4.00% Convertible Senior Notes due 2014

Exhibit 4.2

COINSTAR, INC.

as Issuer

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee

 

First Supplemental Indenture

Dated as of September 16, 2009

to Debt Securities Indenture

Dated as of September 16, 2009

 

4.00% Convertible Senior Notes due 2014

TABLE OF CONTENTS

 

 

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FIRST SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of September 16, 2009, between Coinstar, Inc., a Delaware corporation, and Wells Fargo Bank, National Association, a national banking association (the “ Trustee ”), as trustee under the Debt Securities Indenture dated as of September 16, 2009, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “ Original Indenture ”).

RECITALS OF THE COMPANY

WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s unsecured Securities, in an unlimited aggregate principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Original Indenture;

WHEREAS, Section 9.01(d) of the Original Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Original Indenture to establish the form and terms of Securities of any series as permitted by Sections 2.01 and 3.01 of the Original Indenture;

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;

WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a new series of its Securities to be known as its “4.00% Convertible Senior Notes due 2014” (the “ Notes ”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;

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

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company have been performed; and

WHEREAS the execution and delivery of this Supplemental Indenture by the Company have been duly authorized in all respects.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes 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 Notes, as follows:

ARTICLE 1

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

Section 1.01 . Scope of Supplemental Indenture. The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding provisions in the Original Indenture.

Section 1.02 . Definitions. For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:

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

(ii) all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;

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

(iv) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this Supplemental Indenture; and

 

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

“ Additional Interest ” has the meaning specified in Section 5.02.

“ Additional Shares ” has the meaning specified in Section 4.06(a).

“ Agent Members ” has the meaning specified in Section 2.02.

“ Bid Solicitation Agent ” means the Company or such other Person (including the Trustee) as may be appointed, from time to time, by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 4.01(b)(ii). The Company shall initially act as the Bid Solicitation Agent.

“ Business Day ” means, solely for purposes of this Supplemental Indenture, any weekday that is not a day on which banking institutions in the City of New York are authorized or obligated to close.

“ Clause A Distribution ” has the meaning specified in Section 4.04(c).

“ Clause B Distribution ” has the meaning specified in Section 4.04(c).

“ Clause C Distribution ” has the meaning specified in Section 4.04(c).

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

“ Closing Sale Price ” on any date means 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 that date as reported on the NASDAQ Global Select Market or, if the Common Stock is not listed on the NASDAQ Global Select Market, then as reported by the NYSE, the NASDAQ Global Market or the principal other national or regional securities exchange on which the shares of the Common Stock are then traded or, if the Common Stock is not listed or approved for trading on the NYSE, the NASDAQ Global Market or another national or regional securities exchange, on the principal market on which shares of the Common Stock are then traded. If the Common Stock is not so traded, the “ Closing Sale Price ” will be the average of the midpoint of the last bid and ask prices for shares of the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “ Closing Sale Price ” will be determined without reference to early hours, after-hours or extended market trading.

 

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

“ Common Stock ” means, subject to Section 4.07, the common stock of the Company, par value $0.001 per share, at the date of this Supplemental Indenture.

“ Continuing Director ” means any individual who on the original issuance date of the Notes was a member of the Board of Directors, together with any new directors whose election or, solely to fill the vacancy of a Continuing Director, appointment by the Board of Directors or whose nomination for election by the holders of the Common Stock was approved by a vote of a majority of the directors of the Company then still in office who were either directors on the original issuance date of the Notes or whose election, appointment (in the case of a vacancy of a Continuing Director) or nomination for election was previously approved by a majority of the Continuing Directors, either by specific vote or by approval of the proxy statement issued by us on behalf of the Board of Directors in which such individual is named as a nominee for director. Solely for purposes of the definition of “Continuing Directors,” the phrase “or any committee of that board duly authorized to act generally or in any particular respect for the Company hereunder” in the definition of “Board of Directors” in Section 1.01 of the Original Indenture shall be disregarded.

“ Conversion Agent ” means the Trustee or such other office or agency designated by the Company where Notes may be presented for conversion. The Trustee shall initially be the Conversion Agent.

“ Conversion Date ” has the meaning specified in Section 4.02(b).

“ Conversion Notice ” has the meaning specified in Section 4.02(b)(i).

