Exhibit 4.1
UNITED STATES STEEL CORPORATION,
Issuer
and
THE BANK OF NEW YORK MELLON,
Trustee
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MAY 4, 2009
TO INDENTURE
DATED AS OF MAY 21, 2007
Relating To
$862,500,000 Principal Amount
4.00% Senior Convertible Notes due May 15, 2014
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of May 4, 2009 (this "Supplemental
Indenture"), to the Indenture (defined below) among United States Steel
Corporation (the "Company"), a Delaware corporation, and The Bank of New York
Mellon, a New York banking corporation, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of May 21, 2007 (the "Base Indenture"), providing for the
issuance from time to time of its notes and other evidences of senior debt
securities, to be issued in one or more series as therein provided
("Securities");
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its 4.00% Senior Convertible Notes due 2014 (the "Notes"), the form and
substance of such Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Base Indenture and this Supplemental Indenture
(together, the "Indenture"); and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture, and all requirements necessary to make this
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Notes, when executed by the Company and authenticated and delivered by
the Trustee, the valid and legally binding obligations of the Company, and all
acts and things necessary, have been done and performed to make this
Supplemental Indenture enforceable in accordance with its terms, and the
execution and delivery of this Supplemental Indenture has been duly authorized
in all respects.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the premises contained herein,
each party agrees for the benefit of each other party and for the equal and
ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Capitalized terms used but not defined in this
Supplemental Indenture shall have the meanings ascribed to them in the Base
Indenture.
Section 1.02. References in this Supplemental Indenture to article
and section numbers shall be deemed to be references to article and section
numbers of this Supplemental Indenture unless otherwise specified.
Section 1.03. For purposes of this Supplemental Indenture, the following
terms have the meanings ascribed to them as follows:
"Additional Interest" means all amounts, if any, payable pursuant to
Section 6.02.
"Additional Shares" has the meaning provided in Section 5.04(a).
"Adjustment Event" has the meaning provided in Section 5.02(l).
"Attributable Debt" means, with respect to any sale and leaseback
transaction, at the time of determination, the lesser of (1) the sale price of
the property so leased multiplied by a fraction the numerator of which is the
remaining portion of the base term of the lease included in such transaction and
the denominator of which is the base term of such lease, and (2) the total
obligation (discounted to the present value at the implicit interest factor,
determined in accordance with GAAP, included in the rental payments) of the
lessee for rental payments (other than amounts required to be paid on account of
property taxes as well as maintenance, repairs, insurance, water rates and other
items which do not constitute payments for property rights) during the remaining
portion of the base term of the lease included in such transaction.
"Base Indenture" has the meaning provided in the recitals.
"Beneficial Owner" means any person who is considered a Beneficial Owner of
a security in accordance with Rule 13d-3 promulgated by the SEC under the
Exchange Act.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which the Federal Reserve Bank of New York is authorized or required by law or
executive order to close or be closed.
"Clearstream" means Clearstream Banking S.A.
"Common Stock" means the Common Stock, par value $1.00 per share, of the
Company existing on the Issue Date or any other shares of capital stock into
which such Common Stock shall be reclassified or changed.
"Company Notice" has the meaning provided in Section 4.01(b).
"Company Notice Date" has the meaning provided in Section 4.01(b).
"Consolidated Net Tangible Assets" means, as of the time of determination,
the aggregate amount of the assets of the Company and the assets of its
consolidated subsidiaries after deducting (1) all goodwill, trade names,
trademarks, service marks, patents, unamortized debt discount and expense and
other intangible assets and (2) all current liabilities, as reflected on the
most recent consolidated balance sheet prepared by the Company in accordance
with GAAP contained in an annual report on Form 10-K or a quarterly report on
Form 10-Q timely filed or any amendment thereto (and not subsequently disclaimed
as not being reliable by the Company) pursuant to the Exchange Act by the
Company prior to the time as of which "Consolidated Net Tangible Assets" is
being determined.
"Conversion Agent" means the office or agency appointed by the Company
where Notes may be presented for conversion. The Conversion Agent appointed by
the Company shall initially be the Trustee.
"Conversion Date" has the meaning provided in Section 5.01(a).
"Conversion Price" means, in respect of each $1,000 principal amount of
Notes, $1,000 divided by the Conversion Rate, as may be adjusted from time to
time as set forth herein, and initially shall be $31.875.
"Conversion Rate" means, in respect of each $1,000 principal amount of
Notes, initially 31.3725 shares of Common Stock, subject to adjustment as set
forth herein.
"Depositary" has the meaning provided in Section 2.05.
"Determination Date" has the meaning provided in Section 5.02(l).
"Effective Date" has the meaning provided in Section 5.04(c).
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System.
"Ex-Dividend Date" means the first date upon which a sale of the Common
Stock does not automatically transfer the right to receive the relevant
dividend, issuance or distribution from the seller of the Common Stock to its
buyer.
"Expiration Time" has the meaning provided in Section 5.02(e).
"Fair Market Value" means the amount that a willing buyer would pay a
willing seller in an arm's length transaction.
"Fundamental Change" shall be deemed to have occurred at the time after the
Notes are originally issued that any of the following occurs:
(1) a "Person" or "Group" within the meaning of Section 13(d) of the
Exchange Act other than the Company, a Subsidiary of the Company or
any employee benefit plans of the Company or a Subsidiary of the
Company files a Schedule 13D or Schedule TO (or any successor
schedule, form or report) pursuant to the Exchange Act disclosing that
such person has become the direct or indirect "Beneficial Owner," as
defined in Rule 13d-3 under the Exchange Act, of the Company's common
equity representing more than 50% of the voting power of all shares of
the Company's common equity entitled to vote generally in the election
of directors, unless such Beneficial Ownership arises as a result of a
revocable proxy delivered in response to a public proxy or consent
solicitation made pursuant to the applicable rules and regulations
under the Exchange Act; and provided that no person or group shall be
deemed to be the Beneficial Owner of any securities tendered pursuant
to a tender or exchange offer made by or on behalf of such person or
group until such tendered securities are accepted for purchase or
exchange under such offer;
(2) consummation of (A) any recapitalization, reclassification or change
of Common Stock (other than changes resulting from a subdivision or
combination) as a result of which Common Stock would be converted
into, or exchanged for, stock, other securities, other property or
assets or (B) any statutory share exchange, consolidation or merger
involving the Company pursuant to which Common Stock shall be
converted into cash, securities or other property or any sale, lease
or other transfer in one transaction or a series of transactions of
all or substantially all of the consolidated assets of the Company and
the Company's Subsidiaries, taken as a whole, to any person other than
one or more of the Company's Subsidiaries, other than any transaction:
(a) involving a consolidation or merger that does not result in
a reclassification, conversion, exchange or cancellation of
outstanding Common Stock;
(b) where the Holders of more than 50% of all classes of the
Company's common equity immediately prior to such
transaction that is a statutory share exchange,
consolidation or merger own, directly or indirectly, more
than 50% of all classes of common equity of the continuing
or surviving entity or transferee or the parent entity
thereof immediately after such transaction; or
(c) that is effected solely to change the Company's jurisdiction
of incorporation and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock
solely into shares of Common Stock of the surviving entity;
or
(3) the Company's Common Stock (or other capital stock or American
Depositary Receipts into which the Notes are then convertible pursuant
to the terms of this Supplemental Indenture) ceases to be listed on a
United States national or regional securities exchange;
provided, however, that a Fundamental Change as a result of clause (2) above
shall not be deemed to have occurred if 90% or more of the consideration
received or to be received by the Holders of Common Stock (excluding cash
payments for fractional shares and cash payments made pursuant to dissenters'
appraisal rights) in connection with the transaction or transactions
constituting the Fundamental Change consists of shares of capital stock or
American Depositary Receipts traded on a United States national or regional
securities exchange or which shall be so traded when issued or exchanged in
connection with the transaction that would otherwise be a Fundamental Change
(these securities being referred to as "Publicly Traded Securities") and as a
result of this transaction or transactions the Notes become convertible into
such Publicly Traded Securities, excluding cash payments for fractional shares.
"Fundamental Change Purchase Date" has the meaning provided in Section
4.01(a).
"Fundamental Change Purchase Notice" has the meaning provided in Section
4.01(c).
"Fundamental Change Purchase Price" has the meaning provided in Section
4.01(a).
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession as in effect from
time to time.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (1) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep well, to purchase assets, goods,
securities or services, to take or pay or to maintain financial statement
conditions or otherwise) or (2) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee,"
when used as a verb, has a correlative meaning.
"Holder" means the Person in whose name a Note of any series is registered
on the security register books.
"Incur" means issue, assume, Guarantee or otherwise become liable for
Indebtedness.
