Indenture

Exhibit 4.1

CASH AMERICA INTERNATIONAL, INC.

as Issuer

AND

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee

 

Indenture

Dated as of May 19, 2009

 

5.25% Convertible Senior Notes due 2029

 

 

TABLE OF CONTENTS

 

 

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Schedule A Make-Whole Table

Exhibit A – Form of Security

Exhibit B – Form of Restrictive Legend for Common Stock Issued Upon Conversion

 

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INDENTURE, dated as of May 19, 2009, between Cash America International, Inc., a corporation duly organized and existing under the laws of the State of Texas, as Issuer (the “ Company ”), having its principal office at 1600 West 7th Street, Fort Worth, TX 76102 and Wells Fargo Bank, National Association, a national banking association, as Trustee (the “ Trustee ”).

RECITALS OF THE COMPANY

WHEREAS, the Company has duly authorized the creation of an issue of 5.25% Convertible Senior Notes due 2029 (each a “ Security ” and collectively, the “ Securities ”) of the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture; and

WHEREAS, all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid and legally binding obligations of the Company, and to make this Indenture a valid and legally binding agreement of the Company, in accordance with the terms of the Securities and the Indenture, have been done;

NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Securities by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Securities, as follows:

ARTICLE 1

D EFINITIONS AND O THER P ROVISIONS OF G ENERAL A PPLICATION

Section 1.01 . Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(i) the terms defined in this Article 1 have the meanings assigned to them in this Article and include the plural as well as the singular;

(ii) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(iii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and

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

“ Act ,” when used with respect to any Holder, has the meaning specified in Section 1.04(a).

“ Additional Interest ” means Default Additional Interest and Late Filing Additional Interest.

“ Additional Securities ” has the meaning specified in Section 2.17.

“ Additional Shares ” has the meaning specified in Section 5.06.

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct 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 Members ” has the meaning specified in Section 2.09(f).

“ Bid Solicitation Agent ” means the Company or an independent nationally recognized securities dealer selected by the Company to solicit market bid quotations for the Securities. The Bid Solicitation Agent shall initially be the Company.

“ Board of Directors ” means, with respect to any Person, either the board of directors of such Person or any duly authorized committee of that board.

“ Business Day ” means, with respect to any Security, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is closed.

“ Capital Stock ” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock and limited liability company interests and, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.

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

 

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“ Commission ” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act.

“ Common Stock ” means the shares of common stock, par value $0.10 per share, of the Company as they exist on the date of this Indenture, subject to Section 5.07.

“ Company ” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

“ Continuing Director ” means a director who either was a member of the Board of Directors of the Company on May 19, 2009, or who becomes a member of the Board of Directors subsequent to such date and whose election, appointment or nomination for election by the Company’s stockholders is duly approved by a majority of the Continuing Directors on the Board of Directors of the Company at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the entire Board of Directors of the Company in which such individual is named as nominee for director.

“ Conversion Agent ” has the meaning specified in Section 2.05.

“ Conversion Date ” has the meaning specified in Section 5.02(b).

“ Conversion Notice ” shall have the meaning specified in Section 5.02(b).

“ 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 39.2157 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 the corporate trust business of the Trustee shall, at any particular time, be administered, which office is, at the date as of which this Indenture is dated, located at Wells Fargo Bank, National Association, Corporate Trust Services, 1445 Ross Avenue, 2nd Floor, Dallas, TX 75202.

“ Corporation ” means a corporation, association, company, joint-stock company or business trust.

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

 

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“ Daily Conversion Value ” has the meaning specified in Section 5.03(c)

“ Daily Settlement Amount ” has the meaning specified in Section 5.03(c).

“ Daily Share Amount ” has the meaning specified in Section 5.03(c).

“ Daily VWAP ” has the meaning specified in Section 5.03(c).

“ Default ” means any event that is or with the passage of time or the giving of notice or both would become an Event of Default.

“ Default Additional Interest ” has the meaning specified in Section 8.17.

“ Depositary ” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor Depositary.

“ Effective Date ” has the meaning specified in Section 5.06(b).

“ Event of Default ” has the meaning specified in Section 8.01.

“ Ex-Dividend Date ” has the meaning specified in Section 5.04(f).

“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended.

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

“ Fundamental Change ” means the occurrence of any of the following events at any time after the Securities are originally issued:

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, its Subsidiaries or its or 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 (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets or (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or

 

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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 any such share exchange, consolidation or merger will not be a Fundamental Change if holders of the Company’s common equity immediately prior to such transaction collectively own, directly or 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 transaction;

(3) Continuing Directors cease to constitute at least a majority of the Company’s Board of Directors; or

(4) the Common Stock (or other common stock or depositary shares or receipts in respect thereof into which the Securities are then convertible) ceases to be listed or quoted on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors).

Notwithstanding the foregoing, any transaction(s) or event(s) described in clause (2) above will not constitute a Fundamental Change if 90% or more of the consideration received or to be received by the Company’s common shareholders, excluding cash payments for fractional shares, in connection with the transaction(s) or event(s) consists of Publicly Traded Securities and, as a result of such transaction(s) or event(s), the Securities become convertible into such consideration, as described in Section 5.07 herein.

“ Fundamental Change Notice ” has the meaning specified in Section 4.01(b).

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

“ Global Security ” means a Security in global form registered in the Security Register in the name of a Depositary or a nominee thereof.

