exv4w3






Exhibit 4.3




EXECUTION VERSION




SYNOVUS FINANCIAL CORP.,




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,



as Purchase Contract Agent



and



THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,



as Trustee under the Indenture referred to herein



PURCHASE CONTRACT AGREEMENT



Dated as of May 4, 2010



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Compliance Certificates and Opinions
	 	 	11	 
	Section 1.03. Form of Documents Delivered to Purchase Contract Agent
	 	 	11	 
	Section 1.04. Acts of Holders; Record Dates
	 	 	12	 
	Section 1.05. Notices
	 	 	13	 
	Section 1.06. Notice to Holders; Waiver
	 	 	14	 
	Section 1.07. Effect of Headings and Table of Contents
	 	 	15	 
	Section 1.08. Successors and Assigns
	 	 	15	 
	Section 1.09. Separability Clause
	 	 	15	 
	Section 1.10. Benefits of Agreement
	 	 	15	 
	Section 1.11. Governing Law
	 	 	15	 
	Section 1.12. Judicial Proceedings
	 	 	15	 
	Section 1.13. Legal Holidays
	 	 	16	 
	Section 1.14. Counterparts
	 	 	16	 
	Section 1.15. Inspection of Agreement
	 	 	16	 
	Section 1.16. Waiver of Jury Trial
	 	 	16	 
	Section 1.17. Force Majeure
	 	 	16	 
	Section 1.18. Calculations
	 	 	17	 
	Section 1.19. UCC
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	UNIT AND PURCHASE CONTRACT FORMS
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms of Units and Purchase Contracts Generally
	 	 	17	 
	Section 2.02. Form of Purchase Contract Agent’s Certificate of
Authentication
	 	 	18	 
	Section 2.03. Global Securities; Separation of Units
	 	 	18	 
	Section 2.04. Recreation of Units
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	THE UNITS AND PURCHASE CONTRACTS
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Amount and Denominations
	 	 	20	 
	Section 3.02. Rights and Obligations Evidenced by the Equity-Linked
Securities
	 	 	20	 
	Section 3.03. Execution, Authentication, Delivery and Dating
	 	 	20	 
	Section 3.04. Temporary Equity-Linked Securities
	 	 	21	 
	Section 3.05. Registration; Registration of Transfer and Exchange
	 	 	21	 
	Section 3.06. Book-Entry Interests
	 	 	23	 
	Section 3.07. Notices to Holders
	 	 	23	 
	Section 3.08. Appointment of Successor Depositary
	 	 	23	 
	Section 3.09. Definitive Securities
	 	 	23	 






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	 	 	Page
	Section 3.10. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	24	 
	Section 3.11. Persons Deemed Owners
	 	 	25	 
	Section 3.12. Cancellation
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	SETTLEMENT OF THE PURCHASE CONTRACTS
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Settlement Rate
	 	 	27	 
	Section 4.02. Representations and Agreements of Holders
	 	 	27	 
	Section 4.03. Delivery Upon Settlement of the Purchase Contracts
	 	 	28	 
	Section 4.04. No Fractional Shares
	 	 	29	 
	Section 4.05. Consequences of Bankruptcy
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	ADJUSTMENTS
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Adjustments to the Fixed Settlement Rates
	 	 	29	 
	Section 5.02. Business Combinations
	 	 	37	 
	Section 5.03. Early Settlement Upon a Fundamental Change
	 	 	38	 
	Section 5.04. Early Settlement
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Unconditional Right of Holders to Receive Shares of Common
Stock
	 	 	42	 
	Section 6.02. Limitation on Proceedings
	 	 	42	 
	Section 6.03. Restoration of Rights and Remedies
	 	 	42	 
	Section 6.04. Rights and Remedies Cumulative
	 	 	42	 
	Section 6.05. Delay or Omission Not Waiver
	 	 	43	 
	Section 6.06. Undertaking for Costs
	 	 	43	 
	Section 6.07. Waiver of Stay or Execution Laws
	 	 	43	 
	Section 6.08. Control by Majority
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	THE PURCHASE CONTRACT AGENT
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Certain Duties and Responsibilities
	 	 	44	 
	Section 7.02. Notice of Default
	 	 	45	 
	Section 7.03. Certain Rights of Purchase Contract Agent
	 	 	45	 
	Section 7.04. Not Responsible for Recitals
	 	 	46	 
	Section 7.05. May Hold Units and Purchase Contracts
	 	 	47	 
	Section 7.06. Money Held in Custody
	 	 	47	 
	Section 7.07. Compensation, Reimbursement and Indemnification
	 	 	47	 
	Section 7.08. Corporate Purchase Contract Agent Required; Eligibility
	 	 	48	 
	Section 7.09. Resignation and Removal; Appointment of Successor
	 	 	48	 
	Section 7.10. Acceptance of Appointment by Successor
	 	 	49	 
	Section 7.11. Merger; Conversion; Consolidation or Succession to Business
	 	 	50	 






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	 	 	Page
	Section 7.12. Preservation of Information; Communications to Holders
	 	 	50	 
	Section 7.13. No Obligations of Purchase Contract Agent
	 	 	51	 
	Section 7.14. Tax Compliance
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	SUPPLEMENTAL AGREEMENTS
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Supplemental Agreements Without Consent of Holders
	 	 	52	 
	Section 8.02. Supplemental Agreements With Consent of Holders
	 	 	52	 
	Section 8.03. Execution of Supplemental Agreements
	 	 	53	 
	Section 8.04. Effect of Supplemental Agreements
	 	 	53	 
	Section 8.05. Reference to Supplemental Agreements
	 	 	53	 
	Section 8.06. Notice of Amendment
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Covenant Not to Consolidate, Merge, Convey, Transfer or
Lease Property Except Under Certain Conditions
	 	 	54	 
	Section 9.02. Rights and Duties of Successor Entity
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	COVENANTS OF THE COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Performance Under Purchase Contracts
	 	 	55	 
	Section 10.02. Maintenance of Office or Agency
	 	 	55	 
	Section 10.03. Statements of Officers of the Company as to Default; Notice
of Default
	 	 	55	 
	Section 10.04. Existence
	 	 	56	 
	Section 10.05. Company to Reserve Common Stock
	 	 	56	 
	Section 10.06. Covenants as to Common Stock; Listing
	 	 	56	 
	Section 10.07. Tax Treatment
	 	 	56	 






EXHIBITS



Exhibit A — Form of Unit



Exhibit B — Form of Purchase Contract




-iii-









 





     PURCHASE CONTRACT AGREEMENT, dated as of May 4, 2010, among SYNOVUS FINANCIAL CORP., a Georgia
corporation (the “Company”), THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national
banking association, acting as purchase contract agent and attorney-in-fact for the Holders of
Purchase Contracts (as defined herein) from time to time (the “Purchase Contract Agent”),
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., acting as Trustee under the Indenture (as
defined herein).



RECITALS




     The Company has duly authorized the execution and delivery of this Agreement and the Units and
Purchase Contracts issuable hereunder.



     All things necessary to make the Units and Purchase Contracts, when such are executed by the
Company and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract
Agent, as provided in this Agreement, the valid obligations of the Company and to constitute this
Agreement a valid agreement of the Company, in accordance with its terms, have been done. For and
in consideration of the premises and the purchase of the Units (including the constituent parts
thereof) by the Holders thereof, it is mutually agreed as follows:



ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS




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



          (a) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular, and nouns and pronouns of the masculine gender include
the feminine and neuter genders;




          (b) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States;




          (c) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section, Exhibit or other subdivision;




          (d) references herein to Articles, Sections and Exhibits refer to Articles, Sections and
Exhibits of this Agreement, unless the context otherwise requires; and




          (e) the following terms have the meanings given to them in this Section 1.01(e):




     “Acquiring Person” has the meaning set forth in Section 5.01(d).



     “Act” has the meaning, with respect to any Holder, set forth in Section 1.04.



1









 






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



     “Agreement” means this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant
to the applicable provisions hereof.



     “Applicable Market Value” means the average of the Daily VWAPs of the Common Stock on
each of the 20 consecutive Trading Days ending on the third Trading Day immediately preceding the
Mandatory Settlement Date, subject to adjustment as provided in Article 5.



     “applicants” has the meaning set forth in Section 7.12(b).



     “Beneficial Owner” means, with respect to a Book-Entry Interest, a Person who is the
beneficial owner of such Book-Entry Interest as reflected on the books of the Depositary or on the
books of a Person maintaining an account with the Depositary (directly as a Depositary Participant
or as an indirect participant, in each case in accordance with the rules of the Depositary).



     “Board of Directors” means the board of directors of the Company or a duly authorized
committee of that board.



     “Board Resolution” means one or more resolutions of the Board of Directors, a copy of
which has been certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Purchase Contract Agent.



     “Book-Entry Interest” means a beneficial interest in a Global Security, registered in
the name of a Depositary or a nominee thereof, ownership and transfers of which shall be maintained
and made through book entries by such Depositary as described in Section 3.06.



     “Business Combination” has the meaning set forth in Section 5.02.



     “Business Day” means any day other than a Saturday, Sunday or any day on which banking
institutions or trust companies in New York, New York are authorized or obligated by applicable
law, regulation or executive order to close.



     “Capital Stock” of any Person means any and all shares, interests, participations or
other equivalents, however designated, of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such Person and any rights (other than debt
securities convertible or exchangeable into an equity interest), warrants or options to acquire an
equity interest in such Person.



2









 





     “Clearing Agency” means an organization registered as a “clearing agency” pursuant to
Section 17A of the Exchange Act.



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



     “Closing Price” of the Common Stock means, on any date of determination (i) the
closing sale price (or, if no closing sale price is reported, the last reported sale price) of the
Common Stock on the New York Stock Exchange on such date or, if the Common Stock is not listed for
trading on the New York Stock Exchange on any such date, as reported in the composite transactions
for the principal United States national or regional securities exchange on which the Common Stock
is so listed; or (ii) if the Common Stock is not so reported, the last quoted bid price for the
Common Stock in the over-the-counter market as reported by the Pink OTC Markets Inc. or a similar
organization, or, if such bid price is not available, the average of the mid-point of the last bid
and ask prices of the Common Stock on such date from at least three nationally recognized
independent investment banking firms retained by the Company for this purpose.



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



     “Common Stock” means the common stock, par value $1.00 per share, of the Company as it
existed on the date of this Agreement, subject to Section 5.02.



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



     “Corporate Trust Office” means the office of the Purchase Contract Agent at which, at
any particular time, its corporate trust business in Jacksonville, Florida shall be principally
administered, which office at the date hereof is located at 10161 Centurion Parkway, Jacksonville,
FL 32256, except that with respect to presentation of Units for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Purchase Contract Agent at
which at any particular time its corporate agency business shall be conducted, which office at the
date of this instrument is located at 101 Barclay Street, New York, New York 10286; Attention:
Corporate Trust Division — Corporate Finance Unit, or, in the case of any of such offices or
agency, such other address as the Purchase Contract Agent may designate from time to time by notice
to the Company.