"Indebtedness" means, with respect to any Person, obligations of such
Person for borrowed money (including without limitation, indebtedness for
borrowed money evidenced by notes, bonds, debentures or similar instruments).
"Indenture" has the meaning provided in the recitals.
"Initial Dividend Threshold" has the meaning provided in Section 5.02(d).
"Interest Payment Date" has the meaning provided in Section 2.06(a).
"Issue Date" means May 4, 2009.
"Last Reported Sale Price" of the Common Stock on any Trading Day means the
closing sale price per share (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices) of the Common Stock on that
Trading Day as reported in composite transactions for the principal United
States national or regional securities exchange on which the Common Stock is
traded or, if the Common Stock is not listed for trading on a United States
national or regional securities exchange on the relevant Trading Day, the Last
Reported Sale Price shall be the last quoted bid price for the Common Stock in
the over-the-counter market on the relevant Trading Day as reported by the
National Quotation Bureau or similar organization selected by the Company. If
the Common Stock is not so listed or quoted, the Last Reported Sale Price shall
be the average of the mid-point of the last bid and ask prices for the Common
Stock on the relevant date from each of at least three nationally recognized
independent investment banking firms selected by the Company for such purpose.
"Liens" has the meaning provided in Section 3.01.
"Notes" has the meaning provided in the recitals.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President, the Treasurer or the
Secretary of the Company.
"Paying Agent" has the meaning provided in Section 2.05.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or political subdivision thereof.
"Principal Property" means any blast furnace, steel producing facility, or
casters that are part of a plant that includes such a facility, in each case
located in the United States, having a net book value in excess of 1% of
Consolidated Net Tangible Assets at the time of determination.
"Publicly Traded Securities" has the meaning provided in the definition of
Fundamental Change in this Section 1.03.
"Record Date" means, in respect of a dividend or distribution to holders of
Common Stock, the date fixed for determination of holders of Common Stock
entitled to receive such dividend or distribution.
"Reference Property" has the meaning provided in Section 5.03(a).
"Regular Record Date" for the payment of interest on the Notes (including
Additional Interest, if any), means the May 1 (whether or not a Business Day)
immediately preceding the Interest Payment Date on May 15 and the November 1
(whether or not a Business Day) immediately preceding the Interest Payment Date
on November 15.
"Reorganization Event" has the meaning provided in Section 5.03(a).
"Scheduled Trading Day" means a day that is scheduled to be a Trading Day
on the primary securities exchange or market on which the Common Stock is listed
or admitted to trading. If the Common Stock is not so listed or admitted to
trading, "Scheduled Trading Day" means a Business Day.
"Securities" has the meaning provided in the recitals.
"Security Register" means the books and records, whether electronic or
physical, maintained by the Security Registrar detailing the identities and
other information concerning the Holders.
"Security Registrar" means the Trustee.
"Settlement Date" has the meaning provided in Section 5.01(a).
"Spin-Off" has the meaning provided in Section 5.02(c).
"Stated Maturity" means May 15, 2014.
"Stock Price" means, with respect to a Fundamental Change, the price per
share of Common Stock paid in connection with such Fundamental Change, which
shall be equal to (i) if such Fundamental Change is a transaction described in
clause (1) or (2) of the definition thereof and holders of Common Stock receive
only cash as a result of such Fundamental Change, and (ii) in all other cases,
the average of the Last Reported Sale Prices of the Common Stock for the 10
consecutive Trading-Day period ending on the Trading Day immediately preceding
the Effective Date.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity owning a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or another governing body
(other than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned directly or
indirectly through one or more intermediaries, or both by the parent.
"Supplemental Indenture" has the meaning provided in the preamble.
"Trading Day" means a day during which trading in securities generally
occurs on the principal United States national or regional securities exchange
on which the Common Stock is then listed or admitted to trading or, if the
Common Stock is not then listed or admitted to trading on a United States
national or regional securities exchange, in the principal other market on which
the Common Stock is then traded; provided that if the Common Stock is not so
listed or traded, "Trading Day" means a Business Day.
"Trust Officer" means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and having direct responsibility for the administration of this
Supplemental Indenture.
"Withholding Agent" means the office or agency appointed by the Company to
withhold the appropriate amount from any payment, to which withholding applies,
made by the Company to a Holder in respect of the Notes. The Withholding Agent
appointed by the Company shall initially be the Trustee.
"$" means United States dollars.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount.
The Notes are hereby authorized and are designated the 4.00% Senior
Convertible Notes due 2014, unlimited in aggregate principal amount. The Notes
issued on the date hereof pursuant to the terms of this Indenture shall be in an
aggregate principal amount of $862,500,000, which amount shall be set forth in
the written order of the Company for the authentication and delivery of the
Notes pursuant to Section 3.03 of the Base Indenture. In addition, the Company
may issue, from time to time in accordance with the provisions of this
Indenture, additional Notes having the same terms and conditions as the Notes
issued on the date hereof in all respects (except for the payment of interest
accruing prior to the issue date of such additional Notes), so that such
additional Notes shall be consolidated and form a single series with the Notes
issued on the date hereof and shall be governed by the terms of the Indenture.
Section 2.02. Maturity.
The principal amount of the Notes shall be payable on May 15, 2014.
Section 2.03. No Optional Redemption.
The Notes issued under this Supplemental Indenture shall not be redeemable
at the election of the Company prior to their Stated Maturity.
Section 2.04. Defeasance.
The Notes issued under this Supplemental Indenture shall not be subject to
Article XIII of the Base Indenture.
Section 2.05. Form and Payment.
The Notes shall be issued as global notes, in fully registered book-entry
form without coupons in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
Principal, premium, if any, and/or interest, if any, on the global notes
representing the Notes shall be made to The Depository Trust Company, or DTC
(the "Depositary").
The global notes representing the Notes shall be deposited with, or on
behalf of, the Depositary and shall be registered, at the request of the
Depositary, in the name of Cede & Co. No global note may be transferred except
as a whole by a nominee of the Depositary to another nominee of the Depositary
or to a successor of the Depositary or a nominee of such successor.
The Trustee shall act as Paying Agent for the Notes (the "Paying Agent").
The Company may choose to pay interest by mailing checks or making wire or other
electronic funds transfers. All money paid by the Company to any Paying Agent
that remains unclaimed at the end of two years after the amount is due to
Holders shall be repaid to the Company. After such two-year period, Holders may
look only to the Company for payment and not to the Trustee, any other Paying
Agent or anyone else. The Company may also arrange for additional payment
offices, and may cancel or change these offices, including any use of the
Trustee's corporate trust office. The Company may appoint and change the Paying
Agent without prior notice to the Holders.
Section 2.06. Interest.
(a) Interest on the Notes shall accrue at the rate of 4.00% per annum from
and including the date specified on the face of such Notes until the principal
thereof is paid, deemed paid, or made available for payment. Interest on the
Notes shall be payable semiannually in arrears on May 15 and November 15,
commencing on November 15, 2009 (each an "Interest Payment Date"). Interest on
the Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months. If any Interest Payment Date (other than an Interest Payment Date
coinciding with the Stated Maturity or earlier required repurchase date upon a
Fundamental Change) of a Note falls on a day that is not a Business Day, such
Interest Payment Date shall be postponed to the next succeeding Business Day and
no interest on such payment shall accrue for the period from the Interest
Payment Date to the next succeeding Business Day. If the Stated Maturity falls
on a day that is not a Business Day, any required payments of interest and
principal shall be made on the next succeeding Business Day and no interest on
such payment shall accrue for the period from and after the Stated Maturity to
such next succeeding Business Day. If a Fundamental Change Purchase Date falls
on a day that is not a Business Day, the Company shall purchase the Notes
tendered for purchase on the next succeeding Business Day and no interest or
Additional Interest on such Notes shall accrue for the period from and after the
earlier Fundamental Change Purchase Date to such next succeeding Business Day.
(b) A Holder of any Notes after 5:00 p.m., New York City time, on a
Regular Record Date shall be entitled to receive interest (including any
Additional Interest), on such Notes on the corresponding Interest Payment Date.
Holders of Notes at 5:00 p.m., New York City time, on a Regular Record Date
shall receive payment of interest (including any Additional Interest) payable on
the corresponding Interest Payment Date notwithstanding the conversion of such
Notes at any time after 5:00 p.m., New York City time on such Regular Record
Date. Notes surrendered for conversion during the period after 5:00 p.m., New
York City time, on any Regular Record Date to 9:00 a.m., New York City time, on
the corresponding Interest Payment Date must be accompanied by payment of an
amount equal to the interest (including any Additional Interest) that the Holder
is to receive on the Notes on such Interest Payment Date; provided that no such
payment need be made (i) for conversions following the Regular Record Date
immediately preceding Stated Maturity; (ii) if the Company has specified a
Fundamental Change Purchase Date that is after a Regular Record Date and on or
prior to the corresponding Interest Payment Date or (iii) to the extent of any
overdue interest (including any overdue Additional Interest), if any overdue
interest exists at the time of conversion with respect to such Note. The
Company's delivery to the Holder of the shares of Common Stock, together with
any cash payment for any fractional shares into which a Note is convertible,
shall be deemed to satisfy in full the Company's obligation to pay (i) the
principal amount of the Note and (ii) accrued and unpaid interest and Additional
Interest, if any, to, but not including, the Conversion Date.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01. Limitation on Liens.