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

“ Indebtedness ” means:

(i) all of the Company’s indebtedness, obligations and other liabilities, contingent or otherwise, (A) for borrowed money, including overdrafts, foreign exchange contracts, currency exchange agreements,

 

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interest rate protection agreements and any loans or advances from banks, whether or not evidenced by notes or similar instruments, or (B) evidenced by credit or loan agreements, bonds, debentures, notes or similar instruments, whether or not the recourse of the lender is to the whole of the assets of the Company or to only a portion thereof, other than any account payable or other accrued current liability or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services;

(ii) all of the Company’s reimbursement obligations and other liabilities, contingent or otherwise, with respect to letters of credit, bank guarantees or bankers’ acceptances;

(iii) all of the Company’s obligations and liabilities, contingent or otherwise, in respect of leases required, in conformity with generally accepted accounting principles, to be accounted for as capitalized lease obligations on the Company’s balance sheet;

(iv) all of the Company’s obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase agreement, conditional sale or other title retention agreement, in connection with the lease of real property or improvements thereon (or any personal property included as part of any such lease) which provides that the Company is contractually obligated to purchase or cause a third party to purchase the leased property or pay an agreed upon residual value of the leased property, including the Company’s obligations under such lease or related document to purchase or cause a third party to purchase such leased property or pay an agreed upon residual value of the leased property to the lessor;

(v) all of the Company’s obligations, contingent or otherwise, with respect to an interest rate or other swap, cap, floor or collar agreement or hedge agreement, forward contract or other similar instrument or agreement or foreign currency hedge, exchange, purchase or similar instrument or agreement;

(vi) all of the Company’s direct or indirect guaranties or similar agreements by us in respect of, and all of the Company’s obligations or liabilities to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of another person of the kinds described in clauses (i) through (v) above; and

(vii) any and all deferrals, renewals, extensions, refinancings and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of the kinds described in clauses (i) through (vi) above.

 

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“ Indenture ” means this instrument as originally executed or 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.

“ Initial Dividend Threshold ” has the meaning specified in Section 5.04(d)(i).

“ Initial Purchasers ” means Jefferies & Company, Inc. and JMP Securities LLC.

“ interest ” means, when used with reference to the Securities, any interest payable under the terms of the Securities, including Additional Interest, if any.

“ Interest Payment Date ” means each May 15 and November 15 of each year.

“ Issue Date ” means, for each Security, the date the Securities are originally issued as set forth on the face of such Security under this Indenture.

“ Last Reported Sale Price ” means, on any date, the closing sale price per share of the 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 such date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall mean 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 is not so quoted, “Last Reported Sale Price” shall mean the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for such purpose.

“ Late Filing Additional Interest ” has the meaning specified in Section 3.08(a).

“ Make-Whole Fundamental Change ” means any transaction or event that constitutes a Fundamental Change as described in the definition thereof (determined after giving effect to any exceptions or exclusions to such definition, but without regard to the proviso in clause (2) of such definition). For the avoidance of doubt, any transaction(s) or event(s) described in clause (2) of the definition of Fundamental Change will not constitute a Make-Whole Fundamental

 

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Change if 90% or more of the consideration received or to be received by the Company’s common shareholders, excluding cash payments for fractional shares, in connection with the transaction(s) or event(s) consists of Publicly Traded Securities and as a result of such transaction(s) or event(s) the Securities become convertible into such consideration, as described in Section 5.07 herein.

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

“ Maturity ,” when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at Stated Maturity, by declaration of acceleration or otherwise.

“ Measurement Period ” has the meaning specified in Section 5.01(a).

“ Net-Share Settlement ” has the meaning specified in Section 5.03(a).

“ NYSE ” means the New York Stock Exchange.

“ Notice of Default ” has the meaning specified in Section 8.01(g).

“ Observation Period ” has the meaning specified in Section 5.03(c).

“ Officers’ Certificate ” means a certificate signed by the Chief Executive Officer, the President or the Chief Financial Officer, and by the Treasurer or the Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 3.09 shall be the principal executive, financial or accounting officer of the Company.

“ Opinion of Counsel ” means a written opinion of counsel, who may be external or in-house counsel for the Company.

“ Outstanding ,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

(i) Securities theretofore cancelled by the Trustee or accepted by the Trustee for cancellation;

 

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(ii) Securities, or portions thereof, for whose payment or purchase money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that if such Securities are to be purchased prior to the maturity thereof, notice of such purchase shall have been given to the Holders as herein provided, or provision satisfactory to a Responsible Officer of the Trustee shall have been made for giving such notice;

(iii) Securities that have been paid or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture; and

(iv) Securities converted pursuant to Article 5;

provided, however, that, in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

“ Paying Agent ” means any Person (including the Company) authorized by the Company to pay the principal amount of, interest on or Redemption Price or Purchase Price of, any Securities on behalf of the Company. The Trustee shall be the initial Paying Agent.

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

“ Physical Securities ” means permanent certificated Securities in registered form issued in denominations of $1,000 principal amount and multiples thereof.

“ Physical Settlement ” has the meaning specified in Section 5.03(a).

 

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“ Physical Settlement Waiver ” has the meaning specified in Section 5.03(a).

“ protected purchaser ” has the meaning specified in Section 2.12.

“ 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 NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors) or which will be so traded when issued or exchanged as a result of such Fundamental Change.

“ Purchase Agreement ” means the Purchase Agreement, dated May 13, 2009, entered into by the Company and the Initial Purchasers in connection with the sale of the Securities.

“ Purchase Date ” has the meaning specified in Section 7.01(a).

“ Purchase Notice ” has the meaning specified in Section 7.01(a).

“ Purchase Price ” has the meaning specified in Section 7.01(a).

“ record date ” has the meaning specified in Section 5.04(g).

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

“ Redemption Date ” means, with respect to any Security to be redeemed, the date fixed for redemption of such Security by the Company. If such date is not a Business Day, then the Redemption Date shall be the Business Day immediately following such date.

“ Redemption Notice ” has the meaning specified in Section 6.03.

“ Redemption Price ” has the meaning specified in Section 6.01.

“ Reference Property ” has the meaning specified in Section 5.07.

“ Responsible Officer ” means any officer or authorized representative of the Trustee within the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also, with respect to a particular matter, any other officer of the Trustee to whom such matter is referred because of such officer’s knowledge and familiarity with the particular subject.

 

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“ Restricted Security ” or “ Restricted Securities ” has the meaning specified in Section 2.10.

“ Restricted Security Legend ” has the meaning specified in Section 2.10.

“ Rule 144 ” means Rule 144 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“ Rule 144A ” means Rule 144A under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the primary 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 ” shall mean a Business Day.

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

“ Security ” or “ Securities ” has the meaning specified in the first paragraph of the Recitals of the Company.

“ Security Register ” and “ Security Registrar ” have the respective meanings specified in Section 2.05.

“ Settlement Method ” means each of a Physical Settlement or a Net-Share Settlement.

“ Spin-Off ” has the meaning specified in Section 5.04(c).

“ Stated Maturity ,” when used with respect to any Security, means, with respect to any Security and the payment of the principal amount thereof, May 15, 2029.

