INDENTURE

 

 

 

 

ALPHA NATURAL RESOURCES, INC.

and

UNION BANK OF CALIFORNIA, N.A.

as Trustee

SUPPLEMENTAL INDENTURE NO. 1

Dated as of April 7, 2008

to

INDENTURE

Dated as of April 7, 2008

$287,500,000 Principal Amount

2.375% Convertible Senior Notes due 2015

 

 

 

 

TABLE OF CONTENTS

			Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE			1
Section 1.01 Definitions			1
Section 1.02 Other Definitions			5
Section 1.03 Incorporation by Reference of Trust Indenture Act			5
Section 1.04 Rules of Construction			6
ARTICLE II. THE SECURITIES			6
Section 2.01 Form and Dating			6
Section 2.02 Execution and Authentication of Securities			7
Section 2.03 Registrar, Paying Agent and Conversion Agent			7
Section 2.04 Paying Agent to Hold Money in Trust			8
Section 2.05 Transfer and Exchange			8
Section 2.06 Outstanding Securities			8
Section 2.07 Interest Payment and Record Dates			9
Section 2.08 No Sinking Fund			9
Section 2.09 Defaulted Interest			9
Section 2.10 CUSIP Numbers			9
Section 2.11 Deposit of Moneys			9
Section 2.12 Global Securities			10
Section 2.13 Ranking			10
Section 2.14 Additional Securities			10
ARTICLE III. NO REDEMPTION; REPURCHASE UPON A FUNDAMENTAL CHANGE			10
Section 3.01 No Right of Redemption			10
Section 3.02 Repurchase at Option of Holder Upon a Fundamental Change			10
ARTICLE IV. [RESERVED]			16
ARTICLE V. [RESERVED]			16
ARTICLE VI. DEFAULTS AND REMEDIES			16
Section 6.01 Additional Events of Default			16
ARTICLE VII. [RESERVED]			18
ARTICLE VIII. NO DEFEASANCE OR COVENANT DEFEASANCE			18

			Page
Section 8.01 No Defeasance			18
ARTICLE IX. [RESERVED]			18
ARTICLE X. AMENDMENTS			18
Section 10.01 Without Consent of Holders			18
Section 10.02 With Consent of Holders			19
Section 10.03 Documents to Be Given to Trustee; Compliance with TIA			20
Section 10.04 Effect of Supplemental Indenture			20
Section 10.05 Notation on Securities in Respect of Supplemental Indentures			20
ARTICLE XI. CONVERSION			20
Section 11.01 Conversion Privilege; Restrictive Legends			20
Section 11.02 Conversion Procedure and Payment Upon Conversion			24
Section 11.03 Taxes on Conversion			26
Section 11.04 Company to Provide Stock			27
Section 11.05 Adjustment of Conversion Rate			27
Section 11.06 No Adjustment			35
Section 11.07 Other Adjustments			35
Section 11.08 Adjustments for Tax Purposes			35
Section 11.09 Notice of Adjustment			36
Section 11.10 Notice of Certain Transactions			36
Section 11.11 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion Privilege			36
Section 11.12 Trustee’s Disclaimer			38
Section 11.13 Rights Distributions Pursuant to Stockholders’ Rights Plans			38
Section 11.14 Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection With Make-Whole Fundamental Changes			38
ARTICLE XII. MISCELLANEOUS			41
Section 12.01 Conflict of Any Provision of Indenture with Trust Indenture Act			41
Section 12.02 Duplicate Originals			41
Section 12.03 New York Law to Govern			41
Section 12.04 No Adverse Interpretation of Other Agreements			42
Section 12.05 Successors and Assigns of Company Bound by Supplemental Indenture			42
Section 12.06 Severability			42
Section 12.07 Effect of Headings			42
Section 12.08 Calculations in Respect of the Securities			42
Exhibit A — Form of Global Security
Exhibit B — Form of Legend for Global Security

      SUPPLEMENTAL INDENTURE NO. 1 (the “ Supplemental Indenture ”), dated as of April 7, 2008, between Alpha Natural Resources, Inc., a Delaware corporation (the “ Company ”), and Union Bank of California, N.A., a national banking association, as trustee (the “ Trustee ”).