The Company shall not Incur, and shall not permit any of its Subsidiaries
to Incur, any Indebtedness for borrowed money secured by a mortgage, security
interest, pledge, lien, charge or other similar encumbrance (collectively,
"Liens") upon (a) any Principal Property of the Company or any Principal
Property of a Subsidiary or (b) any shares of stock or other equity interests or
Indebtedness of any Subsidiary that owns a Principal Property (whether such
Principal Property, shares of stock or other equity interests or Indebtedness is
now existing or owned or hereafter created or acquired), in each case, unless
prior to or at the same time, the Notes (together with, at the option of the
Company, any other Indebtedness of the Company or any Subsidiary ranking equally
in right of payment with the Notes) are equally and ratably secured with or, at
the option of the Company, prior to, such Indebtedness.
Any Lien created for the benefit of Holders pursuant to the preceding
sentence shall provide by its terms that such Lien shall be automatically and
unconditionally released and discharged upon the release and discharge of such
Lien.
The foregoing restriction does not apply, with respect to any Person, to
any of the following:
(i) leases to which such Person is a party, or deposits to secure public
or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent, in each case Incurred in the
ordinary course of business;
(ii) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens, in each case for sums not yet overdue by more than 30 days or
being contested in good faith by appropriate proceedings or other
Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be proceeding with an appeal
or other proceedings for review and Liens arising solely by virtue of
any statutory or common law provision relating to banker's Liens,
rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository
institution; provided, however, that (A) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by
regulations promulgated by the Federal Reserve Board and (B) such
deposit account is not intended by the Company to provide collateral
to the Depositary;
(iii) Liens for property taxes not yet subject to penalties for non-
payment or which are being contested in good faith by appropriate
proceedings;
(iv) minor survey exceptions, minor encumbrances, easements or reservations
of, or rights of others for, licenses, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely
affect the value of said properties or materially impair their use in
the operation of the business of such Person;
(v) Liens securing Indebtedness Incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to,
property, plant or equipment of such Person; provided, however, that
the Lien may not extend to any other property owned by such Person at
the time the Lien is Incurred (other than assets and property affixed
or appurtenant thereto), and the Indebtedness (other than any interest
thereon) secured by the Lien may not be Incurred more than 180 days
after the later of the acquisition, completion of construction,
repair, improvement, addition or commencement of full operation of the
property subject to the Lien;
(vi) Liens existing on the issue date of the Notes;
(vii) Liens on property or shares of capital stock of another Person at
the time such other Person becomes a Subsidiary of such Person;
provided, however, that the Liens may not extend to any other property
owned by such Person (other than assets and property affixed or
appurtenant thereto);
(viii) Liens securing industrial revenue or pollution control bonds
issued for the benefit of the Company;
(ix) Liens on property at the time such Person or any of its Subsidiaries
acquires the property, including any acquisition by means of a merger
or consolidation with or into such Person or a Subsidiary of such
Person; provided, however, that the Liens may not extend to any other
property owned by such Person (other than assets and property affixed
or appurtenant thereto);
(x) Liens securing Indebtedness or other obligations of a Subsidiary of
such Person owing to such Person or a wholly-owned Subsidiary of such
Person;
(xi) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred to
in the foregoing clauses (v), (vi), (vii), (viii) or (ix); provided,
however, that: (a) such new Lien shall be limited to all or part of
the same property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to, such property or
proceeds or distributions thereof); and (b) the Indebtedness secured
by such Lien at such time is not increased to any amount greater than
the sum of (x) the outstanding principal amount or, if greater,
committed amount of the Indebtedness under clauses (v), (vi), (vii),
(viii) or (ix) at the time the original Lien became a Lien permitted
under the Indenture and (y) an amount necessary to pay any fees and
expenses, including premiums, related to such Refinancing, refunding,
extension, renewal or replacement; and
(xii) Liens on assets subject to a sale and leaseback transaction
securing Attributable Debt permitted to be Incurred pursuant to
Section 3.02.
Notwithstanding the foregoing restrictions, the Company and its
Subsidiaries shall be permitted to Incur Indebtedness secured by a Lien which
would otherwise be subject to the foregoing restrictions without equally and
ratably securing the Notes, if any, provided that after giving effect to such
Indebtedness, the aggregate amount of all Indebtedness secured by Liens (not
including Liens permitted under clauses (i) through (xii) above), together with
all Attributable Debt outstanding pursuant to the second paragraph of Section
3.02, does not exceed 15% of the Consolidated Net Tangible Assets of the Company
calculated as of the date of the creation or incurrence of the Lien. The Company
and its Subsidiaries also may, without equally and ratably securing the Notes,
create or Incur Liens that extend, renew, substitute or replace (including
successive extensions, renewals, substitutions or replacements), in whole or in
part, any Lien permitted pursuant to the preceding sentence.
Section 3.02. Limitation on Sale and Leaseback Transactions.
The Company shall not directly or indirectly, and shall not permit any of
its Subsidiaries that own a Principal Property directly or indirectly to, enter
into any sale and leaseback transaction for the sale and leasing back of any
Principal Property, whether now owned or hereafter acquired, unless:
(i) such transaction was entered into prior to the date of issuance of the
Notes (other than any additional Notes);
(ii) such transaction was for the sale and leasing back to the Company
or one of its Subsidiaries of any property by the Company or one of
its Subsidiaries;
(iii) such transaction involves a lease for not more than three years
(or which may be terminated by the Company or its Subsidiaries within
a period of not more than three years),
(iv) the Company would be entitled to Incur Indebtedness secured by a Lien
with respect to such sale and leaseback transaction without equally
and ratably securing the Notes pursuant to the last paragraph of
Section 3.01; or
(v) the Company applies an amount equal to the net proceeds from the sale
of such property to the purchase of other property or assets used or
useful in its business or to the retirement of long-term Indebtedness
within 365 days before or after the effective date of any such sale
and leaseback transaction; provided that in lieu of applying such
amount to the retirement of long-term Indebtedness, the Company may
deliver Notes of both series to the Trustee for cancellation, such
Notes to be credited at the cost thereof to it.
Notwithstanding the restrictions set forth in the preceding paragraph, the
Company and its Subsidiaries may enter into any sale and leaseback transaction
which would otherwise be subject to the foregoing restrictions, if after giving
effect thereto the aggregate amount of all Attributable Debt with respect to
such transactions, together with all Indebtedness outstanding pursuant to the
last paragraph of Section 3.01, does not exceed 15% of the Consolidated Net
Tangible Assets of the Company calculated as of the closing date of the sale and
leaseback transaction.
ARTICLE FOUR
PURCHASE OF NOTES AT THE OPTION OF HOLDERS
UPON A FUNDAMENTAL CHANGE
SECTION 4.01. Purchase of Notes at the Option of Holders Upon a
Fundamental Change.
(a) Purchase of Notes at the Option of the Holder. If a Fundamental
Change occurs at any time, each Holder shall have the right, at such Holder's
option, to require the Company to purchase any or all of the Holder's Notes, or
any portion of the principal amount thereof, that is equal to $1,000 or an
integral multiple thereof at a purchase price equal to 100% of the principal
amount of the Notes to be purchased plus accrued and unpaid interest, including
Additional Interest, if any, to but excluding the Fundamental Change Purchase
Date (the "Fundamental Change Purchase Price"); provided that if the Fundamental
Change Purchase Date occurs after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, the Company shall pay accrued and unpaid
interest plus Additional Interest, if any, to but excluding the Fundamental
Change Purchase Date to the record Holder on the Regular Record Date
corresponding to such Interest Payment Date and the Fundamental Change Purchase
Price payable to the Holder who presents the Note for repurchase shall be 100%
of the principal amount of such Note. The Fundamental Change Purchase Date shall
be a Business Day specified by the Company that is no later than the 35th
calendar day following the date of the Company Notice delivered in connection
with such Fundamental Change pursuant to Section 4.01(b) (subject to extension
to comply with applicable law, as provided in Section 4.02(d)) (the "Fundamental
Change Purchase Date"). Any Notes purchased by the Company shall be paid for in
cash.