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

“ Conversion Rate ” means, initially, 24.8181 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein.

“ Conversion Reference Period ” means (i) for any Note with a Conversion Date occurring during the period beginning on, and including, the 30th Scheduled Trading Day prior to the Stated Maturity Date and ending at the close of business on the Business Day immediately prior to the Stated Maturity Date, the 25 consecutive Trading Day period beginning on, and including, the 27th Scheduled Trading Day prior to the Stated Maturity Date, and (ii) for any Note with a Conversion Date occurring prior to the 30th Scheduled Trading Day prior to the Stated Maturity Date, the 25 consecutive Trading Day period beginning on, and including, the third Trading Day immediately following the such Conversion Date.

 

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“ Custodian ” means the Trustee, as custodian with respect to the Notes (so long as the Notes constitute Global Notes), or any successor entity.

“ Daily Conversion Value ” means, for each of the 25 consecutive Trading Days during the applicable Conversion Reference Period, one-twenty-fifth (1/25th) of the product of (a) the applicable Conversion Rate and (b) the Daily VWAP on such Trading Day.

“ Daily Settlement Amount ,” for each of the 25 consecutive Trading Days during the Conversion Reference Period for any Note, shall consist of:

(a) cash equal to the lesser of (i) $40 and (ii) the Daily Conversion Value; and

(b) to the extent the Daily Conversion Value exceeds $40, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and $40, divided by (ii) the Daily VWAP for such Trading Day.

“ Daily VWAP ” means, in respect of any Trading Day, the per share volume-weighted average price of the Common Stock on the NASDAQ Global Select Market as displayed under the heading “Bloomberg VWAP” on Bloomberg page “CSTR.UQ <equity> AQR” (or its equivalent if such page is not available) in respect of the period from 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 the Common Stock on such Trading Day, as determined by the Board of Directors in a commercially reasonable manner using a volume-weighted average price method). The “ Daily VWAP ” shall be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

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

“ Distributed Property ” has the meaning specified in Section 4.04(c).

“ Effective Date ” has the meaning specified in Section 4.06(c).

“ Ex-Dividend Date ” means, with respect to any issuance, dividend or distribution, the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question.

 

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“ Expiration Date ” has the meaning specified in Section 4.04(e).

“ Expiration Time ” has the meaning specified in Section 4.04(e).

“ Form of Assignment and Transfer ” shall mean the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.

“ Form of Fundamental Change Purchase Notice ” shall mean the “Form of Fundamental Change Purchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.

“ Form of Notice of Conversion ” shall mean the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.

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

(a) any Person acquires beneficial ownership (as determined in accordance with Rule 13d-3 under the Exchange Act), directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of Common Equity of the Company entitling the Person to exercise 50% or more of the total voting power of all shares of Common Equity of the Company entitled to vote generally in elections of directors;

(b)(1) the Company recapitalizes, reclassifies or changes the Common Stock (other than changes resulting from a subdivision or combination) and as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities or other property or assets or (2) the Company merges or consolidates with or into any other Person, another Person merges or consolidates with or into the Company, or the Company conveys, sells, transfers or leases all or substantially all of its assets to another Person, in each case other than any transaction:

(i) involving a merger or consolidation that does not result in a reclassification, conversion, exchange or cancellation of outstanding Common Stock; or

(ii) pursuant to which the holders of the Common Stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting

 

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power of all shares of Common Equity of the continuing or surviving corporation immediately after the transaction, with such holders’ proportional voting power immediately after the transaction vis-à-vis each other with respect to the securities they receive in such transaction being in substantially the same proportions as their respective voting power vis-à-vis each other with respect to the Common Stock that they held immediately before such transaction; or

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

(c) the first day on which a majority of the members of the Board of Directors does not consist of Continuing Directors;

(d) the holders of the Common Stock approve any plan or proposal for the liquidation or dissolution of the Company; or

(e) a Termination of Trading.

Notwithstanding the foregoing, a Fundamental Change shall not be deemed to have occurred if at least 90% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a merger or consolidation otherwise constituting a Fundamental Change under clause (a) and/or clause (b) above consists of shares of common stock traded on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors), or will be so traded immediately following the merger or consolidation, and as a result of the merger or consolidation the Notes become convertible into such consideration (subject in all respects to the provisions set forth in Section 4.03).