“ Stock Price ” has the meaning specified in Section 5.06(b).

“ Subsidiary ” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

“ Successor Company ” has the meaning specified in Section 9.01(a).

 

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“ Trading Day ” means, except as provided in Section 5.03(f) hereof, a day on which (i) trading in securities generally occurs on NYSE or, if the Common Stock is not then listed on NYSE, 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.

“ Trading Price ” of the Securities on any date of determination means the average of the secondary market bid quotations per $1,000 principal amount of the Securities obtained by the Bid Solicitation Agent for $1,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects; provided that, if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $1,000,000 principal amount of the Securities from a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Securities will be deemed to be less than 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.

“ Trigger Event ” has the meaning specified in Section 5.04(b).

“ Trust Indenture Act ” or “ TIA ” means the Trust Indenture Act of 1939 as in effect on the date as of which this Indenture was executed; provided, however , that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

“ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Trustee ” shall mean such successor Trustee.

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

“ Uniform Commercial Code ” means the New York Uniform Commercial Code, as amended from time to time.

“ Valuation Period ” has the meaning specified in Section 5.04(c).

 

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“ Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person, all the Capital Stock of which (other than directors’ qualifying shares) is owned by such Person or another Wholly Owned Subsidiary of such Person.

Section 1.02 . Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee: (1) an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with; provided , however, that the Company shall not be required to deliver an Opinion of Counsel in connection with Section 2.01 hereof.

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c) a statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

Section 1.03 . Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or

 

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opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

Section 1.04 . Acts of Holders; Record Dates.

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as an “ Act ” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 10.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee reasonably deems sufficient.

(c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders. If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or,

 

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in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 11.01) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.

(d) The ownership of Securities shall be proved by the Security Register.

(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

Section 1.05 . Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

(i) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its applicable Corporate Trust Office; or

(ii) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: General Counsel.

Section 1.06 . Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Notices will be deemed to have been given on the date of mailing. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person

 

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entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

Whenever under this Indenture the Trustee is required to provide any notice by mail, in all cases the Trustee may alternatively provide notice by overnight courier or by telefacsimile, with confirmation of transmission.

Section 1.07 . Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof, and all Article and Section references are to Articles and Sections, respectively, of this Indenture unless otherwise expressly stated.

Section 1.08 . Severability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 1.09 . Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.10 . Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

Section 1.11 . No Recourse Against Others. No director, officer, employee, stockholder or Affiliate of the Company from time to time shall have any liability for any obligations of the Company under the Securities or this Indenture. Each Holder by accepting a Security waives and releases such liability.

ARTICLE 2

T HE S ECURITIES

Section 2.01 . Designation, Amount and Issuance of Securities. The Securities shall be designated as “5.25% Convertible Senior Notes due 2029.”

 

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The Securities will initially be issued in the aggregate principal amount of $115 million. The Company may issue Additional Securities in accordance with Section 2.17. Upon the execution of this Indenture, or from time to time thereafter, Securities may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver Securities upon a written order of the Company, such order signed by an Officer of the Company, without any further action by the Company hereunder.

Section 2.02 . Form of the Securities. The Securities and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the form set forth in Exhibit A hereto. The terms and provisions contained in the form of Securities attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers 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 custodian for the Global Securities, the Depositary or by the Financial Industry Regulatory Authority, Inc. or as may be required for the Securities to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may 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 securities exchange or automated quotation system on which the Securities may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject.

So long as the Securities are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, subject to Section 2.09, all of the Securities will be represented by one or more Securities in global form registered in the name of the Depositary or the nominee of the Depositary (“ Global Securities ”). The transfer and exchange of beneficial interests in any such Global Securities shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary. Except as provided in Section 2.09, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered Holders of such Global Security.

Any Global Securities shall represent such of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to

 

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time be increased or reduced to reflect issuances, redemptions, repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee or the custodian for the Global Security, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Securities in accordance with this Indenture. Payment of principal of, and interest on, any Global Securities shall be made to the Depositary in immediately available funds.

Section 2.03 . Date and Denomination of Securities; Payment at Maturity; Payment of Interest. The Securities shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Security shall be dated the date of its authentication and shall bear interest as set forth on the form of Securities attached as Exhibit A hereto. Interest on the Securities shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

On the Stated Maturity Date, each Holder shall be entitled to receive on such date the principal amount of the Securities held and accrued and unpaid interest to, but not including, the Stated Maturity Date. With respect to Global Securities, principal and interest will be paid to the Depositary in immediately available funds. With respect to any Physical Securities, principal and interest will be payable at the Company’s office or agency maintained for that purpose, which initially will be the Trustee’s office at Corporate Trust Services, 1445 Ross Avenue, 2nd Floor, Dallas, TX 75202.

The Person in whose name any Security is registered on the Register at 5:00 p.m., New York City time, on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.

Notwithstanding the foregoing, if any Securities or portion thereof are converted after 5:00 p.m., New York City time, on the Record Date for any Interest Payment Date, Securityholders at 5:00 p.m., New York City time, on such Record Date will receive the interest payable on such Securities on the corresponding Interest Payment Date notwithstanding the conversion. Securities, upon surrender for conversion during the period from 5:00 p.m., New York City time, on the Record Date for any Interest Payment Date, to 9:00 a.m., New York City time, on the immediately following Interest Payment Date, must be accompanied by funds in an amount equal to the interest otherwise payable on such Interest Payment Date on the principal amount being converted; provided that no such payment need be made: (i) if the Company has specified a Redemption Date that is after a Record Date and on or prior to the corresponding Interest Payment Date; (ii) for conversions following the Record Date immediately preceding May 15, 2029 or (iii) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Security.

 

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Except as provided above, the Company shall pay interest (i) on any Global Securities by wire transfer of immediately available funds to the account of the Depositary or its nominee, (ii) on any Securities in certificated form having a principal amount of $5,000,000 or less, by check mailed to the address of the Person entitled thereto as it appears in the Security Register, and (iii) on any Securities in certificated form having a principal amount of more than $5,000,000, by check mailed to the address of the Person entitled thereto as it appears in the Security Register or by wire transfer in immediately available funds at the election of the Holder of such Securities who has duly delivered notice of such election and applicable wire instructions to the Trustee no later than the relevant Record Date. If a payment date is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue thereon.