WITNESSETH THAT:

     WHEREAS, the Company and the Trustee have executed and delivered a base indenture, dated as of April 7, 2008 (as amended, supplemented or otherwise modified from time to time, the “ Base Indenture ,” and, together with this Supplemental Indenture, as amended, supplemented or otherwise modified from time to time, the “ Indenture ”) to provide for the future issuance of the Company’s senior debt securities to be issued from time to time in one or more series; and

     WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of a series of its Securities, to be titled as its “2.375% Convertible Senior Notes due 2015,” the form and substance of such Securities and the terms, provisions and conditions thereof to be set forth as provided in the Indenture;

NOW, THEREFORE:

     Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities.

ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions.

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

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

     “ Capital Stock ” of any Person means any and all shares, interests, participations or other equivalents (however designated) of capital stock of such Person and all warrants or options to acquire such capital stock.

     “ Closing Sale Price ” on any date means the price of a share of Common Stock on such date, determined (a) on the basis of the closing per share sale price (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date on the U.S. principal national or regional securities exchange on which the Common Stock is listed; or (b) if the Common Stock is not listed on a U.S. national or regional securities exchange, as reported by Pink Sheets LLC or a similar organization. In the absence of any such report or quotation, the “ Closing Sale Price ” shall be such price as determined by a nationally recognized independent investment

banking firm retained by the Company for such purpose as most accurately reflecting the price that a fully informed buyer, acting on his own accord, would pay to a fully informed seller, acting on his own accord in an arms-length transaction, for a share of such Common Stock.

     “ Common Stock ” means the common stock, par value $0.01 per share, of the Company, or such other Capital Stock of the Company into which the Company’s common stock is reclassified or changed.

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

     “ Continuing Directors ” means a director who either was a member of the Company’s Board of Directors on the Issue Date or who becomes a member of the Company’s Board of Directors subsequent to the Issue Date and whose appointment, election or nomination for election by the Company’s stockholders is duly approved by a majority of the Continuing Directors on the Company’s Board of Directors at the time of such approval, either by specific vote or by approval of the proxy statement issued by the Company on behalf of the Company’s Board of Directors in which such individual is named as nominee for director. Solely for purposes of this definition, the term “Board of Directors” shall be defined without regard to the words “or any authorized committee of the Board of Directors of such Person or any officer of such Person duly authorized by the Board of Directors of such Person to take a specific action” in such definition.

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

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

     “ Conversion Rate ” shall initially be 18.2962 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment as provided in Article XI .

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

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

     “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

     “ Fundamental Change Purchase Notice ” means a “Fundamental Change Purchase Notice” in the form set forth in the Securities.

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

     “ Issue Date ” means April 7, 2008.

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

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

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

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

     “ SEC ” means the Securities and Exchange Commission.

     “ Securities ” means the 2.375% Convertible Senior Notes due 2015 established by this Supplemental Indenture and issued by the Company pursuant to the Indenture.

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

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

     “ Significant Subsidiary ” with respect to any person means any subsidiary of such person that constitutes a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X under the Securities Act, as such regulation is in effect on the date of this Supplemental Indenture.

     “ Stated Maturity ” means, with respect to the payment of principal on the Securities, April 15, 2015.

     “ TIA ” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as amended and in effect from time to time.

     “ Trading Day ” means any day during which (i) trading in the Common Stock generally occurs and (ii) there is no Market Disruption Event.

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

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

Section 1.02 Other Definitions.

