INDENTURE

Exhibit 4.1

 

RADIOSHACK CORPORATION

AND

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

as Trustee

INDENTURE

Dated as of August 18, 2008

2.50% Convertible Senior Notes due 2013

 

 

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INDENTURE dated as of August 18, 2008 between RadioShack Corporation, a Delaware corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “ Trustee ”).

W I T N E S S E T H:

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its 2.50% Convertible Senior Notes due 2013 (the “ Notes ”), initially in an aggregate principal amount not to exceed $375,000,000, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Conversion Notice, the Form of Fundamental Change Purchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided for; and

WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, the valid, binding and legal obligations of the Company, and to constitute a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the Notes (except as otherwise provided below), as follows:

ARTICLE 1

D EFINITIONS

Section 1.01 . Definitions. The terms defined in this Section 1.01 (except as herein or therein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture that are defined in the Trust Indenture Act or that are by reference therein defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.

 

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“ 2011 Notes ” shall mean the Company’s 7-3/8% Notes due 2011 and any amendment, modification, renewal, extension or refinancing thereof in whole or in part, other than any commercial paper or credit agreement or facility that provides for revolving credit loans, term loans, letters of credit, receivables or other asset-based credit facilities or any other similar extensions of credit thereunder.

“ Additional Interest ” means all amounts, if any, payable pursuant to Section 7.02 hereof.

“ Additional Shares ” has the meaning ascribed to it in Section 15.03(a).

“ 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 the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Automatic Exchange ” shall have the meaning specified in Section 2.15.

“ Automatic Exchange Notice ” shall have the meaning specified in Section 2.15.

“ Bankruptcy Custodian ” means any receiver, trustee, assignee, liquidator, custodian, sequestrator or similar official under any Bankruptcy Law.

“ Bankruptcy Law ” means any federal or state bankruptcy, insolvency or other similar law.

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

“ Board of Directors ” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“ Business Day ” means any day other than a Saturday, a Sunday or a day on which commercial banking institutions are authorized or required by law to close in New York City.

“ Capital Stock ” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.

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

 

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

“ Commission ” means the Securities and Exchange Commission.

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

“ Common Stock ” means, subject to Section 15.04, shares of common stock of the Company, par value $1.00 per share, at the date of this Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and that 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 Company and that are not subject to redemption by the Company; provided 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 that 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 RadioShack Corporation, a Delaware corporation, and subject to the provisions of Article 12, shall include its successors and assigns.

“ Company Order ” means a written order of the Company, signed in the name of the Company by (a) an Officer of the Company and (b) another Officer of the Company, other than the Officer designated in clause (a) of this definition, or the Company’s Assistant Treasurer or any Assistant Secretary, and delivered to the Trustee.

“ Conversion Agent ” shall have the meaning specified in Section 2.07.

“ Conversion Date ” means the date of conversion of any Holder’s Notes pursuant to Section 15.01(b).

“ Conversion Notice ” shall have the meaning specified in Section 15.01(b).

“ Conversion Payment Trading Day ” shall mean a day on which (i) there is no Market Disruption Event and (ii) trading generally in the Common Stock (or other security for which a Daily VWAP must be determined) occurs on the New York Stock Exchange or, if the Common Stock (or other security for which a Daily VWAP must be determined) is not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock (or other security for which a Daily VWAP must be determined) is then listed or, if the Common Stock (or other security for which a Daily VWAP must be determined) is not then listed on a U.S. national or regional securities exchange, in the principal other market on which the Common Stock (or other security for which a Daily VWAP must be determined) is then traded. If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or traded, “Conversion Payment Trading Day” means a “Business Day.”

 

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“ Conversion Price ” on any day means, in respect of each $1,000 principal amount of Notes, $1,000 divided by the Conversion Rate in effect on such day, as may be adjusted from time to time as set forth herein.

“ Conversion Rate ” means, in respect of each $1,000 principal amount of Notes, initially 41.2414 shares of Common Stock, subject to adjustments as set forth herein.

“ Conversion Trigger Price ” shall have the meaning specified in Section 15.01(a)(i).

“ Corporate Trust Office ” means the office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at The Bank of New York Mellon Trust Company, N.A., 601 Travis Street, 18th Floor, Houston, Texas 77002, Attention: Corporate Trust Officer, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

“ Daily Conversion Value ” means, for each of the 40 consecutive Conversion Payment Trading Days during the Observation Period, 1/40th of the product of (1) the Conversion Rate in effect on such Conversion Payment Trading Day and (2) the Daily VWAP of the Common Stock (or the consideration into which the Common Stock has been converted in connection with transactions to which Section 15.04 is applicable) on such Conversion Payment Trading Day.

“ Daily Settlement Amount ”, for each of the 40 consecutive Conversion Payment Trading Days during the Observation Period, shall consist of:

(i) cash equal to the lesser of $25 and the Daily Conversion Value; and

(ii) to the extent the Daily Conversion Value exceeds $25, a number of shares of Common Stock equal to (A) the difference between the Daily Conversion Value and $25, divided by (B) the Daily VWAP for the Common Stock (or the consideration into which the Common Stock has been converted in connection with transactions to which Section 15.04 is applicable) for such Conversion Payment Trading Day.

“ Daily VWAP ” for the Common Stock (or other security for which a Daily VWAP must be determined) means, for each of the 40 consecutive Conversion Payment Trading Days during the Observation Period, the per share volume-weighted average price on the New York Stock Exchange as displayed under the heading “Bloomberg VWAP” on Bloomberg page “RSH.N <equity> AQR” (or its equivalent successor if such page is not available or the equivalent page for such other security as determined by the Company) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Conversion Payment Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock (or other security for which a Daily VWAP must be determined) on such Conversion Payment Trading Day as determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for such purpose by the Company, which may include one or more of the Initial Purchasers). Daily VWAP shall be determined without regard to after hours trading or any other trading outside of the regular trading session hours.