Section 2.04 . Execution and Authentication. One or more Officers shall sign the Securities for the Company by manual or facsimile signature.

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

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

The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, 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 has the same rights as any Security Registrar, Paying Agent or agent for service of notices and demands.

Section 2.05 . Security Registrar, Paying Agent and Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “ Security Registrar ”), an office or agency where Securities may be presented for payment (the “ Paying Agent ”) and an office or agency where Securities may be presented for conversion (the “ Conversion Agent ”). The Corporate Trust Office shall be considered as one such office or agency of the Company for each of the aforesaid purposes. The Security Registrar shall keep a register of the Securities (the

 

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“ Security Register ”) and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent, and the term “Security Registrar” includes any co-registrars. The Company initially appoints the Trustee as (i) Security Registrar and Paying Agent in connection with the Securities, (ii) the custodian with respect to the Global Securities and (iii) Conversion Agent.

The Company shall enter into an appropriate agency agreement with any Security Registrar, Paying Agent or Conversion Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Security Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 10.07. The Company may act as Paying Agent, Conversion Agent or Security Registrar.

The Company may remove any Security Registrar, Paying Agent or Conversion Agent upon written notice to such Security Registrar, Paying Agent or Conversion Agent and to the Trustee; provided that no such removal shall become effective until (1) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Security Registrar, Paying Agent or Conversion Agent, as the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee shall serve as Security Registrar, Paying Agent or Conversion Agent until the appointment of a successor in accordance with clause (1) above. The Security Registrar, Paying Agent or Conversion Agent may resign at any time upon written notice; provided that the Trustee may resign as Paying Agent, Conversion Agent or Security Registrar only if the Trustee also resigns as Trustee in accordance with Section 10.11.

Section 2.06 . Paying Agent to Hold Money in Trust. On or prior to each due date of the principal and interest on any Security, the Company shall deposit with the Paying Agent (or if the Company or a Wholly Owned Subsidiary of the Company is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such principal and interest when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this Section 2.06, the Paying Agent shall have no further liability for the money delivered to the Trustee.

 

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Section 2.07 . Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Security Registrar, the Company shall furnish, or cause the Security Registrar to furnish, to the Trustee, in writing at least five Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders.

Section 2.08 . Exchange And Registration of Transfer of Securities. The Company shall cause to be kept at the Corporate Trust Office the Security Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Security Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.

Upon surrender for registration of transfer of any Securities to the Security Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.08 and in Section 2.10, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture, upon surrender of the Securities to be exchanged at any such office or agency maintained by the Company pursuant to Section 3.02. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.

All Securities issued upon any registration of transfer or exchange of Securities shall be the 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.

All Securities presented or surrendered for registration of transfer or for exchange, redemption, repurchase or conversion shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, duly executed by the Holder thereof or his attorney duly authorized in writing.

 

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No service charge shall be made to any Holder for any registration of, transfer or exchange of Securities, but the Company may require payment by the Holder of a sum sufficient to cover any transfer tax or other governmental charge that required by law or permitted by this Indenture.

Neither the Company nor the Trustee nor any Security Registrar shall be required to exchange, issue or register a transfer of (a) any Securities or portions thereof surrendered for conversion pursuant to Article 5 or (b) any Securities or portions thereof tendered for repurchase (and not withdrawn) pursuant to Section 7.01.

Section 2.09 . Global Securities. The following provisions shall apply to Global Securities:

(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary or a nominee thereof and delivered to the Depositary or a nominee thereof or custodian for the Global Securities therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

(b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless the Depositary (x) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (y) has ceased to be a clearing agency registered under the Exchange Act, and a successor depositary has not been appointed by the Company within 90 calendar days. Any Global Securities exchanged pursuant to this Section 2.09(b) shall be so exchanged in whole and not in part.

(c) In addition, Physical Securities will be issued in exchange for beneficial interests in a Global Security upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to enforce its rights under the Securities or this Indenture upon the occurrence and during the continuance of an Event of Default.

(d) Securities issued in exchange for a Global Security or any portion thereof pursuant to Section 2.09(b) or Section 2.09(c) shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Securities or portion thereof to be so exchanged, shall be registered in such names and be in such authorized

 

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denominations as the Depositary shall designate and shall bear any legends required hereunder. Any Global Securities to be exchanged shall be surrendered by the Depositary to the Trustee, as Security Registrar, provided that pending completion of the exchange of a Global Security, the Trustee acting as custodian for the Global Securities for the Depositary or its nominee with respect to such Global Securities, shall reduce the principal amount thereof, 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 make available for delivery the Securities issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

(e) In the event of the occurrence of any of the events specified in Section 2.09(b) above or upon any request described in Section 2.09(c), the Company will promptly make available to the Trustee a sufficient supply of Physical Securities in definitive, fully registered form, without interest coupons.

(f) Neither any members of, or participants in, the Depositary (“ 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 Securities registered in the name of the Depositary or any nominee thereof, 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 Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall 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 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 Securities.

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

 

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Section 2.10 . Transfer Restrictions. Until the 365 ^th day after the last date of original issuance of the Securities, (1) any certificate evidencing a Security shall bear a legend in substantially the form identified as the “Restricted Security Legend” (the “ Restricted Security Legend ”) in the form of Security set forth in Exhibit A and (2) any certificate representing Common Stock issued upon conversion of the Securities shall bear a legend in substantially the form of Exhibit B, unless such Security (or such Common Stock) has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer) or sold pursuant to Rule 144 or any similar provision then in force, or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee.

Every Security (and all securities issued in exchange therefor or in substitution thereof) that bears or is required under this Section 2.10 to bear the legend required by this Section 2.10 (together with any Common Stock issued upon conversion of the Securities and required to bear the legend set forth in Exhibit B, collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.10 and such legends, unless such restrictions on transfer shall be waived by written consent of the Company following receipt of legal advice supporting the permissibility of the waiver of such transfer restrictions, and the Holder of any Restricted Securities, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.10, the term “transfer” means any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security or any interest therein.

