TABLE OF CONTENTS

 

		Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.	Definitions	1
Section 1.02.	Other Definitions	8
Section 1.03.	Trust Indenture Act Provisions	9
Section 1.04.	Rules of Construction	9
ARTICLE 2
THE SECURITIES
Section 2.01.	Form and Dating	10
Section 2.02.	Execution and Authentication	12
Section 2.03.	Registrar, Paying Agent and Conversion Agent	13
Section 2.04.	Paying Agent To Hold Money In Trust	13
Section 2.05.	Conversion Agent To Hold Amounts In Trust	14
Section 2.06.	Lists of Holders of Securities	14
Section 2.07.	Transfer and Exchange	15
Section 2.08.	Replacement Securities	16
Section 2.09.	Outstanding Securities	16
Section 2.10.	Treasury Securities	17
Section 2.11.	Temporary Securities	17
Section 2.12.	Cancellation	17
Section 2.13.	Legend; Additional Transfer and Exchange Requirements	18
Section 2.14.	CUSIP Numbers	19
Section 2.15.	Calculations	20
Section 2.16.	Payment of Interest; Interest Rights Preserved	20
Section 2.17.	Computation of Interest	21
Section 2.18.	Purchase of Securities In Open Market	21
ARTICLE 3
PURCHASE
Section 3.01.	Repurchase at Option of Holders upon a Fundamental Change	21
Section 3.02.	Withdrawal of Fundamental Change Repurchase Notice	24
Section 3.03.	Deposit of Fundamental Change Repurchase Price	25
ARTICLE 4
CONVERSION
Section 4.01.	Right to Convert	26
Section 4.02.	Conversion Procedures	28
Section 4.03.	Settlement Upon Conversion	29

 

i

 

Section 4.04.	Increased Conversion Rate Applicable to Securities Surrendered in Connection with Make-Whole Fundamental Changes	32
Section 4.05.	Adjustment of Conversion Rate	34
Section 4.06.	Effect of Reclassification, Consolidation, Merger or Sale	44
Section 4.07.	Taxes on Shares Issued	46
Section 4.08.	Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock	46
Section 4.09.	Responsibility of Trustee	46
Section 4.10.	Notice to Holders Prior to Certain Actions	47
Section 4.11.	Stockholder Rights Plans	48
ARTICLE 5
COVENANTS
Section 5.01.	Payment of Securities	48
Section 5.02.	Reports by Company	49
Section 5.03.	Compliance Certificates	49
Section 5.04.	Further Instruments and Acts	50
Section 5.05.	Stay, Extension And Usury Laws	50
Section 5.06.	Maintenance of Office or Agency	50
ARTICLE 6
CONSOLIDATION; MERGER; SALE OF ASSETS
Section 6.01.	Company May Consolidate, Etc., Only on Certain Terms	51
Section 6.02.	Successor Substituted	51
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01.	Events of Default	51
Section 7.02.	Acceleration	53
Section 7.03.	Collection of Indebtedness and Suits for Enforcement by Trustee	55
Section 7.04.	Trustee May File Proofs of Claim	56
Section 7.05.	Trustee May Enforce Claims Without Possession of Securities	56
Section 7.06.	Application of Money Collected	56
Section 7.07.	Limitation on Suits	57
Section 7.08.	Unconditional Right of Holders to Receive Payment and to Convert	58
Section 7.09.	Restoration of Rights and Remedies	58
Section 7.10.	Rights and Remedies Cumulative	58
Section 7.11.	Delay or Omission Not Waiver	58
Section 7.12.	Control by Holders	58
Section 7.13.	Waiver of Past Defaults	59
Section 7.14.	Undertaking for Costs	59
Section 7.15.	Remedies Subject to Applicable Law	59

 

ii

 

ARTICLE 8
TRUSTEE
Section 8.01.	Duties of Trustee	60
Section 8.02.	Notice of Default	61
Section 8.03.	Certain Rights of Trustee	61
Section 8.04.	Trustee Not Responsible for Recitals, Dispositions of Securities or Application of Proceeds Thereof	63
Section 8.05.	Trustee and Agents May Hold Securities; Collections; etc.	63
Section 8.06.	Money Held in Trust	63
Section 8.07.	Compensation and Indemnification of Trustee and Its Prior Claim	63
Section 8.08.	Conflicting Interests	64
Section 8.09.	Trustee Eligibility	64
Section 8.10.	Resignation and Removal; Appointment of Successor Trustee	65
Section 8.11.	Acceptance of Appointment by Successor	66
Section 8.12.	Merger, Conversion, Consolidation or Succession to Business	66
Section 8.13.	Preferential Collection of Claims Against Company	67
Section 8.14.	Reports By Trustee	67
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01.	Satisfaction and Discharge of the Indenture	67
Section 9.02.	Deposited Monies to Be Held in Trust by Trustee	68
Section 9.03.	Paying Agent to Repay Monies Held	68
Section 9.04.	Return of Unclaimed Monies	68
Section 9.05.	Reinstatement	69
ARTICLE 10
AMENDMENTS; SUPPLEMENTS AND WAIVERS
Section 10.01.	Without Consent of Holders	69
Section 10.02.	With Consent of Holders	70
Section 10.03.	Execution of Supplemental Indentures and Agreements	71
Section 10.04.	Effect of Supplemental Indentures	71
Section 10.05.	Conformity with Trust Indenture Act	71
Section 10.06.	Reference in Securities to Supplemental Indentures	71
Section 10.07.	Notice of Supplemental Indentures	72
ARTICLE 11
MISCELLANEOUS
Section 11.01.	Conflict with Trust Indenture Act	72
Section 11.02.	Notices	72
Section 11.03.	Disclosure of Names and Addresses of Holders	73
Section 11.04.	Compliance Certificates and Opinions	74
Section 11.05.	Acts of Holders	74