 

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

“ Defaulted Interest ” means any interest on any Note that is payable, but is not punctually paid or duly provided for, on any February 1 or August 1.

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

“ Depositary ” means, with respect to the Global Notes the Person specified in Section 2.06 as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “ Depositary ” shall mean or include such successor.

“ Dividend Threshold ” has the meaning ascribed to it in Section 15.02(d).

“ Effective Date ” means the date on which the Make-whole Fundamental Change occurs or becomes effective.

“ Event of Default ” shall have the meaning specified in Section 7.01.

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

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

“ Expiration Date ” shall have the meaning specified in Section 15.02(e).

“ Expiration Time ” shall have the meaning specified in Section 15.02(e).

“ FINRA ” means the Financial Industry Regulatory Authority, Inc.

“ Fiscal Quarter ” means a fiscal quarter of any Fiscal Year.

“ Fiscal Year ” means a fiscal year of the Company.

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

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, any Subsidiary of the Company or any employee benefit plans of the Company or a Subsidiary of the Company files a Schedule 13D or Schedule TO (or any successor schedule, form or report) pursuant to the Exchange Act disclosing that such person or group has become the direct or indirect Beneficial Owner of the Company’s common equity representing more than 50% of the voting power of all shares of the Company’s common equity entitled to vote generally in the election of directors of the Company, except to the extent that such Beneficial Ownership arises as a result of a revocable proxy delivered in response to a

 

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public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act; and provided, that no person or group shall be deemed to be the Beneficial Owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or group until such tendered securities are accepted for purchase or exchange under such offer; or

(2) consummation of (A) any recapitalization, reclassification or change of the common stock of the Company (other than changes resulting from a subdivision or combination) as a result of which the common stock of the Company would be converted into, or exchanged for, stock, other securities, other property or assets or (B) any statutory share exchange, consolidation or merger involving the Company pursuant to which the common stock of the Company shall be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole, to any person other than one or more of the Company’s Subsidiaries, other than any transaction:

 

(I)

pursuant to which the holders of common stock of the Company immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the voting power of all shares of capital stock entitled to vote generally in the election of directors of either (a) the continuing or surviving corporation immediately after the transaction or (b) the corporation that directly or indirectly owns 100% of the capital stock of such continuing or surviving corporation;

 

(II)

involving a consolidation or merger that does not result in a reclassification, conversion, exchange or cancellation of the outstanding common stock of the Company; or

 

(III)

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

(3) individuals who, on August 12, 2008, constituted the board of directors of the Company (together with any new directors whose election by such board of directors or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the directors of the Company then still in office who were either directors on August 12, 2008 or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors then in office; or

(4) the first day on which shares of Common Stock (or other Capital Stock of the Company into which the Notes are then convertible pursuant to the terms of this Indenture) or depositary receipts representing shares of Common Stock or other Capital Stock of the Company into which the Notes are then convertible ceases to be listed on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or their respective successors);

 

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provided , however , that a Fundamental Change as a result of clause (1) or (2) above shall not be deemed to have occurred if more than 90% of the consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in connection with the transaction or transactions constituting the Fundamental Change consists of shares of capital stock or depositary receipts representing shares of Capital Stock of the Company traded on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or their respective successors) or which shall be so traded when issued or exchanged in connection with the transaction or transactions that would otherwise be a Fundamental Change (these securities being referred to as “ Publicly Traded Securities ”) and as a result of this transaction or transactions the Notes become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares, pursuant to the terms of this Indenture.

“ Fundamental Change Company Notice ” shall have the meaning specified in Section 16.02(a).

“ Fundamental Change Company Notice Date ” has the meaning ascribed to it in Section 16.02(a).

“ Fundamental Change Purchase Date ” shall have the meaning specified in Section 16.01.

“ Fundamental Change Purchase Notice ” shall have the meaning specified in Section 16.01.

“ Fundamental Change Purchase Price ” shall have the meaning specified in Section 16.01.

“ Global Note ” shall have the meaning specified in Section 2.06(b).

“ Holder ” or “ holder ,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), shall mean any person in whose name at the time a particular Note is registered on the Note Register.

“ Indenture ” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.

“ Initial Purchasers ” means the initial purchasers named in Schedule I of the purchase agreement, dated August 12, 2008, between the Company and Citigroup Global Markets Inc. and Banc of America Securities LLC, as representatives of the several Initial Purchasers.

“ Interest Payment Date ” means each February 1 and August 1 of each year, beginning on February 1, 2009.

“ Interest Record Date ,” with respect to any Interest Payment Date, shall mean the January 15 or July 15 (whether or not such day is a Business Day) immediately preceding the relevant Interest Payment Date, respectively.

 

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“ Issue Date ” means August 18, 2008.

“ Last Reported Sale Price ” of the Common Stock on any Trading Day means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) of the Common Stock on that Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant Trading Day, the Last Reported Sale Price shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant Trading Day as reported by Pink Sheets LLC or similar organization selected by the Company. If the Common Stock is not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for such purpose, which may include one or more of the Initial Purchasers.

“ Make-whole Fundamental Change ” means any transaction or event described under clause (1), (2) or (4) of the definition of Fundamental Change, after giving effect to the proviso at the end of such definition but without giving effect to sub-clause (I) under clause (2) of such definition.

“ Market Disruption Event ” means, with respect to a Conversion Payment Trading Day, (i) a failure by the primary U.S. national or regional securities exchange or other market on which the Common Stock (or other security for which a Daily VWAP must be determined) is listed or admitted to trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m., New York City time, on such Conversion Payment Trading Day for the Common Stock (or other security for which a Daily VWAP must be determined) for 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 other security for which a Daily VWAP must be determined) or in any options, contracts or future contracts relating to the Common Stock (or other security for which a Daily VWAP must be determined).

