4.50% SENIOR EXCHANGEABLE NOTES DUE 2015 INDENTURE

Exhibit 4.1

EXECUTION COPY

 

RAYONIER TRS HOLDINGS INC.,

as ISSUER,

RAYONIER INC.,

as GUARANTOR,

and

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

AS TRUSTEE

4.50% SENIOR EXCHANGEABLE NOTES DUE 2015

INDENTURE

DATED AS OF AUGUST 12, 2009

 

 

CROSS-REFERENCE TABLE *

 

*	Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.

 

**	N.A. means Not Applicable.

TABLE OF CONTENTS

 

 

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THIS INDENTURE, dated as of August 12, 2009, is among RAYONIER TRS HOLDINGS INC., a Delaware corporation (the “ Company ”), RAYONIER INC., a North Carolina corporation (the “ Guarantor ”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee (in such capacity and not in its individual capacity, the “ Trustee ”).

In consideration of the premises and the purchase of the Securities by the Holders thereof, the parties hereto agree as follows for the benefit of the others and for the equal and ratable benefit of the Holders.

ARTICLE I

Definitions and Incorporation by Reference

SECTION 1.1. Definitions.

“ Additional Interest ” has the meaning set forth in Section 5(a) of the Registration Rights Agreement. Unless the context otherwise requires, all references herein or in the Securities to “interest” accrued or payable as of any date shall include, without duplication, any Additional Interest accrued or payable as of such date as provided in the Registration Rights Agreement.

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

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

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

“ Board of Directors ” means either the board of directors of the Guarantor or any duly authorized committee of such board of directors.

“ Business Day ” means each day that is not a Legal Holiday.

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

“ Certificated Security ” means a Security that is in substantially the form attached hereto as Exhibit A and that does not include the information or the schedule called for by footnotes 1 and 6 thereof.

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

“ Closing 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 there is more than one bid or ask price, the average of the average bid and the average ask prices)

on such Trading Day as reported in composite transactions on the NYSE or, if the Common Stock is not listed on the NYSE, on the principal national or regional securities exchange on which the Common Stock is listed or, if the Common Stock is not listed on a national or regional national securities exchange, as available in any over-the-counter market or, if not available on any over-the-counter market, the Closing Sale Price shall be such price as the Board of Directors of the Guarantor shall determine in good faith.

“ Common Stock ” means any stock of any class of the Guarantor which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Guarantor and which is not subject to redemption by the Guarantor. Subject to the provisions of Section 4.11 , however, shares issuable on exchange of Securities shall include only shares of the class designated as Common Stock of the Guarantor, no par value per share, at the date of this Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Guarantor and which are not subject to redemption by the Guarantor; provided , however , that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

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

“ Corporate Trust Office ” means the office of the Trustee at which at any time the trust created by this Indenture shall be principally administered, which office at the date of the execution of this Indenture is located at 10161 Centurion Parkway, Jacksonville, FL 32256, or such other office as the Trustee may designate by written notice to the Company.

“ Daily Exchange Value ” means, for each of the 20 consecutive Trading Days during the Exchange Reference Period, one-twentieth (1/20) of the product of (i) the Exchange Rate on such day and (ii) the Daily VWAP on such day.

“ Daily VWAP ” means, for each of the 20 Trading Days during the Exchange Reference Period, the per share Volume-Weighted Average Price.

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

“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

“ Exchange Price ” means, at any time, an amount equal to $1,000 divided by the Exchange Rate in effect at such time rounded to the nearest cent.

“ Exchange Reference Period ” means (a) for Securities that are exchanged on or after June 15, 2015, the 20 consecutive Trading Days beginning on the 22nd Scheduled Trading Day prior to the Final Maturity Date; and (b) in all other instances, the 20 consecutive Trading Days beginning on the third Trading Day following the Exchange Date.

“ Final Maturity Date ” means August 15, 2015.

 

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“ GAAP ” means generally accepted accounting principles in the United States as 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 have been approved by a significant segment of the accounting profession in the United States, which are in effect from time to time and consistently applied.

“ Global Security ” means a permanent Global Security that is in substantially the form attached hereto as Exhibit A and that includes the information and schedule called for by footnotes 1 and 6 thereof and which is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee.

“ Guarantee ” means the full and unconditional guarantee of the due and punctual payment of the principal of, and interest, if any, on the Securities by the Guarantor pursuant hereto.

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

“ Holder ” or “ Securityholder ” means the person in whose name a Security is registered in the Register.

“ Indenture ” means this Indenture as amended or supplemented from time to time pursuant to the terms of this Indenture, including the provisions of the TIA that are explicitly incorporated into this Indenture by reference to the TIA.

“ Initial Purchasers ” means Credit Suisse Securities (USA), LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities Inc.

“ Initial Securities ” means the Securities issued on the date hereof in the aggregate Principal Amount of $172,500,000 (which Principal Amount includes the $22,500,000 Principal Amount of Securities issued pursuant to the over-allotment option exercised by the Initial Purchasers in accordance with the Purchase Agreement) and any Securities issued in replacement thereof.

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

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

“ Market Disruption Event ” means (a) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Trading Day for the Common Stock of an aggregate one half hour period, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock.

“ Nasdaq ” means the Nasdaq Global Market.

“ NYSE ” means the New York Stock Exchange.

 

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“ Offering Circular ” means the Confidential Offering Circular dated August 6, 2009 relating to the Securities.

“ Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any Vice President of such Person.

“ Officers’ Certificate ” means a certificate signed by at least two Officers of the Company; provided , however , that for purposes of Section 4.11 and Section 6.3 , “Officers’ Certificate” means a certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company.

“ Opinion of Counsel ” means a written opinion from legal counsel containing, as applicable, the information specified in Section 12.4 . The counsel may be an employee of or counsel to the Company who is reasonably satisfactory to the Trustee.

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

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

“ Purchase Agreement ” means that certain Purchase Agreement, dated August 6, 2009, among the Company, the Guarantor and the Initial Purchasers.

“ QIB ” means a qualified institutional buyer as defined in Rule 144A.

“ Record Date ” means (i) with respect to any payment of interest on the Securities, each February 1 and August 1 (whether or not a Business Day) and (ii) with respect to the events specified in Section 4.6 , the meaning specified in Section 4.6 .

“ Registration Rights Agreement ” means the Registration Rights Agreement, dated as of the date hereof among the Company, the Guarantor and the Initial Purchasers.

“ Restricted Certificated Security ” means a Certificated Security that is a Restricted Security.