For the purpose of this definition only, “Person” includes any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

In addition, for purposes of clause (c) of this definition only, the phrase “or any committee of that board duly authorized to act generally or in any particular respect for the Company hereunder” in the definition of “Board of Directors” in Section 1.01 of the Original Indenture shall be disregarded.

“ Fundamental Change Company Notice ” has the meaning specified in Section 3.01(b).

 

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“ Fundamental Change Expiration Time ” has the meaning specified in Section 3.01(a)(i).

“ Fundamental Change Purchase Date ” has the meaning specified in Section 3.01(a).

“ Fundamental Change Purchase Notice ” has the meaning specified in Section 3.01(a)(i).

“ Fundamental Change Purchase Price ” has the meaning specified in Section 3.01(a).

“ Global Note ” means any Note that is a Registered Security in global form.

“ Indenture ” means the Original Indenture, as originally executed and as supplemented from time to time by one or more indentures supplemental thereto, including this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of this Supplemental Indenture and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Original Indenture, this Supplemental Indenture and any other such supplemental indenture, respectively.

“ Interest Payment Date ” means, with respect to the payment of interest on the Notes, each March 1 and September 1 of each year, commencing March 1, 2010.

“ Make-Whole Adjustment Event ” means any transaction or event that constitutes a Fundamental Change as defined in clause (a) or (b) of such definition (and determined after giving effect to any exceptions or exclusions to such definition, including without limitation the first full paragraph immediately following clause (e) of the definition thereof, but without regard to the exception set forth in clause (b)(ii) of the definition thereof).

“ Market Disruption Event ” means (i) a failure by the principal market on which the Common Stock is listed or approved for trading to open for trading during its regular trading session or (ii) the occurrence or existence for more than a one half-hour period in the aggregate on any Scheduled Trading Day of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the principal market on which the Common Stock is listed or approved for trading or otherwise) in the shares of the Common Stock or in any options, contracts or future contracts relating to shares of the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such day.

 

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“ Maturity ” means, with respect to any Note, the date on which the principal of such Note becomes due and payable as provided in or pursuant to the Indenture, whether at the Stated Maturity Date, on the Fundamental Change Purchase Date, by declaration of acceleration, or otherwise.

“ Measurement Period ” has the meaning specified in Section 4.01(b)(ii).

“ Merger Event ” has the meaning specified in Section 4.07(a).

“ Note ” or “ Notes ” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture.

“ NYSE ” means the New York Stock Exchange.

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

“ Original Indenture ” has the meaning specified in the first paragraph of this Supplemental Indenture.

“ Paying Agent ” has the meaning set forth in the Original Indenture, which shall initially be the Trustee, and shall be the Person authorized by the Company to pay the principal amount of, interest on, or Fundamental Change Purchase Price of, any Notes on behalf of the Company.

“ Physical Notes ” means certificated Notes that are not in global form and are Registered Securities issued in denominations of $1,000 principal amount and multiples thereof.

“ Place of Payment ” means, for purposes of the Notes, New York City, New York.

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

“ Reference Property ” has the meaning specified in Section 4.07(a).

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

“ Settlement Amount ” has the meaning specified in Section 4.03(a).

 

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“ Significant Subsidiary ” means any Subsidiary of the Company that is a “significant subsidiary” (as defined in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act).

“ Spin-Off ” has the meaning specified in Section 4.04(c).

“ Stated Maturity Date ” means, with respect to any Note and the payment of the principal amount thereof, September 1, 2014.

“ Stock Price ” has the meaning specified in Section 4.06(c).

“ Successor Company ” has the meaning specified in Section 8.01(a).

“ Supplemental Indenture ” has the meaning specified in the first paragraph hereof.

“ Termination of Trading ” shall be deemed to have occurred if the Common Stock (or other common stock into which the Notes are then convertible, subject in all respects to Section 4.03) is neither listed nor approved for trading on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors).

“ Trading Day ” means a day on which (i) there is no Market Disruption Event and (ii) trading in the Common Stock generally occurs on the NASDAQ Global Select Market, or if the Common Stock is not listed on the NASDAQ Global Select Market, then as reported by the NYSE, the NASDAQ Global Market or the principal other national or regional securities exchange on which shares of the Common Stock are then traded or, if the Common Stock is not listed or approved for trading on the NYSE, the NASDAQ Global Market or another national or regional securities exchange, on the principal market on which shares of the Common Stock are then traded. If the Common Stock is not so listed or traded, “ Trading Day ” shall have the same meaning as Business Day.

