TABLE OF CONTENTS

 

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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.	Definitions		1
Section 1.02.	Other Definitions		9
Section 1.03.	Trust Indenture Act Provisions		9
Section 1.04.	Rules of Construction		10
ARTICLE 2
THE SECURITIES
Section 2.01.	Form and Dating		10
Section 2.02.	Execution and Authentication		12
Section 2.03.	Registrar, Paying Agent and Conversion Agent		13
Section 2.04.	Paying Agent To Hold Money in Trust		14
Section 2.05.	Conversion Agent To Hold Money in Trust		14
Section 2.06.	Lists of Holders of Securities		15
Section 2.07.	Transfer and Exchange		15
Section 2.08.	Replacement Securities		16
Section 2.09.	Outstanding Securities		17
Section 2.10.	Treasury Securities		17
Section 2.11.	Temporary Securities		17
Section 2.12.	Cancellation		18
Section 2.13.	Legend; Additional Transfer and Exchange Requirements		18
Section 2.14.	CUSIP Numbers		20
Section 2.15.	Calculations		20
Section 2.16.	Payment of Interest; Interest Rights Preserved		21
Section 2.17.	Computation of Interest		22
ARTICLE 3
REDEMPTION AND REPURCHASE
Section 3.01.	Company’s Right to Redeem; Notice to Trustee		22

 

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Section 3.02.	Selection of Securities to be Redeemed	22
Section 3.03.	Notice of Redemption	23
Section 3.04.	Effect of Notice of Redemption	24
Section 3.05.	Deposit of Redemption Price	24
Section 3.06.	Securities Redeemed in Part	24
Section 3.07.	[Intentionally Omitted]	24
Section 3.08.	Repurchase of Securities at Option of the Holder upon a Fundamental Change	25
Section 3.09.	Effect of Fundamental Change Purchase Notice	28
Section 3.10.	Deposit of Fundamental Change Purchase Price	28
Section 3.11.	Securities Purchased in Part	29
Section 3.12.	Repayment to the Company	29
Section 3.13.	Compliance With Securities Laws Upon Purchase of Securities	29
Section 3.14.	Purchase of Securities In Open Market	30
ARTICLE 4
CONVERSION
Section 4.01.	Right to Convert	30
Section 4.02.	Conversion Procedures	30
Section 4.03.	Payments Upon Conversion	32
Section 4.04.	Adjustment of Conversion Rate	33
Section 4.05.	Certain Other Adjustments	41
Section 4.06.	Adjustments Upon Certain Fundamental Changes	41
Section 4.07.	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	43
Section 4.08.	Taxes on Shares Issued	44
Section 4.09.	Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock	44
Section 4.10.	Responsibility of Trustee	44
Section 4.11.	Notice to Holders Prior to Certain Actions	45
Section 4.12.	Stockholder Rights Plan	45
ARTICLE 5
COVENANTS
Section 5.01.	Payment of Securities	46

 

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Section 5.02.	Reports by Company	47
Section 5.03.	Compliance Certificates	47
Section 5.04.	Further Instruments and Acts	48
Section 5.05.	Maintenance of Corporate Existence	48
Section 5.06.	Issuances of Subsidiary Guarantees	48
Section 5.07.	Stay, Extension And Usury Laws	48
Section 5.08.	Payment of Special Interest	48
Section 5.09.	Maintenance of Office or Agency	48
ARTICLE 6
CONSOLIDATION; MERGER; SALE OF ASSETS
Section 6.01.	Company or Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms	49
Section 6.02.	Successor Substituted	50
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01.	Events of Default	50
Section 7.02.	Acceleration; Special Interest	53
Section 7.03.	Collection of Indebtedness and Suits for Enforcement by Trustee	55
Section 7.04.	Trustee May File Proofs of Claim	55
Section 7.05.	Trustee May Enforce Claims Without Possession of Securities	56
Section 7.06.	Application of Money Collected	56
Section 7.07.	Limitation on Suits	57
Section 7.08.	Unconditional Right of Holders to Receive Payment and to Convert	57
Section 7.09.	Restoration of Rights and Remedies	58
Section 7.10.	Rights and Remedies Cumulative	58
Section 7.11.	Delay or Omission Not Waiver	58
Section 7.12.	Control by Holders	58
Section 7.13.	Waiver of Past Defaults	58
Section 7.14.	Undertaking for Costs	59
Section 7.15.	Remedies Subject to Applicable Law	59

 

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ARTICLE 8
TRUSTEE
Section 8.01.	Duties of Trustee	59
Section 8.02.	Notice of Default	60
Section 8.03.	Certain Rights of Trustee	61
Section 8.04.	Trustee Not Responsible for Recitals, Dispositions of Securities or Application of Proceeds Thereof	62
Section 8.05.	Trustee and Agents May Hold Securities; Collections; etc.	63
Section 8.06.	Money Held in Trust	63
Section 8.07.	Compensation and Indemnification of Trustee and Its Prior Claim	63
Section 8.08.	Conflicting Interests	64
Section 8.09.	Trustee Eligibility	64
Section 8.10.	Resignation and Removal; Appointment of Successor Trustee	64
Section 8.11.	Acceptance of Appointment by Successor	66
Section 8.12.	Merger, Conversion, Consolidation or Succession to Business	66
Section 8.13.	Preferential Collection of Claims Against Company	67
Section 8.14.	Reports By Trustee	67
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01.	Satisfaction and Discharge of Indenture	67
Section 9.02.	Application of Trust Money	68
Section 9.03.	Reinstatement	68
ARTICLE 10
AMENDMENTS; SUPPLEMENTS AND WAIVERS
Section 10.01.	Without Consent of Holders	69
Section 10.02.	With Consent of Holders	70
Section 10.03.	Execution of Supplemental Indentures and Agreements	71
Section 10.04.	Effect of Supplemental Indentures	71
Section 10.05.	Conformity with Trust Indenture Act	71
Section 10.06.	Reference in Securities to Supplemental Indentures	72
Section 10.07.	Notice of Supplemental Indentures	72

 

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ARTICLE 11
GUARANTEE OF SECURITIES
Section 11.01.	Note Guarantee	72
Section 11.02.	Obligations Unconditional	74
Section 11.03.	Release of Note Guarantees	75
Section 11.04.	Notice to Trustee	75
Section 11.05.	This Article Not to Prevent Events of Default	75
ARTICLE 12
MISCELLANEOUS
Section 12.01.	Conflict with Trust Indenture Act	76
Section 12.02.	Notices	76
Section 12.03.	Disclosure of Names and Addresses of Holders	77
Section 12.04.	Compliance Certificates and Opinions	77
Section 12.05.	Acts of Holders	78
Section 12.06.	Benefits of Indenture	79
Section 12.07.	Legal Holidays	79
Section 12.08.	Governing Law; Waiver of Trial by Jury	80
Section 12.09.	No Adverse Interpretation of Other Agreements	80
Section 12.10.	No Personal Liability of Directors, Officers, Employees and Stockholders	80
Section 12.11.	Successors and Assigns	80
Section 12.12.	Multiple Counterparts	80
Section 12.13.	Separability Clause	80
Section 12.14.	Schedules and Exhibits	80
Section 12.15.	Effect of Headings and Table of Contents	81

 

EXHIBIT A Form of Security		A-1
·	Assignment Form
·	Form of Conversion Notice
·	Form of Notice of Redemption
·	Form of Fundamental Change Purchase Notice

 

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CROSS-REFERENCE TABLE*

 