“ Restricted Global Security ” means a Global Security that is a Restricted Security.

“ Restricted Security ” means a Security required to bear the Restricted Legend called for by footnotes 2 and 3 to the form of Security set forth in Exhibit A of this Indenture.

“ Rule 144 ” means Rule 144 under the Securities Act or any successor to such rule, as it may be amended from time to time.

“ Rule 144A ” means Rule 144A under the Securities Act or any successor to such rule, as it may be amended from time to time.

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

 

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

“ Security ” or “ Securities ” means the Company’s 4.50% Senior Exchangeable Notes due 2015, as amended or supplemented from time to time pursuant to the terms of this Indenture, that are issued under this Indenture.

“ Securities Act ” means the United States Securities Act of 1933 and the rules and regulations promulgated thereunder, as in effect from time to time.

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

“ Significant Subsidiary ” means any of the Subsidiaries of the Company or the Guarantor (other than the Company) which is a “significant subsidiary” of the Guarantor as such term is defined in Rule 1-02(w) of Regulation S-X.

“ Subsidiary ” means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the outstanding voting stock (as defined in Section 3.1(a) ) or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof, or persons performing similar functions, is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.

“ TIA ” means the United States Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect on the date of this Indenture; provided , however , that in the event the Trust Indenture Act of 1939 is amended after such date, then “TIA” means, to the extent required by such amendment, the Trust Indenture Act of 1939 as so amended.

“ Trading Day ” means (A) a day during which (i) trading in the Common Stock generally occurs on the NYSE or, if the Common Stock is not listed on the NYSE, the principal U.S. national or regional securities exchange on which the Guarantor’s common stock is listed, is open for trading or, if the Common Stock is not so listed, admitted for trading or quoted, any Business Day and (ii) there is no Market Disruption Event; and (B) includes only those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the relevant exchange or trading system.

“ Trading Price ” of the Securities means, on any date of determination, the average of the secondary market bid quotations per Security obtained by the Trustee for $1,000,000 Principal Amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers that the Company selects; provided that if at least three such bids cannot reasonably be obtained by the Trustee, but two such bids can reasonably be obtained, then the average of these two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $1,000,000 Principal Amount of the Securities from an independent nationally recognized securities dealer, then the Trading Price per $1,000 Principal Amount of the Securities shall be deemed to be less than 98% of the product of the Closing Sale Price of the Common Stock and the Exchange Rate on such day.

 

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“ Trust Officer ” means, with respect to the Trustee, any officer within the Corporate Trust Administration department (or any successor department) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration of this Indenture, and also means, with respect to any particular corporate trust matter, any other officer of the Trustee to whom such corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

“ Trustee ” means The Bank of New York Mellon Trust Company, N.A., not in its individual capacity, but solely in its capacity as trustee hereunder, until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor Trustee.

“ Unrestricted Certificated Security ” means a Certificated Security that is not a Restricted Security.

“ Unrestricted Global Security ” means a Global Security that is not a Restricted Security.

“ Vice President ” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

“ Volume-Weighted Average Price ,” on any Trading Day, means the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page RYN.N <EQUITY><AQR> (or its equivalent successor if such page is not available) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The volume-weighted average price shall be rounded to the nearest whole cent.

SECTION 1.2. Other Definitions.

 

 

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SECTION 1.3. Trust Indenture Act Provisions. Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by reference in and made a part of this Indenture. The Indenture shall also include those provisions of the TIA required to be included herein by the provisions of the TIA. The following TIA terms used in this Indenture have the following meanings:

“ Commission ” means the SEC;

“ indenture securities ” means the Securities;

“ indenture security Holder ” means a Securityholder;

“ indenture to be qualified ” means this Indenture;

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

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

 

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

SECTION 1.4. Rules of Construction. Unless the context otherwise requires:

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

(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(c) words in the singular include the plural, and words in the plural include the singular;

(d) provisions apply to successive events and transactions;

(e) the term “merger” includes a statutory share exchange and the term “merged” has a correlative meaning;

(f) the masculine gender includes the feminine and the neuter;

(g) references to agreements and other instruments include subsequent amendments thereto;

(h) references to “interest” include Additional Interest;

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

(j) unless context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or Section, as the case may be, of this Indenture;

(k) “or” is not exclusive; and

(l) “including” means including without limitation.

ARTICLE II

The Securities

SECTION 2.1. Form and Dating. (a) The Securities and the corresponding Trustee’s certificate of authentication shall be substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this Indenture. The Securities may have notations, legends or endorsements required by law, exchange rule, Applicable Procedures or usage. The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication.

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

 

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of any Security conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

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

(c) Global Securities in General. Each Global Security shall represent such of the outstanding Securities as shall be specified therein, and each shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect repurchases or exchanges of such Securities, in each case in accordance with this Indenture. Any adjustment of the aggregate Principal Amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 hereof, or otherwise in accordance with this Indenture, and shall be made on the records of the Trustee and the Depositary.

The Company shall issue, and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver in accordance with Section 2.2 , initially one or more Global Securities that (i) shall be registered in the name of Cede & Co. or as otherwise instructed by the Depositary, (ii) shall be delivered by the Trustee to the Depositary or to the Securities Custodian pursuant to the Depositary’s instructions and (iii) shall bear legends required for Global Securities as set forth in footnote 1 to Exhibit A hereto.

(d) Book-Entry Provisions. Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or under the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated by the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Guarantor, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary, or such nominee, as the case may be or (B) impair, as between the Depositary and its Agent Members, the Applicable Procedures or the operation of customary practices governing the exercise of the rights of a Holder.

None of the Company, the Guarantor, the Trustee, the Registrar, any Paying Agent or any agent of any of them shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Securities, for maintaining, supervising or reviewing any records relating to such beneficial owner interests, or for any acts or omissions of a Depository or for any transactions between a Depository and any

 

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beneficial owner or between or among beneficial owners. No owner of a beneficial interest in the Securities shall have any rights under this Indenture, and the Depository or its nominee, if any, shall be deemed and treated by the Company, the Guarantor, the Trustee, the Registrar, any Paying Agent or any agent of any of them as the absolute owner and Holder of such Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Guarantor, the Trustee, the Registrar, any Paying Agent or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by a Depository, or any of its members and any other Person on whose behalf such member may act, the operation of customary practices of such Persons governing the exercise of the rights of a beneficial owner of any Securities.

(e) Certificated Securities. Certificated Securities shall be issued only under the circumstances provided in Section 2.12(a)(i) .