(b) Notice of Fundamental Change. The Company shall deliver, or cause to
be delivered in accordance with the last paragraph of this Section 4.01(b),
notices of the occurrence of a Fundamental Change and of the purchase rights
arising as a result thereof (each, a "Company Notice") to the Holders at their
addresses shown in the Security Register maintained by the Security Registrar,
and to the Trustee and the Paying Agent, on or before the 20th calendar day
after the occurrence of the Fundamental Change (each such date of delivery, a
"Company Notice Date"). Each Company Notice shall include a form of Fundamental
Change Purchase Notice to be completed by a Holder and shall state:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase
rights under Section 4.01;
(iv) the Fundamental Change Purchase Price;
(v) the Fundamental Change Purchase Date;
(vi) the name and address of the Paying Agent and the Conversion
Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and, if
applicable, any adjustments to the applicable Conversion Rate as
a result of such Fundamental Change;
(viii) if applicable, that the Notes with respect to which a
Fundamental Change Purchase Notice has been delivered by a Holder
may be converted only if the Holder withdraws the Fundamental
Change Purchase Notice in accordance with the terms of this
Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to
purchase its Notes pursuant to Section 4.01.
Simultaneously with providing such Company Notice, the Company shall
publish a notice containing the information in such Company Notice in a
newspaper of general circulation in The City of New York or publish such
information on its then existing website or through such other public medium as
it may use at that time.
(c) Exercise of Option. For a Note to be so purchased at the option of
the Holder, the Holder must deliver, on or before the Business Day immediately
preceding the Fundamental Change Purchase Date, subject to extension to comply
with applicable law, the Notes to be purchased, duly endorsed for transfer,
together with a written purchase notice (a "Fundamental Change Purchase Notice")
in the form entitled "Form of Fundamental Change Purchase Notice" on the reverse
side of the Notes duly completed, to the Paying Agent. The Fundamental Change
Purchase Notice shall state:
(i) if the Notes are certificated, the certificate numbers of the
Holder's Notes to be delivered for purchase;
(ii) the portion of the principal amount of the Holder's Notes to be
purchased, which portion must be $1,000 or an integral multiple
thereof; and
(iii) that the Holder's Notes shall be purchased as of the
Fundamental Change Purchase Date pursuant to applicable
provisions of the Notes and this Supplemental Indenture.
(d) Procedures. The Company shall purchase from a Holder on the
Fundamental Change Purchase Date, subject to extension to comply with applicable
law, pursuant to this Section 4.01, Notes if the principal amount of such Notes
is $1,000 or an integral multiple thereof if so requested by such Holder.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 4.01 shall be consummated by the delivery of the Fundamental Change
Purchase Price, to be received by the Holder, to the Paying Agent as provided in
Section 4.02(a), promptly following the later of (i) the Fundamental Change
Purchase Date, (ii) the time of book-entry transfer or (iii) delivery of the
Notes.
The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all cash held by the Paying Agent for the payment of the
Fundamental Change Purchase Price and shall notify the Trustee of any Default by
the Company in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the cash held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to deliver all cash held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall
have no further liability for the cash delivered to the Trustee.
Section 4.02. Further Conditions and Procedures for Purchase at the Option
of the Holder Upon a Fundamental Change.
(a) Effect of Fundamental Change Purchase Notice; Withdrawal; Effect of
Event of Default. Upon receipt by the Company of the Fundamental Change
Purchase Notice specified in, and the Notes to be purchased as provided in,
Section 4.01(c), the Holder of the Notes in respect of which such Fundamental
Change Purchase Notice was given shall (unless such Fundamental Change Purchase
Notice is withdrawn as specified in this Section 4.02(a)) thereafter be entitled
to receive solely the Fundamental Change Purchase Price with respect to such
Notes. Such Fundamental Change Purchase Price shall be paid by the Paying Agent,
solely from funds received from the Company for such purpose, to such Holder
promptly following the later of (x) the Fundamental Change Purchase Date with
respect to such Notes (provided the conditions in this Article Four have been
satisfied) and (y) the time of delivery or book-entry transfer of such Notes to
the Paying Agent by the Holder thereof in the manner required by Section 4.01.
Notes in respect of which a Fundamental Change Purchase Notice has been given by
the Holder thereof may not be converted on or after the date of the delivery of
such Fundamental Change Purchase Notice unless such Fundamental Change Purchase
Notice has first been validly withdrawn as specified in this Section 4.02(a).
Notwithstanding anything herein to the contrary, any Holder delivering to the
Paying Agent the Fundamental Change Purchase Notice contemplated by Section
4.01(c), shall have the right at any time prior to the close of business on the
Business Day prior to the Fundamental Change Purchase Date to withdraw such
Fundamental Change Purchase Notice (in whole or in part) by delivery of a
written notice of withdrawal to the Paying Agent in accordance with this Section
4.02(a).
The Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice or written notice of withdrawal thereof.
On or before 11:00 a.m. (New York City time) on the Fundamental Change
Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash sufficient to pay the aggregate Fundamental
Change Purchase Price of the Notes to be purchased pursuant to Section 4.01. If
the Paying Agent holds, in accordance with the terms of this Supplemental
Indenture, cash sufficient to pay the Fundamental Change Purchase Price of such
Notes on the second Business Day after the Fundamental Change Purchase Date,
then (i) the Notes tendered for purchase and not withdrawn shall cease to be
outstanding, and interest, including Additional Interest, if any, shall cease to
accrue (whether or not book-entry transfer of such Notes is made or whether or
not the Note is delivered to the Paying Agent) on the Fundamental Change
Purchase Date; and (ii) all other rights of the Holders with respect to Notes
tendered for purchase shall terminate (other than the right to receive the
Fundamental Change Purchase Price upon delivery or transfer of the Notes).
Nothing herein shall preclude any withholding of tax required by law.
A Fundamental Change Purchase Notice may be withdrawn, in whole or in part,
by means of a written notice of withdrawal delivered to the office of the Paying
Agent prior to the close of business on the Business Day prior to the
Fundamental Change Purchase Date. The notice of withdrawal shall state:
(i) the principal amount of the withdrawn Notes;
(ii) if certificated Notes have been issued, the certificate numbers
of the withdrawn Notes, or if not certificated, the notice must
comply with appropriate DTC, Clearstream and/or Euroclear
procedures; and
(iii) the principal amount, if any, which remains subject to the
Fundamental Change Purchase Notice.
If the Notes are certificated, the Paying Agent shall promptly return to
the respective Holders thereof any Notes with respect to which a Fundamental
Change Purchase Notice has been withdrawn in compliance with this Indenture.
(b) Notes Purchased in Part. Any Notes that are to be purchased only in
part shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing) and
the Company shall execute and the Trustee or the Authenticating Agent shall
authenticate and deliver to the Holder of such Notes, without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Notes so surrendered which is not purchased.
(c) Compliance with Securities Laws Upon Purchase of Notes. In connection
with any offer to purchase, or purchase of, Notes under Section 4.01, the
Company shall, to the extent applicable, (a) comply with Rules 13e-4 and 14e-1
(and any successor provisions thereto) under the Exchange Act, if applicable;
(b) file the related Schedule TO (or any successor schedule, form or report)
under the Exchange Act, if applicable; and (c) otherwise comply with all
applicable federal and state securities laws. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this
Supplemental Indenture as described in this Article Four, compliance by the
Company with such laws and regulations shall not in and of itself cause a breach
of the Company's obligations described in this Article Four.
(d) Repayment to the Company. The Trustee and the Paying Agent shall
return to the Company any cash or property that remains unclaimed at the end of
two years after the amount is due to Holders, together with interest that the
Trustee or Paying Agent, as the case may be, has expressly agreed in writing to
pay, if any, that is held by them for the payment of a Fundamental Change
Purchase Price; provided, however, that to the extent that the aggregate amount
of cash or property deposited by the Company pursuant to Section 4.02(b), as
applicable, exceeds the aggregate Fundamental Change Purchase Price of the Notes
or portions thereof which the Company is obligated to purchase as of the
Fundamental Change Purchase Date, then promptly on and after the second Business
Day following the Fundamental Change Purchase Date, the Trustee and the Paying
Agent shall return any such excess to the Company together with interest that
the Trustee or Paying Agent, as the case may be, has expressly agreed in writing
to pay, if any.
(e) Officers' Certificate. At least three Business Days (or such lesser
period as agreed to by the Trustee) before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying whether the
Company desires the Trustee to give the Company Notice required by Section
4.02(a) hereof.
ARTICLE FIVE
CONVERSION
Section 5.01. Conversion of Notes.
Right to Convert. Subject to the procedures for conversion set forth in
this Article Five and at any time prior to the close of business on the second
Scheduled Trading Day preceding the Stated Maturity of the Notes, a Holder may
convert its Notes at their full principal amount, or any portion of their
principal amount that is equal to $1,000 or an integral multiple thereof. No
payment or adjustment shall be made for dividends on, or other distributions
with respect to, any Common Stock, except as expressly provided in this Article
Five.