 

iii

 

Section 11.06.	Benefits of Indenture	75
Section 11.07.	Legal Holidays	75
Section 11.08.	Governing Law	76
Section 11.09.	No Adverse Interpretation of Other Agreements	76
Section 11.10.	No Personal Liability of Directors, Officers, Employees and Stockholders	76
Section 11.11.	Successors and Assigns	76
Section 11.12.	Multiple Counterparts	76
Section 11.13.	Separability Clause	76
Section 11.14.	Schedules and Exhibits	76
Section 11.15.	Effect of Headings and Table of Contents	77
EXHIBITS
Exhibit A	Form of Security	A-1
Exhibit B	Form of Notice of Conversion	B-1
Exhibit C	Form of Fundamental Change Repurchase Notice	C-1
Exhibit D	Form of Assignment and Transfer	D-1

 

iv

 

CROSS-REFERENCE TABLE

 

TIA Section			Indenture Section(s)
Section		310(a)(1)	8.09
		(a)(2)	8.09
		(a)(3)	N.A. **
		(a)(4)	N.A.
		(a)(5)	8.09
		(b)	8.08
		(c)	N.A.
Section		311(a)	8.13
		(b)	8.05
		(c)	N.A.
Section		312(a)	2.06
		(b)	11.03
		(c)	11.03
Section		313(a)	8.14 (a)
		(b)(1)	N.A.
		(b)(2)	8.14 (a)
		(c)	8.14 (a)
		(d)	8.14 (b)
Section		314(a)	5.02
		(b)	N.A.
		(c)(1)	11.04
		(c)(2)	11.04
		(c)(3)	N.A.
		(d)	N.A.
		(e)	11.04
		(f)	N.A.
Section		315(a)	8.01 (b)
		315(b)	8.02
		315(c)	8.01 (a)
		315(d)	8.01 (c)
		315(d)(2)	8.01 (c)
		315(d)(3)	8.01 (c)
		315(e)	7.14
Section		316(a) (last sentence)	2.10
		316(a)(1)	7.12, 7.13
		316(a)(2)	N.A.
		316(b)	7.08
		316(c)	11.05(e)
Section		317(a)	7.03, 7.04(a)
		317(b)	2.04
Section		318(a)	11.01
		318(c)	11.01

 

v

 

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

 

vi

 

THIS INDENTURE, dated as of July 14, 2009, is between Regis Corporation, a corporation incorporated under the laws of the State of Minnesota (the “Company”), and Wells Fargo Bank, N.A., as trustee (the “Trustee”).

 

In consideration of the purchase of the Securities (as defined herein) by the Holders thereof, the parties hereto agree as follows for the benefit of one another and for the equal and ratable benefit of the Holders of the Company’s 5% Convertible Senior Notes due 2014.

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01.          Definitions .

 

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

 

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

 

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

 

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

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

 

“Bid Solicitation Agent” means initially the Company.  The Company may, however, appoint another Person (including the Trustee) as the Bid Solicitation Agent without prior notice to the Holders of the Securities.

 

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

 

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

 

“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which the banking institutions in New York City are authorized or obligated by law or executive order to close or be closed.

 

1

 

“Capital Stock” means, for any entity, any and all shares, equity interests, equity participations or other equity equivalents of or equity interests in (however designated) the equity of that entity, but excluding debt securities convertible into such equity.

 

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

 

“Cash Settlement Averaging Period” means, with respect to any Security surrendered for conversion, the 20 consecutive Trading Day period beginning on, and including, the third Trading Day immediately following the Conversion Date for such Security; provided that, with respect to any Conversion Date occurring during the period beginning on, and including, April 15, 2014 and ending at the close of business on the second Scheduled Trading Day immediately prior to the Maturity Date, “Cash Settlement Averaging Period” means the 20 consecutive Trading Day period beginning on, and including, the 22nd Scheduled Trading Day prior to the Maturity Date.

 

“Certificated Security” means a Security that is in substantially the form attached as Exhibit A but that is not registered in the name of a Depositary or a nominee thereof and does not include the information or the schedule called for by footnote 1 thereof.

 

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

 

“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 the shares of common stock, par value $0.05 per share, of the Company as they exist on the date of this Indenture, subject to Section 4.06.

 

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

 

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

 

“Conversion Obligation” means the obligation of the Company to deliver amounts owing upon conversion in accordance with the provisions of Article 4 hereof.

 

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

 

2

 

“Conversion Rate” means, initially, 64.6726 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment as set forth herein.

 

“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at MAC N9311-110 625 Marquette Ave., 11th Floor Minneapolis, MN 55479, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Company).

 

“Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period, one-twentieth (1/20th) of the product of (a) the then-applicable Conversion Rate on such Trading Day and (b) the Daily VWAP of the Common Stock on such Trading Day.

 

“Daily Measurement Value” is equal to the Specified Dollar Amount, divided by 20.

 

“Daily Settlement Amount,” for each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period, shall consist of:

 

(a)           cash equal to the lesser of the Daily Measurement Value and the Daily Conversion Value for such Trading Day; and

 

(b)           to the extent the Daily Conversion Value for such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to the Daily Share Amount.

 

“Daily Share Amount,” with respect to each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period, means, to the extent the Daily Conversion Value exceeds the Daily Measurement Value, (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP of the Common Stock for such Trading Day.