“ Trading Price ” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5,000,000 principal amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; 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 $5,000,000 principal amount of the Notes from a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Closing Sale Price and the applicable Conversion Rate.

 

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“ Trading Price Condition ” has the meaning specified in Section 4.01(b)(ii).

“ Trigger Event ” has the meaning specified in Section 4.04(c).

“ Trustee ” has the meaning set forth in the first paragraph of this Supplemental Indenture.

“ Underwriters ” means Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Jefferies & Company, Inc. and RBC Capital Markets Corporation.

“ Underwriting Agreement ” means the Underwriting Agreement, dated September 10, 2009, between the Company and the Underwriters, as managers for the underwriters party thereto.

“ unit of Reference Property ” has the meaning specified in Section 4.07(a).

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

“ Valuation Period ” has the meaning specified in Section 4.04(c).

Section 1.03 . References to Interest. Any reference to interest on, or in respect of, any Note in the Indenture shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to Section 5.02. Any express mention of the payment of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.

Section 1.04 . References to Principal. Any reference in the Indenture to the payment of, or the right to receive, the principal of any Note shall be deemed to include the payment or, or the right to receive, as the case may be, the Fundamental Change Purchase Price if, in such context, the Fundamental Change Purchase Price is, was or would be payable pursuant to Section 3.02. Any express mention of the payment of the Fundamental Purchase Price in any provision hereof related to the payment of, or right to receive, the principal of any Note shall not be construed as excluding the payment of, or the right to receive, the Fundamental Change Purchase Price with respect to any Note in those provisions hereof where such express mention is not made.

 

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ARTICLE 2

T HE S ECURITIES

Section 2.01 . Title and Terms; Payments. There is hereby established a series of Securities designated the “4.00% Convertible Senior Notes due 2014” initially limited in aggregate principal amount to $200,000,000, which amount shall be as set forth in a Company Order for the authentication and delivery of Notes pursuant to Section 3.03 of the Original Indenture.

The principal amount of Notes then Outstanding shall be payable on the Stated Maturity Date. Interest on the Notes shall accrue at a rate of 4.00% per annum, from September 16, 2009 or from the most recent date on which interest has been paid or duly provided for, until the principal thereof is paid or made available for payment or the Notes are otherwise repurchased or converted in accordance with the terms of the Indenture. Interest shall be payable on each Interest Payment Date, beginning on March 1, 2010, to the Person in whose name a Note is registered on the Security Register at the close of business on the Regular Record Date immediately preceding the applicable Interest Payment Date.

The Form of Note shall be substantially as set forth in Exhibit A and the Form of Notice of Conversion, the Form of Fundamental Change Purchase Notice and the Form of Assignment and Transfer shall be substantially as set forth in Attachments 1, 2 and 3, respectively, to Exhibit A, each of which is incorporated into and shall be deemed a part of this Supplemental Indenture, and in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by their execution of the Notes.

The Company shall pay the principal of and interest on any Global Note in immediately available funds to the Depository or its nominee, as the case may be, as the registered Holder of such Global Note. The Company shall pay the principal of and interest on any Physical Notes at the office or agency designated by the Company for that purpose or, at the Company’s option, by check mailed to the Holder’s address as shown in the Security Register, unless a Holder timely requests to have such amounts paid by wire transfer in accordance with the final three sentences of this paragraph, in which case the Company shall instead pay such principal of and interest on any Physical Notes by wire transfer in accordance with the transfer instructions provided in such request. The Company has initially designated the Trustee as its Paying Agent and Security Registrar in respect of the Notes and its agency in New York, New York as a place where Notes may be presented for payment or for registration of transfer. The Company

 

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may, however, change the Paying Agent or Security Registrar for the Notes or approve a change in the office of the Paying Agent or Security Registrar for the Notes, in each case, without prior notice to the Holders thereof, and the Company may act as Paying Agent or Security Registrar for the Notes. Payments on any Physical Notes having a principal amount of at least $1,000,000 shall be payable, if the Holder of such Physical Notes so requests in accordance with the two immediately succeeding sentences, by wire transfer of immediately available funds to an account specified by the Holder at a bank in New York City, New York. To request payment by wire transfer, the Holder must give appropriate transfer instructions to the Trustee or other Paying Agent (if not the Trustee) at least 15 Business Days before the requested wire payment is due and, in the case of any interest payments, the instructions must be given by the Person who is shown on the Trustee’s records as the Holder of the Physical Note on the applicable Regular Record Date. All applications for payment by wire transfer shall remain in effect unless and until new instructions are given in the manner described in the immediately preceding sentence.

