsed for transfer, together with a written purchase notice (a “Fundamental Change Purchase Notice”) in the form entitled “Form of Fundamental Change Purchase Notice” on the reverse side of the Notes duly completed, to the Paying Agent. The Fundamental Change Purchase Notice shall state:

(i) if the Notes are certificated, the certificate numbers of the Holder’s Notes to be delivered for purchase;

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

(iii) that such Notes shall be purchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Notes and this Third Supplemental Indenture.

(d) Procedures . The Company shall purchase from a Holder on the Fundamental Change Purchase Date, subject to extension to comply with applicable law, pursuant to this Section 5.01, Notes if the principal amount of such Notes is $1,000 or an integral multiple thereof if so requested by such Holder.

Any purchase by the Company contemplated pursuant to the provisions of this Section 5.01 shall be consummated by the delivery of the Fundamental Change Purchase Price, to be received by the Holder, to the Paying Agent as provided in Section 5.02(a), promptly following the later of the Fundamental Change Purchase Date or the time of book-entry transfer or delivery of the Notes.

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 cash held by the Paying Agent for the payment of the Fundamental Change Purchase Price and shall notify the Trustee of any Default by the Company in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall segregate the cash 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 deliver all cash held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall have no further liability for the cash delivered to the Trustee.

Section 5.02 Further Conditions and Procedures for Purchase at the Option of the Holder Upon a Fundamental Change .

(a) Effect of Fundamental Change Purchase Notice; Withdrawal; Effect of Event of Default . Upon receipt by the Company of the Fundamental Change Purchase Notice specified in, and the Notes to be purchased as provided in, Section 5.01(c), the Holder of the Notes in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as specified in this Section 5.02(a)) thereafter be entitled to receive solely the Fundamental Change Purchase Price with respect to such Notes. Such Fundamental Change Purchase Price shall be paid by the Paying Agent, solely from funds received from the Company for such purpose, to such Holder promptly following the later of (x) the Fundamental Change Purchase Date with respect to such Notes

 

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(provided the conditions in this Article V have been satisfied) and (y) the time of delivery or book-entry transfer of such Notes to the Paying Agent by the Holder thereof in the manner required by Section 5.01. Notes in respect of which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted on or after the date of the delivery of such Fundamental Change Purchase Notice unless such Fundamental Change Purchase Notice has first been validly withdrawn as specified in this Section 5.02(a). Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Purchase Notice contemplated by Section 5.01(c), shall have the right at any time prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date to withdraw such Fundamental Change Purchase Notice (in whole or in part) by delivery of a written notice of withdrawal to the Paying Agent in accordance with this Section 5.02(a).

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.

On or before 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 an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust) cash sufficient to pay the aggregate Fundamental Change Purchase Price of the Notes to be purchased pursuant to Section 5.01. If the Paying Agent holds, in accordance with the terms of this Third Supplemental Indenture, cash sufficient to pay the Fundamental Change Purchase Price of such Notes on the second Business Day after the Fundamental Change Purchase Date, then (i) the Notes tendered for purchase and not withdrawn shall cease to be outstanding and interest, including Additional Interest, if any, shall cease to accrue (whether or not book-entry transfer of such Notes is made or whether or not the Note is delivered to the Paying Agent) on the Fundamental Change Purchase Date; and (ii) all other rights of the Holders with respect to Notes tendered for purchase will terminate (other than the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes). Nothing herein shall preclude any withholding tax required by law.

A Fundamental Change Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date. The notice of withdrawal shall state:

(i) the principal amount of the withdrawn Notes;

(ii) if Definitive Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, the written notice of withdrawal must comply with appropriate procedures of DTC, and if applicable, Clearstream Banking Luxembourg S.A. (“ Clearstream ”) and Euroclear Bank S.A./N.A. (“ Euroclear ”); and

(iii) the principal amount, if any, of such Notes which remains subject to the original Fundamental Change Purchase Notice.

If the Notes are Definitive Notes, the Paying Agent shall promptly return to the respective Holders thereof any Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with this Indenture.

(b) Notes Purchased in Part . Any Notes that are to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due 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 or the Authenticating Agent shall authenticate and deliver to the Holder of such Notes, 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 Notes so surrendered which is not purchased.

 

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(c) Covenant to Comply with Securities Laws Upon Purchase of Notes . In connection with any offer to purchase, or purchase of, Notes under Section 5.01, the Company shall, to the extent applicable, (a) comply with Rules 13e-4 and 14e-1 (and any successor provisions thereto) under the Exchange Act, if applicable; (b) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, if applicable; and (c) otherwise comply with all applicable federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Third Supplemental Indenture as described in this Article V, compliance by the Company with such laws and regulations shall not in and of itself cause a breach of the Company’s obligations described in this Article V.

(d) Repayment to the Company . The Trustee and the Paying Agent shall return to the Company any cash or property that remains unclaimed, together with interest that the Trustee or Paying Agent, as the case may be, has expressly agreed in writing to pay, if any, that is held by them for the payment of a Fundamental Change Purchase Price; provided , however , that to the extent that the aggregate amount of cash or property deposited by the Company pursuant to Section 5.02(b), as applicable, exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions thereof which the Company is obligated to purchase as of the Fundamental Change Purchase Date, then promptly on and after the second Business Day following the Fundamental Change Purchase Date, the Trustee and the Paying Agent shall return any such excess to the Company together with interest that the Trustee or Paying Agent, as the case may be, has expressly agreed in writing to pay, if any.