     “Current Market Price” of the Common Stock on any day means the average of the Daily
VWAP of the Common Stock over each of the 10 consecutive Trading Days ending on the earlier of the
day in question and the day before the Ex-Date with respect to the issuance or distribution
requiring such computation.



     “Daily VWAP” of the Common Stock means, on any date of determination, the per share
volume-weighted average price as displayed under the heading Bloomberg VWAP on the Bloomberg page
SNV US <equity> AQR (or its equivalent successor as determined by the Company if such page is
not available) in respect of the period from the scheduled open of trading on the relevant Trading
Day until the scheduled close of trading on the relevant Trading Day (or if such volume-weighted
average price is unavailable, the market price of one share of



3









 




Common Stock on such Trading Day determined, using a volume-weighted method, by a nationally
recognized independent investment banking firm retained for this purpose by the Company).




     “Definitive Equity-Linked Security” means an Equity-Linked Security in definitive
form.



     “Definitive Security” means any Security in definitive form.



     “Depositary” means a Clearing Agency that is acting as a depositary for the Equity
Linked Securities and in whose name, or in the name of a nominee of that organization, shall be
registered one or more Global Securities and which shall undertake to effect book-entry transfers
of the Equity Linked Securities as contemplated by Section 3.06, Section 3.07, Section 3.08 and
Section 3.09.



     “Depositary Participant” means a broker, dealer, bank, other financial institution or
other Person for whom from time to time the Depositary effects book-entry transfers of securities
deposited with the Depositary.



     “Dividend Threshold Amount” has the meaning set forth in Section 5.01(a)(iv).



     “DTC” means The Depository Trust Company.



     “DWAC System” has the meaning set forth in Section 2.03(a).



     “Early Settlement” has the meaning set forth in Section 5.04(a).



     “Early Settlement Date” has the meaning set forth in Section 5.04(b).



     “Early Settlement Notice” has the meaning set forth in Section 5.04(b)(i).



     “Early Settlement Rate” for each Purchase Contract means the Minimum Settlement Rate,
unless the Holder elects to settle such Purchase Contract in connection with a Fundamental Change,
in which case such Holder shall receive upon settlement of such Purchase Contract a number of
shares of Common Stock based on the Fundamental Change Early Settlement Rate, subject to adjustment
in the same manner and at the same time as each Fixed Settlement Rate is adjusted pursuant to
Section 5.01.



     “Effective Date” has the meaning set forth in Section 5.03(c).



     “Equity-Linked Security” means a Unit or a Purchase Contract, as applicable.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any statute
successor thereto, in each case as amended from time to time, together with the rules and
regulations promulgated thereunder.



     “expiration date” has the meaning set forth in Section 1.04(e).



4









 





     “Expiration Date” has the meaning set forth in Section 5.01(a)(v).



     “Expiration Time” has the meaning set forth in Section 5.01(a)(v).



     “Ex-Date” means the first date on which shares of Common Stock trade on the applicable
exchange or in the applicable market, regular way, without the right to receive the issuance,
dividend or distribution in question, from the Company or, if applicable, from the seller of Common
Stock on such exchange or market (in the form of due bills or otherwise) as determined by such
exchange or market.



     “Fixed Settlement Rate” has the meaning set forth in Section 4.01.



     “Fundamental Change” shall be deemed to occur if any of the following occurs:




          (i) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act files
a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such
person or group has become the direct or indirect ultimate “beneficial owner,” as defined in
Rule 13d-3 under the Exchange Act, of the Company’s common equity representing more than 50%
of the voting power of the Common Stock; or




          (ii) consummation of any consolidation or merger of the Company or similar transaction
with, or any sale, lease or other transfer in one transaction or a series of transactions of
all or substantially all of the property and assets of the Company to, any Person other than
one of the Company’s Subsidiaries, in each case pursuant to which the Common Stock will be
converted into cash, securities or other property;


provided, however, that a Fundamental Change shall not be deemed to have occurred
if at least 90% of the consideration received by holders of the Common Stock, excluding cash
payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights,
in the transaction or transactions consists of shares of common stock or depositary receipts in
respect of common stock that are traded on a U.S. national securities exchange or that will be so
traded when issued or exchanged in connection with such transaction or transactions.




     “Fundamental Change Early Settlement Date” has the meaning set forth in Section
5.03(a).



     “Fundamental Change Early Settlement Rate” has the meaning set forth in Section
5.03(c).



     “Fundamental Change Early Settlement Right” has the meaning set forth in Section
5.03(a).



     “Global Note” means a Registered Global Security, as defined in the Indenture, that
shall evidence the number of Separate Notes specified therein.



     “Global Purchase Contract” means a Purchase Contract in global form that (i) shall
evidence the number of Separate Purchase Contracts specified therein, (ii) shall be registered on



5









 




the books and records of the Purchase Contract Agent in the name of the Depositary or its
nominee and (iii) shall be held by the Purchase Contract Agent as custodian for the Depositary.




     “Global Security” means a Global Unit, a Global Purchase Contract or a Global Note, as
applicable.



     “Global Unit” means a Unit in global form that (i) shall evidence the number of Units
specified therein, (ii) shall be registered on the books and records of the Purchase Contract Agent
in the name of the Depositary or its nominee and (iii) shall be held by the Purchase Contract Agent
as custodian for the Depositary.



     “Holder” means, with respect to a Unit or Purchase Contract, the Person in whose name
the Unit or Purchase Contract, as the case may be, is registered in the Security Register;
provided, however, that in determining whether the Holders of the requisite number
of Units or Purchase Contracts, as the case may be, have voted on any matter, then for the purpose
of such determination only (and not for any other purpose hereunder), if the Units or Purchase
Contracts, as the case may be, remain in the form of one or more Global Securities and if the
Depositary that is the registered holder of such Global Security has sent an omnibus proxy
assigning voting rights to the Depositary Participants to whose accounts the Units or Purchase
Contracts, as the case may be, are credited on the related record date, the term “Holder”
shall mean such Depositary Participant acting at the direction of the Beneficial Owners.



     “Indenture” means the Junior Subordinated Indenture dated as of May 4, 2010, between
the Company and the Trustee (including any provisions of the TIA that are deemed incorporated
therein), as supplemented by the Supplemental Indenture.



     “Issuer Order” or “Issuer Request” means a written order or request signed in
the name of the Company by its Chairman of the Board, its President or one of its Vice Presidents,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Purchase Contract Agent.



     “Mandatory Settlement Date” means May 15, 2013.



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



     “Maximum Settlement Rate” has the meaning set forth in Section 4.01.



     “Merger Common Stock” has the meaning set forth in Section 5.02(b)(i).



     “Merger Valuation Percentage” for any Business Combination shall be equal to (x) the
arithmetic average of the Closing Prices of one share of the Merger Common Stock over the



6









 




relevant Merger Valuation Period (determined as if references to “Common Stock” in the
definition of “Closing Price” were references to the “Merger Common Stock” for such Business
Combination), divided by (y) the arithmetic average of the Closing Prices of one share of
Common Stock over the relevant Merger Valuation Period.




     “Merger Valuation Period” for any Business Combination means the five consecutive
Trading Day period immediately preceding, but excluding, the effective date for such Business
Combination.



     “Minimum Settlement Rate” has the meaning set forth in Section 4.01.



     “Minimum Stock Price” has the meaning set forth in Section 5.03(e)(iii).



     “Notes” means the series of notes designated as the 13.00% Junior Subordinated
Deferrable Installment Debentures due May 15, 2013 to be issued by the Company under the Indenture,
and “Note” means each note of such series having an initial principal amount of $5.098197.



     “NYSE” means the New York Stock Exchange, Inc.



     “Officers’ Certificate” means a certificate signed by the Chief Executive Officer, any
Vice Chairman, the President, any of the Executive Vice Presidents or any of the Senior Vice
Presidents, the Secretary or any Assistant Secretary, or the General Counsel, and delivered to the
Purchase Contract Agent.



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



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel to the
Company (and who may be an employee of the Company), and who shall be reasonably acceptable to the
Purchase Contract Agent. An opinion of counsel may rely on certificates as to matters of fact.



     “Outstanding Purchase Contracts” means, as of the date of determination, all Purchase
Contracts theretofore authenticated, executed and delivered under this Agreement (including, for
the avoidance of doubt, Purchase Contracts held as a component of Units and Separate Purchase
Contracts), except:




          (i) Purchase Contracts theretofore cancelled by the Purchase Contract Agent or received
by the Purchase Contract Agent for cancellation or deemed cancelled pursuant to the
provisions of this Agreement; and




          (ii) Purchase Contracts in exchange for or in lieu of which other Purchase Contracts
have been authenticated, executed on behalf of the Holder and delivered pursuant to this
Agreement, other than any such Purchase Contract in respect of which there shall have been
presented to the Purchase Contract Agent proof satisfactory to it that such Purchase
Contract is held by a protected purchaser in whose hands the Purchase Contracts are valid
obligations of the Company;



7









 




provided, however, that in determining whether the Holders of the requisite number
of the Purchase Contracts have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Purchase Contracts owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding Purchase Contracts, except that, in determining
whether the Purchase Contract Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Purchase Contracts that a Responsible
Officer of the Purchase Contract Agent actually knows to be so owned shall be so disregarded.




     “Participant” has the meaning set forth in Section 2.03(a).



     “Person” means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any
other entity of whatever nature.



     “Preliminary Prospectus Supplement” means the Preliminary Prospectus Supplement dated
April 26, 2010, related to the Units.



     “Purchase Contract” means the contract obligating the Company to deliver shares of
Common Stock on the terms and subject to the conditions set forth herein.



     “Purchase Contract Agent” means the Person named as the “Purchase Contract Agent” in
the first paragraph of this Agreement until a successor Purchase Contract Agent shall have become
such pursuant to the applicable provisions of this Agreement, and thereafter, in each instance,
“Purchase Contract Agent” shall mean such Person.



     “Purchase Contract Settlement Fund” has the meaning set forth in Section 4.03(a).



     “Purchased Shares” has the meaning set forth in Section 5.01(a)(v).



     “Record Date” means, for purposes of Section 5.01, with respect to any dividend,
distribution or other transaction or event in which the holders of the Common Stock have the right
to receive any cash, securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities or other property,
the date fixed for determination of holders of the Common Stock entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).



     “Reference Price” has the meaning set forth in Section 4.01.



     “Reference Property” has the meaning set forth in Section 5.02.



     “Responsible Officer” means, with respect to the Purchase Contract Agent, any officer
of the Purchase Contract Agent assigned by the Purchase Contract Agent to administer this
Agreement.



     “Rights” has the meaning set forth in Section 5.01(d).



8









 





     “Securities Act” means the Securities Act of 1933, as amended, and any statute
successor thereto, in each case as amended from time to time, and the rules and regulations
promulgated thereunder.



     “Security” means a Unit, a Purchase Contract or a Note, as applicable.



     “Security Register” and “Security Registrar” have the respective meanings set
forth in Section 3.05.



     “Separate Note” has the meaning set forth in Section 2.03(a).



     “Separate Purchase Contract” has the meaning set forth in Section 2.03(a).



     “Settlement Rate” has the meaning set forth in Section 4.01.