Section 2.02 . Book-entry Provisions for Global Notes. (a) The Notes initially shall be issued in the form of one or more Global Notes without interest coupons (i) registered in the name of Cede & Co., as nominee of the Depository and (ii) delivered to the Trustee as custodian for the Depository.

Members of, or participants in, the Depository (“ Agent Members ”) shall have no rights under this Supplemental Indenture or the Original Indenture with respect to any Global Note held on their behalf by the Depository, or the Trustee as its custodian, or under the Global Note, and Cede & Co., or such other Person designated by the Depository as its nominee, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note 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 Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.

(b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the Depository, its successors or their respective nominees. Interests of beneficial owners in a Global Note may be transferred or exchanged, in whole or in part, for Physical Notes, only in accordance with the terms of Section 3.05 of the Original Indenture.

(c) In connection with any transfer or exchange of a portion of the beneficial interest in the Global Note to beneficial owners pursuant to Section 3.05 of the Original Indenture, the Security Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a

 

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decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and amount in accordance with Section 3.05 of the Original Indenture.

(d) In connection with the transfer of the entire Global Note to beneficial owners pursuant to Section 3.05 of the Original Indenture, the Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial interest in the Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations and the same tenor.

(e) The Holder of Global Notes may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of Notes is entitled to take under this Supplemental Indenture, Original Indenture or the Notes.

Section 2.03 . Reporting Requirement. For purposes of Section 7.04 of the Original Indenture, documents filed by the Company with the Commission via the Commission’s EDGAR system shall be deemed to be filed with and furnished to the Trustee as of the time such documents are filed via the Commission’s EDGAR system; provided, however , that the Trustee shall have no obligation whatsoever to monitor such filings via the Commission’s EDGAR system and the Company shall promptly notify the Trustee in writing of any such filings.

Section 2.04 . Repurchase And Cancellation. To the extent permitted by law, the Company may repurchase Notes in open-market purchases or negotiated transactions without giving prior notice to Holders. The Company shall surrender any Notes repurchased by the Company to the Trustee for cancellation in accordance with Section 3.09 of the Original Indenture and any such Notes repurchased by the Company shall be deemed to be no longer Outstanding. Any Notes surrendered for cancellation by the Company shall not be reissued or resold.

ARTICLE 3

F UNDAMENTAL C HANGES AND P URCHASES T HEREUPON

Section 3.01 . Purchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Stated Maturity Date, then each Holder of Notes shall have the right, at such Holder’s option, to require the Company to purchase for cash any or all of such Holder’s Notes, or any portion of the principal amount thereof, that is equal to $1,000 or an

 

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integral multiple of $1,000, on a date (the “ Fundamental Change Purchase Date ”) specified by the Company that is no fewer than 15 calendar days and no more than 45 calendar days following the date of the Fundamental Change Company Notice, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the Fundamental Change Purchase Date (the “ Fundamental Change Purchase Price ”), unless the Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest on the Interest Payment Date to the Holders of record as of the preceding Regular Record Date, and the Fundamental Change Purchase Price shall be equal to 100% of the principal amount of the Notes to be purchased pursuant to this Article 3.

Purchases of Notes under this Section 3.01 shall be made, at the option of the Holder thereof, upon:

(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “ Fundamental Change Purchase Notice ”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Global Notes, or in compliance with the Depository’s procedures for tendering interests in Global Notes, if the Notes are not Physical Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date (the “ Fundamental Change Expiration Time ”); and

(ii) delivery of the Notes, in the case of Physical Notes, to the Paying Agent appointed by the Company (together with all necessary endorsements for transfer), or book-entry transfer of the Notes, in the case of Global Notes, in compliance with the procedures of the Depository, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.