(a) Conversion Procedures. The following procedures shall apply to
convert Notes:
(i) in respect of a beneficial interest in a global note, a
Beneficial Owner must comply with the procedures of DTC for
converting a beneficial interest in a global note and, if
required pursuant to Section 2.06(b), pay funds equal to interest
payable on the next Interest Payment Date to which such
Beneficial Owner is not entitled, and if required, pay all taxes
or duties, if any; and
(ii) in respect of a certificated Note, the Holder must (A) complete
and manually sign the conversion notice on the back of the note,
or a facsimile of the conversion notice; (B) deliver such
conversion notice, which is irrevocable, and the Note to the
Conversion Agent; (C) furnish appropriate endorsements and
transfer documents as may be required by the Conversion Agent;
(D) if required pursuant to Section 5.02(c), pay all transfer or
similar taxes; and (E) if required pursuant to Section 2.06(b),
pay funds equal to interest payable on the next interest payment
date to which such Holder is not entitled.
The date a Holder complies with the foregoing requirements is the
"Conversion Date" hereunder. At the Conversion Date the rights of the Holders of
such converted Notes as Holders shall cease, and the Person or Persons entitled
to receive the shares of Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock as and
after such time. The Company shall issue and shall deliver at such office or
agency a certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in cash in lieu of any
fractional shares, as provided in Section 5.01(b), by the third Business Day
immediately following the Conversion Date (the "Settlement Date"). A Holder may
convert a portion of its Notes only if the principal amount of such portion is
$1,000 or an integral multiple thereof.
In the case of any Note that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Note.
If a Holder has already delivered a Fundamental Change Purchase Notice in
connection with a Fundamental Change, with respect to a Note, the Holder may not
surrender that Note for conversion until the Holder has validly withdrawn the
Fundamental Change Purchase Notice in accordance with this Supplemental
Indenture.
If more than one Note shall be surrendered for conversion at one time by
the same Holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Notes (or specified portions thereof) so surrendered.
(b) Cash Payments in Lieu of Fractional Shares. The Company shall not
issue fractional shares of Common Stock upon conversion of Notes. Instead the
Company shall deliver cash, rounded to the nearest whole cent, for such
fractional shares based on the Last Reported Sale Price of the Common Stock on
the applicable Conversion Date.
(c) Taxes on Conversion. If a Holder converts Notes, the Company shall
pay any documentary, stamp or similar issue or transfer tax due on the issuance
of shares of Common Stock upon such conversion; provided, however, the Holder
shall pay any such tax which is due because the Holder requests the shares of
Common Stock to be issued in a name other than the Holder's name. The Conversion
Agent may refuse to deliver the certificates representing the shares of Common
Stock being issued in a name other than the Holder's name until the Conversion
Agent receives a sum sufficient to pay any tax which shall be due because the
shares are to be issued in a name other than the Holder's name, but the
Conversion Agent shall have no duty to determine if any such tax is due. Nothing
herein shall preclude any withholding of tax required by law.
(d) Certain Covenants of the Company.
(i) The Company shall, prior to issuance of any Notes hereunder, and
from time to time as may be necessary, reserve out of its
authorized but unissued Common Stock or shares of Common Stock
held in treasury, sufficient number of shares of Common Stock,
free of preemptive rights, to permit the conversion of the Notes,
calculated assuming the maximum number of Additional Shares are
issuable upon conversion of the Notes pursuant to Section 5.04.
(ii) All shares of Common Stock delivered upon conversion of the Notes
shall be newly issued shares or treasury shares, shall be duly
and validly issued and fully paid and nonassessable and shall be
free from preemptive rights and free of any lien or adverse
claim.
(iii) The Company shall endeavor to comply promptly with all
applicable federal and state securities laws regulating the
issuance and delivery of shares of Common Stock upon the
conversion of Notes.
(iv) Before taking any action that would cause an adjustment
increasing the Conversion Rate to an amount that would cause the
Conversion Price to be reduced below the then par value per share
of the Common Stock, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company shall take all
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
shares of such Common Stock at such adjusted Conversion Rate.
Section 5.02. Adjustments to Conversion Rate. The Conversion Rate shall
be adjusted from time to time by the Company as described below, except that the
Company shall not make any adjustments to the Conversion Rate if Holders of the
Notes participate (as a result of holding the Notes, and at the same time as
holders of the Common Stock participate) in any of the transactions described in
this Section 5.02 as if such Holders of the Notes held a number of shares of the
Common Stock equal to the applicable Conversion Rate, multiplied by the
principal amount (expressed in thousands) of Notes held by such Holders, without
having to convert their Notes.
(a) If the Company issues shares of Common Stock as a dividend or
distribution on shares of Common Stock, or if the Company effects a share split
or share combination, the Conversion Rate shall be adjusted based on the
following formula:
OS1
CR1 = CR0 x ---
OS0
where,
CR0 = the conversion rate in effect immediately prior to the ex-dividend date
of such dividend or distribution or the Effective Date of such share
split or combination, as applicable
CR1 = the conversion rate in effect immediately after such ex-dividend date or
Effective Date, as applicable
OS0 = the number of shares of Common Stock outstanding immediately prior to
such ex-dividend date or Effective Date, as applicable
OS1 = the number of shares of Common Stock outstanding immediately prior to
such ex-dividend date or Effective Date, as applicable, after giving pro
forma effect to such dividend, distribution, share split or share
combination
Such adjustment shall become effective immediately after 9:00 a.m., New
York City time, on the Business Day following the Record Date for such dividend
or distribution, or the date fixed for determination for such share split or
share combination. The Company shall not pay any dividend or make any
distribution on shares of Common Stock held in treasury by the Company. If any
dividend or distribution of the type described in this Section 5.02(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted to
the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(b) If the Company distributes to holders of all or substantially all the
Common Stock any rights or warrants entitling them for a period of not more than
45 calendar days to subscribe for or purchase shares of Common Stock at a price
per share less than the average of the Last Reported Sale Prices of the Common
Stock for the 10 consecutive Trading-Day period ending on the Trading Day
immediately preceding the date of announcement of such distribution, the
Conversion Rate shall be adjusted based on the following formula:
OS0 + X
CR1 = CR0 x -------
OS0 + Y
where,
CR0 = the Conversion Rate in effect immediately prior the ex-dividend date for
such distribution
CR1 = the Conversion Rate in effect immediately after such ex-dividend date
OS0 = the number of shares of Common Stock outstanding immediately after such
ex-dividend date
X = the total number of shares of Common Stock issuable pursuant to such
rights or warrants
Y = the number of shares of Common Stock equal to the aggregate price payable
to exercise such rights or warrants divided by the average of the Last
Reported Sale Prices of Common Stock over the 10 consecutive Trading-Day
period ending on the Trading Day immediately preceding the date of
announcement of the distribution of such rights or warrants
Such adjustment shall be successively made whenever any such rights or
warrants are issued and shall become effective immediately after 9:00 a.m., New
York City time, on the Business Day following the date fixed for such
determination. The Company shall not issue any such rights, options or warrants
in respect of shares of Common Stock held in treasury by the Company. To the
extent that shares of Common Stock are not delivered after the expiration of
such rights or warrants, or such rights or warrants are not exercised prior to
their expiration, the Conversion Rate shall be readjusted to the Conversion Rate
that would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. If such rights or warrants are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed.
In determining whether any rights or warrants entitle the Holders to
subscribe for or purchase shares of Common Stock at less than such Last Reported
Sale Price, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by
the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined by the Company's Board of Directors.