Term		Defined in Section
“ Applicable Price ”		Section 11.14
“ BCF Make-Whole Cap ”		Section 11.14
“ Cash Percentage ”		Section 11.02
“ Cash Percentage Notice ”		Section 11.02
“ Cash Settlement Averaging Period ”		Section 11.02
“ Change in Control ”		Section 3.02
“ Conversion Agent ”		Section 2.03
“ Conversion Value ”		Section 11.01
“ Daily Conversion Value ”		Section 11.02
“ Daily Settlement Amount ”		Section 11.02
“ Daily Share Amount ”		Section 11.02
“ Distributed Property ”		Section 11.05
“ Effective Date ”		Section 11.14
“ Ex Date ”		Section 11.05
“ Extension Period ”		Section 11.01
“ Fundamental Change ”		Section 3.02
“ Fundamental Change Notice ”		Section 3.02
“ Fundamental Change Repurchase Date ”		Section 3.02
“ Fundamental Change Repurchase Price ”		Section 3.02
“ Fundamental Change Repurchase Right ”		Section 3.02
“ Listed Stock Business Combination ”		Section 3.02
“ Make-Whole Applicable Increase ”		Section 11.14
“ Make-Whole Conversion Period ”		Section 11.14
“ Make-Whole Consideration ”		Section 11.14
“ Note Measurement Period ”		Section 11.01
“ Note Trading Price Condition ”		Section 11.01
“ Paying Agent ”		Section 2.03
“ Reference Property ”		Section 11.11
“ Registrar ”		Section 2.03
“ Repurchase Upon Fundamental Change ”		Section 3.02
“ Settlement Amount ”		Section 11.02
“ Spin-Off ”		Section 11.05
“ Termination of Trading ”		Section 3.02
“ Trigger Event ”		Section 11.05
“ Volume-Weighted Average Price ”		Section 11.02

Section 1.03 Incorporation by Reference of Trust Indenture Act.

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

     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 or a Holder;

     “ indenture to be qualified ” means this Indenture; and

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

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

Section 1.04 Rules of Construction.

     Unless the context otherwise requires:

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

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

     (iii) “or” is not exclusive;

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

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

     (vi) provisions apply to successive events and transactions;

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

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

     In addition, to the extent that the terms of this Supplemental Indenture are inconsistent or conflict with the terms of the Base Indenture, then, for purposes of the Securities, the terms of this Supplemental Indenture shall apply to the extent of such inconsistency or conflict.

ARTICLE II. THE SECURITIES

Section 2.01 Form and Dating.

     The Securities and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A , which is incorporated in and forms a part of this Indenture. The

Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication.

     The Securities shall be issued initially in the form of one or more Global Securities, substantially in the form set forth in Exhibit A , deposited with the Trustee, as custodian for DTC (who shall be the initial Depository with respect to the Securities), duly executed by the Company and authenticated by the Trustee and bearing the legend set forth in Exhibit B . The aggregate principal amount of the Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository, as hereinafter provided; provided , that, except as permitted by Section 2.14 , in no event shall the aggregate principal amount of the Global Security or Global Securities exceed $287,500,000.

     Securities in the form of Physical Securities issued in exchange for Securities represented by interests in a Global Security pursuant to Section 3.08 of the Base Indenture may be issued in the form of permanent certificated Securities in registered form in substantially the form set forth in Exhibit A and, if applicable, bearing any legends required hereby.

     The Securities shall be denominated in Dollars, and all cash payments due thereon shall be made in Dollars. The Securities shall be issuable only in registered form without interest coupons and only in denominations of $1,000 principal amount and any integral multiple thereof.

Section 2.02 Execution and Authentication of Securities

     Upon a Company Order, the Trustee shall authenticate Securities for original issue in the aggregate principal amount of $287,500,000.

Section 2.03 Registrar, Paying Agent and Conversion 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 where Securities may be presented for payment (“ Paying Agent ”) and an office or agency where Securities may be presented for conversion (“ Conversion Agent ”). The Corporate Trust Office shall serve as the office or agency for the aforementioned purposes. The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint or change one or more co-Registrars, one or more additional paying agents and one or more additional conversion agents upon reasonable prior written notice to the Trustee and may act in any such capacity on its own behalf. The term “ Registrar ” includes any co-Registrar; the term “ Paying Agent ” includes any additional paying agent; and the term “ Conversion Agent ” includes any additional conversion agent.

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

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

     For purposes of the Securities, the Payment Office shall be the Corporate Trust Office.