“ Maturity Date ” means August 1, 2013.

“ Measurement Period ” has the meaning ascribed to it in Section 15.01(a)(ii).

“ Note Custodian ” means The Bank of New York Mellon Trust Company, N.A., as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.

“ Note Register ” shall have the meaning specified in Section 2.06(a).

“ Note Registrar ” shall have the meaning specified in Section 2.06(a).

“ obligor ” on the Notes means the Company and any other obligor on the Notes.

 

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“ Observation Period ” with respect to any Note surrendered for conversion means (i) for Notes with a Conversion Date occurring prior to the 45th Scheduled Trading Day immediately preceding the Maturity Date, the 40 consecutive Conversion Payment Trading Day period beginning on, and including, the third Conversion Payment Trading Day after the related Conversion Date; and (ii) for Notes with a Conversion Date occurring on or after the 45th Scheduled Trading Day immediately preceding the Maturity Date, the 40 consecutive Conversion Payment Trading Days beginning on, and including, the 42nd Scheduled Trading Day immediately preceding the Maturity Date.

“ Offering Memorandum ” means the offering memorandum, dated August 12, 2008, relating to the offering by the Company of the Notes.

“ Officer ” means, with respect to the Company, the Chairman of the Board of Directors, President, the Chief Executive Officer, the Treasurer, the Secretary, any Executive or Senior Vice President, Managing Director or any Vice President (whether or not designated by a number or numbers or word added before or after the title “Vice President”).

“ Officers’ Certificate ,” when used with respect to the Company, means a certificate signed by (a) one Officer of the Company and (b) another Officer of the Company or any Assistant Treasurer, any Assistant Secretary or Controller of the Company that is delivered to the Trustee. Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section.

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

“ Opinion of Counsel ” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section.

“ outstanding ,” when used with reference to Notes, shall, subject to the provisions of Section 9.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:

(a) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

(b) Notes that have been paid pursuant to Section 2.10 or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.10 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course; and

(c) Notes that have been discharged in accordance with Section 4.01.

“ Paying Agent ” shall have the meaning specified in Section 2.07.

 

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

“ Portal Market ” means The Portal Market operated by FINRA or any successor thereto.

“ Predecessor Note ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.10 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.

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

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

“ Reference Property ” has the meaning ascribed to it in Section 15.04(a).

“ Reorganization Event ” has the meaning ascribed to it in Section 15.04(a).

“ Resale Restriction Termination Date ” shall have the meaning specified in Section 2.06(c).

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

“ Restricted Common Stock ” shall have the meaning specified in Section 2.15.

“ Restricted Global Note ” shall have the meaning specified in Section 2.15.

“ Restricted Notes ” shall have the meaning specified in Section 2.06(c).

“ Rule 144A ” means Rule 144A as promulgated under the Securities Act.

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day (or, for the purposes of determining payment upon conversion only, a day that is scheduled to be a Conversion Payment Trading Day) on the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading; provided that if the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a “Business Day.”

 

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

“ Settlement Amount ” has the meaning as ascribed to it in Section 15.01(c).

“ Spin-Off ” has the meaning ascribed to it in Section 15.02(c).

“ Stock Price ” means, with respect to a Make-whole Fundamental Change, the price per share of Common Stock paid or deemed paid in connection with such Make-whole Fundamental Change, which shall be equal to (i) if such Make-whole Fundamental Change is a transaction set forth in clause (2) of the definition of Fundamental Change (without giving effect to sub-clause (I) under clause (2) of such definition) and holders of Common Stock receive only cash in such Make-whole Fundamental Change, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Effective Date of such Make-whole Fundamental Change.

“ Subsidiary ” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock 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 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.

“ Successor Company ” shall have the meaning specified in Section 12.01(a).

“ Supplementary Interest ” means all amounts, if any, payable pursuant to Sections 7.03(a) and 7.03(b), as applicable, hereof.

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

“ Trading Price ” per $1,000 principal amount of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Company for $5,000,000 principal amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company, which may include one or more of the Initial Purchasers; provided that, if three such bids cannot reasonably be obtained by the Company but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Company, that one bid shall be used. If the Company cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Notes from any of such nationally recognized securities dealers on any day during the Measurement Period, then the Trading Price per $1,000 principal amount of Notes on such day shall be deemed to be less than 98% of the product of the

 

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Last Reported Sale Price of the Common Stock and the Conversion Rate. If the Company does not obtain bids when required, the Trading Price per $1,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for each Trading Day the Company has failed to do so.

“ transfer ” shall have the meaning specified in Section 2.06(c).

“ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended.

“ Trustee ” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

“ Unrestricted Common Stock ” shall have the meaning specified in Section 2.15.

“ Unrestricted Global Note ” shall have the meaning specified in Section 2.15.

“ Valuation Period ” has the meaning ascribed to it in Section 15.02(c).

ARTICLE 2

I SSUE , D ESCRIPTION , E XECUTION , R EGISTRATION AND E XCHANGE OF N OTES

Section 2.01 . Designation and Amount. (a) The Notes shall be designated as the “2.50% Convertible Senior Notes due 2013.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $375,000,000, subject to Section 2.14 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.06, Section 2.10 and Section 2.15.

(b) The Notes shall mature on August 1, 2013.

(c) Interest on the Notes shall accrue from and including the date as set forth on the Notes until the principal thereof is paid or made available for payment. Interest shall be payable semi-annually in arrears on February 1 and August 1 of each year, commencing February 1, 2009.