     “Shareholder Rights Plan” means the Company’s Shareholder Rights Plan, dated April 26,
2010, as such plan may be amended or supplemented from time to time.



     “Stated Amount” means $25.



     “Stock Price” has the meaning set forth in Section 5.03(c).



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



     “Supplemental Indenture” means the First Supplemental Indenture, dated as of May 4,
2010, between the Company and the Trustee, pursuant to which the Notes will be issued.



     “Termination Event” means the occurrence of any of the following events:




          (i) at any time on or prior to the Mandatory Settlement Date, a decree or order by a
court having jurisdiction in the premises shall have been entered adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of
the Company under the Bankruptcy Code or any other similar applicable Federal or state law
and if such judgment, decree or order shall have been entered more than 60 days prior to the
Mandatory Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days;




          (ii) at any time on or prior to the Mandatory Settlement Date, a decree or order of a
court having jurisdiction in the premises for the appointment of a receiver or liquidator or
trustee or assignee (or other similar official) in bankruptcy or insolvency of the Company
or of all or substantially all of its property, or for the winding up or liquidation



9









 







of its affairs, shall have been entered and if such decree or order shall have
been entered more than 60 days prior to the Mandatory Settlement Date, such judgment, decree
or order shall have continued undischarged and unstayed for a period of 60 days; or




          (iii) at any time on or prior to the Mandatory Settlement Date, the Company shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the Bankruptcy Code or any other similar applicable Federal or state
law, or shall consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee (or other similar official)
in bankruptcy or insolvency of it or of its property, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its debts generally as
they become due.


For the avoidance of doubt, a “Termination Event” shall not include any event described in
clauses (i) through (iii) above with respect to any Subsidiary of the Company.




     “Threshold Appreciation Price” has the meaning set forth in Section 4.01.



     “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii)
trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock
is not then listed on the New York Stock Exchange, on the principal other United States national or
regional securities exchange on which the Common Stock is then listed or, if the Common Stock is
not then listed on a United States national or regional securities exchange, on the principal other
market on which the Common Stock is then listed or admitted for trading. If the Common Stock (or
other security for which a Daily VWAP must be determined) is not listed or admitted for trading as
described in clause (ii) of the immediately preceding sentence, “Trading Day” means a
“Business Day.”



     “Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee under the
Indenture, or any successor thereto.



     “Unit” means the collective rights of a Holder of a unit consisting of one Purchase
Contract and one Note prior to separation pursuant Section 2.03 or subsequent to recreation
pursuant to Section 2.04.



     “unit of Reference Property” has the meaning set forth in Section 5.02.



     “Vice President” means any vice president, whether or not designated by a number or a
word or words added before or after the title “vice president.”



     “VWAP” per share of any Capital Stock or similar equity interest on any Trading Day
means the per share volume-weighted average price as displayed under the heading Bloomberg VWAP on
the relevant Bloomberg page in respect of the period from the scheduled open of trading on such
Trading Day until the scheduled close of trading on such Trading Day (or if such volume-weighted
average price is unavailable, the market price of one share of such Capital Stock or similar equity
interest on such Trading Day determined, using a volume-weighted



10









 




average method, by a nationally recognized independent investment banking firm retained for
this purpose by the Company).




     Section 1.02. Compliance Certificates and Opinions. Except as otherwise expressly
provided by this Agreement, upon any application or request by the Company to the Purchase Contract
Agent to take any action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers’ Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished unless so specified in such provision.



     Every Officers’ Certificate or Opinion of Counsel with respect to compliance with a condition
or covenant provided for in this Agreement shall include:




          (i) a statement that each individual signing such Officers’ Certificate or Opinion of
Counsel has read such covenant or condition and the definitions herein relating thereto;




          (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officers’ Certificate or Opinion of
Counsel are based;




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




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



     Section 1.03. Form of Documents Delivered to Purchase Contract Agent. In any case
where several matters are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters
in one or several documents. Any Officers’ Certificate or Opinion of Counsel of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to the matters upon
which his or her Officers’ Certificate or Opinion of Counsel is based are erroneous. Any such
Officers’ Certificate or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the possession



11









 




of the Company unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters are erroneous.




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



     Section 1.04. Acts of Holders; Record Dates. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Purchase Contract Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to
Section 7.01) conclusive in favor of the Purchase Contract Agent and the Company, if made in the
manner provided in this Section.



          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any manner which the Purchase Contract Agent deems sufficient.




          (c) The ownership of Purchase Contracts shall be proved by the Security Registrar upon review
of the Security Register.




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




          (e) The Company may set any date as a record date for the purpose of determining the Holders
of Outstanding Purchase Contracts entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Agreement to be given, made or taken by Holders of Purchase Contracts. If any record date is set
pursuant to this paragraph, the Holders of the Outstanding Purchase Contracts on such record date,
and no other Holders, shall be entitled to take the relevant action with respect to the Purchase
Contracts, whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken prior to or on the applicable expiration
date by Holders of the requisite number of Outstanding Purchase Contracts on such record date.
Nothing contained in this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be cancelled and be of no effect), and nothing contained in this paragraph shall be
construed to render ineffective any action taken by Holders






12









 







of the requisite number of Outstanding Purchase Contracts on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
expiration date to be given to the Purchase Contract Agent in writing and to each Holder of
Purchase Contracts in the manner set forth in Section 1.06.




     With respect to any record date set pursuant to this Section, the Company may designate any
date as the “expiration date” and from time to time may change the expiration date to any
earlier or later day; provided that no such change shall be effective unless notice of the
proposed new expiration date is given to the Purchase Contract Agent in writing, and to each Holder
of Purchase Contracts in the manner set forth in Section 1.06, prior to or on the existing
expiration date. If an expiration date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially designated the 180th day
after such record date as the expiration date with respect thereto, subject to its right to change
the expiration date as provided in this paragraph. Notwithstanding the foregoing, no expiration
date shall be later than the 180th day after the applicable record date.



     Section 1.05. Notices. Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight courier guaranteeing next day
delivery, to the others’ address; provided that notice shall be deemed given to the Purchase
Contract Agent only upon receipt thereof:


If to the Purchase Contract Agent:



The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, FL 32256

Attention: Trust Division — Corporate Finance Unit

Telephone: (904) 998-4717

Facsimile: (904) 645-1921



If to the Trustee:



The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, FL 32256

Attention: Trust Division — Corporate Finance Unit

Telephone: (904) 998-4717

Facsimile: (904) 645-1921



If to the Company:



Synovus Financial Corp.

1111 Bay Avenue, Suite 500

P.O. Box 120




13









 







Columbus, Georgia 31901

Attention: General Counsel

Facsimile: (706) 649-4819



with a courtesy copy, which shall not constitute notice for purposes of the notice requirements hereunder, to:



Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Attention: John L. Douglas

Facsimile: (212) 701-5145



with a courtesy copy, which shall not constitute notice for purposes of the notice requirements hereunder, to:



Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Attention: Mark M. Mendez

Facsimile: (212) 701-5829




     The Purchase Contract Agent shall have the right, but shall not be required, to rely upon and
comply with instructions and directions sent by e-mail, facsimile and other similar unsecured
electronic methods by Persons believed by the Purchase Contract Agent to be authorized to give
instructions and directions on behalf of the Company. The Purchase Contract Agent shall have no
duty or obligation to verify or confirm that the Person who sent such instructions or directions
is, in fact, a Person authorized to give instructions or directions on behalf of the Company; and
the Purchase Contract Agent shall have no liability for any losses, liabilities, costs or expenses
incurred or sustained by the Company as a result of such reliance upon or compliance with such
instructions or directions. The Company agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Purchase Contract Agent, including
without limitation the risk of the Purchase Contract Agent acting on unauthorized instructions, and
the risk of interception and misuse by third parties.



     Section 1.06. Notice to Holders; Waiver. Where this Agreement provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at its address as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect
to other Holders with respect to whom such notice is properly given. Where this Agreement provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Purchase Contract Agent, but



14









 




such filing shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver.




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



     Section 1.07. Effect of Headings and Table of Contents. The Article and Section
headings herein and in the Table of Contents are for convenience only and shall not affect the
construction hereof.



     Section 1.08. Successors and Assigns. All covenants and agreements in this Agreement
by the Company and the Purchase Contract Agent shall bind their respective successors and assigns,
whether so expressed or not.



     Section 1.09. Separability Clause. In case any provision in this Agreement or in the
Purchase Contracts shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.



     Section 1.10. Benefits of Agreement. Nothing contained in this Agreement or in the
Purchase Contracts, express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from time to time
shall be beneficiaries of this Agreement and shall be bound by all of the terms and conditions
hereof and of the Purchase Contracts by their acceptance of delivery of such Purchase Contracts.



     Section 1.11. Governing Law. THIS AGREEMENT, THE UNITS AND THE PURCHASE CONTRACTS,
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE UNITS OR THE
PURCHASE CONTRACTS, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.



     Section 1.12. Judicial Proceedings. (a) Each of the Company and the Purchase
Contract Agent expressly accepts and irrevocably submits to the non-exclusive jurisdiction of the
United States Federal or New York State court sitting in the Borough of Manhattan, The City of New
York, New York, over any suit, action or proceeding arising out of or relating to this Agreement or
the Purchase Contracts. To the fullest extent it may effectively do so under applicable law, each
of the Company, the Purchase Contract Agent and the Trustee irrevocably waives and agrees not to
assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in an inconvenient
forum.



15









 





          (b) Each of the Company and the Purchase Contract Agent agrees, to the fullest extent that it
may effectively do so under applicable law, that a judgment in any suit, action or proceeding of
the nature referred to in Section 1.12(a) brought in any such court shall be conclusive and binding
upon such party, subject to rights of appeal, and may be enforced in the courts of the United
States of America or the State of New York (or any other court the jurisdiction to which the
Company is or may be subject) by a suit upon such judgment.




          (c) Nothing in this Section 1.12 shall affect the right of any party hereto to serve process
in any manner permitted by law, or limit any right to bring proceedings against any other party
hereto in the courts of any jurisdiction or to enforce in any lawful manner a judgment obtained in
one jurisdiction in any other jurisdiction.




     Section 1.13. Legal Holidays. In any case where any Mandatory Settlement Date, Early
Settlement Date or Fundamental Change Early Settlement Date shall not be a Business Day,
notwithstanding any other provision of this Agreement or the Purchase Contracts, settlement of the
Purchase Contracts shall not be effected on such date, but instead shall be effected on the next
succeeding Business Day with the same force and effect as if made on such Mandatory Settlement
Date, Early Settlement Date or Fundamental Change Early Settlement Date, as applicable, and no
interest or other amounts shall accrue or be payable by the Company or to any Holder in respect of
such delay, except that, if such next succeeding Business Day is in the next succeeding calendar
year, such settlement shall be made on the immediately preceding Business Day with the same force
and effect as if made on such Mandatory Settlement Date, Early Settlement Date or Fundamental
Change Early Settlement Date, as applicable.



     Section 1.14. Counterparts. This Agreement may be executed in any number of
counterparts by the parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together constitute one and
the same instrument.