TIA Section				Indenture Section(s)
Section		310(a)(1)		8.09
		(a)(2)		8.09
		(a)(3)		N.A.	**
		(a)(4)		N.A.
		(a)(5)		8.09
		(b)		8.08
		(c)		N.A.
Section		311(a)		8.13
		(b)		8.05
		(c)		N.A.
Section		312(a)		2.06
		(b)		12.03
		(c)		12.03
Section		313(a)		8.14 (a)
		(b)(1)		N.A.
		(b)(2)		8.14 (a)
		(c)		8.14 (a)
		(d)		8.14 (b)
Section		314(a)		5.02
		(b)		N.A.
		(c)(1)		12.04
		(c)(2)		12.04
		(c)(3)		N.A.
		(d)		N.A.
		(e)		12.04
		(f)		N.A.
Section		315(a)		8.01 (b)
		(b)		8.02
		(c)		8.01 (a)
		(d)		8.01 (c)
		(d)(2)		8.01 (c)
		(d)(3)		8.01 (c)
		(e)		7.14
Section		316(a) (last sentence)		2.10
		(a)(1)		7.12, 7.13
		(a)(2)		N.A.
		(b)		7.08
		(c)		12.05(e)
Section		317(a)		7.03, 7.04(a)
		(b)		2.04
Section		318(a)		12.01
		(b)		N.A.
		(c)		12.01

 

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

**                                      N.A. means Not Applicable.

 

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THIS INDENTURE, dated as of June 9, 2009, is among Steel Dynamics, Inc., a corporation duly organized under the laws of the State of Indiana (the “Company”), the Initial Subsidiary Guarantors (as defined herein) and Wells Fargo Bank, National Association, a national banking association, as Trustee (the “Trustee”).

 

In consideration of the purchase of the Securities (as defined herein) by the Holders thereof, the parties hereto agree as follows for the benefit of one another and for the equal and ratable benefit of the Holders of the Company’s 5.125% Convertible Senior Notes due 2014.

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01.          Definitions .

 

“Affiliate” means, with respect to any specified Person, 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 Person means the power to direct 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.

 

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

 

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

 

“Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy” or any other law relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of debtors, whether in effect on the date hereof or hereafter.

 

“Board of Directors” means the board of directors of the Company or any duly authorized committee of such board or any equivalent body in a limited partnership, limited liability company or other entity serving substantially the same function as a board of directors of a corporation.

 

“Board Resolution” means, with respect to any Person, a duly adopted resolution (or other similar action) of the Board of Directors of such Person.

 

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks or trust companies in The City of New York or in the city of the Corporate Trust Office of the Trustee are authorized or required by law, or executive order to be closed.

 

“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) the equity of such Person, but excluding any debt securities convertible into such equity.

 

 

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

 

“Certificated Security” means a Security that is in substantially the form attached as Exhibit A but that does not include the legend called for by footnote 1 thereof or the Schedule of Exchanges of Securities thereof.

 

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

 

“Closing Date” means June 9, 2009.

 

“Common Equity” of any Person means Capital Stock of the class or classes pursuant to which the holders of such Capital Stock have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

 

“Common Stock” means the common stock of the Company, par value $0.0025 per share, or any successor common stock thereto.

 

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

 

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by any one of its Chairman of the Board, its Chief Executive Officer, its President, its Chief Operating Officer, its Chief Financial Officer or a Vice President (regardless of Vice Presidential designation), and by any one of its Treasurer, an Assistant Treasurer, any other Vice President (regardless of Vice Presidential designation), its Secretary or an Assistant Secretary, and delivered to the Trustee.

 

“Continuing Directors” means (i) individuals who on the date of original issuance of the Securities constituted the Company’s Board of Directors (ii) any new directors whose election to the Company’s Board of Directors or whose nomination for election by the Company’s stockholders was approved by at least a majority of the directors then still in office (or a duly constituted committee thereof), either who were directors on the date of original issuance of the Securities or whose election or nomination for election was previously so approved.

 

“Conversion Price” means, in respect of each Security, as of any date, $1,000, divided by the Conversion Rate as of such date.

 

“Conversion Rate” means, initially, 56.9801 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment as set forth herein.

 

“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 230 West Monroe Street, Suite 2900, Chicago, IL 60606, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the

 

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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 Company).

 

“Credit Agreement” means the Amended and Restated Credit Agreement, dated as of June 19, 2007, among the Company, as Borrower, certain designated “Initial Lenders,” National City Bank, as Collateral Agent, National City Bank and Wells Fargo, National Association, as Co-Administrative Agents, Bank of America, N.A. and National City Bank, as Syndication Agents, National City Bank, as Paying Agent, Bank of America, N.A., General Electric Capital Corporation, Fifth Third Bank and BMO Capital Markets Financing, Inc., as Documentation Agents, and Banc of America Securities LLC and National City Bank, as Joint Lead Arrangers, and the lenders from time to time party thereto, together with any agreements, instruments, security agreements, guaranties and other documents executed or delivered pursuant to or in connection with such credit agreement, as such credit agreement or such agreements, instruments, security agreements, guaranties or other documents may be amended, supplemented, extended, restated, renewed or otherwise modified from time to time and any refunding, refinancing, replacement or substitution thereof or therefor, whether with the same or different lenders.

 

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

 

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

 

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

 

“Final Maturity Date” means June 15, 2014.

 

“Fundamental Change” will be deemed to have occurred at the time after the Securities are originally issued if 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, its Subsidiaries, and its and their employee benefit plans, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity;

 

(2)           consummation of any share exchange, consolidation or merger of the Company or other transaction or series of transactions pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries; provided, however, that a transaction where the holders of all classes of the Company’s Common Equity immediately prior to such transaction that is a share exchange, consolidation or merger own, directly or

 

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indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such event shall not be a Fundamental Change;

 

(3)           the first day on which a majority of the members of the Company’s Board of Directors does not consist of Continuing Directors;

 

(4)           the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or

 

(5)           the Common Stock (or other common stock into which the Securities are then convertible) ceases to be listed or quoted on a national securities exchange in the United States.

 

Notwithstanding the foregoing, a Fundamental Change as a result of clause (2) above will not be deemed to have occurred if at least 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares, in connection with the transaction or transactions constituting the Fundamental Change consists of Publicly Traded Securities and as a result of such transaction or transactions the Securities become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares.

 

“GAAP” means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board and the Public Company Accounting Oversight Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time.

 

“Global Security” means a Security in global form that is in substantially the form attached as Exhibit A and that includes the legend called for in footnote 1 thereof and the Schedule of Exchanges of Securities thereof and which is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee.

 

“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services (unless such purchase arrangements are on arm’s-length terms and are entered into in the ordinary course of business), to take-or-pay, or to maintain financial statement conditions or otherwise) or (2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The term “Guarantee” used as a verb has a corresponding meaning.

 

“Holder” or “Holder of a Security” means the person in whose name a Security is registered on the Registrar’s books.

 

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“Indebtedness” means indebtedness for borrowed money.

 

“Indenture” means this instrument as originally executed (including all exhibits and schedules thereto) and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including the provisions of the TIA that would be automatically deemed to be part of this Indenture by operation of the TIA assuming this Indenture were qualified under the TIA.