 

“Daily VWAP” for the Common Stock, in respect of any Trading Day, means the per share volume-weighted average price on the New York Stock Exchange as displayed under the heading “Bloomberg VWAP” on Bloomberg page “RGS.N <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening 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) and will be determined without regard to after hours trading or any other trading outside of the regular trading session.

 

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

 

3

 

“Ex-Dividend Date” means, with respect to any issuance, dividend or distribution in which the holders of Common Stock (or other security) have the right to receive any cash, securities or other property, the first date upon which the shares of Common Stock (or other security) trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question.

 

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

 

“Fundamental Change” means the occurrence after the original issuance of the Securities of any of the following events:

 

(a)           any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act) other than the Company or its Subsidiaries or any of their respective employee benefit plans files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ultimate “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;

 

(b)           consummation of any binding share exchange, exchange offer, tender offer, 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 substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s Subsidiaries; (any such exchange, offer, consolidation, merger, sale, lease or other transfer transaction or series of transactions being referred to herein as an “event”); provided , however , that any such event where the holders of more than 50% of our shares of Common Stock immediately prior to such event, own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving person or transferee or the parent thereof immediately after such event shall not be a Fundamental Change;

 

(c)           the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or

 

(d)           the Common Stock (or other common stock into which the Securities are then convertible) ceases to be listed on at least one U. S. national securities exchange,

 

provided, however , no transaction or event described in clause (b) above shall constitute a Fundamental Change if at least 90% of the consideration, excluding cash payments for fractional shares, in the transaction or event that would otherwise have constituted a Fundamental Change consists of shares of Publicly Traded Securities, and as a result of the transaction or event, the Securities become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares (subject to the provisions of Section 4.03).

 

“Global Security” means a Security in global form that is in substantially the form attached as Exhibit A and that includes the legend called for in footnote 1 thereof and the related

 

4

 

schedule and which is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee.

 

“Holder” or “Holder of a Security” means the person in whose name a Security is registered on the register maintained by the Primary Registrar.

 

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

 

“Interest Payment Date” means January 15 and July 15 of each year, commencing January 15, 2010.

 

“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock is traded.  If the Common Stock is not listed for trading on a U.S. national securities exchange on the relevant date, then the “Last Reported Sale Price” of the Common Stock will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by Pink OTC Markets Inc. or similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” of the Common Stock will be determined by a U.S. nationally recognized independent investment banking firm selected by the Company for this purpose.  The Last Reported Sale Price will be determined without reference to after-hours or extended market trading.

 

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

 

“Market Disruption Event” means (a) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Trading Day for the Common Stock of 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 Date” means July 15, 2014.

 

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

 

5

 

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

 

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

 

“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company or the Trustee and who shall be reasonably acceptable to the Trustee, and which opinion shall contain the statements required by Section 11.04.

 

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

 

“Prospectus” means the prospectus dated July 8, 2009 relating to the offering and sale of the Securities.

 

“Publicly Traded Securities” means shares of common stock that are traded on a U.S. national securities exchange or that will be so traded when issued or exchanged in connection with a transaction described in clause (b) of the definition of Fundamental Change.

 

“Regular Record Date” means, with respect to each Interest Payment Date, the January 1 or July 1, as the case may be, immediately preceding such Interest Payment Date.

 

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

 

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

 

“Securities” means the up to $150,000,000 aggregate principal amount ($172,500,000 aggregate principal amount if the Underwriters exercise their over-allotment option to purchase up to an additional $22,500,000 aggregate principal amount in full) of 5% Convertible Senior Notes due 2014, or any $1,000 principal amount thereof (each a “Security”), that are initially issued under this Indenture.

 

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

 

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

 

“Settlement Notice” means the notice specifying the Settlement Method that the Company has elected in accordance with the provisions of Section 4.03(b) and which contains the information required by Section 4.03(c).

 

“Significant Subsidiary” means, at any date of determination, any Subsidiary that would constitute a “significant subsidiary” within the meaning of Article 1 of Regulation S-X promulgated under the Securities Act as in effect on the date of this Indenture.

 

6

 

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

 

“Specified Dollar Amount” means an amount of cash per $1,000 principal amount of a converted Security specified by the Company in the Settlement Notice related to such converted Security.

 

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

 

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

 

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

 

“Trading Day” means a day during which (i) trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, 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 Last Reported 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 obtained by the Bid Solicitation Agent for $5 million principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three 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 $5 million 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 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate.

 

7

 

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

 

“Trust Officer” means, with respect to the Trustee, any officer of the Trustee who shall have direct responsibility for the administration of this Indenture and, for the purposes of Section 8.01(c)(2) and the proviso in Section 8.02, shall also include any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

“Underwriters” means the underwriters named in the Purchase Agreement, dated July 8, 2009, among the Company and the underwriters named therein.

 

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

 

Section 1.02.          Other Definitions .