SECTION 2.2. Execution and Authentication. (a) A duly authorized Officer of the Company shall sign the Securities for the Company by manual or facsimile signature.

(b) If an Officer of the Company whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless.

(c) A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

(d) The Trustee shall initially authenticate and make available for delivery Securities for original issue in the aggregate Principal Amount of up to $172,500,000 (which Principal Amount includes the $22,500,000 Principal Amount of Securities issued pursuant to the over-allotment option exercised by the Initial Purchasers in accordance with the Purchase Agreement) upon receipt of a written order or orders of the Company signed by an Officer of the Company (a “ Company Order ”). The Trustee shall authenticate additional Securities (the “ Additional Securities ”) thereafter in an unlimited aggregate Principal Amount (so long as permitted by the terms of this Indenture) for original issue upon a Company Order of the Company in aggregate Principal Amount as specified in such order (except as provided in Section 2.7 ). Each such Company Order shall specify the amount of Securities to be authenticated and the date on which the Securities are to be authenticated. Such Additional Securities shall have identical terms to the Initial Securities except for issuance dates and prices and with respect to interest accruing prior to their date of issuance, and will constitute the same series as the Initial Securities for all purposes hereunder, including, without limitation, waivers, amendments and offers to purchase. At the option of the Company, the Additional Securities may have the same CUSIP number as the Initial Securities; provided that if any Additional Securities are issued at a price that causes such Additional Securities to have “original issue discount” within the meaning of Section 1273 of the United States Internal Revenue Code of 1986, as amended, such Additional Securities shall not have the same CUSIP number as the Initial Securities.

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

 

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

SECTION 2.3. Registrar, Paying Agent and Exchange Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“ Registrar ”), an office or agency in the Borough of Manhattan in New York, New York where Securities may be presented for repurchase or payment (“ Paying Agent ”), an office or agency where Securities may be presented for exchange into Underlying Shares (“ Exchange Agent ”) and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Registrar shall keep a register of the Securities (“ Register ”) and of their transfer and exchange.

The Company may have one or more co-registrars, one or more additional paying agents, and one or more additional exchange agents. The term “Registrar” includes any co-registrar, including any named pursuant to Section 6.6 . The term “Paying Agent” includes any additional paying agent, including any named pursuant to Section 6.6 . The term “Exchange Agent” includes any additional exchange agent, including any named pursuant to Section 6.6 .

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

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

SECTION 2.4. Paying Agent to Hold Money and Securities in Trust. Prior to 11:00 a.m., New York City time, on each due date of payments in respect of, or delivery of Cash in an amount sufficient to make such payments or deliveries when so becoming due on, any Security, as well as Cash or a combination of Cash and shares of Common Stock, as applicable and as provided herein, upon exchange of such Security, the Company shall deposit with the Paying Agent Cash (in immediately available funds if deposited on the due date) or with the Exchange Agent such number of shares of Common Stock or other consideration sufficient to make such payments or deliveries when so becoming due. The Company shall require each Paying Agent or Exchange Agent, as applicable (other than the Trustee), to agree in writing that such Agent shall hold in trust for the benefit of Securityholders or the Trustee all Cash, Common Stock or other consideration, as applicable, held by such Agent for the making of payments or deliveries in respect of the Securities and shall notify the Trustee in writing of any default by the Company in making any such payment or delivery. If the Company or an Affiliate of the Company acts as Paying Agent or Exchange Agent, as applicable, it shall segregate the Cash, Common Stock and other consideration, as applicable, held by it as Paying Agent or Exchange Agent, as applicable, and hold it as a separate trust fund.

The Company at any time may require a Paying Agent or Exchange Agent, as applicable, to pay all Cash, Common Stock or other consideration, as applicable, held by it to the Trustee, and the Trustee may at any time during the continuance of any Default, upon written request to the Paying Agent or the Exchange Agent, as applicable, require such Paying Agent or Exchange Agent, as applicable, to pay forthwith to the Trustee all Cash, Common Stock or other consideration, as applicable, so held in trust by such Paying Agent or Exchange Agent. Upon

 

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doing so, the Paying Agent or the Exchange Agent, as applicable, shall have no further liability for such Cash, Common Stock or other consideration, as applicable.

SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on or before each Interest Payment Date, and at such other times as the Trustee may request in writing, a list of the names and addresses of the Securityholders in such form and as of such date as the Trustee may reasonably request.

SECTION 2.6. Transfer and Exchange. (a) Subject to compliance with any applicable additional requirements contained in Section 2.12 , when a Security is presented to a Registrar with a request to register a transfer thereof or to exchange such Security for an equal Principal Amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested; provided , however , that every Security presented or surrendered for registration of transfer or exchange shall, if such Security is a Certificated Security, be duly endorsed or accompanied by an assignment form, in the form included in Exhibit A attached hereto and, if applicable, a transfer certificate, in the form included in Exhibit B attached hereto, and in form reasonably satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.3 , the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate Securities of a like aggregate Principal Amount at the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto, other than exchanges pursuant to Section 2.10 , Section 10.5 , Article III or Article IV, in each case, not involving any transfer.

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

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

(b) Any Registrar appointed pursuant to Section 2.3 or Section 6.6 hereof shall provide to the Trustee such information as the Trustee may reasonably request in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities.

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of such opinions of counsel, certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture (including if so requested by the Company exercising a right to require the delivery of such items), and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

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

SECTION 2.7. Replacement Securities. If (a) any mutilated security is surrendered to the Company, a Registrar or the Trustee or (b) the Company, the Registrar and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and, in either case, there is delivered to the Company, the Registrar and the Trustee such security or indemnity as shall be reasonably required by them to hold each of them harmless, then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has been acquired by a bona fide or protected purchaser, the Company shall issue, and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and Principal Amount, bearing a number not contemporaneously outstanding.

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

Upon the issuance of any new Securities under this Section 2.7 , the Company may require the payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the reasonable fees and expenses of the Trustee or the Registrar) in connection therewith.

Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued and outstanding hereunder.

The provisions of this Section 2.7 are (to the extent lawful) exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

SECTION 2.8. Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee, except for those canceled by it, those paid or repurchased pursuant to Section 2.7 , those delivered to it for cancellation and those described in this Section 2.8 as not outstanding.

If a Security is replaced pursuant to Section 2.7 (other than a mutilated Security surrendered for replacement), it ceases to be outstanding unless the Trustee receives, subsequent to the new Security’s authentication, proof satisfactory to the Company that the replaced Security is held by a bona fide or protected purchaser. A mutilated Security ceases to be outstanding upon surrender and replacement thereof pursuant to Section 2.7 .