Section 2.04 Paying Agent to Hold Money in Trust.

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

Section 2.05 Transfer and Exchange.

     The Company or the Trustee, as the case may be, shall not be required to register the transfer of or exchange any Security for which a Fundamental Change Purchase Notice has been delivered, and not withdrawn, in accordance with this Indenture, except the unrepurchased portion of Securities being repurchased in part.

     No service charge shall be made for any transfer, exchange or conversion of Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Securities, other than exchanges pursuant to Section 3.11 or Section 9.05 of the Base Indenture or Sections 10.05 or 11.02 , or Article III , not involving any transfer.

Section 2.06 Outstanding Securities.

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

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

     For purposes of the Securities, this Section 2.06 shall supersede and modify Section 7.04 of the Base Indenture to the extent this Section 2.06 is inconsistent or conflicts with such Section.

Section 2.07 Interest Payment and Record Dates.

     The Interest Payment Dates for the Securities shall be April 15 and October 15 of each calendar year, beginning with, and including, October 15, 2008. The Regular Record Date for an Interest Payment Date that falls on April 15 shall be the immediately preceding April 1, and the Regular Record Date for an Interest Payment Date that falls on October 15 shall be the immediately preceding October 1.

Section 2.08 No Sinking Fund.

     There shall be no sinking fund with respect to the Securities.

Section 2.09 Defaulted Interest.

     If and to the extent the Company defaults in a payment of interest on the Securities, the Company shall pay in cash the defaulted interest in any lawful manner plus, to the extent not prohibited by applicable statute or case law, interest on such defaulted interest at the rate provided in the Securities. The Company may pay the defaulted interest (plus interest on such defaulted interest) to the persons who are Securityholders on a subsequent record date as provided in Section 3.05(b) of the Base Indenture.

Section 2.10 CUSIP Numbers.

     The Company in issuing the Securities may use one or more CUSIP numbers, and, if so, the Trustee shall use the CUSIP numbers in notices of repurchase or exchange as a convenience to Holders; provided , however , that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed on the notice or on the Securities; provided further , that reliance may be placed only on the other identification numbers printed on the Securities, and the effectiveness of any such notice shall not be affected by any defect in, or omission of, such CUSIP numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers.

Section 2.11 Deposit of Moneys.

     Prior to 11:00 A.M., New York City time, on each Interest Payment Date, the Stated Maturity for the payment of principal on the Securities or Fundamental Change Repurchase Date, the Company shall have deposited with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 4.03 of the Base Indenture) money, in funds immediately available on such date, sufficient to make cash payments, if any, due on such Interest Payment Date, the Stated Maturity for the payment of principal on the Securities or Fundamental Change Repurchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, the Stated Maturity for the payment of principal on the Securities or Fundamental Change Repurchase Date, as the case may be. For purposes of the Securities, the terms “at or

prior to 11:00 A.M., New York City time, on” shall be deemed to replace the first instance, in each case, of the words “on or before” in the first paragraph of Section 4.03 of the Base Indenture and “on or prior to” in the second paragraph of Section 4.03 of the Base Indenture.

Section 2.12 Global Securities.

     The Securities shall initially be issued in the form of one of more Global Securities, and the provisions of the Base Indenture (including, but not limited to, Section 3.06 and Section 3.08) relating to Global Securities shall apply to the Securities.

Section 2.13 Ranking.

     The indebtedness 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 will constitute a senior unsecured obligation of the Company, ranking equally with other existing and future senior unsecured indebtedness of the Company and ranking senior to any existing or future subordinated indebtedness of the Company.

Section 2.14 Additional Securities.

     The Company may, without the consent of the Holders and notwithstanding Sections 2.01 and 2.02 Reference source not found. hereof, reopen the Securities and issue additional Securities hereunder with the same terms and conditions (except for any difference in the issue price therefor and interest accrued prior to the date of issuance thereof) and with the same CUSIP number as the Securities initially issued hereunder in an unlimited aggregate principal amount, which will form the same series with the Securities initially issued hereunder, so long as such additional Securities constitute the same issue as the Securities initially issued hereunder for U.S. federal income tax purposes. The Securities initially issued hereunder and any such additional Securities would rank equally and ratably and would be treated as a single series of debt securities for all purposes under the Indenture.