(d) A Holder of any Note after the close of business on an Interest Record Date shall be entitled to receive interest (including Additional Interest, if any, and Supplementary Interest, if any) on such Note on the corresponding Interest Payment Date. If Notes are surrendered for conversion at any time after the close of business on an Interest Record Date and prior to the opening of business on the corresponding Interest Payment Date, Holders of such Notes at the close of business on such Interest Record Date shall receive the accrued but unpaid interest (including Additional Interest, if any, and Supplementary Interest, if any) payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. In such event, such Note, when surrendered for conversion, must be accompanied by delivery of payment, in the manner specified by the Conversion Agent, to the Conversion Agent in an amount equal to the accrued but unpaid interest (including Additional Interest, if any, and Supplementary Interest, if any) payable on such Interest Payment Date on the Notes so converted. If such payment does not accompany such Note, the Note shall not be converted.

 

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Notwithstanding the foregoing, no such payment shall be required (i) for conversions after the close of business of July 15, 2013 (ii) if the Company has specified a Fundamental Change Purchase Date that is after an Interest Record Date and on or prior to the corresponding Interest Payment Date or (iii) to the extent of any overdue interest (including any overdue Additional Interest and Supplementary Interest) existing at the time of conversion of such Note. If the Company defaults in the payment of interest (including Additional Interest, if any, and Supplementary Interest, if any) payable on the Interest Payment Date, the Conversion Agent shall promptly repay such funds to the Holder. Except where Notes surrendered for conversion must be accompanied by payment as described above, no interest (including Additional Interest, if any, and Supplementary Interest, if any) on converted Notes shall be payable by the Company on any Interest Payment Date subsequent to the Conversion Date and delivery of the cash and shares of Common Stock, if any, pursuant to Article 15 hereunder, together with any cash payment for any fractional share, upon conversion shall be deemed to satisfy the Company’s obligation to pay the principal amount of the Notes and accrued and unpaid interest (including Additional Interest, if any, and Supplementary Interest, if any) to, but not including, the related Conversion Date.

Section 2.02 . Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which are incorporated in and made a part of this Indenture.

Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Note Custodian, the Depositary or by FINRA in order for the Notes to be tradable on The Portal Market or as may be required for the Notes to be tradable on any other market developed for trading of securities pursuant to Rule 144A or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.

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

The Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect

 

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repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder of such Notes in accordance with this Indenture. Payment of principal (including any Fundamental Change Purchase Price), accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on the Global Note shall be made to the holder of such Note on the date of payment, unless a record date or other means of determining holders eligible to receive payment is provided for herein.

The terms and provisions contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

Section 2.03 . Date and Denomination of Notes; Payments of Interest. The Notes shall be issuable in registered form without coupons in minimum denominations of $1,000 principal amount and in integral multiples of $1,000 in excess thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto. Interest (including Additional Interest, if any, and Supplementary Interest, if any) on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Interest Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest (including Additional Interest, if any, and Supplementary Interest, if any) shall be payable at the office or agency of the Company maintained by the Company for such purposes, which shall initially be the office of the Paying Agent at The Bank of New York Mellon, 101 Barclay, 7 East, New York, NY 10286 (or such different office as specified under Section 2.07). The Company shall pay interest (including Additional Interest, if any, and Supplementary Interest, if any) (a) (1) to holders holding Notes in certificated form and having an aggregate principal amount of $5,000,000 or less, by check mailed to the holders of such Notes and (2) to holders holding Notes in certificated form and having an aggregate principal amount of more than $5,000,000, either by check mailed to such holder or, upon application by a holder to the Note Registrar not later than on the relevant Interest Record Date, by wire transfer in immediately available funds to that holder’s account within the United States, which application shall remain in effect until the holder notifies, in writing, the Note Registrar to the contrary or (b) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.

Any Defaulted Interest shall forthwith cease to be payable to the Holder on the relevant Interest Record Date by virtue of its having been such Holder, and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall

 

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be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest to be paid on each Note and the date of the proposed payment (which shall be not less than twenty-five days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Interest which shall be not more than fifteen days and not less than ten days prior to the date of the proposed payment, and not less than ten days after the receipt by the Trustee of the notice of the proposed payment (unless the Trustee shall consent to an earlier date). The Company shall promptly notify the Trustee of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be sent to each holder at its address as it appears in the Note Register, not less than ten days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been so sent, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (2) of this Section 2.03.

(2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system.

Section 2.04 . Payments of Additional Interest and Supplementary Interest. Whenever in this Indenture there is mentioned, in any context, the payment of interest on, or in respect of, any Note, such mention shall be deemed to include mention of the payment of “Additional Interest” and “Supplementary Interest” to the extent that, in such context, Additional Interest or Supplementary Interest, as applicable, is, was or would be payable in respect thereof pursuant to the provisions of Section 7.02 or Sections 7.03(a) and 7.03(b), as applicable, and express mention of the payment of Additional Interest or Supplementary Interest, as applicable, in any provisions hereof shall not be construed as excluding Additional Interest or Supplementary Interest, as applicable, in those provisions hereof where such express mention is not made.

Section 2.05 . Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive Officer, President, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.

Subject to Section 2.01 and Section 2.14, at any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.

 

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Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, executed manually or by facsimile by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.

In case any officer of the Company who shall have signed any of the Notes shall cease to be such officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.

Section 2.06 . Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the office of the Note Registrar and the Note Registrar agrees to keep a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 2.07 being herein sometimes collectively referred to as the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby appointed “ Note Registrar ” for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-registrars in accordance with Section 2.07. The Company shall cause the Note Registrar to maintain an office or agency in New York City, New York.

Upon surrender for registration of transfer of any Note to the Note Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 2.07. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.