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

 

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

If a Security is exchanged in accordance with Article IV, then on the Exchange Date, such Security shall cease to be outstanding, and interest on such Security shall cease to accrue, unless there shall be a default in the delivery of the consideration payable hereunder upon such exchange.

Subject to the restrictions contained in Section 2.9 , a Security does not cease to be outstanding solely because the Company or an Affiliate of the Company holds the Security.

SECTION 2.9. Treasury Securities. In determining whether the Holders of the required Principal Amount of Securities have given or concurred in any notice, request, demand, authorization, direction, waiver or consent, Securities owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding for such purposes, except that, for purposes of determining whether the Trustee shall be protected in relying on any such notice, request, demand, authorization, direction, waiver or consent, only Securities which a Trust Officer actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Securities and that the pledgee is not, and is not acting on the behalf of, the Company or any other obligor on the Securities or any Affiliate of the Company or of such other obligor. The Company agrees to notify the Trustee in writing of the existence of any such Treasury Securities or Securities owned by the Company, any other obligor on the Securities or any Affiliate of the Company.

SECTION 2.10. Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company reasonably considers appropriate for temporary Securities. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 2.3 , without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute, and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver in exchange therefor a like Principal Amount of definitive Securities of authorized denominations. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.

SECTION 2.11. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, the Paying Agent and the Exchange Agent shall forward to the Trustee or its agent any Securities surrendered to them for transfer, exchange or payment. The Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, payment or cancellation and shall deliver the canceled Securities to the Company. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation or that any Holder has exchanged pursuant to Article IV.

All Securities that are repurchased pursuant to Article III or otherwise acquired by the Company shall be delivered to the Trustee for cancellation. If the Company shall acquire any of

 

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the Securities, such acquisition shall not operate as satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.

SECTION 2.12. Legend; Additional Transfer and Exchange Requirements. (a)  Transfer and Exchange of Global Securities. (i) Certificated Securities shall be issued in exchange for interests in the Global Securities only (x) if the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Securities or if it at any time ceases to be a “clearing agency” registered under the Exchange Act, if so required by applicable law or regulation, and a successor Depositary is not appointed by the Company within 90 days of such notice or (y) if an Event of Default has occurred and is continuing, each of clauses (x) and (y) in accordance with the Applicable Procedures. In any such case, the Company shall execute, and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver Certificated Securities in an aggregate Principal Amount equal to the Principal Amount of such Global Securities in exchange therefor. Only Restricted Certificated Securities shall be issued in exchange for beneficial interests in Restricted Global Securities, and only Unrestricted Certificated Securities shall be issued in exchange for beneficial interests in Unrestricted Global Securities. Certificated Securities issued in exchange for beneficial interests in Global Securities shall be registered in such names and shall be in such authorized denominations as the Depositary, pursuant to instructions from its Agent Members or otherwise in accordance with the Applicable Procedures, shall instruct the Trustee. The Trustee shall deliver or cause to be delivered such Certificated Securities to the Persons in whose name such Securities are so registered. Such exchange shall be effected in accordance with the Applicable Procedures. In the event that the Certificated Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Depositary to issue such Certificated Securities, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 8.6 or 8.7 hereof, the right of any beneficial holder of Securities to pursue such remedy with respect to the portion of the Global Security that represents such beneficial owner’s Securities as if such Certificated Securities had been issued.

(ii) Notwithstanding any other provisions of this Indenture other than the provisions set forth in Section 2.12(a)(i) , a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(b) Transfer and Exchange of Certificated Securities. In the event that Certificated Securities are issued in exchange for beneficial interests in Global Securities in accordance with Section 2.12(a)(i) , and, on or after such event, Certificated Securities are presented by a Holder to the Registrar with a request:

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

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

such Registrar shall register the transfer or make the exchange as requested; provided , however , that the Certificated Securities presented or surrendered for register of transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso to the first sentence of Section 2.6(a) ; and

 

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(ii) in the case of a Restricted Certificated Security, such request shall be accompanied by the following additional information and documents, as applicable:

(1) if such Restricted Certificated Security is being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, or such Restricted Certificated Security is being transferred to the Company or a Subsidiary of the Company, a certification to that effect from such Holder (in substantially the form set forth in Exhibit B);

(2) if such Restricted Certificated Security is being transferred to a person the Holder reasonably believes is a QIB in accordance with Rule 144A, or pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form set forth in Exhibit B); or

(3) if such Restricted Certificated Security is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 or pursuant to and in compliance with another exemption from the registration requirements under the Securities Act, a certification to that effect from the Holder (in substantially the form set forth in Exhibit B) and, if the Company or the Registrar so requests, an Opinion of Counsel, certificates and other information reasonably acceptable to the Company to the effect that such transfer does not require registration under the Securities Act.

(c) Transfer of a Beneficial Interest in a Restricted Global Security for a Beneficial Interest in an Unrestricted Global Security. Any person having a beneficial interest in a Restricted Global Security may upon request, subject to the Applicable Procedures, transfer such beneficial interest to a Person who is required or permitted to take delivery thereof in the form of a beneficial interest in an Unrestricted Global Security. Upon receipt by the Trustee of written instructions, or such other form of instructions as is customary for the Depositary, from the Depositary or its nominee on behalf of any Person having a beneficial interest in a Restricted Global Security and the following additional information and documents in such form as is customary for the Depositary from the Depositary or its nominee on behalf of the Person having such beneficial interest in the Restricted Global Security (all of which may be submitted by facsimile or electronically):

(i) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certification to that effect from the Holder (in substantially the form set forth in Exhibit B); or

(ii) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certification to that effect from the Holder (in substantially the form set forth in Exhibit B) and, if the Company or the Trustee so requests, an Opinion of Counsel, certificates and other information reasonably acceptable to the Company to the effect that such transfer does not require registration under the Securities Act,

the Registrar shall reduce or cause to be reduced the aggregate Principal Amount of the Restricted Global Security by the appropriate Principal Amount and shall increase or cause to be increased the aggregate Principal Amount of the Unrestricted Global Security by a like Principal Amount. Such transfer shall otherwise be effected in accordance with the Applicable Procedures. If no

 

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Unrestricted Global Security is then outstanding, the Company shall execute and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver an Unrestricted Global Security.