ARTICLE III. NO REDEMPTION; REPURCHASE UPON A FUNDAMENTAL CHANGE

Section 3.01 No Right of Redemption.

     The Securities are not subject to redemption at the Company’s option, and Article 11 of the Base Indenture shall not apply to the Securities.

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

     (A) In the event any Fundamental Change (as defined below) shall occur, each Holder of Securities shall have the right (the “ Fundamental Change Repurchase Right ”), at such Holder’s option, to require the Company to repurchase (a “ Repurchase Upon Fundamental Change ”) all of such Holder’s Securities (or portions thereof that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the “ Fundamental Change Repurchase Date ”), which Fundamental Change Repurchase Date shall be no later than thirty five (35) days, nor earlier than twenty (20) days, after the date the Fundamental Change Notice

(as defined below) is mailed in accordance with Section 3.02(B) , at a price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities (or portions thereof) to be so repurchased, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Price ”), upon:

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

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

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

     (c) that such principal amount of Securities are to be repurchased pursuant to the terms and conditions specified in Section 3.02 of this Supplemental Indenture; and

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

provided , however , that if such Fundamental Change Repurchase Date is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be paid on such Interest Payment Date to the Holder of record of such Securities at the close of business on such Regular Record Date (without any surrender of such Securities by such Holder), and the Fundamental Change Repurchase Price shall be equal to the principal amount of Securities subject to such Repurchase Upon Fundamental Change.

     If such Securities are held in book-entry form through the Depository for the Securities, the Fundamental Change Purchase Notice shall comply with applicable procedures of such Depository.

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

     Notwithstanding anything herein to the contrary, any Holder that has delivered the Fundamental Change Purchase Notice contemplated by this Section 3.02(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such

purpose in the Fundamental Change Notice shall have the right to withdraw such Fundamental Change Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.02(B)(xi) .

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

     (B) Within ten (10) Business Days after the occurrence of a Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses shown in the Security Register for the Securities, to beneficial owners as required by applicable law, and to the Trustee, a notice (the “ Fundamental Change Notice ”) of the occurrence of such Fundamental Change and the Fundamental Change Repurchase Right arising as a result thereof. The Company shall deliver a copy of the Fundamental Change Notice to the Trustee and shall cause a copy to be published at the expense of the Company in The New York Times or The Wall Street Journal or another newspaper of national circulation.

     Each Fundamental Change Notice shall state:

     (i) the events causing the Fundamental Change;

     (ii) the date of such Fundamental Change;

     (iii) the Fundamental Change Repurchase Date;

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

     (v) the Fundamental Change Repurchase Price;

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

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

     (viii) that, in order to exercise the Fundamental Change Repurchase Right, the Securities must be surrendered for payment of the Fundamental Change Repurchase Price payable as herein provided;

     (ix) that the Fundamental Change Repurchase Price for any Security as to which a Fundamental Change Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event later than the later of such Fundamental Change Repurchase Date and the time of delivery of the Security (together with all necessary endorsements) as described in clause (viii) above;

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

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

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

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

     (xiv) the CUSIP number or numbers, as the case may be, of the Securities.

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

     No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right to exercise a Fundamental Change Repurchase Right.

     (C) Subject to the provisions of this Section 3.02 , the Company shall pay, or cause to be paid, the Fundamental Change Repurchase Price with respect to each Security as to which the Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as

promptly as practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the time such Security is surrendered to the Paying Agent.

     (D) Prior to 11:00 A.M., New York City time on a Fundamental Change Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 4.03 of the Base Indenture) money, in funds immediately available on the Fundamental Change Repurchase Date, sufficient to pay the Fundamental Change Repurchase Price for all of the Securities that are to be repurchased by the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change. The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

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

     (F) Securities with respect to which a Fundamental Change Purchase Notice has been duly delivered in accordance with this Section 3.02 may be converted pursuant to Article XI , if otherwise convertible in accordance with Article XI , only if such Fundamental Change Purchase Notice has been withdrawn in accordance with this Section 3.02 or if there shall be a Default in the payment of the Fundamental Change Repurchase Price in respect of such Securities.