All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-registrar) be duly endorsed, or be accompanied by a written instrument of transfer duly executed by the Holder thereof or its attorney-in-fact duly authorized in writing.

 

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No service charge shall be charged to the Holder for any exchange or registration of transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover any transfer tax, assessments or other similar governmental charges that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange or registration of transfer of Notes being different from the name of the Holder of the old Notes presented or surrendered for such exchange or registration of transfer.

None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 16 hereof.

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

(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, all Notes shall be represented by one or more Notes in global form (each, a “ Global Note ”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Definitive Note, shall be effected through the Depositary (but not the Trustee or the Note Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.

(c) Every Note that bears or is required under this Section 2.06(c) to bear the legend set forth in this Section 2.06(c) (together with any Common Stock issued upon conversion of the Notes and required to bear the legend set forth in Section 2.06(d), collectively, the “ Restricted Notes ”) shall be subject to the restrictions on transfer set forth in this Section 2.06(c) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the holder of each such Restricted Note, by such holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.06(c) and in Section 2.06(d), the term “ transfer ” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Note.

Until the date (the “ Resale Restriction Termination Date ”) that is (1) the date that is one year after the Issue Date of the Notes (or such earlier date as permitted by Rule 144 under the Securities Act or any successor provision thereto) and (2) such later date, if any, as may be required by applicable laws, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof which shall bear the legend set forth in Section 2.06(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice in writing thereof to the Trustee):

 

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THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN AND SHALL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2) AGREES FOR THE BENEFIT OF RADIOSHACK CORPORATION (THE “COMPANY”) THAT IT WILL NOT OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY, PRIOR TO THE DATE THAT IS (X) ONE YEAR AFTER THE ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), OR

(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE

 

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SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

No transfer of any Note prior to the Resale Restriction Termination Date shall be registered by the Note Registrar unless the applicable box on the completed Form of Assignment and Transfer (Exhibit D hereto) has been checked.

Any Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.06(c), be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.06(c). The Company shall notify the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly after a Registration Statement with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities Act.

Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.06(c)), a Global Note may not be transferred as a whole or in part except (i) 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 and (ii) for transfers of portions of a Global Note in certificated form made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section.

The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Note. Initially, the Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and initially deposited with the Trustee as custodian for Cede & Co.

If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default in respect of the Notes has occurred and is continuing, upon the request of the beneficial owner of the Notes, the Company shall execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver Notes in definitive form to each such beneficial owner of the related Notes (or a portion thereof) in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, and upon delivery of the Global Note to the Trustee such Global Note shall be canceled.

Definitive Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.06(c) shall be registered in such names and in such authorized denominations as the

 

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Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Definitive Notes to the Persons in whose names such Definitive Notes are so registered.

At such time as all interests in a Global Note have been converted, canceled, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with its standing procedures. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Definitive Notes, converted, canceled, repurchased or transferred to a transferee who receives Definitive Notes therefor or any Definitive Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Note Custodian, at the direction of the Trustee, to reflect such reduction or increase.

None of the Company, the Trustee nor any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

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 Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such 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, and to examine the same to determine substantial compliance as to the form with the express requirements hereof.

(d) Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of such Note shall bear a legend in substantially the following form (unless such Common Stock has been transferred, or has been issued upon conversion of Notes that have been transferred, pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or pursuant to the exemption from registration provided by Rule 144 under the Securities Act or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):

THIS SECURITY HAS NOT BEEN AND SHALL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE

 

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MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2) AGREES FOR THE BENEFIT OF RADIOSHACK CORPORATION (“THE COMPANY”) THAT IT WILL NOT OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS (X) ONE YEAR AFTER THE ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), OR

(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.06(d).

(e) Any Note or Common Stock issued upon the conversion or exchange of a Note that is purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Notes or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144).

 

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Notwithstanding the foregoing, during the period of one year after the Issue Date, the Company shall not, and shall not permit any of its “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that constitute “restricted securities” under Rule 144 under the Securities Act that have been reacquired by any of them.

(f) Notwithstanding any provision of Section 2.06 to the contrary, in the event Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), from and after receipt by the Trustee of the Officers’ Certificate and Opinion of Counsel provided for in this Section 2.06(f), (i) each reference in Section 2.06(c) to “one year” and in the restrictive legend set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, (ii) each reference in Section 2.06(d) to “one year” and in the restrictive legend set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period and (iii) all corresponding references in the Notes (including the definition of Resale Restriction Termination Date) and the restrictive legends thereon shall be deemed for all purposes hereof to be references to such changed period, provided that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws. The provisions of this Section 2.06(f) shall not be effective until such time as the Opinion of Counsel and Officers’ Certificate have been received by the Trustee hereunder. This Section 2.06(f) shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.

Section 2.07 . Maintenance of Office or Agency. The Company shall maintain in the borough of Manhattan in New York City, New York an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“ Paying Agent ”) or for conversion (“ Conversion Agent ”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The address for such office shall initially be The Bank of New York Mellon, 101 Barclay, 7 East, New York, NY 10286, Attention: Corporate Trust Reorg. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency of the Trustee.

The Company may also from time to time designate co-registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the borough of Manhattan in New York City, New York for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.

 

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The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar and Conversion Agent.

Section 2.08 . Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, shall appoint, in the manner provided in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder.

Section 2.09 . Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, the Company shall cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 2.09:

(i) that it shall hold all sums held by it as such agent for the payment of the principal of and accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on the Notes in trust for the benefit of the holders of the Notes;

(ii) that it shall give the Trustee prompt notice of any failure by the Company to make any payment of the principal of and accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on the Notes when the same shall be due and payable; and

(iii) that at any time during the continuance of an Event of Default, upon request of the Trustee, it shall forthwith pay to the Trustee all sums so held in trust.