 

“Initial Subsidiary Guarantors” means SDI Investment Co., a Delaware corporation, Steel Dynamics Sales North America, Inc., an Indiana corporation, New Millennium Building Systems, LLC, an Indiana limited liability company, Roanoke Electric Steel Corporation, an Indiana corporation, New Millennium Building Systems, Inc., a South Carolina corporation, Socar of Ohio, Inc., an Ohio corporation, Shredded Products II, LLC, an Indiana limited liability company, John W. Hancock, Jr., LLC, a Virginia limited liability company, Steel of West Virginia, Inc., a Delaware corporation, Steel Ventures, Inc., a Delaware corporation, SWVA, Inc., a Delaware corporation, Marshall Steel Inc., a Delaware corporation, The Techs Industries, Inc., a Delaware corporation, OmniSource Corporation, an Indiana corporation, Admetco, Inc., an Indiana corporation, Auburn Investment Company, LLC, an Indiana limited liability company, Capitol City Metals, LLC, an Indiana limited liability company, Global Shredding Technologies, Ltd., LLC, an Indiana limited liability company, Industrial Scrap Corporation, an Indiana corporation, Industrial Scrap, LLC, an Indiana limited liability company, Jackson Iron & Metal Company, Inc., a Michigan corporation, Lucky Strike Metals, LLC, an Indiana limited liability company, Michigan Properties Ecorse, LLC, an Indiana limited liability company, OmniSource Athens Division, LLC, an Indiana limited liability company, OmniSource Bay City, LLC, an Indiana limited liability company, OmniSource Indianapolis, LLC, an Indiana limited liability company, OmniSource, LLC, an Indiana limited liability company, OmniSource Mexico, LLC, an Indiana limited liability company, OmniSource Transport, LLC, an Indiana limited liability company, Recovery Technologies, LLC, an Indiana limited liability company, Scientific Recycling Group, LLC, an Indiana limited liability company, Superior Aluminum Alloys, LLC, an Indiana limited liability company, and OmniSource Southeast, LLC, a Delaware limited liability company, Carolinas Recycling Group, LLC, a South Carolina limited liability company,  Atlantic Scrap and Processing — Wilmington, LLC, a North Carolina limited liability company, Cohen & Green Salvage Co., Inc., a North Carolina corporation, Raeford Salvage Company, Inc., a North Carolina corporation, and Lumberton Recycling Company, Inc. a North Carolina corporation.

 

“Interest Payment Date” means June 15 and December 15 of each year, commencing December 15, 2009.

 

“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share of Common Stock (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar organization. If the Common Stock

 

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is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change (determined after giving effect to any exceptions or exclusions to such definition, but without regard to the proviso in clause (2) of the definition thereof).

 

“Note Guarantee” means a Guarantee of the obligations of the Company under this Indenture and the Securities by any Subsidiary Guarantor.

 

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

 

“Officer’s Certificate” means a certificate signed by an Officer of the Company and delivered to the Trustee; provided , however , that for purposes of Section 5.03, “Officer’s Certificate” means a certificate signed by the principal executive officer, principal financial officer, principal operating officer or principal accounting officer of the Company and each Subsidiary Guarantor.

 

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

 

“Operating Property” means any real property, including any manufacturing plant or warehouse erected thereon, or equipment located in the United States owned by, or leased to, the Company, or any Subsidiary of the Company, that has a market value in excess of $50.0 million.

 

“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company, any Subsidiary Guarantor or the Trustee and which opinion shall be in form and substance reasonably satisfactory to the Trustee.

 

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

 

“Publicly Traded Securities” means, in respect of a transaction described in clause (2) of the definition of Fundamental Change, shares of common stock traded on the New York Stock Exchange, the NASDAQ Stock Market LLC or the NASDAQ Global Select Market (or any or their respective successors) or which will be so traded when issued or exchanged in connection with a Fundamental Change.

 

“Redemption Date” means the date specified in a notice of redemption on which the Securities may be redeemed in accordance with the terms of the Securities and this Indenture.

 

“Registrar” means initially the Trustee.

 

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

 

“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.

 

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

 

“SEC” means the U.S. Securities and Exchange Commission.

 

“Securities” means up to $287,500,000 aggregate principal amount of 5.125% Convertible Senior Notes due 2014, or any $1,000 principal amount thereof (each a “Security”), as amended or supplemented from time to time, that are issued under this Indenture.

 

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

 

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

 

“Significant Subsidiary” means, at any date of determination, any Restricted Subsidiary that would constitute a “significant subsidiary” within the meaning of Article 1 of Regulation S-X of the Securities Act as in effect on the Closing Date; provided that all references to 10% in the definition of “significant subsidiary” in Article 1 of Regulation S-X of the Securities Act shall be deemed to be 7.5%.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.16.

 

“Stated Maturity” means, with respect to any installment of interest or principal on any Security, the date on which such payment of interest or principal shall become due and payable.

 

“Subsidiary” means, with respect to any specified Person:  (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); or (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

 

“Subsidiary Guarantor” means any Initial Subsidiary Guarantor and any other Subsidiary of the Company which provides a Note Guarantee of the Company’s obligations under the

 

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Indenture and the Securities, until such Note Guarantee is released in accordance with the terms of this Indenture.

 

“TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect on the date of this Indenture, except to the extent that the Trust Indenture Act or any amendment thereto expressly provides for application of the Trust Indenture Act as in effect on another date.

 

“Trading Day” means a day on which (i) trading in the Common Stock generally occurs on the NASDAQ Global Select Market or, if the Common Stock is not then listed on the NASDAQ Global Select Market, on the principal other United States national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a United States national or regional securities exchange, in the principal other market on which the Common Stock is then traded, and (ii) a Last Reported Sale Price for the Common Stock is available on such securities exchange or market. If the Common Stock (or other security for which a closing sale price must be determined) is not so listed or traded, “Trading Day” means a Business Day.

 

“Trustee” means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of this Indenture, and thereafter means the successor.

 

“Trust Officer” means, 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.

 

“Unrestricted Subsidiary” means STLD Holdings, Inc., Dynamic Aviation, LLC, Paragon Steel Enterprises, LLC, Speedbird Aviation, LLC and each of their respective direct and indirect Subsidiaries; provided, however, in the event (a) any such Subsidiary Guarantees Indebtedness of the Company or any Subsidiary Guarantor in an aggregate amount exceeding $50 million or (b) the Company or any of its Subsidiaries (other than an Unrestricted Subsidiary) contributes or otherwise transfers (other than a sale for fair market value) any Operating Property (including shares of stock of a Subsidiary that owns the Operating Property) to such Subsidiary, in either case such Subsidiary shall cease to be an Unrestricted Subsidiary and if such Subsidiary would be a Significant Subsidiary, such Subsidiary will Guarantee payment of the principal of, premium if any and interest on the Securities.

 

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

 

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

 

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Section 1.02.          Other Definitions .

 

Term		Defined in Section
“Act”		12.05(a)
“Additional Shares”		4.06(a)
“Adjusted Net Assets”		11.01
“Agent Members”		2.01(b)
“Clause A Distribution”		4.04(c)
“Clause B Distribution”		4.04(c)
“Clause C Distribution”		4.04(c)
“Conversion Agent”		2.03(a)
“Conversion Date”		4.02(b)
“Conversion Notice”		4.02(b)
“DTC”		2.01(a)
“Defaulted Interest”		2.16
“Depositary”		2.01(a)
“Dividend Threshold Amount”		4.04(d)
“Effective Date”		4.06(c)
“Event of Default”		7.01(a)
“Fundamental Change Company Notice”		3.08(b)
“Fundamental Change Purchase Date”		3.08(a)
“Fundamental Change Purchase Notice”		3.08(c)
“Fundamental Change Purchase Price”		3.08(a)
“Funding Guarantor”		11.01
“in connection with”		4.06
“Merger Event”		4.07(a)
“Notice of Default”		7.01(b)
“Outstanding”		2.09(a)
“Paying Agent”		2.03(a)
“Primary Registrar”		2.03(a)
“Redemption Price”		3.01
“Reference Property”		4.07(a)
“Registrar”		2.03(a)
“Special Interest”		7.02(c)
“Special Payment Date”		2.16(a)
“Spin-Off”		4.04(c)
“Stock Price		4.06(c)
“Trigger Event”		4.04(c)
“Valuation Period”		4.04(c)

 

Section 1.03.          Trust Indenture Act Provisions .