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

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

     (I) Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this Section 3.02 if the principal amount of the Securities has been accelerated pursuant to Section 5.02 of the Base Indenture (except in the case of an Event of

Default resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Securities) and such acceleration shall not have been rescinded on or before the applicable Fundamental Change Repurchase Date. The Paying Agent will promptly return to the respective Holders thereof any Securities tendered to it for Repurchase Upon Fundamental Change during the continuance of such an acceleration.

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

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

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

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

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

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

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

     (2) at least ninety percent (90%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in such consolidation or merger consists of common stock and any associated rights (or depositary receipts representing such securities) traded on a U.S. national securities exchange (or which will be so traded when issued or exchanged in connection with such consolidation or merger), and, as a result of such consolidation or merger, the Securities

become convertible into cash and, if applicable, such common stock and associated rights (or depositary receipts representing such securities) (subject to Section 11.02 ) (such a consolidation or merger that satisfies the conditions set forth in this clause (2) , a “ Listed Stock Business Combination ”); or

     (d) the first day on which a majority of the members of the Company’s Board of Directors (determined, solely for purposes of this clause (d) without regard to the words “or any authorized committee of the Board of Directors of such Person or any officer of such Person duly authorized by the Board of Directors of such Person to take a specific action” in such definition) does not consist of Continuing Directors; or

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

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

ARTICLE IV. [RESERVED]

ARTICLE V. [RESERVED]

ARTICLE VI. DEFAULTS AND REMEDIES

Section 6.01 Additional Events of Default.

     In addition to those Events of Default set forth in Section 5.01 of the Base Indenture, the following events shall also be Events of Default with respect to the Securities:

	(A)		the Company fails to pay or deliver, as the case may be, the consideration due upon conversion of the Securities as set forth in Article XI ;
	(B)		the Company fails to timely provide the Fundamental Change Notice as provided in Section 3.02 ;
	(C)		the Company fails to timely provide notice of any event described in Section 11.14(B)(iv) as provided in such Section;
	(D)		the Company fails to comply with the covenants and agreements described Article 10 of the Base Indenture;
	(E)		a default by the Company or any of its Subsidiaries in the payment when due, after the expiration of any applicable grace period, of principal of, or premium, if any, or interest on, Indebtedness in the aggregate principal amount then outstanding of $15.0 million or more, or acceleration of the Company’s or its

Subsidiaries’ Indebtedness in such aggregate principal amount or more so that it becomes due and payable before the date on which it would otherwise have become due and payable, if such default is not cured or waived, or such acceleration is not rescinded, within 30 days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Securities then outstanding, in accordance with the Section 5.02 of the Base Indenture;

	(F)		failure by the Company or any of its Subsidiaries to pay final judgments, the aggregate uninsured portion of which is at least $15.0 million, if the judgments are not paid or discharged within 30 days; and
	(G)		the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Subsidiary of the Company that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) or any group of Subsidiaries of the Company that in the aggregate would constitute a “significant subsidiary” (as so defined) in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging such Subsidiary or group of Subsidiaries bankrupt or insolvent, or approving as properly filed a petition or petitions seeking reorganization, arrangement, adjustment, or composition of or in respect of such Subsidiary or group of Subsidiaries under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of such Subsidiary or group of Subsidiaries or of any substantial part of its (or their, as the case may be) property, or ordering the winding up or liquidation of its (or their, as the case may be) affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; and
	(H)		the commencement by any Subsidiary of the Company that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) or any group of Subsidiaries of the Company that in the aggregate would constitute a “significant subsidiary” (as so defined) of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent, or the consent by it (or them, as the case may be) to the entry of a decree or order for relief in respect of such Subsidiary or group of Subsidiaries in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it (or them, as the case may be), or the filing by it (or them, as the case may be) of a petition or answer or consent seeking reorganization or relief with respect to such Subsidiary or group of Subsidiaries under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or the consent by it (or them, as the case may be) to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of such Subsidiary or group of Subsidiaries

or of any substantial part of its (or their, as the case may be) property pursuant to any such law, or the making by it (or them, as the case may be) of an assignment for the benefit of creditors, or the admission by it (or them, as the case may be) in writing of its (or their, as the case may be) inability to pay its (or their, as the case may be) debts generally as they become due, or the taking of corporate action by such Subsidiary or group of Subsidiaries in furtherance of any such action.