     Section 1.15. Inspection of Agreement. A copy of this Agreement shall be available at
all reasonable times during normal business hours at the Corporate Trust Office for inspection by
any Holder or Person providing to the Purchase Contract Agent reasonable evidence that it is a
Beneficial Owner.



     Section 1.16. Waiver of Jury Trial. EACH OF THE COMPANY, THE PURCHASE CONTRACT AGENT,
THE TRUSTEE AND EACH HOLDER OF AN EQUITY LINKED SECURITY, BY ITS ACCEPTANCE THEREOF HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.



     Section 1.17. Force Majeure. In no event shall either of the Purchase Contract Agent
or the Trustee be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or




16











 




malfunctions of utilities, communications or computer (software and hardware) services, it
being understood that each of the Purchase Contract Agent and the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.




     Section 1.18. Calculations. The solicitation of any necessary bids and calculations
to be made hereunder shall be the obligation of the Company. These calculations include, but are
not limited to, determination of the applicable Settlement Rate, the Fixed Settlement Rates, the
Early Settlement Rate, the Fundamental Change Early Settlement Rate, the Applicable Market Value,
the Daily VWAP and the VWAP, as the case may be. All calculations made by the Company or its agent
as contemplated pursuant to the terms hereof shall be made in good faith and, absent manifest
error, be final and binding on the Purchase Contract Agent, the Trustee, each Paying Agent and on
the Holders. For any calculations to be made by the Company or its agent as contemplated pursuant
to the terms hereof, the Company shall provide a schedule of such calculations to the Purchase
Contract Agent and the Trustee, and each of the Purchase Contract Agent and the Trustee shall be
entitled to conclusively rely upon the accuracy and completeness of the calculations by the Company
or its agent without independent verification, shall in no event be deemed to have acted
negligently (even if information so provided would reflect manifest error) and shall have no
liability to the Holders for any loss or damages any of them may incur, in each case, as a result
of or in connection with no Purchase Contract Agent, Trustee or any other independent verification
having been undertaken or completed.



     Section 1.19. UCC. Each Purchase Contract (whether or not included in a Unit) is a
security governed by Article 8 of the Uniform Commercial Code as in effect in the State of New York
on the date hereof.



ARTICLE 2

UNIT AND PURCHASE CONTRACT FORMS




     Section 2.01. Forms of Units and Purchase Contracts Generally. The Units and Purchase Contracts shall be in substantially the forms set forth in
Exhibit A and Exhibit B hereto, respectively, which shall be, and hereby are,
incorporated in and made a part of this Purchase Contract Agreement, with such letters, numbers or
other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as may be required by the rules of any securities exchange on which the Units
or Purchase Contracts, as the case may be, are (or may in the future be) listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the Company executing
such Units and Purchase Contracts, as the case may be, as evidenced by their execution thereof.



     The Units and Purchase Contracts shall be issuable only in registered form and only in
denominations of a single Unit or Purchase Contract, as the case may be, and any integral multiple
thereof.



     Each Unit, upon authentication, execution and delivery thereof hereunder, shall initially
consist of (i) the number of Purchase Contracts as shall be indicated in the Purchase Contract
attached thereto as Attachment 3 and (ii) the number of Notes as shall be indicated in the Note



17









 




attached thereto as Attachment 4, in each case as such numbers may from time to time be
reduced or increased, as appropriate in accordance with the terms of this Agreement.




     Definitive Securities shall be printed, lithographed or engraved with steel engraved borders
or may be produced in any other manner, all as determined by the officers of the Company executing
the Units or Purchase Contracts, as the case may be, evidenced by such Definitive Securities,
consistent with the provisions of this Agreement, as evidenced by their execution thereof.



     Every Global Unit and Global Purchase Contract authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the following form:



     “THIS SECURITY IS A GLOBAL [UNIT/PURCHASE CONTRACT] WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”), THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS GLOBAL [UNIT/PURCHASE CONTRACT] IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS GLOBAL [UNIT/PURCHASE CONTRACT] IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY HAS AN INTEREST HEREIN.”



     Section 2.02. Form of Purchase Contract Agent’s Certificate of Authentication. The
form of the Purchase Contract Agent’s certificate of authentication of the Units and Purchase
Contracts shall be in substantially the form set forth in the form of Unit or form of Purchase
Contract, respectively, attached hereto.



     Section 2.03. Global Securities; Separation of Units. (a) On any Business Day during
the period beginning on, and including, the Business Day immediately succeeding the date of this
Agreement to, but excluding, the third Business Day immediately preceding the Mandatory Settlement
Date, a Holder or Beneficial Owner of a Unit may separate such Unit into



18









 




its constituent Purchase Contract and Note (each such separated Purchase Contract and
separated Note, a “Separate Purchase Contract” and “Separate Note,” respectively),
which will thereafter trade under their respective CUSIP numbers (87161C 121) and (87161C 303), in
which case that Unit will cease to exist. Beneficial interests in a Unit, and after separation,
the Separate Purchase Contract and Separate Note, will be shown on and transfers will be effected
through direct or indirect participants in DTC. Beneficial interests in Units, Separate Purchase
Contracts and Separate Notes will be evidenced by Global Units, Global Purchase Contracts and
Global Notes, respectively. In order to separate a Unit into its component parts, a Beneficial
Owner must deliver written instruction to the broker or other direct or indirect participant (the
“Participant”) through which such Beneficial Owner holds an interest in such Unit to notify
DTC through DTC’s Deposit/Withdrawal at Custodian System (the “DWAC System”) of such
Beneficial Owner’s election to separate such Unit, unless such Unit is in the form of a Definitive
Security, in which case the Holder thereof must deliver to the Purchase Contract Agent such Unit,
together with a separation notice, in the form set forth in Attachment 1 to the form of Unit
attached hereto as Exhibit A. Upon the receipt of such separation notice, the Company
shall promptly cause delivery, in accordance with the delivery instructions set forth in such
separation notice, of one Separate Purchase Contract and one Separate Note for each such Unit.
Separate Purchase Contracts and Separate Notes will be transferable independently from each other.




          (b) Holders which elect to separate the Note and related Purchase Contract in accordance with
this Section 2.03 shall be responsible for any fees or expenses payable in connection with such
separation, and the Company shall not be responsible for any such fees or expenses.




     Section 2.04. Recreation of Units. (a) On any Business Day during the period
beginning on, and including, the Business Day immediately succeeding the date of this Agreement to,
but excluding, the third Business Day immediately preceding the Mandatory Settlement Date, a Holder
or Beneficial Owner of a Separate Purchase Contract and a Separate Note may recreate a Unit (which
will thereafter trade under the CUSIP number for the Units (87161C 204)), in which case each such
Separate Purchase Contract and Separate Note will cease to exist. In order to recreate a Separate
Purchase Contract and Separate Note into a Unit, a Beneficial Owner must deliver written
instruction to the Participant through which it holds an interest in such Separate Purchase
Contract and Separate Note and to notify DTC through DTC’s DWAC System of such Beneficial Owner’s
election to recreate a Unit, unless such Separate Purchase Contract and Separate Note are in the
form of Definitive Securities, in which case the Holder thereof must deliver to the Purchase
Contract Agent such Definitive Securities, together with a recreation notice, in the form set forth
in Attachment 2 to the form of Unit attached hereto as Exhibit A. Upon the receipt of such
recreation notice, the Company shall promptly cause delivery, in accordance with the delivery
instructions set forth in such recreation notice, of one Unit in definitive form for such
Definitive Securities.



          (b) Holders that recreate Units in accordance with this Section 2.04 shall be responsible for
any fees or expenses payable in connection with such recreation, and the Company shall not be
responsible for any such fees or expenses.







19









 








ARTICLE 3

THE UNITS AND PURCHASE CONTRACTS




     Section 3.01. Amount and Denominations. The aggregate number of Units and Separate
Purchase Contracts evidenced by Equity-Linked Securities authenticated, executed on behalf of the
Holders and delivered hereunder is limited to 13,800,000, except for Units and Separate Purchase
Contracts authenticated, executed and delivered upon registration of transfer of, in exchange for,
or in lieu of, other Units and Separate Purchase Contracts pursuant to Section 3.04, 3.05, 3.10 or
8.05.



     Equity-Linked Securities that are not in the form of Global Securities shall be issuable in
denominations of one Equity-Linked Security and integral multiples in excess thereof



     Section 3.02. Rights and Obligations Evidenced by the Equity-Linked Securities. Each
Equity-Linked Security shall evidence the number of Units or Separate Purchase Contracts, as the
case may be, specified therein, with each such Unit and each such Separate Purchase Contract
representing the rights and obligations of the Holder thereof and the Company under one Unit or one
Separate Purchase Contract, respectively.



     Prior to the delivery of shares of Common Stock under each Purchase Contract (whether such
Purchase Contract is held as a component of a Unit or as a Separate Purchase Contract), such
Purchase Contract shall not entitle the Holder thereof to any of the rights of a holder of Common
Stock, including, without limitation, the right to vote or receive any dividends or other payments
or to consent or to receive notice as a shareholder in respect of the meetings of shareholders or
for the election of directors for any other matter, or any other rights whatsoever as a shareholder
of the Company.



     Section 3.03. Execution, Authentication, Delivery and Dating. Upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter, the Company may
deliver Equity-Linked Securities executed by the Company to the Purchase Contract Agent and the
Trustee for authentication by the Purchase Contract Agent and the Trustee, execution on behalf of
the Holders by the Purchase Contract Agent and delivery by the Purchase Contract Agent and the
Trustee, together with the Issuer Order for authentication of such Equity-Linked Securities, and
the Purchase Contract Agent and the Trustee in accordance with such Issuer Order shall, as
appropriate, authenticate, execute on behalf of the Holders and deliver such Equity-Linked
Securities.



     The Equity-Linked Securities shall be executed on behalf of the Company by any officer of the
Company authorized to so act pursuant to a resolution of the Board of Directors. The signature of
any such officer on the Equity-Linked Securities may be manual or facsimile.



     Equity-Linked Securities bearing the manual or facsimile signature of an individual who was at
any time the proper officer of the Company shall bind the Company, notwithstanding that such
individual has ceased to hold such offices prior to the authentication and delivery of such
Equity-Linked Securities or did not hold such offices at the date of such Equity-Linked Securities.



     Each Equity-Linked Security shall be dated the date of its authentication.



20









 





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



     Section 3.04. Temporary Equity-Linked Securities. Pending the preparation of
Definitive Equity-Linked Securities, the Company shall execute and deliver to the Purchase Contract
Agent and the Trustee, and the Purchase Contract Agent and the Trustee shall authenticate, the
Purchase Contract Agent shall execute on behalf of the Holders, and the Purchase Contract Agent and
the Trustee shall deliver, in lieu of such Definitive Equity-Linked Securities, temporary
Equity-Linked Securities that are in substantially the form set forth in Exhibit A or
Exhibit B hereto, as the case may be, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the Units or Separate
Purchase Contracts, as the case may be, are listed, or as may, consistently herewith, be determined
by the officers of the Company executing such Equity-Linked Securities, as evidenced by their
execution of the Equity-Linked Securities.