The Company shall, on or before each due date of the principal of (including the Fundamental Change Purchase Price) or accrued and unpaid interest, Additional Interest, if any, or Supplementary Interest, if any, on the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Fundamental Change Purchase Price) or accrued and unpaid interest, Additional Interest, if any, or Supplementary Interest, if any, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of any failure to take such action, provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.

(b) If the Company shall act as its own Paying Agent, it shall, on or before each due date of the principal of (including the Fundamental Change Purchase Price) accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on the Notes, set aside, segregate and hold in trust for the benefit of the holders of the Notes a sum sufficient to pay such principal (including the Fundamental Change Purchase Price) accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, so becoming due and shall promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal of (including the Fundamental Change Purchase Price) accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on the Notes when the same shall become due and payable.

(c) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (including the Fundamental Change

 

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Purchase Price) accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on any Note and remaining unclaimed for two years after such principal (including the Fundamental Change Purchase Price), interest, Additional Interest, if any, or Supplementary Interest, if any, has become due and payable shall be paid to the Company on request of the Company contained in an Officers’ Certificate, or (if then held by the Company) shall be discharged from such trust; and the holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

Section 2.10 . Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon a receipt of a Company Order the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, and, if applicable, such authenticating agent may require. Upon the issuance of any substitute Note, the Company or the Trustee may require the payment by the holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note that has matured or is about to mature or has been tendered for repurchase upon a Fundamental Change or is about to be converted into cash and shares of Common Stock, if any, shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

Every substitute Note issued pursuant to the provisions of this Section 2.10 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express

 

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condition that the foregoing provisions are exclusive with respect to the replacement or payment or conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment or conversion of negotiable instruments or other securities without their surrender.

Section 2.11 . Temporary Notes. Pending the preparation of Notes in certificated form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Notes in certificated form but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Notes in certificated form. Without unreasonable delay the Company shall execute and deliver to the Trustee or such authenticating agent Notes in certificated form (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 2.07 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Notes in certificated form. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Notes in certificated form authenticated and delivered hereunder.

Section 2.12 . Cancellation of Notes Paid, etc. All Notes surrendered for the purpose of payment, repurchase, conversion, exchange or registration of transfer, shall, if surrendered to the Company or any Paying Agent or any Note Registrar or any Conversion Agent, be surrendered to the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such disposition, shall deliver a certificate of such disposition to the Company, at the Company’s written request. If the Company shall acquire any of the Notes, such acquisition shall not operate as satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation.

Section 2.13 . CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to holders of the Notes; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

Section 2.14 . Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen this Indenture and increase the principal amount of the Notes by issuing additional Notes in the future pursuant to this Indenture with the

 

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same terms as the Notes initially issued hereunder in an unlimited aggregate principal amount and, if (i) such additional Notes are issued with no more than a de minimus amount of original issue discount or are issued as part of a “qualified reopening” for U.S. federal income tax purposes and (ii) the immediate resale of such Notes by Holders, other than the Company’s Affiliates, would not require registration under United States securities laws, with the same CUSIP number as the Notes initially issued hereunder, which additional Notes shall form the same series with the Notes initially issued hereunder. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel covering such matters as required by Section 17.05. The Company may also from time to time repurchase the Notes in open market purchases or negotiated transactions without prior notice to Holders.

Section 2.15 . Automatic Exchange from Restricted Global Note to Unrestricted Global Note. Beneficial interests in a Global Note or Common Stock issued upon conversion of Notes that is subject to restrictions set out in Section 2.06(c) or Section 2.06(d), as applicable (including the legend set forth in Section 2.06(c) or Section 2.06(d), as applicable) (the “ Restricted Global Note ” or “ Restricted Common Stock ”, as applicable), shall be automatically exchanged into beneficial interests in an unrestricted Global Note or stock certificate representing unrestricted Common Stock, as applicable, that is no longer subject to the restrictions set out in Section 2.06(c) or Section 2.06(d), as applicable (including removal of the legend set forth in Section 2.06(c) or Section 2.06(d), as applicable) (the “ Unrestricted Global Note ” or “ Unrestricted Common Stock ”, as applicable), without any action required by or on behalf of the holder (the “ Automatic Exchange ”). In order to effect such exchange, the Company shall at least 15 days but not more than 30 days prior to the Resale Restriction Termination Date, deliver a notice of Automatic Exchange (an “ Automatic Exchange Notice ”) to each holder at such holder’s address appearing in the Note Register or register maintained at the registrar for Common Stock, as applicable, with a copy to the Trustee or transfer agent for Common Stock, as applicable. The Automatic Exchange Notice shall identify the Notes or Common Stock , as applicable, subject to the Automatic Exchange and shall state: (1) the date of the Automatic Exchange; (2) the section of this Indenture pursuant to which the Automatic Exchange shall occur; (3) the “CUSIP” number of the Restricted Global Note or Restricted Common Stock, as applicable, from which such holders’ beneficial interests shall be transferred and (4) the “CUSIP” number of the Unrestricted Global Note or Unrestricted Common Stock, as applicable, into which such holders’ beneficial interests shall be transferred. At the Company’s request on no less than 5 days’ prior notice, the Trustee shall deliver, or, with respect to Common Stock, the Company shall cause the transfer agent to deliver, in the Company’s name and at its expense, the Automatic Exchange Notice to each holder at such holder’s address appearing in the Note Register or register maintained at the registrar for Common Stock, as applicable; provided , however , that the Company shall have delivered to the Trustee or transfer agent, as applicable, a Company Order and an Officers’ Certificate requesting that the Trustee or transfer agent, as applicable, give the Automatic Exchange Notice (in the name and at the expense of the Company) and setting forth the information to be stated in the Automatic Exchange Notice as provided in the preceding sentence. As a condition to any such exchange pursuant to this Section 2.15, the Trustee or transfer agent, as applicable, shall be entitled to receive from the Company, and rely conclusively without any liability, upon an Officers’ Certificate and an Opinion of Counsel to the Company, in form and in substance reasonably satisfactory to the Trustee or transfer agent, as applicable, to the effect that such transfer of beneficial interests to