(d) Global Security for a Beneficial Interest in a Restricted Global Security. Any person having a beneficial interest in an Unrestricted Global Security may upon request, subject to the Applicable Procedures, transfer such beneficial interest to a person who is required or permitted to take delivery thereof in the form of a beneficial interest in a Restricted Global Security. Upon receipt by the Trustee of written instructions, or such other form of instructions as is customary for the Depositary, from the Depository or its nominee on behalf of any person having a beneficial interest in an Unrestricted Global Security and the following additional information and documents in such form as is customary for the Depositary, from the Depositary or its nominee on behalf of the person having such beneficial interest in the Unrestricted Global Security (all of which may be submitted by facsimile or electronically):

(i) a certification from the Holder (in substantially the form set forth in Exhibit B) to the effect that such beneficial interest is being transferred to a person that the transferor reasonably believes is a QIB in accordance with Rule 144A;

(ii) if such beneficial interest in such Unrestricted Global Security is being transferred in compliance with any other exemption from registration under the Securities Act, certification to that effect from such Holder (in substantially the form set forth in Exhibit B) and, if the Company or the Trustee so requests, an Opinion of Counsel, certificates and other information reasonably acceptable to the Company to the effect that such transfer does not require registration under the Securities Act; or

(iii) a certification (in substantially the form set forth in Exhibit B) to the effect that such beneficial interest is being transferred to the Company or a Subsidiary of the Company,

the Registrar shall reduce or cause to be reduced the aggregate Principal Amount of the Unrestricted Global Security by the appropriate Principal Amount and shall increase or cause to be increased the aggregate Principal Amount of the Restricted Global Security by a like Principal Amount. Such transfer shall otherwise be effected in accordance with the Applicable Procedures. If no Restricted Global Security is then outstanding, the Company shall execute and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver a Restricted Global Security.

(e) Transfers of Certificated Securities for Beneficial Interest in Global Securities. In the event that Certificated Securities are issued in exchange for beneficial interests in Global Securities and, thereafter, the events or conditions specified in Section 2.12(a)(i) which required such exchange shall cease to exist, the Company shall mail notice to the Trustee and to the Holders (i) stating that Holders may exchange Certificated Securities for interests in Global Securities by complying with the procedures set forth in this Indenture and (ii) briefly describing such procedures and the events or circumstances requiring that such notice be given. Thereafter, if Certificated Securities are presented by a Holder to a Registrar with a request:

(x) to register the transfer of such Certificated Securities to a Person who will take delivery thereof in the form of a beneficial interest in a Global Security, which request shall specify whether such Global Security will be a Restricted Global Security or an Unrestricted Global Security; or

 

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(y) to exchange such Certificated Securities for an equal Principal Amount of beneficial interests in a Global Security, which beneficial interests will be owned by the Holder transferring such Certificated Securities ( provided that, in the case of such an exchange, Restricted Certificated Securities may be exchanged only for Restricted Global Securities and Unrestricted Certificated Securities may be exchanged only for Unrestricted Global Securities),

the Registrar shall register the transfer or make the exchange as requested by canceling such Certificated Security and causing the aggregate Principal Amount of the applicable Global Security to be increased accordingly and, if no such Global Security is then outstanding, the Company shall issue and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly) authenticate and deliver a new Global Security; provided , however , that the Certificated Securities presented or surrendered for registration of transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso to Section 2.6(a) ;

(ii) in the case of a Restricted Certificated Security to be transferred for a beneficial interest in an Unrestricted Global Security, shall be accompanied by the following additional information and documents, as applicable:

(1) if such Restricted Certificated Security is being transferred pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form set forth in Exhibit B); or

(2) if such Restricted Certificated Security is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certification to that effect from such Holder (in substantially the form set forth in Exhibit B) and an Opinion of Counsel, certificates and other information reasonably acceptable to the Company to the effect that such transfer does not require registration under of the Securities Act;

(iii) in the case of a Restricted Certificated Security to be transferred to another person for a beneficial interest in a Restricted Global Security, if such Restricted Certificated Security is being transferred to a person the Holder reasonably believes is a QIB in accordance with Rule 144A, such request shall be accompanied by a certification to that effect from such Holder (in substantially the form set forth in Exhibit B);

(iv) in the case of an Unrestricted Certificated Security to be transferred or exchanged for a beneficial interest in an Unrestricted Global Security, or in the case of a Restricted Certificated Security to be exchanged (and not transferred) for a beneficial interest in a Restricted Global Security, such request need not be accompanied by any additional information or documents; and

(v) in the case of an Unrestricted Certificated Security to be transferred or exchanged for a beneficial interest in a Restricted Global Security, such request shall be accompanied by the following additional information and documents, as applicable:

(1) if such Unrestricted Certificated Security is being transferred to a person the Holder reasonably believes is a QIB (which, in the case of an ex-

 

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change, shall be such Holder) in accordance with Rule 144A, a certification to that effect from such Holder (in substantially the form set forth in Exhibit B);

(2) if such Unrestricted Certificated Security is being transferred in compliance with any other exemption from registration under the Securities Act, certification to that effect from such Holder (in substantially the form set forth in Exhibit B) and an Opinion of Counsel, certificates and other information reasonably acceptable to the Company to the effect that such transfer does not require registration under the Securities Act; or

(3) if such Unrestricted Certificated Security is being transferred to the Company or a Subsidiary of the Company, a certification to that effect from such Holder (in substantially the form set forth in Exhibit B).

(f) Legends. (i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each Global Security and Certificated Security (and all Securities issued in exchange therefor or upon registration of transfer or replacement thereof) shall bear a legend in substantially the form called for by footnotes 2 and 3 to Exhibit A attached hereto (the “ Restricted Legend ”), for so long as it is required by this Indenture to bear such legend.

(ii) Upon any sale or transfer of a Restricted Security (x) after the expiration of the holding period applicable to sales of the Securities under Rule 144(d) of the Securities Act, (y) pursuant to Rule 144 or (z) pursuant to an effective registration statement under the Securities Act:

(1) in the case of any Restricted Certificated Security, each Registrar shall permit the Holder thereof to transfer such Restricted Certificated Security to a transferee who, unless such transferee is an Affiliate of the Company, shall take such Security in the form of an Unrestricted Certificated Security or (under the circumstances described in Section 2.12(e) ) an Unrestricted Global Security, and in each case shall rescind any restriction on the transfer of such Security; provided , however , that the Holder of such Restricted Certificated Security shall, in connection with such exchange or transfer, comply with the other applicable provisions of this Section 2.12 ; and

(2) in the case of a Restricted Global Security, each Registrar shall permit the Holder thereof to transfer such beneficial interest in a Restricted Global Security to a transferee who, unless such transferee is an Affiliate of the Company, shall take such Security in the form of a beneficial interest in an Unrestricted Global Security and shall rescind any restriction on transfer of such Security; provided , however , that such Unrestricted Global Security shall continue to be subject to the provisions of Section 2.12(a)(ii) ; and provided further , however , that the owner of such beneficial interest shall, in connection with such transfer, comply with the other applicable provisions of this Section 2.12 .