     If temporary Equity-Linked Securities are issued, the Company will cause Definitive
Equity-Linked Securities to be prepared without unreasonable delay. After the preparation of
Definitive Equity-Linked Securities, the temporary Equity-Linked Securities shall be exchangeable
for Definitive Equity-Linked Securities upon surrender of the temporary Equity-Linked Securities at
the Corporate Trust Office, at the expense of the Company and without charge to the Holder or the
Purchase Contract Agent. Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, one or
more Definitive Equity-Linked Securities of like tenor and denominations and evidencing a like
number of Units or Separate Purchase Contracts, as the case may be, as the temporary Equity-Linked
Security or Equity-Linked Securities so surrendered. Until so exchanged, the temporary
Equity-Linked Securities shall in all respects evidence the same benefits and the same obligations
with respect to the Units or Separate Purchase Contracts, as the case may be, evidenced thereby as
Definitive Equity-Linked Securities.



     Section 3.05. Registration; Registration of Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office a register (the “Security Register”) in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Equity-Linked Securities and of transfers of Equity-Linked Securities. The
Purchase Contract Agent is hereby initially appointed Security Registrar (the “Security
Registrar”) for the purpose of registration of Equity-Linked Securities and transfers of
Equity-Linked Securities as provided herein. The Security Registrar shall record separately the
registration and transfer of the Equity-Linked Securities evidencing Units and Separate Purchase
Contracts.



     Upon surrender for registration of transfer of any Equity-Linked Security at the Corporate
Trust Office, the Company shall execute and deliver to the Purchase Contract Agent and the



21









 




Trustee, and the Purchase Contract Agent and the Trustee shall authenticate, the Purchase
Contract Agent shall execute on behalf of the designated transferee or transferees, and the
Purchase Contract Agent and the Trustee shall deliver, in the name of the designated transferee or
transferees, one or more new Equity-Linked Securities of any authorized denominations, of like
tenor, and evidencing a like number of Units or Separate Purchase Contracts, as the case may be.




     At the option of the Holder, Equity-Linked Securities may be exchanged for other Equity-Linked
Securities, of any authorized denominations and evidencing a like number of Units or Separate
Purchase Contracts, as the case may be, upon surrender of the Equity-Linked Securities to be
exchanged at the Corporate Trust Office. Whenever any Equity-Linked Securities are so surrendered
for exchange, the Company shall execute and deliver to the Purchase Contract Agent and the Trustee,
and the Purchase Contract Agent and the Trustee shall authenticate, the Purchase Contract Agent
shall execute on behalf of the Holder, and the Purchase Contract Agent and the Trustee shall
deliver the Equity-Linked Securities that the Holder making the exchange is entitled to receive.



     All Equity-Linked Securities issued upon any registration of transfer or exchange of an
Equity-Linked Security shall evidence the ownership of the same number of Units or Separate
Purchase Contracts, as the case may be, and be entitled to the same benefits and subject to the
same obligations, under this Agreement as the Units or Separate Purchase Contracts, as the case may
be, evidenced by the Equity-Linked Security surrendered upon such registration of transfer or
exchange.



     Every Equity-Linked Security presented or surrendered for registration of transfer or exchange
shall (if so required by the Purchase Contract Agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Purchase Contract Agent and
the Trustee duly executed by the Holder thereof, or its attorney duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of an
Equity-Linked Security, but the Company may require payment from the Holder of a sum sufficient to
cover any applicable tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Equity-Linked Securities, other than any exchanges pursuant
to Section 3.06 and Section 8.05 not involving any transfer.



     Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to
the Purchase Contract Agent and the Trustee, and the Purchase Contract Agent and the Trustee shall
not be obligated to authenticate, the Purchase Contract Agent shall not be obligated to execute on
behalf of the Holder and the Purchase Contract Agent and the Trustee shall not be obligated to
deliver any Equity-Linked Security in exchange for any other Equity-Linked Security presented or
surrendered for registration of transfer or for exchange on or after the Business Day immediately
preceding the earliest of the Mandatory Settlement Date, any Early Settlement Date and any
Fundamental Change Early Settlement Date with respect to such Equity-Linked Security. In lieu of
delivery of a new Equity-Linked Security, upon satisfaction of the applicable conditions specified
above in this Section and receipt of appropriate registration of transfer instructions from such
Holder, the Purchase Contract Agent shall, if the Mandatory



22









 




Settlement Date, any Early Settlement Date or any Fundamental Change Early Settlement Date
shall have occurred with respect to such Equity-Linked Security, deliver the shares of Common Stock
deliverable in respect of the Purchase Contracts evidenced by such Equity-Linked Security (together
with the Separate Note, if such Equity-Linked Security is a Unit).




     Section 3.06. Book-Entry Interests. The Units, on original issuance, will be issued
in the form of one or more fully registered Global Units, to be delivered to the Depositary or its
custodian by, or on behalf of, the Company. The Company hereby designates DTC as the initial
Depositary. Such Global Units shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of DTC, and no Beneficial Owner will receive a
Definitive Unit representing such Beneficial Owner’s interest in such Global Unit, except as
provided in Section 3.09. The Purchase Contract Agent shall enter into an agreement with the
Depositary if so requested by the Company in writing. Unless and until definitive, fully
registered Securities have been issued to Beneficial Owners pursuant to Section 3.09:




          (i) the provisions of this Section 3.06 shall be in full force and effect;




          (ii) except as contemplated in the definition of “Holders” in Section 1.01(d), the
Company shall be entitled to deal with the Depositary for all purposes of this Agreement
(including receiving approvals, votes or consents hereunder) as the Holder of the Global
Units and Global Purchase Contracts and shall have no obligation to the Beneficial Owners;




          (iii) to the extent that the provisions of this Section 3.06 conflict with any other
provisions of this Agreement, the provisions of this Section 3.06 shall control; and




          (iv) the rights of the Beneficial Owners shall be exercised only through the Depositary
and shall be limited to those established by law and agreements between such Beneficial
Owners and the Depositary or the Depositary Participants.



     Section 3.07. Notices to Holders. Whenever a notice or other communication to the
Holders is required to be given under this Agreement, the Company or the Company’s agent shall give
such notices and communications to the Holders and, with respect to any Units or Purchase Contracts
registered in the name of the Depositary or the nominee of the Depositary, the Company or the
Company’s agent shall, except as set forth herein, have no obligations to the Beneficial Owners.



     Section 3.08. Appointment of Successor Depositary. If the Depositary elects to
discontinue its services as securities depositary with respect to the Units or Purchase Contracts,
the Company may, in its sole discretion, appoint a successor Depositary with respect to such Units
or such Purchase Contracts, as the case may be.



     Section 3.09. Definitive Securities. If:




          (i) the Depositary is unwilling or unable to continue as Depositary for the Global
Securities and the Company is unable to find a qualified replacement for the Depositary
within 90 days;



23









 






          (ii) at any time the Depositary ceases to be a Clearing Agency; or




          (iii) the Company in its sole discretion decides to allow some or all Global Securities
to be exchangeable for Definitive Securities,


then (x) Definitive Securities shall be prepared by the Company with respect to such Global
Securities and delivered to the Purchase Contract Agent and the Trustee, as appropriate, pending
delivery as provided in clause (y) below, and (y) upon surrender of such Global Securities by the
Depositary, accompanied by registration instructions, the Company shall cause Definitive Securities
to be delivered to Beneficial Owners in accordance with the instructions of the Depositary. The
Company shall not be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Each Definitive Security so
delivered shall evidence Units, Purchase Contracts or Notes, as the case may be, of the same kind
and tenor as the Global Security so surrendered in respect thereof. Notwithstanding the foregoing,
the exchange of Global Notes for Notes in definitive form shall be governed by the Indenture.




     Section 3.10. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated
Equity-Linked Security is surrendered to the Purchase Contract Agent, the Company shall execute and
deliver to the Purchase Contract Agent and the Trustee, and the Purchase Contract Agent and the
Trustee shall authenticate, the Purchase Contract Agent shall execute on behalf of the Holder, and
the Purchase Contract Agent and the Trustee shall deliver in exchange therefor, a new Equity-Linked
Security, evidencing the same number of Units or Separate Purchase Contracts, as the case may be,
and bearing a security number not contemporaneously outstanding.



     If there shall be delivered to the Company and the Purchase Contract Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Equity-Linked Security, and (ii) such
security or indemnity as may be reasonably required by them to hold each of them and any agent of
any of them harmless, then, in the absence of notice to the Company, the Purchase Contract Agent or
the Trustee that such Equity-Linked Security has been acquired by a protected purchaser, the
Company shall execute and deliver to the Purchase Contract Agent and the Trustee, and the Purchase
Contract Agent and the Trustee shall authenticate, the Purchase Contract Agent shall execute on
behalf of the Holder, and the Purchase Contract Agent and the Trustee shall deliver to the Holder,
in lieu of any such destroyed, lost or stolen Equity-Linked Security, a new Equity-Linked Security,
evidencing the same number of Units or Separate Purchase Contracts, as the case may be, and bearing
a security number not contemporaneously outstanding.



     Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to
the Purchase Contract Agent and the Trustee, and the Purchase Contract Agent and the Trustee shall
not be obligated to authenticate, the Purchase Contract Agent shall not be obligated to execute on
behalf of the Holder, and the Purchase Contract Agent and the Trustee shall not be obligated to
deliver to the Holder, an Equity-Linked Security on or after the Business Day immediately preceding
the earliest of the Mandatory Settlement Date, any Early Settlement Date and any Fundamental Change
Early Settlement Date with respect to such Equity-Linked Securities. In lieu of delivery of a new
Equity-Linked Security, upon satisfaction of the



24









 




applicable conditions specified above in this Section and receipt of appropriate registration
of transfer instructions from such Holder, the Purchase Contract Agent shall, if the Mandatory
Settlement Date, any Early Settlement Date or any Fundamental Change Early Settlement Date with
respect to such Equity-Linked Securities has occurred, deliver the shares of Common Stock
deliverable in respect of the Purchase Contracts evidenced by such Equity-Linked Security (together
with the Separate Note, if such Equity-Linked Security is a Unit).




     Upon the issuance of any new Equity-Linked Security under this Section 3.10, the Company and
the Purchase Contract Agent may require the payment by the Holder of a sum sufficient to cover any
applicable tax or other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Purchase Contract Agent) connected therewith.



     Every new Equity-Linked Security issued pursuant to this Section 3.10 in lieu of any
destroyed, lost or stolen Equity-Linked Security shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the Unit or Separate Purchase
Contract, as the case may be, evidenced thereby, whether or not the destroyed, lost or stolen
Equity-Linked Security shall be found at any time. Such new Equity-Linked Security (and the Units
or Separate Purchase Contracts, as applicable, evidenced thereby) shall be at any time enforceable
by anyone, and shall be entitled to all the benefits and be subject to all the obligations of this
Agreement equally and proportionately with any and all other Equity-Linked Securities delivered
hereunder.



     The provisions of this Section 3.10 are exclusive and shall preclude, to the extent lawful,
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Equity-Linked Securities.