(c) If the Company distributes shares of its capital stock, evidences of
its Indebtedness or other assets or property of the Company to holders of all or
substantially all the Common Stock, excluding:
(i) dividends or distributions and rights or warrants referred to in
Section 5.02(a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) as described below in this Section 5.02(c) with respect to
Spin-Offs,
then the Conversion Rate shall be adjusted based on the following formula:
SP0
CR1 = CR0 x ---------
SP0 - FMV
where,
CR0 = the Conversion Rate in effect immediately prior to the ex-dividend date
for such distribution
CR1 = the Conversion Rate in effect immediately after such ex-dividend date
SP0 = the average of the Last Reported Sale Prices of Common Stock over the
10 consecutive Trading-Day period ending on the Trading Day immediately
preceding the ex-dividend date for such distribution
FMV = the Fair Market Value (as determined by the Company's Board of
Directors) of the shares of capital stock, evidences of Indebtedness,
assets or property distributed with respect to each outstanding share
of Common Stock on the record date for such distribution
Such adjustment shall become effective immediately prior to 9:00 a.m., New
York City time, on the Business Day following the date fixed for the
determination of stockholders entitled to receive such distribution. With
respect to an adjustment pursuant to this clause (c) where there has been a
payment of a dividend or other distribution on the Common Stock in shares of
capital stock of any class or series, or similar equity interest, of or relating
to a Subsidiary or other business unit (a "Spin-Off"), the Conversion Rate in
effect immediately prior to 5:00 p.m., New York City time, on the Effective Date
of such Spin-Off shall be increased based on the following formula:
FMV0 + MP0
CR1 = CR0 x ----------
MP0
where,
CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York
City time, on the Effective Date of the Spin-Off
CR1 = the Conversion Rate in effect immediately after the Effective Date of
the Spin-Off
FMV0 = the average of the Last Reported Sale Prices of the capital stock or
similar equity interest distributed to holders of Common Stock
applicable to one share of Common Stock over the first 10 consecutive
Trading-Day period from, and including, the Effective Date of the Spin-
Off
MP0 = the average of the Last Reported Sale Prices of Common Stock over the
first 10 consecutive Trading-Day period from, and including, the
Effective Date of the Spin-Off
Such adjustment shall occur on the tenth Trading Day from, and including,
the Effective Date of the Spin-Off and shall be applied on a retroactive basis
from, and including, the Effective Date of the Spin-Off.
(d)(i) If any regular, quarterly cash dividend or distribution made to
the holders of all or substantially all of the Common Stock is in excess of
$0.05 per share (the "Initial Dividend Threshold"), the Conversion Rate shall be
adjusted based on the following formula:
SP0
CR1 = CR0 x -------
SP0 - C
where,
CR0 = the Conversion Rate in effect immediately prior to the ex-dividend date
for such dividend or distribution
CR1 = the Conversion Rate in effect immediately after the ex-dividend date
for such dividend or distribution
SP0 = the Last Reported Sale Price of Common Stock on the Trading Day
immediately preceding the ex-dividend date for such dividend or
distribution
C = the amount in cash per share distributed by the Company to holders of
Common Stock in excess of the Initial Dividend Threshold
The Initial Dividend Threshold is subject to adjustment in a manner
inversely proportional to adjustments to the Conversion Rate; provided that no
adjustment shall be made to the Initial Dividend Threshold for any adjustment
made to the Conversion Rate under this Section 5.02(d)(i).
(ii) If the Company pays any cash dividend or distribution that is not a
regular, quarterly cash dividend or distribution to holders of all or
substantially all of the Common Stock, the Conversion Rate shall be adjusted
based on the following formula:
SP0
CR1 = CR0 x -------
SP0 - C
where,
CR0 = the Conversion Rate in effect immediately prior to the ex-dividend date
for such dividend or distribution
CR1 = the Conversion Rate in effect immediately after the ex-dividend date
for such dividend or distribution
SP0 = the Last Reported Sale Price of Common Stock on the Trading Day
immediately preceding the ex-dividend date for such dividend or
distribution
C = the amount in cash per share distributed by the Company to holders of
Common Stock
(e) If the Company or any of its Subsidiaries makes a payment in respect
of a tender or exchange offer for Common Stock, to the extent that the cash and
value of any other consideration included in the payment per share of Common
Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading
Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer (such last date, the "Expiration
Time"), the Conversion Rate shall be increased based on the following formula:
AC + (SP1 x OS1)
CR1 = CR0 x ----------------
OS0 x SP1
where,
CR0 = the Conversion Rate in effect immediately prior to the Effective Date
of the adjustment
CR1 = the Conversion Rate in effect immediately after the Effective Date of
the adjustment
AC = the aggregate value of all cash and any other consideration (as
determined by the Company's Board of Directors) paid or payable for
shares accepted for purchase or exchange in such tender or exchange
offer
OS0 = the number of shares of Common Stock outstanding immediately prior to
the date such tender or exchange offer expires
OS1 = the number of shares of Common Stock outstanding immediately after the
date such tender or exchange offer expires (after giving effect to the
reduction of shares accepted for purchase or exchange in such tender or
exchange offer)
SP1 = the average of the Last Reported Sale Prices of Common Stock over the
10 consecutive Trading-Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer expires
Such adjustment shall occur on the tenth Trading Day from, and including,
the Trading Day next succeeding the date such tender or exchange offer expires
and shall be applied on a retroactive basis from, and including, the Trading Day
next succeeding the date such tender or exchange offer expires.
If the Company is obligated to purchase shares pursuant to any such tender
or exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange offer had not been made.
Except as stated herein, the Company shall not adjust the Conversion Rate
for the issuance of shares of Common Stock or any securities convertible into or
exchangeable for shares of Common Stock or the right to purchase shares of
Common Stock or such convertible or exchangeable securities.
(f) The Company may (but is not required to) increase the Conversion Rate
to avoid or diminish income tax to holders of Common Stock or rights to purchase
Common Stock in connection with a dividend or distribution of shares (or rights
to acquire shares) or any similar event treated as such for income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock
exchange or market upon which the Common Stock is listed or admitted for
trading, the Company may increase the Conversion Rate by any amount for a period
of at least 20 days if the Company's Board of Directors determines that such
increase would be in the best interest of the Company, which determination shall
be conclusive.
(h) Notwithstanding the foregoing provisions of this Section 5.02, the
applicable Conversion Rate need not be adjusted:
(i) upon the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of
dividends or interest payable on the securities of the Company
and the investment of additional optional amounts in shares of
Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or
rights to purchase shares of Common Stock pursuant to any present
or future employee, director or consultant benefit plan or
program of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to
any option, warrant, right, or exercisable, exchangeable or
convertible security not described in clause (ii) above and
outstanding as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid interest (including Additional Interest,
if any).
(i) All calculations under this Section 5.02 shall be made by the Company
and shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. The Company shall not be required to
make an adjustment in the Conversion Rate unless the adjustment would require a
change of at least 1% in the Conversion Rate; provided, however, that the
Company shall carry forward any adjustments that are less than 1% of the
Conversion Rate that the Company elects not to make and take them into account
upon the earlier of (i) any conversion of Notes or (ii) such time as all
adjustments that have not been made prior thereto would have the effect of
adjusting the conversion rate by at least 1%. Except as provided in Sections
5.03 and 5.04, the Company shall not adjust the Conversion Rate.
(j) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Trust Officer of the Trustee shall have received
such Officers' Certificate, the Trustee shall not be deemed to have knowledge of
any adjustment of the Conversion Rate and may assume that the last Conversion
Rate of which it has knowledge is still in effect. Promptly after delivery of
such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
such adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to the Holder of each Note at such Holder's last address
appearing on the Security Register. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.
(k) Any case in which this Section 5.02 provides that an adjustment shall
become effective immediately after (i) a Record Date for an event, (ii) the date
fixed for the determination of a share split or combination pursuant to Section
5.02(a), or (iii) the Expiration Time for any tender or exchange offer pursuant
to Section 5.02(e), (each a "Determination Date"), the Company may elect to
defer until the occurrence of the applicable Adjustment Event (x) issuing to the
Holder of any Note converted after such Determination Date and before the
occurrence of such Adjustment Event, the Additional Shares of Common Stock or
other securities issuable upon such conversion by reason of the adjustment
required by such Adjustment Event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (y) paying to such
Holder any amount in cash in lieu of such Additional Shares of Common Stock or
other securities or in lieu of any fraction pursuant to Section 5.01(b). For
purposes of this Section 5.02, the term "Adjustment Event" shall mean:
(1) in any case referred to in clause (i) above, the occurrence of
such event,
(2) in any case referred to in clause (ii) above, the date any such
dividend or distribution is paid or made, and
(3) in any case referred to in clause (iii) above, the date a sale or
exchange of Common Stock pursuant to such tender or exchange
offer is consummated and becomes irrevocable.
(l) For purposes of this Section 5.02, the number of shares of Common
Stock at any time Outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company shall not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(m) Whenever any provision of this Article Five requires a calculation of
an average of Last Reported Sale Prices over a span of multiple days, the
Company shall make appropriate adjustments (determined in good faith by the
Company's Board of Directors) to account for any adjustment to the Conversion
Rate that becomes effective at any time during the period from which the average
is to be calculated. Such adjustments shall be effective as of the Effective
Date of the adjustment to the Conversion Rate.
Section 5.03. Effect of Reclassification, Consolidation, Merger or Sale.