ARTICLE VII. [RESERVED]

ARTICLE VIII. NO DEFEASANCE OR COVENANT DEFEASANCE

Section 8.01 No Defeasance.

     Article 12 of the Base Indenture shall not apply to the Securities.

ARTICLE IX. [RESERVED]

ARTICLE X. AMENDMENTS

Section 10.01 Without Consent of Holders.

     The Company and the Trustee may amend or supplement this Indenture or the Securities without notice to or the consent of any Securityholder:

     (i) to cure any ambiguity, defect, omission or inconsistency in the Indenture in a manner that does not, individually or in the aggregate with all other changes made or to be made to the Indenture, adversely affect the rights of any Holder;

     (ii) to comply with Section 10.01 of the Base Indenture and Section 11.11 ;

     (iii) to evidence and provide for the acceptance of appointment by a successor trustee as set forth in Article 6 of the Base Indenture;

     (iv) to secure the obligations of the Company in respect of the Securities;

     (v) to make any change that would provide any additional rights or benefits to Securityholders and that does not adversely affect any such Securityholder;

     (vi) to make provisions with respect to adjustments to the Conversion Rate as required by this Supplemental Indenture or to increase the Conversion Rate in accordance with this Supplemental Indenture; or

     (vii) to conform this Supplemental Indenture to the description of the Securities contained in the final prospectus supplement relating to the offering of the Securities.

Section 10.02 With Consent of Holders.

     The Company and the Trustee may amend or supplement this Indenture or the Securities without notice to any Securityholder but with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities. Subject to Section 5.04 and Section 5.07 of the Base Indenture, the Holders of a majority in aggregate principal amount of the outstanding Securities may, by notice to the Trustee, waive compliance by the Company with any provision of this Indenture or the Securities without notice to any other Securityholder. Notwithstanding anything herein to the contrary, without the consent of each Holder of each outstanding Security affected, an amendment, supplement or waiver, including a waiver pursuant to Section 5.04 of the Base Indenture, may not:

     (a) change the Stated Maturity for the payment of principal of, or any Interest Payment Date for, any Security;

     (b) reduce the principal amount of, or any premium, interest on, any Security;

     (c) change the place, manner or currency of payment of principal of, or any premium, interest on, any Security;

     (d) impair the right to institute suit for the enforcement of any payment on, or with respect to, or of the conversion of, any Security;

     (e) modify, in a manner adverse to Holders, the provisions with respect to the right of Holders pursuant to Article III to require the Company to repurchase Securities upon the occurrence of a Fundamental Change;

     (f) modify the provisions of Section 2.13 in a manner adverse to Holders;

     (g) adversely affect the right of Holders to convert Securities in accordance with Article XI ;

     (h) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a modification to or amendment of any provision of the Indenture or the Securities;

     (i) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a waiver of compliance with any provision of the Indenture or the Securities or a waiver of any Default or Event of Default; or

     (j) modify the provisions of the Indenture with respect to modification and waiver (including waiver of a Default or an Event of Default), except to increase the percentage required for modification or waiver or to provide for the consent of each affected Holder.

     Promptly after an amendment, supplement or waiver under Section 10.01 or this Section 10.02 becomes effective, the Company shall mail, or cause to be mailed, to Securityholders a notice briefly describing such amendment, supplement or waiver. Any failure of the Company to mail such notice shall not in any way impair or affect the validity of such amendment, supplement or waiver.

     It shall not be necessary for the consent of the Holders under this Section 10.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.

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