     Section 3.11. Persons Deemed Owners. Prior to due presentment of an Equity-Linked
Security for registration of transfer, the Company and the Purchase Contract Agent, and any agent
of the Company or the Purchase Contract Agent, may treat the Person in whose name such
Equity-Linked Security is registered as the owner of the Unit or Purchase Contract, as the case may
be, evidenced thereby, for the purpose of performance of the Units or Purchase Contracts, as
applicable, evidenced by such Equity-Linked Securities and for all other purposes whatsoever, and
neither the Company nor the Purchase Contract Agent, nor any agent of the Company or the Purchase
Contract Agent, shall be affected by notice to the contrary.



     Notwithstanding the foregoing, with respect to any Global Unit or Global Purchase Contract,
nothing contained herein shall prevent the Company, the Purchase Contract Agent or any agent of the
Company or the Purchase Contract Agent, from giving effect to any written certification, proxy or
other authorization furnished by the Depositary (or its nominee), as a Holder, with respect to such
Global Unit or Global Purchase Contract or impair, as between such Depositary and the related
Beneficial Owner, the operation of customary practices governing the exercise of rights of the
Depositary (or its nominee) as Holder of such Global Unit or Global Purchase Contract.



     None of the Purchase Contract Agent, Trustee, the Paying Agent and the Security Registrar
shall have any responsibility or obligation to any Beneficial Owner in a Global Security, an



25









 




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




     Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Purchase Contract Agent, the Trustee, or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
any depositary (or its nominee), as a Holder, with respect to such Global Security or shall impair,
as between such Depositary and owners of beneficial interests in such Global Security, the
operation of customary practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.



     None of the Purchase Contract Agent, the Trustee, the Paying Agent or the Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Agreement or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among participants of DTC, members or
Beneficial Owners in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Agreement, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.



     Section 3.12. Cancellation. All Securities surrendered for separation or recreation
and all Equity-Linked Securities surrendered for settlement or upon the registration of transfer or
exchange of a Purchase Contract shall, if surrendered to any Person other than the Purchase
Contract Agent, be delivered to the Purchase Contract Agent and, if not already cancelled, be



26









 




promptly cancelled by it. In the case of a Unit or Units surrendered for settlement, the
Company and the Trustee shall promptly authenticate and deliver in accordance with the terms of the
Indenture to the Holder thereof a number of Separate Notes equal to the number of, and in the same
form as, the Units so surrendered. The Company may at any time deliver to the Purchase Contract
Agent for cancellation any Equity-Linked Securities previously authenticated, executed and
delivered hereunder that the Company may have acquired in any manner whatsoever, and all
Equity-Linked Securities so delivered shall, upon an Issuer Order, be promptly cancelled by the
Purchase Contract Agent. No Equity-Linked Securities shall be authenticated, executed on behalf of
the Holder and delivered in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled Equity-Linked Securities
held by the Purchase Contract Agent shall be disposed of in accordance with its customary
practices.




     If the Company or any Affiliate of the Company shall acquire any Equity-Linked Security, such
acquisition shall not operate as a cancellation of such Equity-Linked Security unless and until
such Equity-Linked Security is delivered to the Purchase Contract Agent for cancellation.



ARTICLE 4

SETTLEMENT OF THE PURCHASE CONTRACTS




     Section 4.01. Settlement Rate. Each Purchase Contract obligates the Company to
deliver, on the Mandatory Settlement Date, a number of shares of Common Stock (subject to Section
4.04) equal to the Settlement Rate as determined by the Company unless a Holder settles such
Purchase Contract prior to the Mandatory Settlement Date pursuant to Section 5.03 or Section 5.04.



     The “Settlement Rate” is equal to:




          (i) if the Applicable Market Value is equal to or greater than $3.30 (the
“Threshold Appreciation Price”), 7.5758 shares of Common Stock for each Purchase
Contract (the “Minimum Settlement Rate”);




          (ii) if the Applicable Market Value is less than the Threshold Appreciation Price but
greater than $2.75 (the “Reference Price”), a number of shares of Common Stock for
each Purchase Contract equal to the Stated Amount, divided by the Applicable Market
Value; and




          (iii) if the Applicable Market Value is less than or equal to the Reference Price,
9.0909 shares of Common Stock for each Purchase Contract (the “Maximum Settlement
Rate”),


provided that the Maximum Settlement Rate, the Minimum Settlement Rate (each, a “Fixed
Settlement Rate”) and the Applicable Market Value shall be subject to adjustment as provided in
Article 5.




     Section 4.02. Representations and Agreements of Holders. Each Holder of a Purchase
Contract by its acceptance thereof:



27









 






          (i) irrevocably authorizes the Purchase Contract Agent to enter into and perform this
Agreement on its behalf as its attorney-in-fact;




          (ii) consents to the provisions hereof;




          (iii) represents that its acquisition of the Purchase Contracts and its holding of the
same satisfy the applicable fiduciary requirements of ERISA, if any, and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the Code in
accordance with one or more prohibited transaction exemptions or that such acquisition
otherwise will not result in a nonexempt prohibited transaction;




          (iv) in the case of a Holder that holds a Unit, agrees, for United States tax purposes,
to treat (1) a Unit as an investment unit composed of two separate instruments, in
accordance with its form and (2) the Notes as indebtedness; and




          (v) agrees to be bound by the terms and provisions thereof.



     Section 4.03. Delivery Upon Settlement of the Purchase Contracts. (a) Unless the
Purchase Contracts have previously settled, the Company shall on the Mandatory Settlement Date
issue and deliver to the Purchase Contract Agent, for the benefit of the Holders of the Outstanding
Purchase Contracts, the aggregate number of shares of Common Stock to which such Holders are
entitled hereunder, registered in the name of the Purchase Contract Agent (or its nominee) as
custodian for the Holders (such shares of Common Stock, together with any dividends or
distributions for which a record date or payment date for such dividend or distribution have
occurred after the due date for the delivery of the Common Shares to the Purchase Contract Agent,
the “Purchase Contract Settlement Fund”).



          (b) Upon book-entry transfer of the Units or Separate Purchase Contracts or delivery of Units
or Separate Purchase Contracts in definitive form to the Purchase Contract Agent with duly
completed transfer instructions, the Purchase Contract Agent shall transfer the shares of Common
Stock underlying such Purchase Contracts, together with (i) cash in lieu of fractional shares as
provided in Section 4.04, (ii) the Separate Note (in the case of the transfer or delivery of Units,
but not in the case of settlement on the Mandatory Settlement Date if such Separate Note also
matures on the Mandatory Settlement Date) and (iii) any dividends or distributions with respect to
such shares constituting part of the Purchase Contract Settlement Fund, but without any interest
thereon, to such Holder by book-entry transfer, or other appropriate procedures, in accordance with
such instructions.




     Such shares shall be registered in the name of the Holder or the Holder’s designee as
specified in the settlement instructions provided by the Holder to the Purchase Contract Agent, and
the Company will pay all stock transfer and similar taxes attributable to the delivery thereof,
unless any such transfer or similar tax is payable in respect of any registration of such shares in
a name of a Person other than the Person in whose name the Security evidencing such Purchase
Contract is registered, in which case the Company shall not be required to pay any such transfer or
similar tax and no such registration shall be made unless the Person requesting such registration
has paid any such transfer or similar taxes required by reason of such registration in a name of a
Person other than the Person in whose name the Security evidencing such Purchase



28









 




Contract is registered or has established to the satisfaction of the Company that such tax
either has been paid or is not payable.




     In the event a Holder fails to effect such transfer or delivery, the shares of Common Stock
underlying such Purchase Contracts, and any distributions thereon, shall be held in the name of the
Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until the earlier
to occur of:




          (i) the surrender of the relevant Units or Separate Purchase Contracts or receipt by
the Company and the Purchase Contract Agent from such Holder of satisfactory evidence that
such Units or Separate Purchase Contracts have been destroyed, lost or stolen, together with
any indemnity that may be required by the Purchase Contract Agent and the Company; and




          (ii) the expiration of the time period specified in the abandoned property laws of the
relevant jurisdiction.



     Section 4.04. No Fractional Shares. No fractional shares or scrip certificates representing fractional shares of Common Stock
shall be issued or delivered to Holders upon settlement of the Purchase Contracts. In lieu of any
fractional shares of Common Stock that would otherwise be issuable upon settlement of any Purchase
Contracts, a Holder of a Security shall be entitled to receive an amount in cash equal to the
fraction of a share of Common Stock, calculated on an aggregate basis in respect of the Purchase
Contracts being settled, multiplied by the Closing Price of the Common Stock on the Trading
Day immediately preceding the Mandatory Settlement Date, Early Settlement Date or Fundamental
Change Early Settlement, as the case may be. The Company shall provide the Purchase Contract Agent
from time to time with sufficient funds to permit the Purchase Contract Agent to make all cash
payments required by this Section 4.04 in a timely manner.



     Section 4.05. Consequences of Bankruptcy. The Mandatory Settlement Date for each Purchase Contract, whether held separately or as
part of a Unit, shall automatically accelerate upon the occurrence of a Termination Event with
respect to the Company. Upon such acceleration, Holders will be entitled to receive a number of
shares of Common Stock per Purchase Contract equal to the Maximum Settlement Rate in effect
immediately prior to such acceleration (regardless of the Applicable Market Value of the Common
Stock at that time).



ARTICLE 5

ADJUSTMENTS




     Section 5.01. Adjustments to the Fixed Settlement Rates. (a) Each Fixed Settlement Rate shall be adjusted, from time to time and without
duplication, by the Company as described in this Section 5.01 upon the occurrence of any of the
following events:




          (i) the issuance of Common Stock as a dividend or distribution to all holders of Common
Stock, or a subdivision or combination of Common Stock, in which event each Fixed Settlement
Rate will be adjusted based on the following formula:




29











 










	 	 	 	 	 	 	 

	 

	 	 	 	 	 	where,
	 
	 	 	 	 	 	 
	 

	 	SR0
	 	=
	 	the Fixed Settlement Rate in effect immediately
prior to the close of business on the Record Date
for such dividend or distribution or immediately
prior to the open of business on the effective
date for such subdivision or combination, as the
case may be;
	 
	 	 	 	 	 	 
	 

	 	SR1
	 	=
	 	the Fixed Settlement Rate in effect immediately
after the close of business on such Record Date
or immediately after the open of business on such
effective date, as the case may be;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the close of business on
such Record Date or immediately prior to the open
of business on such effective date, as the case
may be, in either case prior to giving effect to
such event; and
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock that would
be outstanding immediately after, and solely as a
result of, such dividend, distribution,
subdivision or combination.







Any adjustment made under this clause (i) shall become effective immediately after the close
of business on the Record Date for such dividend or distribution, or immediately after the
open of business on the effective date for such share split or share combination, as the
case may be. If any dividend or distribution of the type described in this clause (i) is
declared but not so paid or made, each Fixed Settlement Rate shall be immediately
readjusted, effective as of the date the Board of Directors determines not to pay such
dividend or distribution, to the Fixed Settlement Rate that would then be in effect if such
dividend or distribution had not been declared.