If the Applicable Procedures so require, prior to the removal of any restrictive legend at the end of the holding period applicable to sales of the Securities under Rule 144(d) of the Securities Act, such requesting Holder shall deliver an Opinion of Counsel in form reasonably acceptable to the Company to the effect that the restrictions on transfer contained herein and the restrictive legend are no longer required in order to maintain compliance with the Securities Act.

(iii) Upon the exchange, registration of transfer or replacement of Securities not bearing the Restricted Legend, the Company shall issue, and the Trustee shall, upon receipt of a Company

 

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Order (which the Company agrees to deliver promptly), authenticate and deliver, Securities that do not bear such Restricted Legend.

(iv) After the expiration of the holding period pursuant to Rule 144(d) of the Securities Act, the Company may with the consent of any Holder of a Restricted Global Security or a Restricted Certificated Security that is not an Affiliate of the Company, remove any restriction of transfer on such Security, and the Company shall issue, and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver Securities that do not bear the Restricted Legend.

(v) Until the expiration of the holding period applicable to sales of the Securities under Rule 144(d) of the Securities Act or a transfer pursuant to Rule 144 or pursuant to an effective registration statement under the Securities Act, the shares of Common Stock issued upon exchange of the Securities shall bear a legend substantially to the same effect as the Restricted Legend; provided that all Securities held by Affiliates of the Company shall bear the Restricted Legend at all times, unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction which results in such Security no longer being “restricted securities” (as defined under Rule 144).

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

SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use one or more “CUSIP,” “ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP,” “ISIN” or other similar numbers in notices of redemption or purchase as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or purchase shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP,” “ISIN” or other similar numbers.

SECTION 2.14. Ranking. The obligations of the Company arising under or in connection with this Indenture and every outstanding Security issued under this Indenture from time to time constitutes and shall constitute an unsubordinated unsecured general obligation of the Company, ranking equally in right of payment to all our existing and future unsubordinated unsecured indebtedness of the Company and ranking senior in right of payment to any future indebtedness of the Company that is expressly made subordinate to the Securities by the terms of such indebtedness.

SECTION 2.15. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal or Fundamental Change Repurchase Price, and interest on the Security, for the purpose of receiving Common Stock or Cash and for all other purposes, including without limitation, for purposes of giving notices hereunder, whatsoever, whether or not such Security is overdue, and none of the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. The registered Holder of a Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.

 

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SECTION 2.16. Defaulted Interest. If the Company defaults on a payment of interest on the Securities, it shall pay the defaulted interest, plus (to the extent permitted by law) any interest payable on the defaulted interest, in accordance with the terms hereof, to the Persons who are Holders on a subsequent special record date, which date shall be at least five Business Days prior to the payment date. The Company shall fix such special record date and payment date in a reasonable manner. At least 10 days before such special record date, the Company shall mail to each Holder a notice that states the special record date, the payment date and the amount of defaulted interest, and interest payable on defaulted interest, if any, to be paid. The Company may make payment of any defaulted interest in any other lawful manner not inconsistent with the requirements (if applicable) of any securities exchange on which the Securities may be listed and upon such notice as may be required by such exchange.

ARTICLE III

Repurchase of Securities at Option of Holders

SECTION 3.1. Repurchase of Securities at Option of the Holder upon a Fundamental Change. (a) In the event a Fundamental Change shall occur at any time when any Securities remain outstanding, the Securities shall be repurchased by the Company, at the option of any Holder thereof, in accordance with the provisions of paragraph 6 of the Securities on a date specified by the Company (the “ Fundamental Change Repurchase Date ”) that is not less than 20 nor more than 45 Business Days after the date the Company mails the Fundamental Change Company Notice pursuant to Section 3.1(b) , at a repurchase price in Cash equal to 100% of the Principal Amount of the Securities tendered for purchase, plus accrued and unpaid interest (including Additional Interest, if any) to, but not including, the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Price ”) (subject to the right of Holders on a Record Date to receive interest on the applicable Interest Payment Date), subject to satisfaction by or on behalf of any Holder of the requirements set forth in Section 3.1(c) .

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

(1) any “ person ” or “ group ” (other than the Company or the Guarantor, or one or more Subsidiaries of the Company or the Guarantor or employee benefit plans of either the Company or the Guarantor) becomes the “beneficial owner,” directly or indirectly, of shares of the Guarantor’s voting stock representing 50% or more of the total voting power of all outstanding classes of the Guarantor’s voting stock or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Guarantor and (i) such “ person ” or “ group ” files a Schedule 13D or Schedule TO, or any successor schedule, form or report under the Exchange Act, disclosing the same or (ii) the Company or the Guarantor otherwise becomes aware of any such person or group, in any case other than through a transaction that otherwise would be subject to clause (2) below, but for subclauses (i), (ii) or (iii) thereof;

(2) the Guarantor consolidates with, or merges with or into, another Person or the Guarantor sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the Guarantor’s assets, or any Person consolidates with, or merges with or into, the Guarantor; provided , however , that a transaction described in this clause (2) will be deemed not to be a Fundamental Change so long as (i) the persons that “beneficially owned,” directly or indirectly, shares of the Guarantor’s voting stock immediately prior to such transaction beneficially own, directly or indirectly, shares of

 

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voting stock representing a majority of the total voting power of all outstanding classes of voting stock of the surviving or transferee person or a Parent thereof, (ii) such transaction is effected solely for the purpose of changing the Guarantor’s jurisdiction of incorporation and resulting in a reclassification, exchange or exchange of outstanding shares of common stock, if at all, solely into shares of the surviving entity or a direct or indirect parent of the surviving entity or (iii) the consolidation or merger, or the sale, assignment, conveyance, transfer, lease or other disposition, is between or among the Company, the Guarantor or the respective Subsidiaries of the Company or the Guarantor;

(3) the Guarantor’s Common Stock or the common stock into which the Securities are then exchangeable ceases to be listed on the NYSE, the Nasdaq or another national securities exchange and is not then quoted on an established automated over-the-counter trading market in the United States;

(4) continuing directors cease to constitute a majority of the Guarantor’s Board of Directors; or

(5) the Guarantor’s stockholders approve any plan or proposal for the Guarantor’s liquidation or dissolution.