(a) If any of the following events occur: (i) any recapitalization,
reclassification or change of Common Stock (other than a subdivision or
combination) as a result of which the Common Stock would be converted into, or
exchanged for, stock, other securities, or other property or assets (or any
combination thereof), (ii) any statutory share exchange, consolidation or merger
involving the Company pursuant to which the Common Stock shall be converted into
cash, securities or other property (or any combination thereof) or (iii) 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
Subsidiaries of the Company) as a result of which the Common Stock shall be
converted into cash, securities or other property (or any combination thereof)
(any such event or transaction, a "Reorganization Event"), then the Company or
the successor or purchasing Person, as the case may be, shall execute with the
Trustee a Supplemental Indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such Supplemental Indenture)
providing that at the effective time of the Reorganization Event each Note shall
be convertible into, with respect to each $1,000 in principal amount of such
Note, the kind and amount of shares of stock, other securities or other property
or assets (including cash or any combination thereof) that a holder of a number
of shares of Common Stock equal to the Conversion Rate immediately prior to such
Reorganization Event would have owned or been entitled to receive upon such
Reorganization Event (the "Reference Property"). For purposes of the foregoing,
the type and amount of consideration that a holder of Common Stock would have
been entitled to receive in the case of any such Reorganization Event that
causes the Common Stock to be converted into the right to receive more than a
single type of consideration (determined based in part upon any form of
stockholder election) shall be deemed to be the weighted average of the types
and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election. Such Supplemental Indenture shall provide
for provisions and adjustments which shall be as nearly equivalent as may be
practicable to the provisions and adjustments provided for in this Article Five
and in Article Four of this Supplemental Indenture and in the definition of
Fundamental Change, as appropriate, as determined in good faith by the Company
(which determination shall be conclusive), to make such provisions apply to such
other Person if different from the original issuer of the Notes. If, in the case
of any Reorganization Event, the cash, securities or other property receivable
thereupon by a holder of Common Stock includes cash, securities or other
property of a Person other than the successor or purchasing Person, as the case
may be, in such Reorganization Event, then such Supplemental Indenture shall
also be executed by such successor or purchasing Person, as the case may be, and
shall contain such additional provisions to protect the interests of the Holders
of the Notes as the Company's Board of Directors shall reasonably consider
necessary by reason of the foregoing.
(b) The Company shall cause notice of the execution of any Supplemental
Indenture required by this Section 5.03 to be mailed to each Holder of Notes, at
its address appearing on the Security Register, within 20 calendar days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such Supplemental Indenture.
(c) The above provisions of this Section 5.03 shall similarly apply to
successive Reorganization Events.
(d) None of the foregoing provisions shall affect the right of a Holder of
Notes to convert the Notes into shares of Common Stock as set forth in Section
5.02 prior to the effective time of such Reorganization Event.
Section 5.04. Adjustment Upon Certain Fundamental Changes.
(a) If a Holder elects to convert Notes at a time when a Fundamental
Change described in clause (1) or (2) of the definition of Fundamental Change
has occurred, the Conversion Rate for such Notes so converted shall be increased
by an additional number of shares of Common Stock (the "Additional Shares") as
described below. Any conversion of Notes shall be deemed to have occurred in
connection with such Fundamental Change if the notice of conversion of the Notes
is received by the Conversion Agent from, and including, the Effective Date of
the Fundamental Change up to, and including, the Business Day immediately prior
to the related Fundamental Change Purchase Date.
(b) Upon surrender of Notes for conversion in connection with a
Fundamental Change, the Company shall deliver to a converting Holder a number of
shares of Common Stock equal to (i) the aggregate principal amount of Notes to
be converted divided by $1,000, multiplied by (ii) the applicable Conversion
Rate (including the Additional Shares). The Company shall deliver such shares
of Common Stock on the third Business Day immediately following the relevant
Conversion Date. If the consideration for the Common Stock in any Fundamental
Change described in clause (2) of the definition of Fundamental Change is
comprised entirely of cash, the conversion obligation shall be calculated based
solely on the "Stock Price" for the transaction and shall be deemed to be an
amount equal to the applicable Conversion Rate multiplied by such Stock Price.
In such event, the conversion obligation shall be determined and paid to Holders
in cash on the third Business Day following the conversion date. The Company
shall notify Holders of the Effective Date of any Fundamental Change and issue a
press release announcing such Effective Date no later than five Business Days
after such Effective Date.
(c) The number of Additional Shares by which the Conversion Rate shall be
increased shall be determined by reference to the table attached as Schedule A
hereto, based on the date on which the Fundamental Change occurs or becomes
effective (the "Effective Date") and the Stock Price paid or deemed paid per
share of Common Stock in the Fundamental Change. If a Holder elects to convert
its Notes prior to the Effective Date of any Fundamental Change, and the
Fundamental Change does not occur, such Holder shall not be entitled to an
increased Conversion Rate in connection with such conversion. If the Fundamental
Change is a transaction described in clause (1) or (2) of the definition
thereof, and Holders of Common Stock receive only cash in that Fundamental
Change, the Stock Price shall be the cash amount paid per share. Otherwise, the
Stock Price shall be the average of the last reported sale prices of Common
Stock over the 10 consecutive Trading-Day period ending on the Trading Day
immediately preceding the Effective Date of the Fundamental Change.
(d) The Stock Prices set forth in the column headings of the table in
Schedule A hereto shall be adjusted as of any date on which the Conversion Rate
of the Notes is adjusted pursuant to Section 5.02. The adjusted Stock Prices
shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate
immediately prior to such adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of Additional Shares set forth in
such table shall be adjusted in the same manner as the Conversion Rate as set
forth in Section 5.02.
The exact Stock Prices and Effective Dates may not be set forth in the
table in Schedule A, in which case:
(i) if the Stock Price is between two Stock Price amounts in the
table or the Effective Date is between two Effective Dates in the
table, the number of Additional Shares by which the Conversion
Rate shall be increased shall be determined by a straight-line
interpolation between the number of Additional Shares set forth
for the higher and lower Stock Price amounts and the two dates,
as applicable, based on a 365-day year.
(ii) if the Stock Price is greater than $102.00 per share (subject to
adjustment), no Additional Shares shall be added to the
Conversion Rate.
(iii) if the Stock Price is less than $25.50 per share (subject to
adjustment), no Additional Shares shall be added to the
Conversion Rate.
Notwithstanding the foregoing, in no event shall the total number of shares
of Common Stock issuable upon conversion exceed 39.2157 per $1,000 principal
amount of Notes, subject to adjustments in the same manner as the Conversion
Rate under Section 5.02.
Section 5.05. Stockholder Rights Plan.
To the extent that the Company has a rights plan in effect upon conversion
of the Notes into Common Stock, Holders that convert their Notes shall receive,
in addition to the Common Stock, the rights under the rights plan, unless prior
to any conversion, the rights have separated from the Common Stock, in which
case, and only in such case, the Conversion Rate shall be adjusted at the time
of separation as if the Company distributed to all holders of Common Stock
shares of the Company's capital stock, evidences of indebtedness or assets as
described in Section 5.02(b) above, subject to readjustment in the event of the
expiration, termination or redemption of such rights. In lieu of any such
adjustment, the Company may amend such applicable stockholder rights agreement
to provide that upon conversion of the Notes the Holders shall receive, in
addition to the Common Stock issuable upon such conversion, the rights which
would have attached to such Common Stock if the rights had not become separated
from the Common Stock under such applicable stockholder rights agreement.
Section 5.06. Trustee Adjustment Disclaimer.
The Trustee has no duty to determine when an adjustment under this Article
Five should be made, how it should be made or what it should be. The Trustee
has no duty to determine whether a Supplemental Indenture under Section 5.03
need be entered into or whether any provisions of any Supplemental Indenture are
correct. The Trustee shall not be accountable for and makes no representation
as to the validity or value of any securities or assets issued upon conversion
of Securities. The Trustee shall not be responsible for the Company's failure
to comply with this Article Five. Each Conversion Agent (other than the Company
or an affiliate of the Company) shall have the same protection under this
Section 5.06 as the Trustee.
ARTICLE SIX
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Additional Events of Default.
In addition to the Events of Default set forth in Section 5.01 of the Base
Indenture, the Notes shall also be subject to the following Events of Default:
(i) a failure by the Company to convert the Notes in accordance with the
provisions of this Supplemental Indenture upon exercise of a Holder's
conversion right which default shall continue for a period of three
Business Days after there has been given, by registered or certified
mail, to the Company by the Trustee or by such Holder, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under
this Supplemental Indenture;
(ii) a failure by the Company to deliver a Company Notice;
(iii) a failure by the Company to repurchase Notes of such series
tendered for repurchase following the occurrence of a Fundamental
Change in accordance with Section 4.01 of this Supplemental Indenture;
and
(iv) a failure by the Company or any Subsidiary of the Company to pay any
Indebtedness within any applicable grace period after its final
maturity or the acceleration by the holders thereof, if the total
amount of such Indebtedness unpaid or accelerated exceeds $100
million.
Section 6.02. Exception to Remedies.