 

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the Unrestricted Global Note or Unrestricted Common Stock, as applicable, shall be effected in compliance with the Securities Act. Upon such exchange of beneficial interests pursuant to this Section 2.15, (i) with respect to the Notes, the Note Registrar shall endorse the Schedule of Increases and Decreases in Global Note to the relevant Notes and reflect on its books and records the date of such transfer and a decrease and increase, respectively, in the principal amount of the applicable Restricted Global Note(s) and the Unrestricted Global Note, respectively, equal to the principal amount of beneficial interests transferred or (ii) with respect to Common Stock, the registrar for Common Stock shall reflect on its books and records the date of such transfer and a decrease and increase, respectively, in the number of shares of the applicable Restricted Common Stock and the Unrestricted Common Stock, respectively, equal to the beneficial interests transferred. If an Unrestricted Global Note is not then outstanding at the time of the Automatic Exchange, the Company shall execute and the Trustee shall authenticate and deliver an Unrestricted Global Note to the Depositary. Following any such transfer pursuant to this Section 2.15, the relevant Restricted Global Note or Restricted Common Stock, as applicable, shall be cancelled.

ARTICLE 3

[ INTENTIONALLY O MITTED ]

ARTICLE 4

S ATISFACTION AND D ISCHARGE

Section 4.01 . Satisfaction and Discharge. This Indenture shall upon request of the Company contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.10 and (y) Notes that have become due and payable upon the Maturity Date or any Fundamental Change Purchase Date and for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 2.09(c)); or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable upon the Maturity Date, any Fundamental Change Purchase Date or upon conversion of the Notes (but after the last day of the Observation Period) cash and shares of Common Stock, if any (solely to satisfy the Company’s conversion obligation, if applicable), sufficient to pay all of the outstanding Notes and all other sums due payable under this Indenture by the Company; and (b) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in accordance with Section 4.03. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 8.06 shall survive.

Section 4.02 . Reinstatement. If the Trustee is unable to apply any money to the Holders entitled thereto by reason of any order or judgment of any court of governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations

 

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under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.01 until such time as the Trustee is permitted to apply all such money in accordance with this Indenture and the Notes to the Holders entitled thereto; provided, however, that if the Company makes any payment of principal amount of or interest (including Additional Interest, if any, and Supplementary Interest, if any) on any Notes following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee.

Section 4.03 . Officers’ Certificate; Opinion of Counsel. Upon any application or demand by the Company to the Trustee to take any action under Section 4.01, the Company shall furnish to the Trustee an Officers’ Certificate and an Opinion of Counsel covering such matters as required by Section 17.05.

Section 4.04 . Defeasance. The Notes shall not be subject to legal defeasance or covenant defeasance.

ARTICLE 5

P ARTICULAR C OVENANTS OF THE C OMPANY

Section 5.01 . Payment of Principal, Interest, Additional Interest and Supplementary Interest. The Company covenants and agrees that it shall cause to be paid the principal of (including the Fundamental Change Purchase Price), and accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.

Section 5.02 . Existence. Subject to Article 12, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

Section 5.03 . Rule 144A Information Requirement and Annual Reports. (a) In the event and for so long as the Company is not subject to Section 13 or 15(d) of the Exchange Act, it shall promptly furnish, upon request, to the Trustee, any Holder and prospective purchasers of Notes or shares of Common Stock issued upon conversion of Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act and it shall take such further action as any such Holder may reasonably request, all to the extent required from time to time to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A under the Securities Act.

(b) The Company shall file with the Trustee within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and information, documents and other reports (or copies of such portions of the foregoing as the Commission may prescribe) which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, and, to the extent required by Section 17.08, the Company shall otherwise comply with the requirements of Trust Indenture Act section 314(a). If the Company is not required to file information, documents or reports pursuant to either of those sections of the Exchange Act, then the Company shall provide to the Trustee such reports as may be prescribed to be filed by the Company by the Commission at such time. Any such report,

 

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information or document that the Company files with the Commission through the Commission’s EDGAR database shall be deemed delivered to the Trustee for purposes of this Section 5.03(b) at the time of such filing through the EDGAR database.

(c) Delivery of the reports, information and documents described in clause (b) above to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers’ Certificate).

Section 5.04 . Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

Section 5.05 . Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice of any Default or Event of Default under Section 7.01, which notice shall contain the status thereof and a description of the action being taken or proposed to be taken by the Company in respect thereof. In addition, the Company shall deliver to the Trustee, within 120 days after the end of each Fiscal Year, an Officers’ Certificate indicating whether the signers thereof know of any Default that occurred during the previous year. If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail to each Holder notice of the Default within 90 days after it occurs and is known to the Trustee unless the Default has been previously cured. In addition, except in the case of a Default in the payment of principal of or interest, including Additional Interest, if any, and Supplementary Interest, if any, on any Note, the Trustee shall be protected in withholding notice if and so long as a committee of Responsible Officers of the Trustee in good faith determines that withholding notice is in the interests of the Holders.

In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within ten days after the Company becomes aware of the occurrence of any Event of Default or Default, an Officers’ Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company proposes to take with respect thereto.