 

Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by reference in and made a part of this Indenture.  The following TIA term used in this Indenture has the following meaning:

 

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“obligor” on the indenture securities means the Company, each Subsidiary Guarantor or any other obligor on the Securities.

 

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

 

Section 1.04.          Rules of Construction .

 

For all purposes of this Indenture, except as otherwise provided or unless the context otherwise requires:

 

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

 

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

 

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

 

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

 

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

 

(6)  the terms “include”, “including”, and similar terms should be construed as if followed by the phrase “without limitation”;

 

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

 

(8)  all “Article”, “Exhibit” and “Section” references are to Articles, Exhibits and Sections, respectively, of or to this Indenture unless otherwise specified herein, and the terms “hereunder,” “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

ARTICLE 2

 

THE SECURITIES

 

Section 2.01.          Form and Dating .

 

The Securities and the Trustee’s certificate of authentication shall be substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this Indenture.  The Securities may include such letters, numbers or other marks of identification and such notations, legends, endorsements or changes 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 by the Trustee, the Depositary, or as may

 

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be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any national securities exchange or automated quotation system on which the Securities may be listed or quoted, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject.  Each Security shall be dated the date of its authentication.

 

(a)           Global Securities .  All of the Securities are being offered and sold in a distribution in reliance on an effective registration statement under the Securities Act and shall be issued initially in the form of one or more Global Securities, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, at its Corporate Trust Office, as Securities Custodian for the depositary, The Depository Trust Company (“DTC”, and such depositary, or any successor thereto, being hereinafter referred to as the “Depositary”), and registered in the name of its nominee, Cede & Co.  (or any successor thereto), for the accounts of participants in the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Global Security may from time to time be increased or decreased by adjustments made on the records of the Securities Custodian and the Depositary as hereinafter provided, subject in each case to compliance with the Applicable Procedures and Section 2.13, as applicable.

 

(b)           Global Securities In General .  The Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Securities from time to time endorsed thereon and that the aggregate principal amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, purchases or conversions of such Securities.

 

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or under the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever.

 

Notwithstanding the foregoing, nothing herein shall (1) prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (2) impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

 

(c)           Book Entry Provisions .  The Company shall execute and the Trustee shall, in accordance with this Section 2.01(c), authenticate and deliver initially one or more Global Securities that (1) shall be registered in the name of the Depositary or its nominee, (2) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (3) shall bear legends substantially to the following effect:

 

“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND

 

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ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.  THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”

 

Section 2.02.          Execution and Authentication .

 

(a)           The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is limited to $287,500,000 aggregate principal amount, except as provided in Sections 2.07 and 2.08.

 

(b)           The Securities shall be executed on behalf of the Company by one of its Officers.  The signatures of any of the Officers on the Securities may be manual or facsimile.

 

(c)           Securities bearing the manual or facsimile signatures of individuals who were at any time the proper Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

 

(d)           No Security or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.

 

(e)           The Trustee shall authenticate and make available for delivery Securities for original issue in the aggregate principal amount of up to $287,500,000 upon receipt of a Company Order, Officer’s Certificate and an Opinion of Counsel.  The Company Order shall specify the amount of Securities to be authenticated, shall provide that all such Securities will be represented by a Global Security and shall state the date on which each original issue of Securities is to be authenticated. The Officer’s Certificate shall state that all covenants and

 

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conditions precedent to the execution, authentication and delivery of the Securities have been complied with. The Opinion of Counsel shall state substantially to the following effect, which Opinion of Counsel may contain such assumptions, qualifications and limitations as such counsel shall reasonably deem appropriate: (i) the form or forms and terms of the Securities of such series have been established in compliance with this Indenture, and (ii) the Indenture and such Securities have been duly authorized and, if executed and authenticated in accordance with the provisions of the Indenture and delivered and duly paid for, would be entitled to the benefits of the Indenture and will constitute valid and legally binding obligations of the Company and each Subsidiary Guarantor, enforceable against the Company and each Subsidiary Guarantor in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding of equity or law).

 

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

 

(g)           The Securities shall be issuable only in registered form without coupons and only in denominations of $1,000 principal amount and multiples of $1,000 thereof.

 

Section 2.03.          Registrar, Paying Agent and Conversion Agent .

 

(a)           The Company shall maintain one or more offices or agencies where Securities may be presented for registration of transfer or for exchange (each, a “ Registrar ”), one or more offices or agencies where Securities may be presented or surrendered for payment (each, a “ Paying Agent ”), one or more offices or agencies where Securities may be presented for conversion (each, a “ Conversion Agent ”) and one or more offices or agencies where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  One of the Registrars (the “ Primary Registrar ”) shall keep a register of the Securities and of their transfer and exchange.  At the option of the Company, any payment of cash may be made by check mailed to the Holders at their addresses set forth in the register of Holders.

 

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

 

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Company or any Affiliate of the Company may act as Paying Agent (except for the purposes of Article 9).

 

(c)           The Company hereby initially designates the Trustee as Paying Agent, Registrar, Primary Registrar, Securities Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee as the office or agency of the Company for each of the aforesaid purposes and as the office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.

 

Section 2.04.          Paying Agent To Hold Money in Trust .

 

Unless otherwise specified herein, prior to 10:00 a.m., New York City time, on each due date of the payment of principal of, or interest (including Special Interest), if any, on any Securities, the Company shall deposit a sum sufficient to pay such principal or interest (including Special Interest), if any, so becoming due.  A Paying Agent shall hold in trust for the benefit of Holders of Securities or the Trustee all money held by the Paying Agent for the payment of principal of, or interest (including Special Interest), if any, on, the Securities, and shall notify the Trustee of any failure by the Company (or any other obligor on the Securities) to make any such payment.  If the Company or an Affiliate of the Company acts as Paying Agent, it shall, before 10:00 a.m., New York City time, on each due date of the principal of, or interest (including Special Interest), if any, on, any Securities, segregate the money and hold it as a separate trust fund for the benefit of Holders.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at any time during the continuance of any Default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent.  Upon doing so, the Paying Agent (other than the Company) shall have no further liability for the money so paid to the Trustee.

 

Subject to applicable abandoned property law, 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 or interest (including Special Interest), if any, on any Security and remaining unclaimed for two years after such principal or interest (including Special Interest), if any, has become due and payable shall promptly be paid to the Company or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security 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; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will promptly be repaid to the Company.

 

Section 2.05.          Conversion Agent To Hold Money in Trust .

 

The Company shall require each Conversion Agent (that is not the Trustee) to agree in writing that the Conversion Agent will hold in trust for the benefit of Holders or the Trustee all

 

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cash and shares of Common Stock delivered by the Company to the Conversion Agent for the delivery of amounts due upon conversion, and will notify the Trustee of any default by the Company in making any such delivery.

 

While any such default continues, the Trustee may require a Conversion Agent to deliver all cash and shares of Common Stock delivered by the Company to it to the Trustee.  Upon payment over to the Trustee, the Conversion Agent (if other than the Company or a Subsidiary) shall have no further liability in respect of such amounts.  If the Company or a Subsidiary acts as Conversion Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all cash and shares of Common Stock held by it as Conversion Agent.  Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Conversion Agent for the Securities.

 

Section 2.06.          Lists of Holders of Securities .

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Securities.  The Company shall furnish or cause the Registrar to furnish to the Trustee (a) semiannually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list of similar form and content to that in subsection (a) hereof as of a date not more than 15 days prior to the time such list is furnished; provided , however , that if and so long as the Trustee shall be the Primary Registrar, no such list need be furnished.