 

Term		Defined in Section
“Act”		11.05
“Additional Securities”		2.02
“Additional Shares”		4.04
“Agent Members”		2.01
“Conversion Agent”		2.03
“Conversion Date”		4.02
“Conversion Notice”		4.02
“DTC”		2.01
“Defaulted Interest”		2.16
“Depositary”		2.01
“Dividend Threshold Amount”		4.05
“Effective Date”		4.04
“Event of Default”		7.01
“Expiration Date”		4.05
“Expiration Time”		4.05
“Fundamental Change Company Notice”		3.01
“Fundamental Change Expiration Time”		3.01
“Fundamental Change Repurchase Date”		3.01
“Fundamental Change Repurchase Notice”		3.01
“Fundamental Change Repurchase Price”		3.01
“Initial Securities”		2.02
“Make-Whole Fundamental Change Period”		4.04
“Measurement Period”		4.01
“Merger Event”		4.06
“Outstanding”		2.09
“Paying Agent”		2.03
“Primary Registrar”		2.03

 

8

 

Term		Defined in Section
“Reference Property”		4.06
“Registrar”		2.03
“Settlement Amount”		4.03
“Settlement Method”		4.03
“Special Payment Date”		2.16
“Spin-Off”		4.05
“Stock Price”		4.04
“Trading Price Condition		4.01
“Trigger Event”		4.05
“Valuation Period”		4.05
“Weighted Average Consideration”		4.06

 

Section 1.03.          Trust Indenture Act Provisions .

 

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

 

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

 

Section 1.04.          Rules of Construction .

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(8)  all “Article”, “Exhibit” and “Section” references are to Articles, Exhibits and Sections, respectively, of or to this Indenture unless otherwise specified herein, and the

 

9

 

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

 

ARTICLE 2

 

THE SECURITIES

 

Section 2.01.          Form and Dating .

 

The Securities and the Trustee’s certificate of authentication shall be substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this Indenture. The Securities may include such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the Trustee, the Depositary, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any national securities exchange or automated quotation system on which the Securities may be listed or quoted, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject. Each Security shall be dated the date of its authentication.

 

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

 

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

 

Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or under the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever.  None of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility or obligation to any beneficial owner in a Global Security, an Agent Member or other Person with respect to the

 

10

 

accuracy of the records of the Depositary or its nominee or of any Agent Member, with respect to any ownership interest in the Securities or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities.  All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities and this Indenture shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of the Global Security).  The rights of beneficial owners in the Global Security shall be exercised only through the Depositary subject to the Applicable Procedures.  The Trustee, the Paying Agent and the Security Registrar shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.  The Trustee, the Paying Agent and the Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered Holder of any Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal and interest and the giving of instructions or directions by or to the owner or Holder of a beneficial ownership interest in such Global Security) as the sole Holder of such Global Security and shall have no obligations to the beneficial owners thereof.  None of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Security, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between the Depositary and any Agent Member or between or among the Depositary, any such Agent Member and/or any Holder or owner of a beneficial interest in such Global Security, or for any transfers of beneficial interests in any such Global Security.

 

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

 

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

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.

 

11

 

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

Section 2.02.          Execution and Authentication .

 

(a)           The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is initially limited to $150,000,000 aggregate principal amount ($172,500,000 aggregate principal amount if the Underwriters exercise their over-allotment option to purchase up to an additional $22,500,000 aggregate principal amount in full), except as provided in Sections 2.07 and 2.08.

 

The Company may, without the consent of the Holders of the Securities, hereafter issue additional Securities (“Additional Securities”) under the Indenture with the same terms and with the same CUSIP number as the Securities issued on the date of this Indenture (the “Initial Securities”) in an unlimited aggregate principal amount; provided that such Additional Securities must be part of the same issue as the Initial Securities for federal income tax purposes. Any such Additional Securities shall constitute a single series together with the Initial Securities for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Securities and any offers to purchase the Securities.

 

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

 

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

 

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

 

(e)           The Trustee shall authenticate and make available for delivery Securities for original issue in the aggregate principal amount of $150,000,000 (or up to $172,500,000 if the Underwriters exercise their over-allotment option in full) upon receipt of a Company Order. The

 

12

 

Company Order shall specify the amount of Securities to be authenticated, shall provide that all such Securities will be represented by a Global Security and the date on which each original issue of Securities is to be authenticated.

 

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

 

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

 

Section 2.03.          Registrar, Paying Agent and Conversion Agent .

 

(a)           The Company shall maintain one or more offices or agencies where Securities may be presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices or agencies where Securities may be presented or surrendered for payment (each, a “Paying Agent”), one or more offices or agencies where Securities may be presented for conversion (each, a “Conversion Agent”) and one or more offices or agencies where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served in the Borough of Manhattan, The City of New York. One of the Registrars (the “Primary Registrar”) shall keep a register of the Securities and of their transfer and exchange.

 

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

 

(c)           The Company hereby initially designates Wells Fargo Bank, N.A. as Paying Agent, Primary Registrar, Securities Custodian and Conversion Agent, and designates the Trustee’s agency in New York, New York as the office or agency of the Company for each of the aforesaid purposes and as the office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.

 

Section 2.04.          Paying Agent To Hold Money In Trust .

 

Unless otherwise specified herein, prior to 10:00 a.m., New York City time, on each due date of the payment of principal of, or interest on, any Securities, the Company shall deposit a sum sufficient to pay such principal or interest so becoming due. A Paying Agent shall hold in

 

13

 

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

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest on any Security and remaining unclaimed for two years after such principal or interest has become due and payable shall promptly be paid to the Company or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will promptly be repaid to the Company.

 

Section 2.05.          Conversion Agent To Hold Amounts In Trust .

 

The Company shall require each Conversion Agent (that is not the Trustee) to agree in writing that the Conversion Agent will hold in trust for the benefit of Holders or the Trustee all cash and shares of Common Stock delivered by the Company to the Conversion Agent for the delivery of amounts due upon conversion, and will notify the Trustee of any default by the Company in making any such delivery.

 

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

 

Section 2.06.          Lists of Holders of Securities .