          (ii) the issuance to all holders of Common Stock of rights, options or warrants
entitling them for a period expiring 60 days or less from the date of issuance of such
rights, options or warrants to subscribe for or purchase shares of Common Stock at less than
the Current Market Price per share of Common Stock as of the announcement date for such
issuance, in which event each Fixed Settlement Rate will be adjusted based on the following
formula:








	 	 	 	 	 	 	 

	 

	 	 	 	 	 	where,
	 
	 	 	 	 	 	 
	 

	 	SR0
	 	=
	 	the Fixed Settlement Rate in
effect immediately prior to
the close of business on the
Record Date for such
issuance;
	 
	 	 	 	 	 	 
	 

	 	SR1
	 	=
	 	the Fixed Settlement Rate in
effect immediately after the
close of business on such
Record Date;






30









 






	 	 	 	 	 	 	 

	 

	 	OS0
	 	=
	 	the number of shares of
Common Stock outstanding
immediately prior to the
close of business on such
Record Date;
	 
	 	 	 	 	 	 
	 

	 	X
	 	=
	 	the total number of shares of
Common Stock issuable
pursuant to such rights,
options or warrants; and
	 
	 	 	 	 	 	 
	 

	 	Y
	 	=
	 	the aggregate price payable
to exercise such rights,
options or warrants, divided
by the Current Market Price
per share of Common Stock as
of the announcement date for
such issuance.







Any increase made under this clause (ii) will be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the close of
business on the Record Date for such issuance. To the extent that shares of Common Stock
are not delivered after the expiration of such rights, options or warrants, each Fixed
Settlement Rate shall be decreased, effective as of the date of such expiration, to the
Fixed Settlement Rate that would then be in effect had the increase with respect to the
issuance of such rights, options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. If such rights, options or warrants
are not so issued, each Fixed Settlement Rate shall be decreased, effective as of the date
the Board of Directors determines not to make such issuance, to the Fixed Settlement Rate
that would then be in effect if the Record Date for such issuance had not occurred.




In determining whether any rights, options or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at less than the Current Market Price per share of Common
Stock as of the announcement date for such issuance, and in determining the aggregate price
payable to exercise such rights, options or warrants, there shall be taken into account any
consideration received by the Company for such rights, options 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 Board of Directors.




          (iii) the dividend or other distribution to all holders of the Common Stock of shares
of Capital Stock of the Company (other than Common Stock), evidences of the Company’s
indebtedness, the Company’s assets or rights to acquire Capital Stock of the Company,
indebtedness or assets of the Company (excluding any dividend, distribution or issuance as
to which an adjustment was made pursuant to clauses (i) or (ii) above, (iv) below or the
provisions of this clause (iii) relating to spin-offs), in which event each Fixed Settlement
Rate will be adjusted based on the following formula:








	 	 	 	 	 	 	 

	 

	 	 	 	 	 	where,
	 
	 	 	 	 	 	 
	 

	 	SR0
	 	=
	 	the Fixed Settlement Rate in effect immediately prior
to the close of business on the Record Date for such
dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	SR1
	 	=
	 	the Fixed Settlement Rate in effect immediately after
the close of business on such Record Date;






31









 






	 	 	 	 	 	 	 

	 

	 	SP0
	 	=
	 	the Current Market Price per share of Common Stock as
of such Record Date; and
	 
	 	 	 	 	 	 
	 

	 	FMV
	 	=
	 	the fair market value (as determined by the Board of
Directors), on the Record Date for such dividend or
distribution, of the shares of Capital Stock of the
Company, evidences of indebtedness, assets or rights so
distributed, expressed as an amount per share of Common
Stock.







Any increase made under this portion of clause (iii) will become effective immediately after
the close of business on the Record Date for such dividend or distribution. If such
distribution is not so paid or made, each Fixed Settlement Rate shall be decreased,
effective as of the date the Board of Directors determines not to pay the dividend or
distribution, to the Fixed Settlement Rate that would then be in effect if such dividend or
distribution had not been declared.




Notwithstanding the foregoing, if the transaction that gives rise to an adjustment pursuant
to this clause (iii) is one pursuant to which the payment of a dividend or other
distribution on the Common Stock consists of shares of Capital Stock of, or similar equity
interests in, a Subsidiary or other business unit of the Company, (i.e., a spin-off) that
are, or, when issued, will be, traded on a U.S. national securities exchange, then each
Fixed Settlement Rate will instead be adjusted based on the following formula:








	 	 	 	 	 	 	 

	 

	 	 	 	 	 	where,
	 
	 	 	 	 	 	 
	 

	 	SR0
	 	=
	 	the Fixed Settlement Rate in effect immediately prior to the close
of business on the 10th consecutive Trading Day commencing on, and
including, the third Trading Day after the date on which
“ex-distribution trading” commences for such dividend or
distribution on the relevant exchange;
	 
	 	 	 	 	 	 
	 

	 	SR1
	 	=
	 	the Fixed Settlement Rate in effect immediately after the close of
business on the 10th consecutive Trading Day commencing on, and
including, the third Trading Day after the date on which
“ex-distribution trading” commences for such dividend or
distribution on the relevant exchange;






32









 






	 	 	 	 	 	 	 

	 

	 	FMV0
	 	=
	 	the average of the VWAP of the Capital Stock or similar equity
interests distributed to holders of Common Stock applicable to one
share of Common Stock over each of the 10 consecutive Trading Days
commencing on, and including, the third Trading Day after the date
on which “ex-distribution trading” commences for such dividend or
distribution on the NYSE or such other national or regional
exchange or market on which such Capital Stock or similar equity
interests are then listed or quoted; and
	 
	 	 	 	 	 	 
	 

	 	MP0
	 	=
	 	the average Daily VWAP of the Common Stock over each of the 10
consecutive Trading Days commencing on, and including, the third
Trading Day after the date on which “ex-distribution trading”
commences for such dividend or distribution on the NYSE or such
other national or regional exchange or market on which Common Stock
is then listed or quoted.







The adjustment to each Fixed Settlement Rate under this portion of clause (iii) will become
effective immediately after the close of business on the 10th consecutive Trading Day
commencing on, and including, the third Trading Day after the date on which “ex-distribution
trading” commences for such dividend or distribution on the relevant exchange.




          (iv) the Company makes a distribution consisting exclusively of cash to all holders of
the Common Stock, excluding (a) any cash that is distributed as part of a distribution
referred to in clause (iii) above, (b) any consideration payable in connection with a tender
or exchange offer made by the Company or any of its Subsidiaries referred to in clause (v)
below and (c) any regular quarterly dividend that does not exceed $0.01 per share (the
“Dividend Threshold Amount”), in which event, each Fixed Settlement Rate will be
adjusted based on the following formula:








	 	 	 	 	 	 	 

	 

	 	 	 	 	 	where,
	 
	 	 	 	 	 	 
	 

	 	SR0
	 	=
	 	the Fixed Settlement Rate in effect immediately prior
to the close of business on the Record Date for such
distribution;
	 
	 	 	 	 	 	 
	 

	 	SR1
	 	=
	 	the Fixed Settlement Rate in effect immediately after
the close of business on the Record Date for such
distribution;
	 
	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the Current Market Price per share of Common Stock as
of the Record Date for such distribution; and
	 
	 	 	 	 	 	 
	 

	 	C
	 	=
	 	the amount in cash per share the Company distributes
to holders of Common Stock in excess of the Dividend
Threshold Amount; provided that if the distribution
is not a regular quarterly cash dividend, then the
Dividend Threshold Amount will be deemed to be zero






33









 







The Dividend Threshold Amount is subject to adjustment on an inversely proportional basis
whenever the Fixed Settlement Rate is adjusted (by multiplying the Dividend Threshold Amount
by a fraction, the numerator of which will be the Minimum Settlement Rate in effect
immediately prior to the adjustment and the denominator of which will be the Minimum
Settlement Rate as adjusted), but no adjustment will be made to the Dividend Threshold
Amount for any adjustment made to the Fixed Settlement Rate pursuant to this clause (iv).
Any increase to each Fixed Settlement Rate made pursuant to this clause (iv) shall become
effective immediately after the close of business on the Record Date for such distribution.
If any dividend or distribution described in this clause (iv) is declared but not so paid or
made, each Fixed Settlement Rate shall be decreased, effective as of the date the Board of
Directors determines not to pay or make such distribution, to the Fixed Settlement Rate that
would then be in effect if such distribution had not been declared.




          (v) the Company or one or more of its Subsidiaries makes purchases of Common Stock
pursuant to a tender offer or exchange offer by the Company or one of its Subsidiaries for
Common Stock to the extent that the cash and value of any other consideration included in
the payment per share of Common Stock validly tendered or exchanged exceeds the Daily VWAP
per share of 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 (the “Expiration
Date”), in which event each Fixed Settlement Rate will be adjusted based on the
following formula:








	 	 	 	 	 	 	 

	 

	 	 	 	 	 	where,
	 
	 	 	 	 	 	 
	 

	 	SR0
	 	=
	 	the Fixed Settlement Rate in effect immediately prior to the close of business on the 10th
Trading Day immediately following, and including, the Trading Day next succeeding the
Expiration Date;
	 
	 	 	 	 	 	 
	 

	 	SR1
	 	=
	 	the Fixed Settlement Rate in effect immediately after the close of business on the 10th
Trading Day immediately following, and including, the Trading Day next succeeding the
Expiration Date;
	 
	 	 	 	 	 	 
	 

	 	FMV
	 	=
	 	the fair market value (as determined by the Board of Directors), on the Expiration Date, of
the aggregate value of all cash and any other consideration paid or payable for shares
validly tendered or exchanged and not withdrawn as of the Expiration Date (the “Purchased
Shares”);
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the last time tenders
or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”)
less any Purchased Shares;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding at the Expiration Time, including any
Purchased Shares; and






34









 






	 	 	 	 	 	 	 

	 

	 	SP1
	 	=
	 	the average Daily VWAP of the Common Stock over the ten consecutive Trading Day period
commencing on, and including, the Trading Day immediately after the Expiration Date.







The adjustments to the Fixed Settlement Rates under this clause (v) will become effective
immediately after the close of business on the 10th Trading Day immediately following, and
including, the Trading Day next succeeding the Expiration Date. If the Company or one of
its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or
exchange offer but the Company or the relevant Subsidiary is permanently prevented by
applicable law from effecting any such purchase or all such purchases are rescinded, the
Fixed Settlement Rates shall be immediately adjusted to the Fixed Settlement Rates that
would then be in effect if such tender or exchange offer had not been made.



          (b) Except as stated in subsection (a) above or as otherwise agreed, the Fixed Settlement
Rates shall not be adjusted for the issuance of Common Stock or any securities convertible into or
exchangeable for Common Stock or carrying the right to purchase any of the foregoing or for the
repurchase of Common Stock. In addition, there shall be no adjustment to the Fixed Settlement
Rates in case of the issuance of any shares of Common Stock in a merger, reorganization,
acquisition, reclassification, recapitalization or other similar transaction except as provided in
this Section 5.01 and Section 5.02.




          (c) To the extent that the Company has a rights plan in effect upon settlement of a Purchase
Contract, the Holder of such Purchase Contract will receive, in addition to Common Stock, the
rights under the rights plan, unless, prior to the settlement of such Purchase Contract, the rights
have separated from the Common Stock, in which case each Fixed Settlement Rate shall be adjusted at
the time of separation as if the Company made a distribution to all holders of the Common Stock as
described in Section 5.01(a)(iii).