 

Section 2.07.          Transfer and Exchange .

 

(a)           Subject to compliance with any applicable additional requirements contained in Section 2.13, when a Security is presented to a Registrar with a request to register a transfer thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided , however , that every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, a transfer certificate each substantially in the form included in Exhibit A, and completed in a manner satisfactory to the Registrar and duly executed by the Holder thereof or its attorney duly authorized in writing.  To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.03(a), the Company shall execute and the Trustee shall authenticate Securities of a like aggregate principal amount at the Registrar’s request.  Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in relation thereto; provided that this sentence shall not apply to any exchange pursuant to Section 2.11, 4.02(d) or 10.06.

 

(b)           Neither the Company, any Registrar nor the Trustee shall be required to register the transfer of or exchange any Securities or portions thereof in respect of which a Fundamental

 

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Change Purchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case of the purchase of a Security in part, the portion thereof not to be purchased).

 

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

 

(d)           Any Registrar appointed pursuant to Section 2.03 shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities.

 

(e)           Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the registration of transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal or state securities law.

 

(f)            The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of such 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 form with the express requirements hereof.

 

Section 2.08.          Replacement Securities .

 

(a)           If (1) any mutilated Security is surrendered to the Trustee, or (2) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee, such security or indemnity, in each case, as may be required by them to save each of them harmless from any loss, expense, claim or liability, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and upon a Company Request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a replacement Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.

 

(b)           If any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or is about to be purchased by the Company pursuant to Article 3, or converted pursuant to Article 4, the Company in its discretion may, instead of issuing a new Security, pay, purchase or convert such Security, as the case may be.

 

(c)           Upon the issuance of any new Securities under this Section 2.08, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel and the Trustee) in connection therewith.

 

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(d)           Every new Security issued pursuant to this Section 2.08 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and each Subsidiary Guarantor, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

 

(e)           The provisions of this Section 2.08 are (to the extent lawful) exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 2.09.          Outstanding Securities .

 

(a)           Securities outstanding (“ Outstanding ”) at any time are all Securities authenticated by the Trustee, except for those canceled by it, those purchased pursuant to Article 3, those converted pursuant to Article 4, those delivered to the Trustee for cancellation or surrendered for transfer or exchange and those described in this Section 2.09 as not Outstanding.

 

(b)           If a Security is replaced pursuant to Section 2.08, such replaced Security ceases to be Outstanding unless the Company receives proof satisfactory to it that the replaced Security is held by a protected purchaser.

 

(c)           If a Paying Agent holds in respect of the Outstanding Securities on a Redemption Date, Fundamental Change Purchase Date or the Final Maturity Date, as the case may be, money sufficient to pay the principal of and accrued interest (including Special Interest), if any, on Securities (or portions thereof) payable on that date, then on and after such Redemption Date, Fundamental Change Purchase Date, Final Maturity Date, such Securities (or portions thereof, as the case may be) shall cease to be Outstanding, interest (including Special Interest), if any, on such Securities shall cease to accrue and all other rights of the Holder will terminate unless otherwise specified in this Indenture.

 

(d)           Subject to the restrictions contained in Section 2.10, a Security does not cease to be Outstanding because the Company or an Affiliate of the Company holds the Security.

 

Section 2.10.          Treasury Securities .

 

In determining whether the Holders of the required principal amount of Securities have concurred in any request, demand, authorization, notice, direction, waiver or consent, Securities owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded, except that, for purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, notice, direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded.

 

Section 2.11.          Temporary Securities .

 

Until definitive Securities are ready for delivery, the Company may prepare and execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary

 

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Securities.  Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company with the consent of the Trustee considers appropriate for temporary Securities.  Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate and deliver definitive Securities in exchange for temporary Securities representing an equal principal amount of Securities.  The temporary Securities will be exchanged for definitive Securities in accordance with Sections 2.07 and 2.13 hereof.  Until so exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.

 

Section 2.12.          Cancellation .

 

The Company and any Subsidiary Guarantor at any time may deliver Securities to the Trustee for cancellation.  The Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange, purchase, payment or conversion.  The Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, purchase, payment, conversion or cancellation and shall dispose of the cancelled Securities in accordance with its customary procedures or deliver the canceled Securities to the Company upon request.  All Securities which are purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the Final Maturity Date pursuant to Article 3 shall be delivered to the Trustee for cancellation, and the Company may not hold or resell such Securities or issue any new Securities to replace any such Securities or any Securities that any Holder has converted pursuant to Article 4.  The Trustee shall maintain a record of all canceled Securities.  The Trustee shall provide the Company a list of all Securities that have been canceled from time to time as requested by the Company in writing.

 

Section 2.13.          Legend; Additional Transfer and Exchange Requirements .

 

(a)           [Intentionally Omitted]

 

(b)           A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person may be registered; provided that the foregoing shall not prohibit any transfer of a Security that is issued in exchange for a Global Security but is not itself a Global Security.  No transfer of a Security to any Person shall be effective under this Indenture or the Securities unless and until such Security has been registered in the name of such Person.  Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with this Section 2.13.

 

(c)           [Intentionally Omitted]

 

(d)           [Intentionally Omitted]

 

(e)           The provisions below shall apply only to Global Securities or any Securities issued in exchange for a Global Security:

 

(1)           Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary or a nominee thereof and delivered to such Depositary or a

 

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nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for purposes of this Indenture.

 

(2)           Notwithstanding any other provisions of this Indenture or the Securities, a Global Security shall not be exchanged in whole or in part for a Security registered, and no transfer of a Global Security in whole or in part shall be registered in the name of any Person other than the Depositary or one or more nominees thereof; provided that a Global Security may be exchanged for Securities registered in the names of any person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or such Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and in either case a successor Depositary is not appointed by the Company within 60 days after receiving such notice or becoming aware that the Depositary has ceased to be a “clearing agency” or (B) an Event of Default has occurred and is continuing with respect to the Securities.  Any Global Security exchanged pursuant to the preceding sentence shall be so exchanged as directed by the Depositary.  Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided , however , that any such Security so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.

 

(3)           Securities issued in exchange for a Global Security or any portion thereof that are not issued as a Global Security shall be issued in definitive, fully registered form, without interest coupons, shall have a principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable legends provided for herein.  Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Trustee or the Registrar.  With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.

 

(4)           Subject to clause (6) of this Section 2.13(e), the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.

 

(5)           In the event of the occurrence of any of the events specified in clause (2) of this Section 2.13(e), the Company will promptly make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons.

 

(6)           Neither Agent Members nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global

 

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Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or (ii) impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Security.

 

(7)           At such time as all interests in a Global Security have been converted, cancelled or exchanged for Securities in certificated form, such Global Security shall, upon receipt thereof, be cancelled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the Securities Custodian, subject to Section 2.12 of this Indenture.  At any time prior to such cancellation, if any interest in a Global Security is converted, canceled or exchanged for Securities in certificated form, the principal amount of such Global Security shall, in accordance with the standing procedures and instructions existing between the Depositary and the Securities Custodian, be appropriately reduced, and an endorsement shall be made on such Global Security, by the Trustee or the Securities Custodian, at the direction of the Trustee, to reflect such reduction.

 

Section 2.14.          CUSIP Numbers .

 

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

 

Section 2.15.          Calculations .

 

Except as otherwise specifically stated herein or in the Securities, all calculations to be made in respect of the Securities shall be the obligation of the Company.  All calculations made by the Company or its agent as contemplated pursuant to the terms hereof and of the Securities shall be made in good faith and be final and binding on the Holders absent manifest error.  The Company shall provide a schedule of calculations to the Trustee, and the Trustee shall be entitled to conclusively rely upon the accuracy of the calculations by the Company without independent verification.  The Trustee shall forward calculations made by the Company to any Holder of Securities upon request.