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Securities. The Company shall

 

14

 

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

 

Section 2.07.          Transfer and Exchange .

 

(a)           Subject to compliance with any applicable additional requirements contained in Section 2.13, when a Security is presented to a Registrar with a request to register a transfer thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided , however , that every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, a transfer certificate each substantially in the form included in Exhibit D hereto, and completed in a manner satisfactory to the Registrar and duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.03, the Company shall execute and the Trustee shall authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in relation thereto; provided that this sentence shall not apply to any exchange pursuant to Section 2.11, 2.13(b), 3.03(c), 4.02(c) or 10.06 unless, and to the extent, specified otherwise therein.

 

(b)           Neither the Company, any Registrar nor the Trustee shall be required to register the transfer of or exchange any Securities or portions thereof in respect of which a Fundamental Change Repurchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case of the purchase of a Security in part, the portion thereof not to be purchased).

 

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

 

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

 

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

 

15

 

(f)            The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

Section 2.08.          Replacement Securities .

 

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

 

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

 

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

 

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

 

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

 

Section 2.09.          Outstanding Securities .

 

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

 

16

 

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

 

(c)           If a Paying Agent holds in respect of the Outstanding Securities on a Fundamental Change Repurchase Date or the Maturity Date money sufficient to pay the principal of and accrued interest on Securities (or portions thereof) payable on that date, then on and after such Fundamental Change Repurchase Date or Maturity Date, as the case may be, such Securities (or portions thereof, as the case may be) shall cease to be Outstanding and interest on them shall cease to accrue.

 

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

 

Section 2.10.          Treasury Securities .

 

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

 

Section 2.11.          Temporary Securities .

 

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

 

Section 2.12.          Cancellation .

 

The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange, purchase, payment or conversion. The Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, purchase, payment, conversion or cancellation and shall dispose of the cancelled Securities in accordance with its customary procedures or deliver the canceled Securities to the Company upon request. All Securities which are purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the Maturity Date pursuant to Article 3 shall be delivered to the Trustee for cancellation, and the Company may not hold or resell such Securities or issue any new Securities to replace any such Securities or any Securities

 

17

 

that any Holder has converted pursuant to Article 4. The Trustee shall maintain a record of all canceled Securities. The Trustee shall provide the Company a list of all Securities that have been canceled from time to time as requested by the Company in writing.

 

Section 2.13.           Legend; Additional Transfer and Exchange Requirements .

 

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

 

(b)            The provisions below shall apply only to Global Securities:

 

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

 

(2)           Notwithstanding any other provisions of this Indenture or the Securities, a Global Security shall not be exchanged in whole or in part for a Security registered, and no transfer of a Global Security in whole or in part shall be registered in the name of any Person other than the Depositary or one or more nominees thereof; provided that a Global Security may be exchanged for Securities registered in the names of any person designated by the Depositary in the event that the Depositary (A) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or such Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and in either case, a successor Depositary is not appointed by the Company within 90 days after receiving such notice or becoming aware that the Depositary has ceased to be a “clearing agency” or (B) an Event of Default has occurred and is continuing with respect to the Securities.  Any Global Security exchanged pursuant to the preceding sentence shall be so exchanged as directed by the Depositary. Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided , however , that any such Security so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.

 

(3)           Securities issued in exchange for a Global Security or any portion thereof that are not issued as a Global Security shall be issued in definitive, fully registered form, without interest coupons, shall have a principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Trustee or the Registrar. With regard to any Global Security to be exchanged in part, either such Global Security shall be so

 

18

 

surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.

 

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

 

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

 

(6)           Neither Agent Members nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall 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 Security.

 

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

 

Section 2.14.           CUSIP Numbers .

 

The Company in issuing the Securities may use one or more “CUSIP,” “ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP,” “ISIN” or

 

19

 

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

 

Section 2.15.          Calculations .

 

Except as otherwise specifically stated herein or in the Securities, the Company shall be responsible for making all calculations called for under the Indenture and the Securities.  Such calculations include, but are not limited to, determinations of the Last Reported Sale Price of the Common Stock, the Settlement Amount and related calculations, accrued interest payable on the Securities and the applicable Conversion Rate. The Company shall make all these calculations in good faith and, absent manifest error, such calculations shall be final and binding on Holders of Securities.  The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee shall forward calculations of the Company to any Holder upon the request of such Holder.

 

Section 2.16.          Payment of Interest; Interest Rights Preserved .

 

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

 

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

 

(a)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date (not less than 20 days after such notice) of the proposed payment (the “Special Payment Date”), and on the date of payment the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the Special Payment Date, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this subsection provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the Special

 

20

 

Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company in writing of such Special Record Date. Unless the Company issues a press release to the same effect, in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at its address as it appears in the Security Register, not less than 10 days prior to such Special Record Date or notify in such other manner as the Trustee determines, including in accordance with any Applicable Procedures.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Payment Date therefor having been so mailed or otherwise conveyed, such Defaulted Interest shall be paid to the Persons in whose names the Securities are registered on such Special Record Date and shall no longer be payable pursuant to the following paragraph (b).

 

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

 

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

 

Section 2.17.          Computation of Interest .

 

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

 

Section 2.18.          Purchase of Securities In Open Market.

 

The Company may from time to time repurchase Securities pursuant to a tender offer or in open market purchases or negotiated transactions at any price without prior notice to Holders.  Any Securities so repurchased may be reissued in accordance with applicable law or surrendered to the Trustee for cancellation.  Any Securities surrendered to the Trustee for cancellation pursuant to Section 2.12 may not be reissued or resold by the Company and will be canceled promptly in accordance therewith.