(e) Officers’ Certificate . At least three Business Days (or such lesser period as agreed to by the Trustee) before the Company Notice Date, the Company shall deliver an Officers’ Certificate to the Trustee specifying whether the Company desires the Trustee to give the Company Notice required by Section 5.02(a) hereof.

ARTICLE VI

CONVERSION

Section 6.01 Article Fifteen Replaced . Article Fifteen of the Original Indenture is hereby superseded and replaced in its entirety by the following in respect of the Notes established and issued under this Third Supplemental Indenture.

Section 6.02 Conversion of Notes .

Right to Convert . Subject to the procedures for conversion set forth in this Article VI, a Holder may convert its Notes at their full principal amount, or any portion of their principal amount that is equal to $1,000 or an integral multiple thereof, into shares of Common Stock at the Conversion Rate in effect at the time of conversion at any time prior to the close of business on the second Scheduled Trading Day immediately preceding the Stated Maturity. No payment or adjustment shall be made for dividends on, or other distributions with respect to, any Common Stock except as expressly provided in this Article VI.

(a) Conversion Procedures . The following procedures shall apply to convert Notes:

(i) In respect of a Definitive Note, a Holder must (A) complete and manually sign the conversion notice on the back of the Note, or a facsimile of such conversion notice; (B) deliver such conversion notice, which is irrevocable, and the Note to the Conversion Agent; (C) if required,

 

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furnish appropriate endorsements and transfer documents as may be required by the Conversion Agent and, if required pursuant to Section 6.02(d), pay all transfer or similar taxes; and (D) if required pursuant to Section 2.01(d), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled.

(ii) In respect of a beneficial interest in a Global Note, a Beneficial Owner must comply with the procedures of DTC and, if applicable, Euroclear and Clearstream, for converting a beneficial interest in a Global Note and, if required pursuant to Section 2.01(d), pay funds equal to interest payable on the next Interest Payment Date to which such Beneficial Owner is not entitled, and if required, pay all taxes or duties required pursuant to Section 6.02(d), if any.

The date a Holder complies with the foregoing requirements is the “Conversion Date” hereunder. At the Conversion Date the rights of the Holders of such converted Notes as Holders shall cease, and the Person or Persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock as and after such time. The Company shall issue and shall deliver at such office or agency a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in cash in lieu of any fractional shares, as provided in Section 6.02(c) by the third Business Day immediately following the Conversion Date (the “Settlement Date”). A Holder may convert a portion of its Notes only if the principal amount of such portion is $1,000 or an integral multiple thereof.

In the case of any Note which is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Note or Notes of authorized denominations in aggregate principal amount equal to the unconverted portion of the principal amount of such Note.

If a Holder has already delivered a Fundamental Change Purchase Notice in connection with a Fundamental Change, with respect to a Note, the Holder may not surrender that Note for conversion until the Holder has validly withdrawn the Fundamental Change Purchase Notice in accordance with this Third Supplemental Indenture. Upon surrender of a Note that is converted in part, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver to the Holder, a new Note in an authorized denomination equal in principal amount to the unconverted portion of the Note surrendered.

If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof) so surrendered.

(b) Cash Payments in Lieu of Fractional Shares . The Company shall not issue fractional shares of Common Stock upon conversion of Notes. Instead the Company shall deliver cash, rounded to the nearest whole cent, for such fractional shares based on the Last Reported Sale Price of the Common Stock on the applicable Conversion Date. The Company’s delivery to the Holder of the shares of Common Stock together with any cash payment for any fractional share into which a Note is convertible, will be deemed to satisfy in full the Company’s obligation to pay (i) the principal amount of the Note; and (ii) 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 preceding paragraph, if Notes are converted after 5:00 p.m., New York City time, on a Regular Record Date for the payment of interest, Holders of such Notes at 5:00 p.m., New York City time, on such Regular Record Date will receive the interest and Additional Interest, if any,

 

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payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes, upon surrender for conversion during the period from 5:00 p.m., New York City time, on any Regular Record Date to 9:00 a.m., New York City time, 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 such Interest Payment Date on the Notes so converted; provided that no such payment need be made (i) for conversions following the Regular Record Date immediately preceding Stated Maturity; (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 (including any overdue Additional Interest), if any overdue interest exists at the time of conversion with respect to such Note.

(c) Taxes on Conversion . If a Holder converts Notes, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of shares of Common Stock upon such conversion. However, the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder’s name. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax which shall be due because the shares are to be issued in a name other than the Holder’s name, but the Conversion Agent shall have no duty to determine if any such tax is due. Nothing herein shall preclude any withholding of tax required by law.

(d) Certain Covenants of the Company .

(i) The Company shall, prior to issuance of any Notes hereunder, and from time to time as may be necessary, reserve out of its authorized but unissued Common Stock or shares of Common Stock held in treasury, sufficient number of shares of Common Stock, free of preemptive rights, to permit the conversion of the Notes.

(ii) All shares of Common Stock delivered upon conversion of the Notes shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim.

(iii) The Company shall endeavor to comply promptly with all applicable federal and state securities laws regulating the issuance and delivery of shares of Common Stock upon the conversion of Notes.

(iv) Before taking any action which would cause an adjustment increasing the Conversion Rate to an amount that would cause the Conversion Price to be reduced below the then par value per share of the Common Stock, if any, of the shares of Common Stock issuable upon conversion of the Notes, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.

Section 6.03 Adjustments to Conversion Rate . The Conversion Rate shall be adjusted from time to time by the Company as described below, except that the Company will not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 6.03 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.

 

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