The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:

(i) if such Notes are Physical Notes, the certificate numbers of such Notes;

(ii) the portion of the principal amount of such Notes, which must be $1,000 or an integral multiple thereof; and

 

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(iii) that such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and this Supplemental Indenture;

provided, however , that if such Notes are Global Notes, the Fundamental Change Purchase Notice must also comply with appropriate procedures of the Depository.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Purchase Notice contemplated by this Section 3.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03.

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

(b) Within 30 calendar days after the Company knows or reasonably should know of the occurrence of a Fundamental Change, the Company shall provide to all Holders of the Notes, the Trustee and the Paying Agent (in the case of any Paying Agent other than the Trustee) a notice (the “ Fundamental Change Company Notice ”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders arising as a result thereof. Such notice shall be sent by first class mail or, in the case of any Global Notes, in accordance with the procedures of the Depository for providing notices. Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in the City of New York and make such information available on the Company’s website.

Each Fundamental Change Company Notice shall specify:

(i) the events causing a Fundamental Change;

(ii) the date of the Fundamental Change;

(iii) the last date on which a Holder of Notes may exercise the purchase right pursuant to this Article 3;

(iv) the Fundamental Change Purchase Price;

(v) the Fundamental Change Purchase Date;

 

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(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;

(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;

(viii) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with this Supplemental Indenture; and

(ix) the procedures that Holders must follow to require the Company to purchase their Notes.

No failure of the Company to give the foregoing notices and no defect therein shall limit the purchase rights of the Holders of Notes or affect the validity of the proceedings for the purchase of the Notes pursuant to this Section 3.01.

(c) Notwithstanding the foregoing, there shall be no purchase of any Notes pursuant to this Section 3.01 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Purchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price with respect to such Notes) and shall deem to be cancelled any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository, in which case, upon such return or cancellation, as the case may be, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

Section 3.02 . Effect of Fundamental Change Purchase Notice. Upon receipt by the Paying Agent of a Fundamental Change Purchase Notice specified in Section 3.01, the Holder of the Note in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 3.03) thereafter be entitled to receive solely the Fundamental Change Purchase Price in cash with respect to such Note. Such Fundamental Change Purchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, on the later of (a) the Fundamental Change Purchase Date with respect to such Note ( provided that the conditions in Section 3.01 have been satisfied) and (b) the time of delivery or book-entry transfer of such Note to the Paying Agent by the Holder thereof in the manner required by Section 3.01. If a Holder of Notes delivers a Fundamental Change Purchase Notice, such Holder may not thereafter surrender such Notes for conversion unless such Fundamental Change Purchase Notice is withdrawn pursuant to Section 3.03.

 

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Section 3.03 . Withdrawal of Fundamental Change Purchase Notice. A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Company Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, specifying:

(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;

(ii) if Physical Notes have been issued, the certificate numbers of the withdrawn Notes; and

(iii) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;

provided, however , that if such Notes are Global Notes, the notice must comply with appropriate procedures of the Depository.

The Paying Agent will promptly return to the respective Holders thereof any Physical Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 3.03.

Section 3.04 . Deposit of Fundamental Change Purchase Price. Prior to 11:00 a.m. (New York City time) on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of cash (in immediately available funds if deposited on such Business Day) sufficient to pay the Fundamental Change Purchase Price of all the Notes or portions thereof that are to be purchased as of the Fundamental Change Purchase Date. If the Paying Agent holds cash sufficient to pay the Fundamental Change Purchase Price of the Notes for which a Fundamental Change Purchase Notice has been tendered and not withdrawn in accordance with this Supplemental Indenture on the Fundamental Change Purchase Date, then as of such Fundamental Change Purchase Date, (a) such Notes will cease to be Outstanding and interest will cease to accrue thereon (whether or not book-entry transfer of such Notes is made or such Notes have been delivered to the Paying Agent) and (b) all other rights of the Holders in respect thereof will terminate (other than the right to receive the Fundamental Change Purchase Price upon delivery or book-entry transfer of such Notes).

 

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Section 3.05 . Notes Purchased in Whole or in Part. Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires in the case of Physical Notes, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.