A “ Make-Whole Fundamental Change ” shall be deemed to have occurred upon the occurrence of a Fundamental Change described in clauses (1) and (2) above.

Notwithstanding anything to the contrary set forth in this Section 3.1 , a merger or consolidation shall be deemed not to constitute a Fundamental Change or a Make-Whole Fundamental Change if at least 90% of the consideration (excluding Cash payments for fractional shares and Cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting the Fundamental Change consists of common stock or depositary shares or receipts in respect thereof traded on the NYSE, Nasdaq or another national securities exchange (or which shall be so traded when issued or exchanged in connection with such merger or consolidation).

For purposes of this Section 3.1 :

 

•

“ person ” and “ group ” shall have the meanings given to them for purposes of Sections 13(d) and 14(d) of the Exchange Act or any successor provisions, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, or any successor provision;

 

•

a “ beneficial owner ” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture;

 

•

“ beneficially own ” and “ beneficially owned ” have meanings correlative to that of beneficial owner;

 

•

“ board of directors ” means the board of directors or other governing body charged with the ultimate management of any person;

 

•

“ capital stock ” means: (i) in the case of a corporation, corporate stock; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership interests (whether general

 

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or limited) or membership interests; or (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person;

 

•

“ continuing director ” means a director who either was a member of the Guarantor’s Board of Directors on the date of the Offering Circular or who becomes a member of the Guarantor’s Board of Directors subsequent to that date and whose election, appointment or nomination for election by the Guarantor’s stockholders is duly approved by a majority of the continuing directors on the Guarantor’s Board of Directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Guarantor on behalf of its entire Board of Directors in which such individual is named a nominee for director; and

 

•

“ voting stock ” means any class or classes of capital stock or other interests then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors.

(b) Notice of Fundamental Change. No later than 30 days after the effective date of a Fundamental Change, the Company shall notify the Trustee of the Fundamental Change Repurchase Date and shall mail a written notice of the Fundamental Change (the “ Fundamental Change Company Notice ”) to each Holder (and to beneficial owners as required by applicable law) in accordance with Section 12.2 . The notice shall include the form of a Fundamental Change Repurchase Notice to be completed by the Holder and shall state, as applicable:

(1) the events causing such Fundamental Change and the date of such Fundamental Change;

(2) that the Holder has a right to require the Company to repurchase the Holder’s Securities;

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

(4) the Fundamental Change Repurchase Date;

(5) the Fundamental Change Repurchase Price;

(6) the procedures that the Holder must follow to exercise its Fundamental Change purchase right under this Section 3.1 ;

(7) the names and addresses of the Paying Agent and the Exchange Agent;

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

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

 

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(10) the current Exchange Rate, including any increases to the Exchange Rate that resulted from the Fundamental Change;

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

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

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

(14) the CUSIP number(s) of the Securities; and

(15) the procedures that Holders must follow to exercise their right to require the Company to purchase such Holder’s Securities.

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

At the Company’s request, the Trustee shall give the Fundamental Change Company Notice on behalf of the Company and at the Company’s expense; provided , however , that the Company makes such request at least three Business Days (unless a shorter period shall be consented to in writing by the Trustee) prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 3.1(b) ; provided further , however , that the text of such notice shall be prepared by the Company.

(c) Fundamental Change Repurchase Notice. A Holder may exercise its right specified in Section 3.1(a) upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Applicable Procedures) of the exercise of such rights (a “ Fundamental Change Repurchase Notice ”) to and actually received by a Paying Agent at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date. The Fundamental Change Repurchase Notice must state:

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

(2) the portion of the Principal Amount of the Securities that the Holder shall deliver to be purchased, which portion must be in Principal Amounts of $1,000 or an integral multiple thereof; and

(3) that such Securities shall be purchased by the Company on the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in paragraph 6 of the Securities and in this Indenture.

 

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The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price; provided , however , that such Fundamental Change Repurchase Price shall be paid pursuant to this Section 3.1 only if the Security so delivered to the Paying Agent shall conform in all material respects to the description thereof in the related Fundamental Change Repurchase Notice.

The Company shall purchase from the Holder thereof, pursuant to this Section 3.1 , a portion of a Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Article III that apply to the purchase of all of a Security also apply to the purchase of such a portion of such Security.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.1(c) shall have the right to withdraw such Fundamental Change Repurchase Notice at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.2(b) .

A Paying Agent shall promptly notify the Company once each Business Day of the receipt by it of any Fundamental Change Repurchase Notices or written notices of withdrawal thereof.

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

SECTION 3.2. Effect of Fundamental Change Repurchase Notice. (a) Upon receipt by any Paying Agent of a Fundamental Change Repurchase Notice, the Holder of the Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified below) thereafter be entitled to receive the Fundamental Change Repurchase Price with respect to such Security. Such Fundamental Change Repurchase Price shall be paid to such Holder promptly following the later of (i) the Fundamental Change Repurchase Date (provided such Holder has satisfied the conditions in Section 3.1(c) ), with respect to such Security and (ii) the time of delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section 3.1(c) . A Security in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be exchanged pursuant to Article IV hereof on or after the date of the delivery of such Fundamental Change Repurchase Notice, unless either (i) such Fundamental Change Repurchase Notice has first been validly withdrawn in accordance with Section 3.2(b) ; or (ii) there shall be a default in the payment of the Fundamental Change Repurchase Price; provided , that the exchange right with respect to such Security shall terminate at Close of Business on the date such default is cured and such Security is purchased in accordance herewith.

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

 

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

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

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

SECTION 3.3. Deposit of Fundamental Change Repurchase Price. Prior to 11:00 a.m., New York City time, on a Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4 ) an amount in Cash (in immediately available funds if deposited on such Fundamental Change Repurchase Date) sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Securities or portions thereof that are to be purchased on that Fundamental Change Repurchase Date.

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

SECTION 3.4. Securities Purchased in Part. Any Certificated Security that is to be purchased only in part shall be surrendered at the office of a Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and promptly after a Fundamental Change Repurchase Date, the Company shall issue and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of such authorized denomination or denominations as may be requested by such Holder, in aggregate Principal Amount equal to, and in exchange for, the portion of the Principal Amount of the Security so surrendered that is not purchased.