 

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Section 2.16.          Payment of Interest; Interest Rights Preserved .

 

Interest (including Special Interest), if any, on any Security which is payable, and is punctually paid or duly provided for, on the Stated Maturity of such interest (including Special Interest), if any, shall be paid to the Person in whose name the Security is registered at the close of business on the Regular Record Date for such interest payment.

 

Any interest (including Special Interest), if any, on any Security which is payable, but is not punctually paid or duly provided for, on the Stated Maturity of such interest (including Special Interest), if any, and interest on such defaulted interest at the then applicable interest rate borne by the Securities, to the extent lawful (such defaulted interest and interest thereon herein collectively called “ Defaulted Interest ”), shall forthwith cease to be payable to the Holder on the Regular Record Date; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Subsection (a) or (b) below:

 

(a)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date (not less than 20 days after such notice) of the proposed payment (the “ Special Payment Date ”), and by 10:00 a.m. New York City time on the date of payment the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the Special Payment Date, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this subsection provided.  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the Special Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company in writing of such Special Record Date.  Unless the Company issues a press release to the same effect, in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at its address as it appears in the Security Register, not less than 10 days prior to such Special Record Date or notify in such other manner as the Trustee determines, including in accordance with any Applicable Procedures.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Payment Date therefor having been so mailed or otherwise conveyed, such Defaulted Interest shall be paid to the Persons in whose names the Securities are registered on such Special Record Date and shall no longer be payable pursuant to the following paragraph (b).

 

(b)           The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any national securities exchange on which the Securities may be listed, and upon such notice as may be required by this Indenture not inconsistent with the requirements of such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this subsection, such payment shall be deemed practicable by the Trustee.

 

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Subject to the foregoing provisions of this Section 2.16, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest (including Special Interest), if any, accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 2.17.          Computation of Interest .

 

Interest (including Special Interest) on the Securities shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

ARTICLE 3

 

REDEMPTION AND REPURCHASE

 

Section 3.01.          Company’s Right to Redeem; Notice to Trustee .

 

Prior to June 20, 2012, the Securities will not be redeemable at the Company’s option.  On or after June 20, 2012, if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days (whether or not consecutive) in a period of 30 consecutive Trading Days ending on the Trading Day prior to the date the Company provides the notice of redemption to Holders exceeds 130% of the applicable Conversion Price in effect on each such Trading Day, the Company may redeem for cash all or part of the Securities, upon notice before the Redemption Date to the Trustee and the Paying Agent as set forth below in this Section 3.01; provided that the Company shall not redeem the Securities if the Redemption Date would be after the Final Maturity Date.  The redemption price (the “ Redemption Price ”) shall equal to 100% of the principal amount of the Securities being redeemed, plus any accrued and unpaid interest (including Special Interest), if any, to, but excluding, the Redemption Date; provided that if the Redemption Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Redemption Price shall be 100% of the principal amount of the Securities redeemed but shall not include accrued and unpaid interest(including Special Interest), if any. Instead, the Company shall pay such accrued and unpaid interest (including Special Interest, if any), if any, on the Interest Payment Date, to the Holder of record at the close of business on the corresponding Regular Record Date.  If the Company elects to redeem Securities pursuant to this Section 3.01, it shall notify the Trustee and the Paying Agent in writing of such election together with the Redemption Date, the Conversion Rate, the principal amount of Securities to be redeemed and the Redemption Price.

 

The Company shall give the notice to the Trustee and the Paying Agent of the Company’s election to redeem Securities pursuant to this Section 3.01, at least 30 days but not more than 60 days before the Redemption Date (subject to Section 3.03).

 

Section 3.02.          Selection of Securities to be Redeemed.

 

If the Company decides to redeem fewer than all of the Securities, unless the procedures of the Depositary provide otherwise, the Trustee shall select the Securities to be redeemed by lot, on a pro rata basis or by another method the Trustee considers fair and appropriate.

 

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Securities and portions of Securities that the Trustee selects shall be in principal amounts of $1,000 or a multiple of $1,000.  Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.  The Trustee shall notify the Company promptly (but in any case within seven days of the Trustee’s receipt of the notice from the Company referred to in Section 3.01 unless a shorter notice is acceptable to the Company) of the Securities or portions of the Securities selected to be redeemed and, in the case of any Securities selected for partial redemption, the method it has chosen for the selection of the portions of the Securities selected to be redeemed.

 

Following a notice of redemption, Securities and portions of Securities are convertible pursuant to Article 4, by the Holder until the close of business on the Business Day prior to the Redemption Date.  If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption.  Securities that have been converted during a selection of Securities to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection.

 

Section 3.03.          Notice of Redemption.

 

At least 30 days but no more than 60 days before a Redemption Date, the Company shall mail a notice of redemption (substantially in the form set forth in Exhibit A) by first-class mail, postage prepaid, to each Holder of Securities to be redeemed.

 

The notice shall identify the Securities to be redeemed and shall state (along with any other information the Company wishes to include):

 

(a)           the Redemption Date;

 

(b)           the Redemption Price;

 

(c)           the Conversion Rate;

 

(d)           the name and address of the Paying Agent and Conversion Agent;

 

(e)           that Securities may be converted at any time before the close of business on the Business Day prior to the Redemption Date;

 

(f)            that Securities called for redemption and not converted shall be redeemed on the Redemption Date;

 

(g)           that Holders who want to convert their Securities must satisfy the requirements set forth in the Securities;

 

(h)           that Securities called for redemption must be surrendered to the Paying Agent (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with necessary endorsements, as the case may be) to collect the Redemption Price;

 

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(i)            if fewer than all of the outstanding Securities are to be redeemed, the certificate numbers, if any, and principal amounts of the particular Securities to be redeemed;

 

(j)            that, unless the Company defaults in making payments of such Redemption Price, interest (including Special Interest), if any, on the Securities called for redemption shall cease to accrue from and after the Redemption Date; and

 

(k)           the CUSIP or other similar number(s), as the case may be, of the Securities being redeemed.

 

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense, provided that the Company makes such request at least seven Business Days (or such shorter period as may be satisfactory to the Trustee) prior to the date by which such notice of redemption must be given to Holders in accordance with this Section 3.03.

 

Section 3.04.          Effect of Notice of Redemption .

 

Once notice of redemption is given, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice except for Securities that are converted in accordance with the terms of this Indenture.  Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption Price stated in the notice and from and after the Redemption Date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest (including Special Interest), if any, and the rights of the Holders therein shall terminate (other than the right to receive the Redemption Price).

 

Section 3.05.          Deposit of Redemption Price.

 

Prior to 10:00 a.m. (New York City time), on the Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which on or prior thereto have been delivered by the Company to the Trustee for cancellation or have been converted.  Upon written request of the Company, the Paying Agent shall as promptly as practicable return to the Company any money not required for the purpose of paying the Redemption Price because of conversion of Securities pursuant to Article 4.  If such money is then held by the Company or a Subsidiary or an Affiliate of either in trust and is not required for such purpose it shall be discharged from such trust.

 

Section 3.06.          Securities Redeemed in Part.

 

Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall, without charge, authenticate and deliver to the Holder a new Security in an authorized denomination equal in principal amount to the unredeemed portion of the Security surrendered.

 

Section 3.07.          [Intentionally Omitted]

 

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Section 3.08.          Repurchase of Securities at Option of the Holder upon a Fundamental Change.