Section 3.06 . Covenant to Comply with Applicable Laws. In connection with any offer to purchase Notes under Section 3.01, the Company shall, in each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required schedule under the Exchange Act and (iii) otherwise comply with all federal and state securities laws, in each case, so as to permit the rights and obligations under Section 3.01 to be exercised in the time and in the manner specified in Section 3.01.

Section 3.07 . Repayment to the Company. To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.04 exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions thereof that the Company is obligated to purchase as of the Fundamental Change Purchase Date, then, following the Fundamental Change Purchase Date, the Paying Agent shall promptly return any such excess to the Company.

ARTICLE 4

C ONVERSION

Section 4.01 . Right to Convert the Notes. (a) Subject to and upon compliance with the provisions of this Article 4, each Holder of Notes shall have the right, at such Holder’s option, to convert the principal amount of any such Notes, or any portion of such principal amount equal to $1,000 or an integral multiple thereof, at the Conversion Rate then in effect:

(i) prior to the close of business on the Business Day immediately preceding June 1, 2014, only upon satisfaction of one or more of the conditions described in Section 4.01(b); and

 

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(ii) on or after June 1, 2014, at any time prior to the close of business on the Business Day immediately preceding the Stated Maturity Date irrespective of the conditions described in Section 4.01(b).

(b)(i) The Notes may be surrendered for conversion during any fiscal quarter ending after December 31, 2009 (and only during such fiscal quarter), if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding fiscal quarter exceeds 130% of the applicable Conversion Price on each such Trading Day. The Conversion Agent, on behalf of the Company, shall determine at the beginning of each fiscal quarter commencing after December 31, 2009 whether the Notes may be surrendered for conversion in accordance with this clause (i) and shall notify the Company and the Trustee (in the case of a Conversion Agent other than the Trustee) if the Notes become convertible in accordance with this clause (i).

(ii) The Notes may be surrendered for conversion during the five Business Day period after any 10 consecutive Trading Day period (the “ Measurement Period ”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of the Notes in accordance with the procedures set forth below in this clause (ii), for each Trading Day of such Measurement Period was less than 98% of the product of the Closing Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate on such Trading Day (the “ Trading Price Condition ”). The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this clause (ii) and the definition of Trading Price set forth in Section 1.02. The Company shall provide written notice to the Bid Solicitation Agent of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Notes in accordance with this clause (ii) unless requested by the Company, and the Company shall have no obligation to make such request unless a Holder of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Closing Sale Price of the Common Stock and the applicable Conversion Rate, at which time the Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Closing Sale Price of the Common Stock and the applicable

 

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Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Closing Sale Price of the Common Stock and the applicable Conversion Rate on each day the Company fails to do so. If the Trading Price Condition has been met, the Company shall so notify the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Closing Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate, the Company shall so notify the Holders of the Notes, the Trustee and the Conversion Agent.

(iii) If the Company elects to:

(A) distribute to all or substantially all holders of the Common Stock any rights, options or warrants that allow such holders to purchase (for a period expiring within 60 days) shares of Common Stock, at a price per share less than the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution; or

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

then, in each case, the Company shall notify the Holders of the Notes at least 40 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. Once the Company has given such notice, Holders may surrender Notes for conversion at any time until the earlier of (x) the close of business on the Business Day immediately preceding such Ex-Dividend Date and (y) the Company’s announcement that such distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time.

(iv) If a transaction or event that constitutes a Make-Whole Adjustment Event occurs, regardless of whether a Holder has the right to require the Company to purchase the Notes pursuant to Article 3, Holders may surrender Notes for conversion at any time from, and including, the

 

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Effective Date of such Make Whole Adjustment Event to, and including, the Business Day immediately preceding the related Fundamental Change Purchase Date or, if there is no Fundamental Change Purchase Date, the 30th Scheduled Trading Day immediately following such Effective Date. The Company shall notify Holders of the Notes and the Trustee no later than 40 Scheduled Trading Days prior to the anticipated Effective Date of any Make Whole Adjustment Event.

(v) If the Company is a party to a combination, merger, binding share exchange, sale or conveyance of all or substantially all of its property or assets, in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property, that does not constitute a Fundamental Change (including any transaction or event that would be a Fundamental Change but for the existence of an exception specified in the first full paragraph following clause (e) in the definition thereof), Holders may surrender Notes for conversion at any time during the period from, and including, the effective date of such transaction to, and including, the Business Day immediately preceding the 30th Scheduled Trading Day immediately following such effective date. The Company shall notify Holders of the Notes and the Trustee no later than 40 Scheduled Trading Days prior to the anticipated effective date of such transaction.