 

ARTICLE 3

 

PURCHASE

 

Section 3.01.          Repurchase at Option of Holders upon a Fundamental Change .

 

(a)           If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Securities, or any portion thereof that is an integral

 

21

 

multiple of $1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Securities as of the preceding Regular Record Date and the Fundamental Change Repurchase Price payable to the Holder surrendering the Security for repurchase pursuant to this Article 3 shall be equal to the principal amount of Securities subject to repurchase and will not include any accrued and unpaid interest. Repurchases of Securities 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 Repurchase Notice”) in the form set forth on the reverse of the Security and attached as Exhibit C hereto on or prior to the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and

 

(ii)           delivery or book-entry transfer of the Securities to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice.

 

The Fundamental Change Repurchase Notice shall state:

 

(A)          if certificated, the certificate numbers of Securities to be delivered for repurchase;

 

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

 

(C)            that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture;

 

provided, however, that if the Securities are not Certificated Securities, the Fundamental Change Repurchase Notice must comply with Applicable Procedures of the Depositary.

 

Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 3.03(a).

 

Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any

 

22

 

time prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 3.02.

 

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

 

(b)            On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide notice (the “Fundamental Change Company Notice”) to all Holders of record of the Securities and the Trustee of, and issue a press release in respect of (and make such press release available on the Company’s website), the occurrence of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof.  Such notice shall be effected by first class mail or, in the case of any Global Securities, in accordance with the Applicable Procedures of the Depositary for providing notices. Each Fundamental Change Company Notice shall specify:

 

(i)             the events causing the Fundamental Change;

 

(ii)            the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change;

 

(iii)           the last date on which a holder may exercise the repurchase right pursuant to this Article 3;

 

(iv)           the Fundamental Change Repurchase Price;

 

(v)            the Fundamental Change Repurchase Date;

 

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

 

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

 

(viii)         that the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;

 

(ix)           that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);

 

(x)            that the holder shall have the right to withdraw any Securities surrendered prior to the Fundamental Change Expiration Time; and

 

(xi)           the procedures that holders must follow to require the Company to repurchase their Securities.

 

23

 

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

 

(c)            Notwithstanding the foregoing, no Securities may be repurchased by the Company at the option of the Holders upon a Fundamental Change if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Securities).

 

(d)            In connection with any purchase offer, the Company will:

 

(i)             comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,

 

(ii)            file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and

 

(iii)           otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Securities.

 

Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules.

 

Notwithstanding the foregoing the Company shall not be required to repurchase the Securities in accordance with this Section 3.01 if a third party or any Subsidiary of the Company makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 3.01 and purchases all Securities validly tendered and not withdrawn under such purchase offer.

 

Section 3.02.           Withdrawal of Fundamental Change Repurchase Notice .

 

(a)            A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with this Section 3.02 at any time prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, specifying:

 

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

 

(ii)            if Certificated Securities have been issued, the certificate numbers of the withdrawn Securities, and

 

24

 

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

 

provided, however, that if the Securities are not Certificated Securities, the notice of withdrawal of the Fundamental Change Repurchase Notice must comply with Applicable Procedures of the Depositary.

 

Section 3.03.           Deposit of Fundamental Change Repurchase Price .

 

(a)            The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) on or prior to 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date an amount of cash sufficient to repurchase all of the Securities to be repurchased at the appropriate Fundamental Change Repurchase Price.  Subject to receipt of funds from the Company and Securities from Holders by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn prior to the Fundamental Change Expiration Time) will be made on the later of (i) the Fundamental Change Repurchase Date with respect to such Security ( provided the holder has satisfied the conditions in Section 3.01) and (ii) the time of book-entry transfer or the delivery of such Security to the Trustee (or other Paying Agent appointed by the Company) by the holder or beneficial owner thereof in the manner required by Section 3.01 by mailing checks for the amount payable to the holders of such Securities entitled thereto as they shall appear in the register for the Securities maintained by the Primary Registrar, provided , however , that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.

 

(b)            If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Securities or portions thereof that are to be repurchased as a result of the corresponding Fundamental Change, then (i) such Securities will cease to be outstanding, (ii) interest will cease to accrue on such Securities, and (iii) all other rights of the holders of such Securities will terminate (other than the right to receive the Fundamental Change Repurchase Price, and previously accrued but unpaid interest, upon delivery of the Securities), whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Trustee or Paying Agent.

 

(c)            Upon surrender of a Security that is to be repurchased in part pursuant to Section 3.01, the Company shall execute and the Trustee shall authenticate and deliver to the holder a new Security in an authorized denomination equal in principal amount to the unrepurchased portion of the Security surrendered.

 

25

 

ARTICLE 4

 

CONVERSION

 

Section 4.01.           Right to Convert .

 

(a)            Upon compliance with the provisions of this Indenture, a Holder of Securities shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Securities, at the applicable Conversion Rate then in effect, (x) prior to the close of business on the Business Day immediately preceding April 15, 2014, only upon satisfaction of one or more of the conditions described in clauses (i) through (iv) below and (y) on or after April 15, 2014, at any time prior to the close of business on the second Scheduled Trading Day immediately preceding July 15, 2014 irrespective of the conditions described in clauses (i) through (iv) below.

 

(i)             Prior to the close of business on the Business Day immediately preceding April 15, 2014, a Holder of Securities may surrender all or a portion of its Securities for conversion during any fiscal quarter (and only during such fiscal quarter) commencing after September 30, 2009 if the Last Reported 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 is greater than or equal to 130% of the applicable Conversion Price in effect on each applicable Trading Day.