 

(a)           In the event a Fundamental Change shall occur at any time when any Securities remain outstanding, each Holder shall have the right, at such Holder’s option, to require the Company to purchase all of such Holders’ Securities or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof on a date specified by the Company (the “ Fundamental Change Purchase Date ”) that is no earlier than the 20 th  calendar day following the date of, and no later than the 35 th  calendar day following the date of, delivery of the Fundamental Change Company Notice (as defined below) at a purchase price in cash equal to 100% of the principal amount of the Securities tendered for purchase, plus accrued and unpaid interest (including Special Interest), if any,  on those Securities to, but excluding, the Fundamental Change Purchase Date (the “ Fundamental Change Purchase Price ”), subject to satisfaction by or on behalf of any Holder of the requirements set forth in Section 3.08(c); provided that if the Fundamental Change Purchase Date is on a date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Fundamental Change Purchase Price shall be 100% of the principal amount of the Securities repurchased but shall not include accrued and unpaid interest (including Special Interest), if any. Instead, the Company shall pay such accrued and unpaid interest (including Special Interest), if any, on the Interest Payment Date, to the Holder of record at the close of business on the corresponding Regular Record Date.

 

(b)           On or before the 20 th  calendar day after the occurrence of a Fundamental Change, the Company shall mail a written notice of the occurrence of the Fundamental Change and of the resulting purchase right to the Trustee, Paying Agent and to each Holder of record of Securities (a “ Fundamental Change Company Notice ”).  The Fundamental Change Company Notice shall include the form of a Fundamental Change Purchase Notice (defined below) to be completed by the Holder and shall state:

 

(1)           the events causing such Fundamental Change;

 

(2)           the date of such Fundamental Change;

 

(3)           the last date by which the Fundamental Change Purchase Notice must be delivered to elect the purchase option pursuant to this Section 3.08;

 

(4)           the Fundamental Change Purchase Date;

 

(5)           the Fundamental Change Purchase Price;

 

(6)           the Holder’s right to require the Company to purchase the Securities;

 

(7)           the name and address of each Paying Agent and Conversion Agent;

 

(8)           the then effective Conversion Rate and any adjustments to the Conversion Rate resulting from such Fundamental Change;

 

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(9)           the procedures that the Holder must follow to exercise rights under Article 4 of this Indenture and that the Securities as to which a Fundamental Change Purchase Notice has been given may be converted into Common Stock pursuant to Article 4 of this Indenture only to the extent that the Fundamental Change Purchase Notice has been withdrawn in accordance with the terms of this Indenture;

 

(10)         the procedures that the Holder must follow to exercise rights under this Section 3.08;

 

(11)         the procedures for withdrawing a Fundamental Change Purchase Notice;

 

(12)         that, unless the Company fails to pay such Fundamental Change Purchase Price, Securities covered by any Fundamental Change Purchase Notice will cease to be outstanding and interest, (including Special Interest), if any, will cease to accrue on and after the Fundamental Change Purchase Date; and

 

(13)         the CUSIP number of the Securities.

 

At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company; provided that the Company makes such request at least seven Business Days (or such shorter period as may be satisfactory to the Trustee) prior to the date by which such Fundamental Change Company Notice must be given to Holders in accordance with this Section 3.08.  In connection with the delivery of the Fundamental Change Notice to the Holders, the Company shall publish a notice containing substantially the same information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in the City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time.  If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Securities.  No failure of the Company to give the Fundamental Change Company Notice and no defect therein shall limit the purchase rights of the Holders of Securities or affect the validity of the proceedings for the purchase of the Securities pursuant to this Section 3.08.

 

(c)           A Holder may exercise its rights specified in Section 3.08(a) upon delivery of a written notice (which shall be in substantially the form set forth in the form of Security attached as Exhibit A under the heading “Fundamental Change Purchase Notice” and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary’s Applicable Procedures) of the exercise of such rights (a “ Fundamental Change Purchase Notice ”) to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, subject to extension to comply with applicable law.

 

(1)           The Fundamental Change Purchase Notice shall state:  (A) if Certificated Securities are to be purchased, the certificate numbers of the Securities which the Holder

 

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will deliver to be purchased (or, if the Security is held in global form, any other items required to comply with the Applicable Procedures), (B) the portion of the principal amount of the Securities which the Holder will deliver to be purchased, which portion must be a principal amount of $1,000 or any integral multiple thereof and (C) that such Security shall be purchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Securities and in this Indenture.

 

(2)           The delivery of a Security for which a Fundamental Change Purchase Notice has been timely delivered to any Paying Agent and not validly withdrawn prior to, on or after the Fundamental Change Purchase Date (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor.

 

(3)           The Company shall only be obliged to purchase, pursuant to this Section 3.08, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple thereof.  Provisions of this Indenture that apply to the purchase of all of a Security also apply to the purchase of such portion of such Security.

 

(4)           Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Fundamental Change Purchase Notice contemplated by this Section 3.08(c) shall have the right to withdraw such Fundamental Change Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.09(b).

 

(5)           A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written withdrawal thereof.

 

(6)           Anything herein to the contrary notwithstanding, in the case of Global Securities, any Fundamental Change Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.

 

(7)           There shall be no repurchase of any Securities pursuant to this Section 3.08 if an Event of Default (other than a default in the payment of the Fundamental Change Purchase Price) has occurred prior to, on or after, as the case may, the giving by the Holders of such Securities of the required Fundamental Change Purchase Notice and such Event of Default is continuing.  The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Purchase Price) in which case, upon such return, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

 

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Section 3.09.          Effect of Fundamental Change Purchase Notice .

 

(a)           Upon receipt by any Paying Agent of a Fundamental Change Purchase Notice, the Holder of the Security in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as specified below) thereafter be entitled to receive the Fundamental Change Purchase Price with respect to such Security.  The Fundamental Change Purchase Price shall be paid to such Holder promptly following the later of (i) the Fundamental Change Purchase Date with respect to such Security (provided such Holder has satisfied the conditions in Section 3.08) and (ii) the time of delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section 3.08.  A Security in respect of which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted pursuant to Article 4 hereof on or after the date of the delivery of such Fundamental Change Purchase Notice, unless either (i) such Fundamental Change Purchase Notice has first been validly withdrawn in accordance with Section 3.09(b); or (ii) there shall be a default in the payment of the Fundamental Change Purchase Price, provided , that the conversion right with respect to such Security shall terminate at the close of business on the date such default is cured and such Security is purchased in accordance herewith.

 

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

 

(i)            if Certificated Securities are to be withdrawn, the certificate numbers of the Securities in respect of which such notice of withdrawal is being submitted (or, if the Security is held in global form, any other items required to comply with the Applicable Procedures);

 

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

 

(iii)          the principal amount, if any, of the Securities that remains subject to the original Fundamental Change Purchase Notice, as the case may be, and that has been or shall be delivered for purchase by the Company which principal amount must be $1,000 or an integral multiple thereof.

 

The Paying Agent will promptly return to the respective Holders thereof any Certificated Securities with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 3.09(b).

 

Section 3.10.          Deposit of Fundamental Change Purchase Price .

 

Prior to 10:00 a.m., New York City time, on a Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (or if the Company or an Affiliate of the Company

 

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is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount in cash (in immediately available funds) sufficient to pay the aggregate Fundamental Change Purchase Price of all the Securities or portions thereof that are to be purchased on that Fundamental Change Purchase Date.

 

If a Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City time, on a Fundamental Change Purchase Date, cash sufficient to pay the aggregate Fundamental Change Purchase Price of all Securities for which a Fundamental Change Purchase Notice has been delivered and not validly withdrawn in accordance with this Indenture, then, on and after such Fundamental Change Purchase Date, such Securities shall cease to be outstanding and interest (including Special Interest), if any, on such Securities shall cease to accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the Fundamental Change Purchase Price, as applicable, upon delivery of such Securities by their Holders to the Paying Agent).