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

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

(i) complete and manually sign a conversion notice in the form set forth in the Form of Notice of Conversion (the “ Conversion Notice ”) or a facsimile of the Conversion Notice;

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

 

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

(iv) if required, make any payment required under Section 4.03(f); and

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

The date on which the Holder satisfies all of the applicable requirements set forth above shall be the “ Conversion Date ” with respect to such Notes surrendered for conversion. The Conversion Agent will, as promptly as possible, and in any event within one Business Day of the receipt thereof, provide the Company with notice of any conversion by a Holder of the Notes.

(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 Notes surrendered for conversion shall, unless the shares of Common Stock issuable on conversion are to be issued in the same name as the registration of such Notes, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the Holder or its duly authorized attorney.

(d) In case any Notes 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 Notes so surrendered, without charge, new Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Notes.

Each conversion shall be deemed to have been effected as to any such Notes (or portion thereof) surrendered for conversion on the relevant Conversion Date; provided, however , that the Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Conversion Reference Period. Upon the Conversion Date of Notes surrendered for conversion, such Person shall no longer be a Holder with respect to such Notes.

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

 

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(f) Notwithstanding the foregoing, a Note in respect of which a Holder has delivered a Fundamental Change Purchase Notice exercising such Holder’s option to require the Company to purchase such Note may be converted only if such Fundamental Change Purchase Notice is withdrawn in accordance with Article 3 prior to the close of business on the Business Day prior to the relevant Fundamental Change Purchase Date.

Section 4.03 . Settlement Upon Conversion. (a) Subject to Section 4.06(b), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, an amount of cash and shares of Common Stock, if any, together with cash in lieu of any fractional share of Common Stock in accordance with clause (e) of this Section 4.03, if applicable (such cash and shares, if any, the “ Settlement Amount ”) equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the applicable Conversion Reference Period.

(b) Subject to Section 4.03(d), the Company shall pay or deliver, as the case may be, the consideration due in respect of any conversion of Notes no later than the fifth Trading Day immediately following the last Trading Day of the relevant Conversion Reference Period; provided that if prior to the relevant Conversion Date the Common Stock has been replaced by Reference Property consisting solely of cash pursuant to Section 4.07 (other than pursuant to a Make-Whole Adjustment Event described in clause (b) of the definition of Fundamental Change in respect of which holders of the Common Stock receive only cash consideration for their shares of Common Stock, in a single, per-share amount, other than with respect to appraisal and similar rights), then the Company shall pay or deliver, as the case may be, the consideration due in respect of any conversion of Notes no later than the third Business Day immediately following the relevant Conversion Date.

(c) The Daily Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the relevant Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Conversion Values and the amount of cash deliverable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Conversion Values and the amount of cash deliverable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agents (if other than the Trustee) shall have no responsibility for any such determination.

(d) If any information required in order to determine an adjustment to the Conversion Rate used to calculate the consideration deliverable upon conversion of any Note will not be available as of the date such consideration is required to be delivered by the Company, the Company shall determine the

 

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amount of additional consideration, if any, resulting from such adjustment to the Conversion Rate on the earliest Trading Day on which such calculation can be made and shall deliver such additional consideration to the converting Holder on the third Trading Day immediately following the earliest Trading Day on which such calculation can be made.

(e) Subject to Section 4.03(f), upon conversion, Holders shall not receive any separate cash payment for accrued and unpaid interest, if any.

(f) Upon the conversion of any Notes, the Holder of such Notes shall not be entitled to receive any separate cash payment for accrued and unpaid interest, if any, except to the extent specified below. The Company’s delivery to the Holder of cash and shares of Common Stock, if any, together with any cash payment for any fractional share of Common Stock, if applicable, into which a Note is convertible shall be deemed to satisfy in full the Company’s obligation to pay the principal amount of the Notes so converted and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into cash and shares of Common Stock, if any, accrued and unpaid interest shall be deemed to be paid first out of any cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on any Regular Record Date and prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes at the close of business on such Regular Record Date shall receive the full amount of interest payable on such No