In connection with any transfer of the Securities that are Restricted Securities prior to the date 365 days after the last date of original issuance of the Securities (other than a transfer pursuant to a registration statement which has been declared effective under the Securities Act), the Holder must complete and deliver the form of assignment set forth on the certificate representing the Securities with the appropriate box checked to the Trustee (or any successor Trustee, as applicable). If the proposed transfer is pursuant to clause (2)(D) of the Restricted Security Legend, the Holder must, prior to such transfer, furnish to the Trustee (or any successor Trustee, as applicable), such certifications, legal opinions or other information as the Company may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. The Restricted Security Legend will be removed upon the earlier of (1) the 365th day after the last date of original issuance of the Securities, (2) the transfer of the Security evidenced thereby pursuant to clause (2)(B) of the Restricted Security Legend or (3) on any transfer of the Security under Rule 144.

Any Securities that are Restricted Securities and as to which such restrictions on transfer shall have expired in accordance with their terms or as to

 

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conditions for removal of the Restricted Security Legend set forth therein have been satisfied may, upon surrender of such Securities for exchange to the Security Registrar in accordance with the provisions of this Section 2.10, be exchanged for a new Security or Securities, of like tenor and aggregate principal amount, which shall not bear the Restricted Security Legend required by this Section 2.10. If such Restricted Security surrendered for exchange is represented by a Global Security bearing the Restricted Security Legend, the principal amount of the legended Global Securities shall be reduced by the appropriate principal amount and the principal amount of a Global Security without the Restricted Security Legend shall be increased by an equal principal amount. If a Global Security without the Restricted Security Legend is not then outstanding, the Company shall execute and the Trustee shall authenticate and deliver an unlegended Global Security to the Depositary.

Section 2.11 . Responsibilities and Obligations of the Trustee. The Trustee shall have no responsibility or obligation to any Agent Members or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any Agent Member or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders of Securities and all payments to be made to Holders of Securities under the Securities shall be given or made only to or upon the order of the registered Holders of Securities (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Securities shall be exercised only through the Depositary subject to the customary procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members.

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 Securities (including any transfers between or among Agent Members) 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 2.12 . Replacement Securities. If a mutilated Security is surrendered to the Security Registrar or if the Securityholder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Securityholder (i) notifies the Company or the Trustee within a reasonable time

 

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after he has notice of such loss, destruction or wrongful taking and the Security Registrar does not register a transfer prior to receiving such notification, (ii) makes such request to the Company or the Trustee prior to the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “ protected purchaser ”) and (iii) satisfies any other reasonable requirements of the Trustee and the Company. If required by the Trustee or the Company, such Securityholder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Company, the Trustee, the Paying Agent, the Conversion Agent and the Security Registrar from any loss that any of them may suffer if a Security is replaced. The Company and the Trustee may charge the Securityholder for their expenses in replacing a Security. In case any Security which has matured or is about to mature or has been called for redemption on a Redemption Date or has been properly tendered for repurchase on a Purchase Date (and not withdrawn) or is to be converted into Common Stock or a combination of cash and shares of Common Stock, shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Securities), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence to their satisfaction of the destruction, loss or theft of such Securities and of the ownership thereof.

Every replacement Security is an additional obligation of the Company.

The provisions of this Section 2.12 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Securities.

Section 2.13 . Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.13 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

If a Security is replaced pursuant to Section 2.12, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a protected purchaser.

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date, Purchase Date or Stated Maturity Date money

 

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sufficient to pay all principal and interest payable on that date with respect to the Securities (or portions thereof) to be redeemed, repurchased or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Securityholders on that date pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

Section 2.14 . Temporary Securities. Pending the preparation of Securities in certificated form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon the written request of the Company, authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Security, all as may be determined by the Company. Every such temporary Securities shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in certificated form. Without unreasonable delay, the Company will execute and deliver to the Trustee or such authenticating agent Securities in certificated form and thereupon any or all temporary Securities may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 3.02 and the Trustee or such authenticating agent shall authenticate and make available for delivery in exchange for such temporary Securities an equal aggregate principal amount of Securities in certificated form. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in certificated form authenticated and delivered hereunder.

Section 2.15 . Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Security Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and shall dispose of cancelled Securities according to standard practices or otherwise deliver canceled Securities to the Company pursuant to written direction by an Officer. The Company may not issue new Securities to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation. The Trustee shall not authenticate Securities in place of canceled Securities other than pursuant to the terms of this Indenture.

Section 2.16 . CUSIP and ISIN Numbers. The Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption

 

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as a convenience to Securityholders; 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 notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.

Section 2.17 . Additional Securities. The Company may, from time to time without the consent of the Holders of outstanding Securities, issue additional Securities pursuant to this Indenture (“ Additional Securities ”) with the same terms and, if permissible as a “qualified reopening” for U.S. federal income tax purposes and if the resale of such Securities by non-affiliates of the Company would not require registration under the United States securities laws, with the same CUSIP number as the Securities issued pursuant to the Purchase Agreement in an unlimited aggregate principal amount. The Securities originally issued pursuant to the Purchase Agreement and any Additional Securities shall be treated as a single class for all purposes under this Indenture, including waivers, amendments, offers to purchase and United States federal tax purposes. No Additional Securities may be issued if on the Issue Date therefor any Event of Default has occurred and is continuing.

ARTICLE 3

P ARTICULAR C OVENANTS OF THE C OMPANY

Section 3.01 . Payment of Principal and Interest. The Company covenants and agrees that it shall duly and punctually pay or cause to be paid the principal (including the Redemption Price or Purchase Price) of, and interest on, each of the Securities at the places, at the respective times and in the manner provided herein and in the Securities.

Section 3.02 . Maintenance of Office or Agency. The Company shall maintain an office or agency in the Borough of Manhattan, the City of New York, where the Securities may be surrendered for registration of transfer or exchange or for presentation for payment, redemption or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency not designated or appointed by the Trustee. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

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The Company may also from time to time designate co-registrars and one or more offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.

The Company will give prompt written notice of any such designation or rescission and of any change in the location of any such other office or agency.

The Company hereby initially designates the Trustee as paying agent, Security Registrar, Custodian and conversion agent at the Corporate Trust Office.

So long as the Trustee is the Security Registrar, the Trustee agrees to mail, or cause to be mailed, the notices set forth in Section 10.11(a) and the third paragraph of Section 10.12. If co-registrars have been appointed in accordance with this Section 3.02, the Trustee shall mail such notices only to the Company and the Holders of Securities it can identify from its records.