 

Section 3.11.          Securities Purchased in Part.

 

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

 

Section 3.12.          Repayment to the Company.

 

To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.10 exceeds the aggregate Fundamental Change Purchase Price of the Securities or portions thereof that the Company is obligated to purchase on the Fundamental Change Purchase Date, then promptly after the Fundamental Change Purchase Date, the Paying Agent shall return any such excess cash to the Company.

 

Section 3.13.          Compliance With Securities Laws Upon Purchase of Securities .

 

When complying with the provisions of Article 3 hereof and subject to any exemptions available under applicable law, the Company shall:

 

(a)           comply with the provisions of any tender offer rules under the Exchange Act that may then be applicable to the Company’s purchase of Securities under Article 3;

 

(b)           file a Schedule TO (or any successor or similar schedule, form or report) if required under the Exchange Act; and

 

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(c)           otherwise comply with all federal and state securities laws so as to permit the rights and obligations in connection with any purchase pursuant to this Article 3 to be exercised in the time and in the manner specified herein.

 

To the extent that compliance with any such laws, rules and regulations would result in a conflict with any of the terms hereof, this Indenture is hereby modified to the extent required for the Company to comply with such laws, rules and regulations.

 

Section 3.14.          Purchase of Securities In Open Market .

 

The Company may purchase Securities in the open market or by tender at any price or pursuant to private agreements.  The Company shall surrender any Security purchased by the Company pursuant to this Article 3 to the Trustee for cancellation.  Any Securities surrendered to the Trustee for cancellation may not be reissued or resold by the Company and will be canceled promptly in accordance with Section 2.12.

 

ARTICLE 4

 

CONVERSION

 

Section 4.01.          Right to Convert .  (a)  Subject to and upon compliance with the provisions of this Indenture, each Holder of Securities shall have the right, at such Holder’s option, to convert the principal amount of any such Securities, or any portion of such principal amount equal to $1,000 or a multiple of $1,000 thereof, at the Conversion Rate in effect on the Conversion Date for such Securities, at any time prior to the close of business on the second Scheduled Trading Day immediately preceding the Final Maturity Date.

 

(b)           Securities may not be converted after the close of business on the second Scheduled Trading Day immediately preceding the Final Maturity Date.

 

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

 

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

 

(i)            complete and manually sign the conversion notice provided on the back of the Security (the “ Conversion Notice ”) or a facsimile of the Conversion Notice;

 

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(ii)           deliver the Conversion Notice, which is irrevocable, and the Security to the Conversion Agent;

 

(iii)          if required, furnish appropriate endorsements and transfer documents,

 

(iv)          make any payment required under Section 4.03(c); and

 

(v)           if required, pay all transfer or similar taxes as set forth in Section 4.08.

 

The date on which the Holder satisfies all of the applicable requirements set forth above is the “ Conversion Date .” The Conversion Agent will, as promptly as possible, and in any event within two (2) Business Days of the receipt thereof, provide the Company with notice of any conversion by a Holder of the Securities.

 

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

 

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

 

Each conversion shall be deemed to have been effected as to any such Securities (or portion thereof) surrendered for conversion on the relevant Conversion Date.  The person in whose name the certificate or certificates for the number of shares of Common Stock that shall be issuable upon such conversion shall become the holder of record of such shares of Common Stock as of the close of business on such Conversion Date. Notwithstanding the foregoing and anything contained in this Indenture to the contrary, in no event shall a Holder be entitled to the benefit of a Conversion Rate adjustment pursuant to the provisions of Section 4.04 in respect of Securities surrendered for conversion if, by virtue of being deemed the record holder of the shares of Common Stock issuable upon such conversion pursuant to the foregoing sentence, such Holder participates, as a result of being such holder of record, in the transaction or event that would otherwise give rise to such Conversion Rate adjustment to the same extent and in the same manner as holders of shares of Common Stock generally.

 

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

 

(f)            Notwithstanding the foregoing, a Security in respect of which a Holder has delivered a Fundamental Change Purchase Notice exercising such Holder’s option to require the

 

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Company to purchase such Security may be converted only if such notice of exercise is withdrawn in accordance with Article 3 hereof prior to the close of business on the Business Day prior to the relevant Fundamental Change Purchase Date.

 

Section 4.03.          Payments Upon Conversion .  (a) Upon any conversion of any Securities, on the third Business Day immediately following the Conversion Date, the Company shall deliver to the converting Holder a number of shares of Common Stock equal to (i) the aggregate principal amount of such Securities to be converted divided by $1,000, multiplied by (ii) the Conversion Rate in effect as of such Conversion Date, together with any cash payment for any fractional share of Common Stock as described in this Section 4.03.

 

(b)           Subject to Section 4.03(c) below, upon conversion, Holders shall not receive any separate cash payment for accrued and unpaid interest (including Special Interest), if any, unless such conversion occurs between a Regular Record Date and the Interest Payment Date to which it relates.

 

(c)           Upon the conversion of any Securities, the Holder will not be entitled to receive any separate cash payment for accrued and unpaid interest (including Special Interest), if any, except to the extent specified below. The Company’s delivery to the Holder of Common Stock together with any cash payment for any fractional share of Common Stock, into which a Security is convertible will be deemed to satisfy in full the Company’s obligation to pay the principal amount of the Securities so converted and accrued and unpaid interest (including Special Interest), if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest (including Special Interest), if any, to, but not including, the Conversion Date will be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Securities are converted after the close of business on a Regular Record Date for the payment of interest, Holders of such Securities at the close of business on such Regular Record Date will receive the interest (including Special Interest), if any, payable on such Securities on the corresponding Interest Payment Date notwithstanding the conversion. Securities surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest (including Special Interest), if any, payable on the Securities so converted on such following Interest Payment Date; provided that no such payment need be made (i) if the Company has called the Securities for redemption on a Redemption Date that falls after a Regular Record Date for an Interest Payment Date and on or prior to the related Interest Payment Date, (ii) for conversions following the Regular Record Date immediately preceding the Final Maturity Date, (iii) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, or (iv) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Security.

 

(d)           The Company shall not issue fractional shares of Common Stock upon conversion of Securities. If multiple Securities shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so surrendered. If any fractional share of Common Stock would be issuable upon the conversion of any Securities, the Company shall make payment

 

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therefor in cash in lieu of fractional shares of Common Stock based on the Last Reported Sale Price on the relevant Conversion Date.

 

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

 

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

 

		CR 1	=	CR 0	x		OS 1
							OS 0

 

where,

 

CR 0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable;
CR 1	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or such effective date;
OS 0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or such effective date; and
OS 1	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

 

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

 

(b)           If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of the Common Stock any rights or warrants entitling them for a period of not more than 60 calendar days after the announcement date of such issuance to subscribe for or purchase shares of the Common Stock at a price per share less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive

 

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Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be adjusted based on the following formula:

 

		CR 1	=	CR 0	x		OS 0  + X
							OS 0  + Y

 

where,

 

CR 0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR 1	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS 0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X	=	the total number of shares of Common Stock issuable pursuant to such rights or warrants; and
Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights or warrants.

 

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

 

(c)           If the Company, at any time or from time to time while the Securities are outstanding, distributes shares of any class of capital stock of the Company, evidences of its indebtedness, other assets or property of the Company or rights or warrants to acquire the

 

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Company’s capital stock or other securities to all or substantially all holders of its Common Stock, excluding:

 

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

 

(ii)           dividends or distributions paid exclusively in cash; and

 

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

 

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

 

CR 1

=

CR 0

x

SP