SECTION 3.5. Repayment to the Company. To the extent that the aggregate amount of Cash deposited by the Company pursuant to Section 3.3 exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof that the Company is obligated to purchase on the Fundamental Change Repurchase Date, then, within one day after the Fundamental Change Repurchase Date, the Paying Agent shall return any such excess Cash to the Company.

SECTION 3.6. Compliance with Securities Laws upon Purchase of Securities. When complying with the provisions of Article III hereof (provided that such offer or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein,

 

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includes any successor provision thereto) under the Exchange Act at the time of such offer or purchase), and subject to any exemptions available under applicable law, the Company shall:

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

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

ARTICLE IV

Exchange

SECTION 4.1. Exchange Privilege. (a) Subject to and upon compliance with the provisions of this Article IV and paragraph 7 of the Security, at the option of the Holder thereof, any Security, in whole or in part, may be exchanged into the Settlement Amount, at a rate (the “ Exchange Rate ”), initially equivalent to 19.9055 shares of Common Stock per $1,000 Principal Amount of Securities, subject to adjustment pursuant to Section 4.6 , on or prior to the Close of Business on the second Business Day immediately preceding the Final Maturity Date.

(b) The Securities shall be exchangeable (i) at any time during the period beginning on May 15, 2015 and ending at the Close of Business on the second Business Day immediately preceding the Final Maturity Date and (ii) prior thereto, at any time up to the Close of Business on the second Business Day immediately preceding the Final Maturity Date, only upon the occurrence of one of the events and during the applicable time period set forth below:

(i) During any calendar quarter beginning after September 30, 2009 and only during such calendar quarter, if the Closing Sale Price of the Common Stock for at least 20 Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of the preceding calendar quarter exceeds 130% of the Exchange Price per share of Common Stock on such last Trading Day. For each calendar quarter commencing at any time after September 30, 2009, the Exchange Agent shall determine, on the Company’s behalf, whether the Securities are exchangeable as the result of the satisfaction of this condition in the preceding calendar quarter and shall promptly notify the Company and the Trustee accordingly. The Trustee shall, in turn, notify the Holders in each calendar quarter but in no event later than seven Business Days after receiving notification from the Company, as to the satisfaction of this condition.

(ii) During the five Business Day period after any five consecutive Trading Day period (the “ Measurement Period ”) in which the Trading Price per $1,000 Principal Amount of Securities for each day of such Measurement Period was less than 98% of the product of the Closing Sale Price on such date and the Exchange Rate on such date, all as determined by the Trustee. The Trustee shall have no obligation to determine the Trading Price of Securities unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 Principal Amount of Securities would be less than 98% of the product of (a) the Exchange Rate of the Securities and (b) the Closing Sale Price at such time, at which time the Company shall instruct the Trustee to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 Principal Amount of Securities is greater than or equal to 98% of the product of (a) the Exchange Rate of the Securities and (b) the Closing Sale Price on such date. If the Trading Price condition

 

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set forth above has been met, the Company shall so notify the Holders. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 Principal Amount of Securities is greater than or equal to 98% of the product of (a) the Exchange Rate of the Securities and (b) the Closing Price on such date, the Company shall so notify the Holders.

(iii) If the Guarantor elects to distribute to all or substantially all holders of Common Stock:

(1) rights (including rights under a stockholder rights agreement, but only following the distribution of separate certificates evidencing such rights), warrants or options entitling them to purchase for a period expiring within 60 days of the date of distribution, shares of its Common Stock at less than the average of the Closing Sale Price of a share of its Common Stock for the five consecutive Trading Day period ending on the Trading Day immediately preceding the announcement date for such distribution; or

(2) Cash, assets, debt securities or other evidence of Indebtedness or rights or warrants to purchase its securities, which distribution has a per share value exceeding 20% of the Closing Sale Price of its Common Stock as of the Trading Day immediately preceding the announcement date for such distribution;

the Company must notify the Holders at least 25 Trading Days prior to the ex-dividend date for such distribution, provided that if the Guarantor distributes separate certificates evidencing rights pursuant to a stockholder rights agreement, the Company will notify the Holders of the Securities on the Business Day after the Guarantor is required to give notice generally to its stockholders pursuant to such stockholder rights agreement if such date is less than 25 Trading Days prior to the date of such distribution. Once the Company has given such notice, a Holder may surrender its Securities for exchange at any time until the earlier of the Close of Business on the Business Day prior to the ex-dividend date or the Company’s announcement that such distribution will not take place. Notwithstanding the foregoing, this provision shall not apply if the Holder otherwise participates in the distribution on an as-exchanged basis (assuming for such purposes that exchange was made solely into shares of the Guarantor’s Common Stock at the then applicable Exchange Rate) without the exchange of such Holder’s Securities.

(iv) If the Guarantor is a party to any transaction or an event occurs that constitutes a Fundamental Change, a Holder may surrender Securities for exchange at any time from and after the date which is the effective date of a Fundamental Change until and including the Trading Day prior to the related Fundamental Change Repurchase Date. The Company shall give notice in writing to all record Holders and the Trustee of a Fundamental Change no later than 10 Trading Days prior to the anticipated effective date of the Fundamental Change that the Company knows or reasonably should know will occur. If the Company does not know, and should not reasonably know, that a Fundamental Change will occur until a date that is within 10 Trading Days before the anticipated effective date of such Fundamental Change, the Company shall give notice in writing to all record Holders and the Trustee of the Fundamental Change within five Business Days after the Company has knowledge of such Fundamental Change. The Board of Directors shall determine in good faith the anticipated effective date of the Fundamental Change, and such determination shall be conclusive and binding on the Holders.

(c) If a Holder elects to exchange its Securities in connection with a Make-Whole Fundamental Change, then the Exchange Rate of the Securities being exchanged by such Holder shall be increased in the manner set forth below; provided that if the Stock Price in such transaction is greater than $120.00 or less than $41.01, no increase in the Exchange Rate shall be

 

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made, subject to adjustment in the same manner as the Exchange Price as set forth in Section 4.6 . For the avoidance of doubt, the increases provided for in this Section 4.1(c) shall only be made with respect to the Securities being exchanged in connection with such Make-Whole Fundamental Change and shall not be effective as to any Securities not so exchanged. For purposes of this Section 4.1 , an exchange shall be deemed to be “in connection” with a Fundamental Change to the extent that such exchange is effected from and after the date which is the effective date of a Fundamental Change until and including the Trading Day prior to the related Fundamental Change Repurcha