Section 3.03 . Provisions as to Paying Agent.

(a) If the Company shall appoint a Paying Agent other than the Trustee, or if the Trustee shall appoint such a Paying Agent, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 3.03:

(i) that it will hold all sums held by it as such agent for the payment of the principal of or interest, on the Securities (whether such sums have been paid to it by the Company or by any other obligor on the Securities) in trust for the benefit of the Holders of the Securities;

(ii) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities) to make any payment of the principal of or interest on the Securities when the same shall be due and payable; and

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

The Company shall, on or before each due date of the principal of or interest on the Securities, deposit with the paying agent a sum (in funds which are immediately available on the due date for such payment) sufficient to pay such principal or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided , however, that if such deposit is made on the due date, such deposit shall be received by the paying agent by 11:00 a.m. New York City time, on such date.

 

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(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal of or interest on the Securities, set aside, segregate and hold in trust for the benefit of the Holders of the Securities a sum sufficient to pay such principal or interest so becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Company (or any other obligor under the Securities) to make any payment of the principal of or interest on the Securities when the same shall become due and payable.

(c) Anything in this Section 3.03 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any paying agent hereunder as required by this Section 3.03, such sums to be held by the Trustee upon the trusts herein contained and upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further liability with respect to such sums.

(d) Anything in this Section 3.03 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.03 is subject to Section 12.03 and Section 12.04.

The Trustee shall not be responsible for the actions of any other paying agents (including the Company if acting as its own paying agent) and shall have no control of or liability for any funds held by such other paying agents.

Section 3.04 . Rule 144A Information Requirement. Until the 365 ^th day after the last date of original issuance of the Securities, the Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any Holder or beneficial holder of Securities or any Common Stock issued upon conversion thereof which continue to be Restricted Securities in connection with any sale thereof and any prospective purchaser of Securities or such Common Stock designated by such Holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any Holder or beneficial holder of the Securities or such Common Stock, all to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act within the limitation of the exemption provided by Rule 144A, as such rule may be amended from time to time.

Section 3.05 . Resale of Certain Securities. The Company shall not, and shall not permit any of its “ affiliates ” (as defined under Rule 144 or any successor provision thereto) to, resell any Securities that have been reacquired by any of them. The Trustee shall have no responsibility in respect of the Company’s performance of its agreement in the preceding sentence.

 

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Section 3.06 . Commission Filings. The Company will deliver to the Trustee within 15 days after it is required to file the same with the Commission, copies of the quarterly and annual reports and of the information, documents and other reports, if any, which the Company is required to file, and only to the extent it is required to file, with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. To the extent any such information, documents and reports are filed by the Company electronically on the Commission’s Electronic Data Gathering and Retrieval System (or any successor system), notice thereof shall be delivered promptly to the Trustee, upon which such information, documents and reports shall be deemed delivered to the Trustee.

Section 3.07 . Book-Entry System. If the Securities cease to trade in the Depositary’s book-entry settlement system, the Company covenants and agrees that it shall use reasonable efforts to make such other book entry arrangements that it determines are reasonable for the Securities.

Section 3.08 . Late Filing Additional Interest.

(a) If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance of the Securities, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period thereunder), as applicable (other than reports on Form 8-K), or the Securities are not otherwise freely tradable by Holders other than the Company’s affiliates (as a result of restrictions pursuant to U.S. securities law or the terms of this Indenture or the Securities), the Company shall pay additional interest (the “ Late Filing Additional Interest ”) in accordance with this Section 3.08.

(b) Late Filing Additional Interest shall accrue on all Securities then Outstanding at an annual rate of 0.25% per annum of the principal amount of such Restricted Securities for each day during such period for which the Company’s failure to file continues or the failure of the Securities to be freely tradable by Holders other than the Company’s affiliates has occurred and is continuing, which rate will be increased by an additional 0.25% per annum following the 90 ^th day on which such Late Filing Additional Interest has first accrued, provided that the rate at which such Late Filing Additional Interest accrues may in no event exceed 0.50% per annum; provided further that the Company shall have 14 days, in the aggregate, to cure any such late filings before any Late Filing Additional Interest shall begin to accrue under this Section 3.08.

 

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(c) Late Filing Additional Interest shall be payable in arrears on each Interest Payment Date following the late filing in the same manner as regular interest on the Securities.

(d) Further, if, and for so long as, the Restrictive Security Legend on the Securities has not been removed or the Securities are not otherwise freely tradable by Holders other than the Company’s affiliates (without restrictions pursuant to U.S. securities law or the terms of this Indenture or the Securities) as of the 365 ^th day after the last date of original issuance of the Securities, the Company shall pay Late Filing Additional Interest on all Securities the Outstanding at a rate equal to 0.25% per annum of the principal amount of Securities Outstanding until the Restrictive Security Legend has been removed and the Securities are freely tradable as described above, which rate will be increased by an additional 0.25% per annum following the 90 ^th day on which such Late Filing Additional Interest has first accrued, provided that the rate at which such Late Filing Additional Interest accrues may in no event exceed 0.50% per annum.

Section 3.09 . Compliance Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate, stating whether or not to the knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions, covenants and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) or has been in default during the previous year and, if the Company shall be in default, or shall have been in default during the previous year, specifying all such defaults and the nature and the status thereof of which the signer may have knowledge.

The Company shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any Default or Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or Default, its status and the action which the Company proposes to take with respect thereto.

Any notice required to be given under this Section 3.09 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.

ARTICLE 4

F UNDAMENTAL C HANGES

Section 4.01 . Effect of a Fundamental Change.

(a) Generally . If a Fundamental Change occurs or is anticipated to occur, Holders shall have the right to convert their Securities as provided in Article 5. If such Fundamental Change also constitutes a Make-Whole

 

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Fundamental Change, the Company shall, under the circumstances described in Section 5.06, increase the Conversion Rate. In addition, the 30th day following the occurrence of a Fundamental Change shall constitute an Event of Default, after which Holders may declare the Securities due and payable pursuant to Article 8. Once the Securities have been declared due and payable, Holders may no longer convert their Securities.