 

(ii)            Prior to the close of business on the Business Day immediately preceding April 15, 2014, a Holder of Securities may surrender its Securities 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 Securities, as determined following a request by a Holder of Securities in accordance with the procedures set forth in this Section 4.01(a)(ii), for each Trading Day of such period was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate (the “Trading Price Condition”).  The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Securities in accordance with this Section 4.01(a)(ii) unless requested by the Company, and the Company shall have no obligation to make such request unless a Holder of Securities provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Securities would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable 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 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate.  If the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 principal amount of the Securities will be deemed to be less than 98% of the product of the Last Reported 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

 

26

 

has been met, the Company shall so notify Holders, 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 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the holders of the Securities, the Trustee and the Conversion Agent.

 

(iii)           If 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 45 days after the announcement date of such issuance, 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 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 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 11.02 hereof, at least 25 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance. Once the Company has given such notice, Holders may surrender Securities for conversion at any time until the earlier of the close of business on the Business Day immediately prior to such Ex-Dividend Date or the Company’s announcement that such issuance or distribution will not take place, even if the Securities are not otherwise convertible at such time.  Notwithstanding the foregoing, a Holder of Securities may not convert its Securities under the provisions of this Section 4.01(a)(iii) if such Holder will participate in such issuance or distribution, at the same time and upon the same terms as a holder of Common Stock, as if such Holder held, for each $1,000 principal amount of Securities, a number of shares of Common Stock equal to the Conversion Rate in effect immediately prior to the Ex-Dividend Date.

 

(iv)           If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs, regardless of whether a Holder has the right to require the Company to purchase the Securities pursuant to Article 3 hereof, or if the Company is a party to a consolidation, merger, binding share exchange, or sale, transfer or lease of all or substantially all of the Company’s assets, in each case, 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 or after the date which is 25 Scheduled Trading Days prior to the anticipated effective date of such transaction until 35 Trading Days after the actual effective date of such transaction (or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date).  The Company shall notify Holders and the Trustee as promptly as practicable following the date the Company publicly announces such transaction, but in

 

27

 

no event less than 25 Scheduled Trading Days prior to the anticipated effective date of such transaction (it being understood and agreed that the public announcement by the Company of any such transaction or event within the required time period shall satisfy in full the Company’s obligation to so notify Holders of the Securities).

 

(b)            Securities may not be converted after the close of business on the second Scheduled Trading Day immediately preceding July 15, 2014.

 

Section 4.02.           Conversion Procedures .

 

(a)            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 Applicable Procedures of the Depositary, 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 4.03(e) and any taxes or duties if required pursuant to Section 4.07 and the Trustee or Conversion Agent must be informed of the conversion in accordance with the Applicable Procedures of the Depositary.  In order to exercise the conversion privilege with respect to any Certificated Securities, the Holder of any such Securities to be converted, in whole or in part, shall:

 

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

 

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

 

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

 

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

 

(v)    if required, pay all transfer or similar taxes as set forth in Section 4.07.

 

The date on which the Holder satisfies all of the applicable requirements set forth above is the “Conversion Date.”  A Security shall be deemed to have been converted immediately prior to the close of business on the Conversion Date.  The Conversion Agent will, as promptly as possible, and in any event within one Business Day, provide the Company with notice of any conversion by Holders of the Securities.

 

(b)         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.

 

(c)         In case any Securities of a denomination greater than $1,000 shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of the Securities so surrendered, without charge, new Securities in authorized

 

28

 

denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities.

 

Each conversion shall be deemed to have been effected as to any such Securities (or portion thereof) surrendered for conversion on the relevant Conversion Date.  The Person in whose name the certificate 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 relevant Conversion Date (if the Company elects in accordance with the provisions of Section 4.03(c) to satisfy the related Conversion Obligation solely in shares of Common Stock) or the last Trading Day of the related Cash Settlement Averaging Period (in the case of any other Settlement Method elected (or deemed elected) by the Company in accordance with the provisions of Section 4.03(c)); provided , however , if such Conversion Date or such last Trading Day of the Cash Settlement Averaging Period occurs on any date when the stock transfer books of the Company shall be closed, such occurrence shall not be effective to constitute the Person or Persons entitled to receive any such shares of Common Stock due upon conversion as the record holder or holders of such shares of Common Stock on such date, but such occurrence shall be effective to constitute the Person or Persons entitled to receive such shares of Common Stock as the record holder or holders thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open. Upon conversion of Securities, such Person shall no longer be a Holder of Securities.

 

(d)         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.

 

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

 

Section 4.03.           Settlement Upon Conversion .

 

(a)            Upon any conversion of any Security, the Company shall pay and/or deliver to converting Holders, in respect of each $1,000 principal amount of Securities being converted, the Settlement Amount specified in Section 4.03(b) on the applicable day specified in Section 4.03(d).