Section 5.06 . Additional Interest and Supplementary Interest. (a) If Additional Interest is payable by the Company pursuant to Section 7.02, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (a) the amount of such Additional Interest that is payable and (b) the date on which such interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may

 

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assume without inquiry that no such Additional Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

(b) If Supplementary Interest is payable by the Company pursuant to Sections 7.03(a) and/or 7.03(b), the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (a) the amount of such Supplementary Interest that is payable and (b) the date on which such interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Supplementary Interest is payable. If the Company has paid Supplementary Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

Section 5.07 . Limitation on Liens. The Company shall grant to Holders a lien ranking equally and ratably with any lien granted on assets of the Company or its Subsidiaries to secure the 2011 Notes for so long as such indebtedness is so secured.

Section 5.08 . Further Instruments and Acts. Upon request of the Trustee, the Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

ARTICLE 6

L ISTS OF H OLDERS AND R EPORTS BY THE C OMPANY AND THE T RUSTEE

Section 6.01 . Lists of Holders. The Company covenants and agrees that it shall furnish or cause to be furnished to the Trustee, semi-annually, not more than five days after each January 15 and July 15 in each year beginning with January 15, 2009, and at such other times as the Trustee may request in writing, within ten days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than fifteen days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.

Section 6.02 . Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 6.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished.

(b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.

 

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(c) Every Holder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

Section 6.03 . Reports by Trustee. (a) The Trustee shall transmit to holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15, beginning with May 15, 2009, deliver to holders a brief report, dated as of such May 15, that complies with the provisions of such Section 313(a).

(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation system upon which the Notes are listed and with the Company. The Company shall notify the Trustee in writing within a reasonable time when the Notes are listed on any stock exchange or automated quotation system and when any such listing is discontinued.

ARTICLE 7

D EFAULTS AND R EMEDIES

Section 7.01 . Events of Default. Each of the following is an “ Event of Default ”:

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

(b) default in the payment of the principal of any Note when the same becomes due and payable at its Maturity Date, upon required repurchase, upon declaration of acceleration or otherwise;

(c) failure by the Company to comply with its obligation to convert the Notes in accordance with the Indenture upon exercise of a Holder’s conversion right and such failure continues for a period of five days;

(d) failure by the Company to give a Fundamental Change Company Notice to Holders in the event of a Fundamental Change as required pursuant to Section 16.02(a) or notice to Holders required pursuant to Section 15.01(a)(iii), in each case when due, and such failure continues for a period of five days;

(e) subject to Section 7.02, failure on the part of the Company to observe or perform any other of the covenants or agreements in respect of the Notes contained in the Indenture or under the Notes (other than those referred to in Sections 7.01(a) through 7.01(d) above or Sections 7.01(f) through 7.01(i) below) and such default or breach continues for 60 days after the “notice of default” has been given to the Company by the Trustee, or the Holders of 25% or more in principal amount of the outstanding Notes deliver to the Company and the Trustee, in each case, by registered or certified mail, a written notice specifying such Default and requiring it to be remedied and stating that such notice is a “ notice of default ” under the Indenture;

 

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(f) default by the Company or any of its Subsidiaries that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) with respect to any indebtedness (other than indebtedness under the Notes) in an aggregate principal amount exceeding $35 million, whether such indebtedness now exists or shall hereafter be created, (i) resulting in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable or (ii) constituting a failure to pay the principal of any such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise; provided, that any event of default under either of the foregoing clauses (i) and (ii) shall be deemed cured and not to be continuing upon the payment of such indebtedness or the rescission or annulment of any acceleration of such indebtedness;

(g) the rendering of any judgment or decree for the payment of money in excess of $35 million or its foreign currency equivalent in the aggregate for all such final judgments or orders against the Company or any of its Subsidiaries that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) if (A) an enforcement proceeding thereon is commenced and not discharged within 10 days or (B) such judgment or decree remains outstanding for a period of 60 days following such judgment or decree and is not discharged, waived, stayed or bonded;

(h) the Company or any of its Subsidiaries that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) or any group of its Subsidiaries that in the aggregate would constitute a “significant subsidiary” commences a voluntary case under any applicable Bankruptcy Law, or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, or consents to the appointment or taking possession by a Bankruptcy Custodian of the Company or such Subsidiary or Subsidiaries or for all or substantially all of its or their property, or makes any general assignment for the benefit of creditors; or

(i) a court of competent jurisdiction enters a decree or order for relief in respect of the Company or any of its Subsidiaries that is a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) or any group of its Subsidiaries that in the aggregate would constitute a “significant subsidiary” in an involuntary case under any applicable Bankruptcy Law, or appointing a Bankruptcy Custodian of the Company or such Subsidiary or Subsidiaries or for all or substantially all of its or their property, or ordering the winding up or liquidation of its or their affairs, and such decree or order remains unstayed and in effect for a period of 90 consecutive days.

The foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

Section 7.02 . Acceleration; Additional Interest. If an Event of Default (other than an Event of Default specified in Section 7.01(h) or 7.01(i) above with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in

 

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principal amount of the outstanding Notes by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal of and accrued and unpaid interest, if any, and Additional Interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest and Additional Interest, if any, shall be due and payable immediately. If an Event of Default specified in Section 7.01(h) or 7.01(i) above with respect to the Company occurs and is continuing, the principal of and accrued and unpaid interest, if any, and Additional Interest, if any, on all the Notes outstanding shall be immediately and automatically due and payable with no further action by the Trustee or the Holders.

Notwithstanding anything herein to the contrary, except as provided in Sections 7.03(a) and 7.03(b), to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure by the Company to comply with the obligation set forth in Section 5.03 and for any failure to comply with §314(a)(1) of the Trust Indenture Act shall, for the first 120 days after the occurrence of such an Event of Default, consist exclusively of the right for Holders to receive Additional Interest on the Notes at a rate equal to 0.25% per annum of the principal amount of the Notes. If the Company so elects, such Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. The Additional