(b) Notices in Connection with Fundamental Changes . The Company shall notify Holders and the Trustee, in the manner provided in Section 1.06, as promptly as practicable following the date the Company publicly announces a Fundamental Change, but in no event fewer than 30 Scheduled Trading Days prior to the anticipated effective date of such Fundamental Change. In addition, on or before the fifth Trading Day after the effective date of a Fundamental Change, the Company shall provide to all Holders of the Securities and the Trustee and Paying Agent a notice of the occurrence of the Fundamental Change (a “ Fundamental Change Notice ”). Such Fundamental Change Notice shall state, among other things:

(i) the events causing the Fundamental Change;

(ii) the date of the Fundamental Change;

(iii) the last date on which a Holder may exercise the conversion right;

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

(v) the Conversion Rate and any adjustments to the Conversion Rate; and

(vi) the procedures that Holders must follow to convert their Securities pursuant to Article 5 or accelerate their Securities pursuant to Article 8.

Simultaneously with providing such Fundamental Change Notice, the Company shall publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time.

 

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ARTICLE 5

C ONVERSION

Section 5.01 . Right to Convert.

(a) Subject to and upon compliance with the provisions of this Indenture, each Holder 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 which is $1,000 or an integral multiple of $1,000 thereof at the Conversion Rate then in effect, (x) on or after April 15, 2029 through the close of business on the second Business Day immediately preceding the Stated Maturity and (y) prior to April 15, 2029, but only upon the satisfaction of one or more of the conditions set forth in clauses (i) through (v) below and only during the periods set forth below:

(i) Prior to the close of business on the Business Day immediately preceding April 15, 2029, a Holder may surrender all or a portion of its Securities for conversion during any fiscal quarter (and only during such fiscal quarter) commencing after June 30, 2009, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding fiscal quarter is greater than or equal to 130% of the Conversion Price in effect on each such Trading Day.

(ii) Prior to the close of business on the Business Day immediately preceding April 15, 2029, a Holder may surrender its Securities for conversion during the five Business-Day period after any ten consecutive Trading-Day period (the “ Measurement Period ”) in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 5.01(a)(ii), for each day of such Measurement Period was less than 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Securities in accordance with this Section 5.01(a)(ii) unless requested by the Company, and the Company shall have no obligation to make such request unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Securities would be less than 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. Promptly after receiving such evidence, the Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Securities is greater than or equal to 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If the

 

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Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 principal amount of Securities will be deemed to be less than 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each day the Company fails to do so. If the Trading Price condition has been met the Company shall notify the Holders of the Securities in the manner provided in Section 1.06, the Trustee and the Conversion Agent. If, at any time after the Trading Price condition has been met, the Trading Price per $1,000 principal amount of Securities is greater than or equal to 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate the Company shall so notify the Holders of the Securities in the manner provided in Section 1.06, the Trustee and the Conversion Agent.

(iii) If, prior to the close of business on the Business Day immediately preceding April 15, 2029, the Company elects to:

(A) issue to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days after the date of the distribution, shares of Common Stock at less than the average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the announcement of such issuance; or

(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Company’s Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the declaration date for such distribution,

then, in each case, the Company shall notify the Holders of the Securities, in the manner provided in Section 1.06, at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. Once the Company has given such notice, Holders may surrender Securities for conversion at any time until the earlier of 5:00 p.m., New York City time, on the Business Day immediately prior to such Ex-Dividend Date or the Company’s announcement that such distribution will not take place, even if the Securities are not otherwise convertible at such time.

(iv) If, prior to the close of business on the Business Day immediately preceding April 15, 2029, a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change

 

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occurs or is expected to occur, or if the Company is a party to a consolidation, merger, binding share exchange, or transfer or lease of all or substantially all of the Company’s assets, pursuant to which the Common Stock would be converted into cash, securities or other assets, Holders may surrender Securities for conversion at any time from, and including, the 30th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 35th Trading Day following such effective date of such transaction or, if such transaction also constitutes a Fundamental Change and the Securities have become due and payable as provided in Article 8, until the close of business on the Business Day immediately preceding the date the Securities are due and payable. Unless the Company has provided notice pursuant to Section 4.01(b), the Company will notify the Holders and the Trustee, in the manner provided in Section 1.06, as promptly as practicable following the date the Company publicly announces such transaction, but in no event fewer than 30 Scheduled Trading Days prior to the anticipated effective date of such transaction and on or before the fifth Trading Day after the effective date of such transaction.

(v) If, prior to the close of business on the Business Day immediately preceding April 15, 2029, the Company calls any Securities for redemption, then Holders may surrender Securities for conversion at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date, even if the Securities are not otherwise convertible at such time.

(b) Securities may not be converted after the close of business on the second Business Day immediately preceding May 15, 2029.

 

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Section 5.02 . Conversion Procedure.

(a) Each Security shall be convertible at the office of the Conversion Agent.

(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 Trustee or Conversion Agent, and pay the funds, if any, required by Section 2.03 and any transfer taxes, if required, pursuant to Section 5.08, and the Trustee or Conversion Agent must be informed of the conversion in accordance with customary practice of the Depositary. In order to exercise the conversion privilege with respect to any Physical 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 facsimile of the Conversion Notice and deliver such notice, which is irrevocable, to the Conversion Agent;

(ii) surrender the Security to the Conversion Agent;

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

(iv) if required, pay all transfer or similar taxes; and

(v) make any payment required under Section 2.03.

The date on which the Holder satisfies all of the applicable requirements set forth above is the “ Conversion Date .” The Trustee will, as promptly as possible, provide the Company with notice of any conversion exercises by Holders of which a Responsible Officer becomes aware.

(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,

 

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without charge to such Holder, 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, and with respect to any shares of Common Stock that are issuable upon such conversion: (i) if such conversion was subject to a Physical Settlement, the Person in whose name the certificate or certificates for such shares of Common Stock are registered, shall become the holder of record of such shares as of the close of business on the Conversion Date; and (ii) if such conversion was subject to a Net-Share Settlement, the Person in whose name the certificate or certificates for such shares of Common Stock are registered, shall become the holder of record of such shares as of the close of business on the last Trading Day of the related Observation Period; provided, however , that if such last Trading Day is a date when the stock transfer books of the Company shall be closed, the Person in whose name the certificate or certificates for such shares are to be issued shall be deemed to have become the Holder of record thereof for all purposes on the next day on which such stock transfer books are open.