Notwithstanding anything in this Supplemental Indenture or the Base
Indenture to the contrary, to the extent elected by the Company, the sole remedy
for an Event of Default relating to the failure by the Company to comply with
the reporting obligations set forth in Section 7.04 of the Base Indenture and
for any failure to comply with the requirements of Section 314(a)(1) of the
Trust Indenture Act, shall for the first 120 days after the occurrence of such
an Event of Default, consist exclusively of the right of Holders to receive
additional interest on the Notes at an annual rate equal to 0.50% of the
principal amount of the Notes (the "Additional Interest"). If the Company so
elects, such Additional Interest shall be payable in the same manner and on the
same dates as the stated interest payable on the Notes. The Additional Interest
shall accrue on all outstanding Notes from and including the date on which the
Event of Default relating to the failure to comply with the reporting
obligations in the Base Indenture or the failure to comply with the requirements
of Section 314(a)(1) of the Trust Indenture Act first occurs to but not
including the 120th day thereafter (or such earlier date on which such Event of
Default is cured or waived by the Holders of a majority in principal amount of
the outstanding Notes). On such 120th day (or earlier, if the Event of Default
relating to the reporting obligations under the Base Indenture or the failure to
comply with the requirements of Section 314(a)(1) of the Trust Indenture Act is
cured or waived by the Holders of a majority in principal amount of the
outstanding Notes prior to such 120th day), such Additional Interest shall cease
to accrue and, if the Event of Default relating to reporting obligations or the
failure to comply with Section 314(a)(1) of the Trust Indenture Act has not been
cured or waived prior to such 120th day, the notes shall be subject to
acceleration as provided in the Base Indenture. The provisions of this Section
6.02 shall not affect the rights of Holders of Notes in the event of the
occurrence of any other Event of Default. In the event the Company does not
elect to pay the Additional Interest upon an Event of Default in accordance with
this Section 6.02, the Notes shall be subject to acceleration as provided in the
Base Indenture. In order to elect to pay the Additional Interest on the Notes as
the sole remedy during the first 120 days after the occurrence of an Event of
Default relating to the failure to comply with the reporting obligations in
Section 7.04 of the Base Indenture or the failure to comply with Section
314(a)(1) of the Trust Indenture Act in accordance with this Section 6.02, the
Company must notify all Holders of Notes, the Trustee and the Paying Agent of
such election on or before the close of business on the date on which such Event
of Default first occurs, stating (i) the amount of such Additional Interest that
is payable and (ii) the date on which such Additional Interest is payable.
ARTICLE SEVEN
MODIFICATION AND AMENDMENT
Section 7.01. Modification and Amendment.
(a) In addition to the provisions set forth in Section 9.01 and Section
9.02 of the Base Indenture, the Company and the Trustee may, without the consent
of the Holders, enter into one or more supplemental indentures to conform the
provisions of the Indenture or the Notes to the description of the Notes
provided in the final prospectus supplement of the Company for the Notes dated
April 28, 2009 and filed with the Securities and Exchange Commission.
(b) In addition to the provisions set forth in Section 9.01 and Section
9.02 of the Base Indenture, without the consent of each Holder of an outstanding
Note affected thereby, the Company and the Trustee may not:
(i) make any change that adversely affects the conversion rights of
any Note; or
(ii) reduce the Fundamental Change Purchase Price of any Note or the
amend or modify in any manner adverse to the holders of Notes the Company's
obligation to make such payment, whether through an amendment or waiver of
provisions in the covenants, definitions or otherwise.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01. Form of Notes.
The Notes and the Trustee's Certificates of Authentication to be endorsed
thereon are to be substantially in the form of Exhibit A, which forms are hereby
incorporated in and made a part of this Supplemental Indenture.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Supplemental Indenture, and the Company
and the Trustee, by their execution and delivery of this Supplemental Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Section 8.02. Ratification of Base Indenture.
The Base Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified, confirmed and preserved.
Section 8.03. Application of Supplemental Indenture.
The provisions of this Supplemental Indenture shall take effect immediately
upon its execution in accordance with Section 9.04 of the Base Indenture;
provided that the provisions set forth in this Supplemental Indenture shall
apply only in respect of the Notes issued under this Supplemental Indenture and
not to any past or future series of Securities established under the Base
Indenture or any other supplemental indenture.
Section 8.04. Trust Indenture Act Controls.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by Section 310 through 317 of the Trust Indenture Act, the imposed
duties shall control.
Section 8.05. Conflict with Base Indenture.
To the extent not expressly amended or modified by this Supplemental
Indenture, the Base Indenture shall remain in full force and effect. If any
provision of this Supplemental Indenture relating to the Notes is inconsistent
with any provision of the Base Indenture, the provision of this Supplemental
Indenture shall control.
Section 8.06. Withholding Offset.
(a) The Company (through the Withholding Agent or otherwise) shall be
entitled to reduce or otherwise set-off against any payments made or deemed made
by the Company to Holders in respect of the Notes or the Common Stock for any
amounts the Company believes it is required to withhold by law. For the
avoidance of doubt, if the Company pays any withholding taxes on behalf of a
Holder as a result of an adjustment to the Conversion Rate of the Notes, the
Company may, at its option, set-off such payments against payments to such
Holder of cash and Common Stock in respect of the Notes. Any amounts withheld
pursuant to this Section 8.05 shall be paid over by the Company (through the
Withholding Agent or otherwise) to the appropriate taxing authority.
(b) Prior to or upon the occurrence of any event that results in an actual
or deemed payment by the Company to Holders in respect of the Notes or the
Common Stock, the Company (through the Trustee, Paying Agent, Withholding Agent,
or otherwise) may request a Holder to furnish any appropriate documentation that
may be required in order to determine the Company's withholding obligations
under applicable law (including, without limitation, a United States Internal
Revenue Service Form W-9, Form W-8BEN or Form W-8ECI, as appropriate.
Section 8.07. Calculations in Respect of Notes.
Except as otherwise provided herein, the Company shall make all
calculations called for in respect of the Notes. These calculations include, but
are not limited to, determinations of the Last Reported Sale Price, accrued
interest payable on the Notes and the Conversion Rate. The Company shall make
all calculations in good faith and, absent manifest error, such calculations
shall be final and binding on the Holders. 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 such calculations without independent verification. The Trustee
shall forward the Company's calculations to any Holder upon such Holder's
request.
Section 8.08. Governing Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 8.09. Successors.
All agreements of the Company in the Base Indenture, this Supplemental
Indenture and the Notes shall bind its successors. All agreements of the
Trustee in the Base Indenture and this Supplemental Indenture shall bind its
successors.
Section 8.10. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 8.11. Appointment of Conversion Agent.
The Company hereby appoints the Trustee as Conversion Agent, and the
Trustee hereby accepts such appoint.
Section 8.12. Trustee Disclaimer.
The Trustee makes no representation as to the validity or sufficiency of
this Supplemental Indenture other than as to the validity of its execution and
delivery by the Trustee. The recitals and statements herein are deemed to be
those of the Company and not the Trustee.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused
it to be duly executed as of the day and year first above written.
UNITED STATES STEEL CORPORATION
By: /s/ L. T. Brockway
---------------------------------
Name: L. T. Brockway
Title: Vice President & Treasurer
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Mary Miselis
---------------------------------
Name: Mary Miselis
Title: Vice President
Schedule A
----------
The following table sets forth the hypothetical stock price and the number of
Additional Shares to be received per $1,000 principal amount of Notes:
Stock Price on Fundamental Change Date
Effective $25.50 $30.00 $36.00 $42.00 $48.00 $54.00 $60.00 $66.00
Date
- ----------------------------------------------------------------------------
May 4, 2009 7.8432 6.1610 4.4041 3.3131 2.5908 2.0874 1.7217 1.4468
May 15, 2010 7.8432 6.1450 4.2527 3.1122 2.3792 1.8829 1.5318 1.2739
May 15, 2011 7.8432 6.0924 4.0083 2.8029 2.0621 1.5825 1.2574 1.0277
May 15, 2012 7.8432 5.6262 3.3877 2.1802 1.4946 1.0856 0.8294 0.6611
May 15, 2013 7.8432 4.6447 2.2401 1.1362 0.6269 0.3867 0.2685 0.2058
May 15, 2014 7.8432 1.9608 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
$72.00 $78.00 $84.00 $90.00 $96.00 $102.00
-----------------------------------------------
May 4, 2009 1.2341 1.0655 0.9290 0.8167 0.7227 0.6431
May 15, 2010 1.0783 0.9260 0.8043 0.7053 0.6232 0.5542
May 15, 2011 0.8593 0.7319 0.6325 0.5531 0.4882 0.4341
May 15, 2012 0.5450 0.4613 0.3984 0.3493 0.3097 0.2769
May 15, 2013 0.1691 0.1452 0.1279 0.1143 0.1030 0.0934
May 15, 2014 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000