 

(b)            The “Settlement Amount” in respect of any conversion of Securities shall be the amount of shares of Common Stock or cash or combination thereof determined as follows:

 

(i)             if the Company elects as its Settlement Method in accordance with the provisions of Section 4.03(c) to settle its Conversion Obligation in respect of such conversion solely by delivering shares of Common Stock, the Company will deliver to the converting Holder a number of shares of Common Stock equal to (1)(i) the aggregate

 

29

 

principal amount of Securities to be converted, divided by (ii) $1,000, multiplied by (2) the then-applicable Conversion Rate;

 

(ii)            if the Company elects as its Settlement Method in accordance with the provisions of Section 4.03(c) to satisfy its Conversion Obligation in respect of such conversion by paying solely cash, the Company shall pay to the converting Holder, cash in an amount per $1,000 principal amount of Securities being converted equal to the sum of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Cash Settlement Averaging Period; and

 

(iii)           if the Company elects as its Settlement Method in accordance with the provisions of Section 4.03(c) to satisfy its Conversion Obligation in respect of such conversion by paying and delivering, as the case may be, a combination of cash and shares of Common Stock, if any, the Company shall pay and deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, cash and shares of Common Stock, if any, in an amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the related Cash Settlement Averaging Period.

 

For purposes of determining the Settlement Amount only, “Trading Day” means a day during which trading in the Common Stock generally occurs on the primary exchange or quotation system on which the Common Stock then trades or is quoted and there is no Market Disruption Event.

 

(c)            With respect to each conversion of Securities, the Company shall elect whether it will satisfy the related Conversion Obligation (x) by delivering solely shares of Common Stock, (y) by paying solely cash or (z) by paying or delivering, as the case may be, cash and shares of Common Stock (each, a “Settlement Method”).

 

(i)             With respect to any Conversion Date occurring prior to April 15, 2014, the Company shall elect a Settlement Method and deliver to converting Holders a related Settlement Notice no later than the second Business Day immediately following the relevant Conversion Date (it being understood that, prior to April 15, 2014, the Company may elect only a single Settlement Method for a given Conversion Date but may elect different Settlement Methods for Conversion Dates occurring on different dates).

 

(ii)            With respect to each Conversion Date occurring during the period commencing on and including April 15, 2014 and ending on and including the second Scheduled Trading Day preceding the Maturity Date, the Company shall elect a single Settlement Method applicable to all conversions during such period and deliver to all Holders the related Settlement Notice prior to April 15, 2014.

 

(iii)           Each Settlement Notice shall specify the Settlement Method that the Company has elected and the manner in which the Settlement Amount shall be calculated in accordance with the provisions of Section 4.03(b).  If in connection with any conversion of Securities the Company elects as its Settlement Method to pay and deliver,

 

30

 

as the case may be, a combination of cash and shares of Common Stock, such Settlement Notice shall also designate the Specified Dollar Amount.

 

(iv)           If in connection with any conversion of Securities:

 

(x)             the Company does not deliver a Settlement Notice within the time period required by Section 4.03(c)(i) or 4.03(c)(ii), as the case may be; or

 

(y)            the Company delivers a Settlement Notice within the time period required by Section 4.03(c)(i) or 4.03(c)(ii), as the case may be, but such Settlement Notice does not include the Specified Dollar Amount in the event that the Company shall have elected to satisfy its Conversion Obligation through the payment and delivery of a combination of cash and shares of Common Stock,

 

then, in either case, the Company will be deemed to have elected to deliver a combination of cash and shares of Common Stock in respect of its Conversion Obligation and the Specified Dollar Amount shall be deemed to be equal to $1,000.

 

(d)            The Company shall pay or deliver, as the case may be, the cash, shares of Common Stock or combination thereof in respect of any relevant Conversion Obligation on the third Trading Day immediately following the last Trading Day of the applicable Cash Settlement Averaging Period; provided that

 

(i)             if the Company elects to fulfill its Conversion Obligation solely in shares of Common Stock, or

 

(ii)            if prior to the relevant Conversion Date, the Common Stock has been replaced by Reference Property consisting solely of cash, pursuant to Section 4.06,

 

then, in either case, the Company shall pay the cash amounts owing on the third Trading Day immediately following the relevant Conversion Date.  Notwithstanding the foregoing, if any information required to calculate the Conversion Obligation is not available as of the applicable date on which the consideration in respect of the Conversion Obligation shall be payable and/or deliverable, the Company will deliver the additional consideration resulting from such adjustment on the third Trading Day after the earliest Trading Day on which such calculation can be made.

 

If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the number of full shares of Common Stock to which such Holder shall be entitled in satisfaction of such Conversion Obligation.

 

(e)            Upon conversion, a Holder shall not receive any additional cash payment for accrued and unpaid interest except as set forth below. The Company’s settlement of the Conversion Obligations pursuant to Section 4.02 shall be deemed to satisfy its obligation to pay the principal amount of the Security and accrued and unpaid interest to, but not including, the Conversion Date. As a result, accrued and unpaid interest to, but not including, the Conversion

 

31

 

Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if Securities are converted after the close of business on a Regular Record Date, Holders of such Securities as of the close of business on the Regular Record Date will receive the interest payable on such Securities on the corresponding Interest Payment Date notwithstanding the conversion. Securities surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest payable on the Securities so converted; provided , however , that no such payment shall be required (1) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date but on or prior to the corresponding Interest Payment Date, (2) to the extent of any Defaulted Interest, if any, existing at the time of conversion with respect to such Securities or (3) if the Securities are surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date. Except as set forth in this Section 4.03(e), no payment or adjustment will be made for accrued and unpaid interest on converted Securities.

 

(f)             The Company shall not issue fractional shares of Common Stock upon conversion of Securities. Instead, the Company shall pay cash in lieu of fractional shares based on the Daily VWAP on the relevant Conversion Date (if the Company elects to satisfy its Conversion Obligation solely in shares of Common Stock in accordance with the provisions of clause (i) of Section 4.03(b)) or based on the Daily VWAP on the last Trading Day of the relevant Cash Settlement Averaging Period (in the case of any other Sett