(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 Purchase Notice exercising such Holder’s option to require the Company to purchase such Security may be converted only if such notice of exercise is withdrawn in accordance with Article 7 hereof prior to the close of business on the Business Day prior to the relevant Purchase Date.

Section 5.03. Payments Upon Conversion.

(a) Upon any conversion of any Security, the Company shall deliver to converting Holders, in respect of each $1,000 principal amount of Securities being converted, at the Company’s election (subject to the Company’s Physical Settlement Waiver), in full satisfaction of the Company’s conversion obligation, either (i) shares of Common Stock, together with cash in lieu of fractional shares, if any (a “ Physical Settlement ”), or (ii) a combination of cash and shares of Common Stock, together with cash in lieu of fractional shares, if any (a “ Net-Share Settlement ”), in each case, as set forth below. The Company shall give converting Holders irrevocable notice of the applicable Settlement Method no later than the Business Day following the Conversion Date, provided that (A) the Settlement Method applicable to conversions following a Redemption Notice

 

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shall be specified in such Redemption Notice and (B) the Settlement Method applicable to all conversions following April 15, 2029 shall be specified by separate notice to all Holders of Outstanding Securities on or prior to April 15, 2029. For any Conversion Dates on or after April 15, 2029, or on or after a Redemption Notice, the Settlement Method specified by the Company in the relevant notice shall apply to all conversions with Conversion Dates on or after April 15, 2029, or on or after a Redemption Notice, respectively. If the Company does not specify a Settlement Method, then the applicable Settlement Method shall be Physical Settlement. The Company may, in its discretion, elect to irrevocably waive its right to satisfy the Company’s conversion obligation by Physical Settlement (a “ Physical Settlement Waiver ”) by giving irrevocable notice to Holders, and such Physical Settlement Waiver shall apply to all conversions of Securities with a Conversion Date that is later than the date of such notice unless the Company has already specified the Settlement Method with respect to such Securities.

(b) If the Company has elected or is deemed to have elected a Physical Settlement with respect to any Securities tendered for conversion, the Company shall deliver, for each $1,000 principal amount of Securities, a number of shares of Common Stock equal to the Conversion Rate, together with cash in lieu of fractional shares. Except for conversions upon a Make-Whole Fundamental Change as provided in Section 5.03(g), the Company shall deliver such shares of Common Stock on the third Business Day following the Conversion Date.

(c) If the Company has elected or is deemed to have elected a Net-Share Settlement with respect to any Securities tendered for conversion, the Company shall deliver, for each $1,000 principal amount of Securities, the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period.

“ Observation Period ” means (i) with respect to any Security converted prior to April 15, 2029, the 20 consecutive Trading-Day period beginning on and including the second Trading Day after the related Conversion Date and (ii) with respect to any Security converted on or after April 15, 2029 or on or after a date when the Company has given a Redemption Notice, the 20 consecutive Trading Days beginning on, and including, the 22nd Scheduled Trading Day immediately preceding May 15, 2029 or the Redemption Date, as applicable.

The “ Daily Settlement Amount ” for each of the 20 Trading Days during the Observation Period shall consist of:

(i) cash equal to the lesser of (x) one-twentieth of $1,000 and (y) the Daily Conversion Value, and

 

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(ii) to the extent the Daily Conversion Value exceeds one-twentieth of $1,000, a number of shares of Common Stock (the “ Daily Share Amount ”) equal to (x) the difference between the Daily Conversion Value and one-twentieth of $1,000, divided by (y) the Daily VWAP for such day.

“ Daily Conversion Value ” means, for each of the 20 consecutive Trading Days during the Observation Period, one-twentieth of the product of (i) the Conversion Rate and (ii) the Daily VWAP of Common Stock on such Trading Day.

“ Daily VWAP ” means, for each of the 20 consecutive Trading Days during the Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “CSH <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for such purpose by the Company). The Daily VWAP will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

Except for conversions upon a Make-Whole Fundamental Change as provided in Section 5.03(g), the Company shall deliver the cash and shares of Common Stock on the third Business Day following the last day of the applicable Observation Period.

(d) Subject to Section 2.03, upon conversion, Holders shall not receive any separate cash payment for accrued and unpaid interest, unless such conversion occurs between a Record Date and the Interest Payment Date to which it relates.

(e) 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 of Common Stock 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 stock would be issuable upon the conversion of any Securities, the Company shall make payment therefor in cash in lieu of fractional shares of Common Stock based on (i) if Physical Settlement applies, on the Last Reported Sale Price of the Common Stock on the relevant Conversion Date, and (ii) if Net-Share Settlement applies, the Daily VWAP of the Common Stock on the final Trading Day of the applicable Observation Period.

 

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(f) Solely for purposes of determining (i) the holder of record in accordance with Section 2.03 and (ii) the payments and deliveries due upon conversion under this Section 5.03, and notwithstanding the definition of “Trading Day” contained in Section 1.01, “ Trading Day ” means a day on which (i) there is no Market Disruption Event and (ii) trading in securities generally occurs on NYSE or, if the Common Stock is not then listed on NYSE, 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, on the principal other market on which the Common Stock is then traded. If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or quoted, “Trading Day” means a Business Day.

(g) Upon surrender of Securities for conversion in connection with a Make-Whole Fundamental Change, the Company shall deliver shares of Common Stock or cash and shares of Common Stock, as described under this Section 5.03, at the increased Conversion Rate. However, if the consideration paid for the Common Stock in such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Securities following the Effective Date of such Make-Whole Fundamental Change, the Company’s conversion obligation shall be calculated based solely on the Stock Price for such Make-Whole Fundamental Change and shall be deemed to be an amount equal to the Conversion Rate (including any adjustment as described in Section 5.06 hereof) multiplied by such Stock Price. In such event, the Company’s conversion obligation shall be determined and paid to Holders solely in cash on the third Business Day following the relevant Conversion Date.

Section 5.04 . 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 if Holders of Securities participate, as a result of holding the Securities, in the transactions described without having to convert their Securities as if such Holders held the full number of shares of Common Stock underlying their Securities.

(a) If the Company, at any time or from time to time while any of the Securities are Outstanding, 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