          (d) Any Fixed Settlement Rate adjustments described in subsection (a) or subsection (c) above
that are attributable to an exercise or exchange of Rights shall not apply to adjust any such Fixed
Settlement Rate of any Units or Purchase Contracts that are Beneficially Owned by an Acquiring
Person. For this purpose, the terms “Rights,” “Beneficially Owned” and
“Acquiring Person” have the meanings assigned to such terms in the Shareholder Rights Plan.




          (e) The Company may, but shall not be required to, make such increases in each Fixed
Settlement Rate as the Company deems advisable. The Company may only make such a discretionary
adjustment if the Company makes the same proportionate adjustment to each Fixed Settlement Rate.
No adjustment in either Fixed Settlement Rate will be required unless such adjustment would require
an increase or decrease of at least one percent; provided, however, that any such
minor adjustments that are not required to be made will be carried forward and taken into account
in any subsequent adjustment, and provided further that any such adjustment of less than one
percent that has not been made shall be made (x) upon the end of the Company’s fiscal year
commencing with the 2010 fiscal year and (y) upon the Mandatory Settlement Date or any earlier
Fundamental Change Early Settlement Date or Early Settlement Date.







35









 








          (f) Adjustments to each Fixed Settlement Rate shall be calculated to the nearest 1/10,000th of
a share.




          (g) Whenever the Fixed Settlement Rates are adjusted, the Company must deliver to the Purchase
Contract Agent an Officers’ Certificate setting forth each Fixed Settlement Rate, detailing the
calculation of each Fixed Settlement Rate and describing the facts upon which the adjustment is
based. In addition, the Company must notify the Holders of Units and Separate Purchase Contracts
of the adjustment within 10 Business Days of any event requiring such adjustment and describe in
reasonable detail the method by which each Fixed Settlement Rate was adjusted; such notification
may be made by a press release (notwithstanding Section 1.06). The Purchase Contract Agent shall
not at any time be under any duty or responsibility to any Holder of Purchase Contracts to
determine whether any facts exist that may require any adjustment of any Fixed Settlement Rate or
Reference Property, or with respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed in making the same. The Purchase Contract Agent
shall not be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock or other Reference Property that may at the time be delivered with respect
to any Purchase Contract, and the Purchase Contract Agent makes no representation with respect
thereto. The Purchase Contract Agent shall not be responsible for any failure of the Company to
transfer or deliver any shares of Common Stock or other Reference Property pursuant to a Purchase
Contract or to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 5. All calculations and determinations pursuant to this Article 5 shall
be made by the Company or its agent and under no circumstances shall the Purchase Contract Agent
have any responsibility with respect thereto.




          (h) If the Company takes a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or other distribution, and after this and before the
distribution to the Company’s stockholders, the Company legally abandons its plan to pay or deliver
that dividend or distribution, then no adjustment in the number of shares of Common Stock issuable
upon settlement of the Purchase Contracts or in any Fixed Settlement Rate then in effect shall be
required by reason of the taking of that record.




          (i) Each adjustment to each Fixed Settlement Rate shall result in a corresponding adjustment
to the Early Settlement Rate. Each adjustment to each Fixed Settlement Rate will also result in a
corresponding (but inverse) adjustment to the Applicable Market Value solely to determine which of
the three clauses in the definition of Settlement Rate will be applicable on the Mandatory
Settlement Date. In addition, if any adjustment to the Settlement Rate becomes effective, or any
Ex-Date or Record Date for any issuance, dividend or distribution (relating to a required Fixed
Settlement Rate adjustment) occurs, during the period beginning on, and including, (i) the open of
business on the first Trading Day of the 20 Trading Day period during which the Applicable Market
Value is calculated or (ii) in the case of an Early Settlement or an Early Settlement upon a
Fundamental Change, the relevant Early Settlement Date or Fundamental Change Early Settlement Date
and, in each case, ending on, and including, the date on which the Company delivers shares of its
Common Stock under the related Purchase Contract, the Company will make appropriate adjustments to
the Fixed Settlement Rates and/or the number of shares of its Common Stock deliverable upon
settlement of the Purchase Contract, in each case, consistent with the provisions of this Section
5.01.







36









 








          (j) In connection with any Business Combination, the Dividend Threshold Amount shall be
subject to adjustment as described in Section 5.02(b).




          (k) The Board of Directors shall have the power to resolve any ambiguity or, subject to
applicable law, correct any error in this Article 5, and its action in so doing shall be final and
conclusive.




          (l) For purposes of Section 5.01 and 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. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the
Company.




     Section 5.02. Business Combinations(a) . (a) In the event of any consolidation,
merger, sale or transfer of assets, share exchange or other reorganization event, in each case,
pursuant to which the Common Stock is converted into the right to receive other securities, cash or
property (each, a “Business Combination”), then, at and after the effective time of the
Business Combination, (i) each Purchase Contract then outstanding shall become a Purchase Contract
to purchase the kind and amount of securities, cash or property receivable upon any such Business
Combination by the holder of one share of Common Stock, multiplied by the applicable
Settlement Rate (the “Reference Property” with each “unit of Reference Property”
meaning the kind and amount of Reference Property that a holder of one share of Common Stock is
entitled to receive) and (ii) the Applicable Market Value of the Common Stock shall be calculated
based on the value of a unit of Reference Property that a holder of one share of Common Stock would
have received in such transaction, as follows (x) with respect to any publicly traded securities
that comprise all or part of the Reference Property, based on the VWAP of such securities, (y) in
the case of any cash that comprises all or part of the Reference Property, based on the amount of
such cash and (z) in the case of any other property that comprises all or part of the Reference
Property, based on the value of such property, as determined by a nationally recognized independent
investment banking firm retained by the Company for this purpose. In the event holders of the
Common Stock have the opportunity to elect the form of consideration to be received in such
Business Combination, the Reference Property shall be deemed to be the weighted average of the
types and amounts of consideration received by the holders of the Common Stock that affirmatively
make an election. In the event of a Business Combination where the Company is not the successor
Person, such Person formed by such Business Combination shall execute and deliver to the Purchase
Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding
Purchase Contract (whether or not included in a Unit) shall have the rights provided by this
Section 5.02. Such supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such Business Combination, shall be as nearly equivalent as may
be practicable to the adjustments provided for in Section 5.01 (with respect to any Reference
Property consisting of publicly traded common equity securities) and this Section 5.02. The above
provisions of this Section 5.02 shall similarly apply to successive Business Combinations. The
Company shall notify Holders of the composition of the Reference Property as soon as practicable
after such determination is made. The Company shall not become a party to any Business Combination
unless its terms are consistent with this Section 5.02.



37









 





          (b) In connection with any Business Combination, the Dividend Threshold Amount shall be
subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case
may be.





          (i) In the case of a Business Combination in which the Reference Property (determined,
as appropriate, pursuant to Section 5.02 and excluding cash payments made for fractional
shares and cash payments made in respect of any dissenters’ appraisal rights) is composed
entirely of shares of common stock (the “Merger Common Stock”), the Dividend
Threshold Amount at and after the effective time of such Business Combination will be equal
to (x) the Dividend Threshold Amount immediately prior to the effective time of such
Business Combination, divided by (y) the number of shares of Merger Common Stock
that a holder of one share of Common Stock would receive in such Business Combination (such
quotient rounded down to nearest cent).




          (ii) In the case of a Business Combination in which the Reference Property (determined,
as appropriate, pursuant to Section 5.02 and excluding cash payments made for fractional shares and cash payments made in respect of any dissenters’ appraisal rights) is composed in
part of shares of Merger Common Stock, the Dividend Threshold Amount at and after the
effective time of such Business Combination will be equal to (x) the Dividend Threshold
Amount immediately prior to the effective time of such Business Combination, multiplied
by (y) the Merger Valuation Percentage for such Business Combination (such product
rounded down to nearest cent).




          (iii) For the avoidance of doubt, in the case of a Business Combination in which the
Reference Property (determined, as appropriate, pursuant to subsection (a) above and
excluding cash payments made for fractional shares and cash payments made in respect of any
dissenters’ appraisal rights) is composed entirely of consideration other than shares of
common stock, the Dividend Threshold Amount at and after the effective time of such Business
Combination will be equal to zero.



     Section 5.03. Early Settlement Upon a Fundamental Change. (a) If a Fundamental
Change occurs and a Holder elects to settle its Purchase Contracts early in connection with such
Fundamental Change, such Holder shall receive a number of shares of Common Stock (or cash,
securities or other property) based on the Fundamental Change Early Settlement Rate (the
“Fundamental Change Early Settlement Right”). An Early Settlement shall be deemed for
these purposes to be “in connection with” such Fundamental Change if the Holder delivers an Early
Settlement Notice to the Purchase Contract Agent, and otherwise satisfies the requirements for
effecting Early Settlement of its Purchase Contracts, during the period beginning on, and
including, the Effective Date of the Fundamental Change and ending on, and including, the 30th
Business Day thereafter (or, if earlier, the third Business Day immediately preceding the Mandatory
Settlement Date) (“the Fundamental Change Early Settlement Date”).



          (b) The Company shall provide the Purchase Contract Agent and the Holders of Units and
Separate Purchase Contracts with a notice of a Fundamental Change within five Business Days after
its occurrence, issue a press release announcing the Effective Date and post such press release on
its website. The notice shall set forth, among other things, (i) the applicable Fundamental Change
Early Settlement Rate, (ii) the kind and amount of the cash,






38









 







securities and other consideration receivable by the Holder upon settlement and (iii) the
deadline by which each Holder’s Fundamental Change Early Settlement Right must be exercised.




          (c) The “Fundamental Change Early Settlement Rate” shall be determined by the Company
by reference to the table below, based on the date on which the Fundamental Change occurs or
becomes effective (the “Effective Date”) and the stock price (the “Stock Price”) in
the Fundamental Change, which shall be:





          (i) in the case of a Fundamental Change described in clause (ii) of the definition
thereof in which holders of shares of Common Stock receive only cash in the Fundamental
Change, the Stock Price shall be the cash amount paid per share of Common Stock; and




          (ii) otherwise, the Stock Price shall be the average of the Daily VWAP of the Common
Stock on the 10 Trading Days immediately prior to, but not including, the Effective Date.



          (d) The Stock Prices set forth in the first column of the table below shall be adjusted as of
any date on which any Fixed Settlement Rate is otherwise adjusted. 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 Minimum Settlement Rate immediately prior to the adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Minimum Settlement
Rate as so adjusted. The number of shares in the table below shall be adjusted in the same manner
as the Fixed Settlement Rates as set forth in Section 5.01.




          (e) The following table sets forth the Fundamental Change Early Settlement Rate per Purchase
Contract for each Stock Price and Effective Date set forth below:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Effective Date
	 	 	May 4,	 	May 15,	 	May 15,	 	May 15,
	Stock Price	 	2010	 	2011	 	2012	 	2013
	$1.00
	 	 	7.5765	 	 	 	7.9973	 	 	 	8.5831	 	 	 	9.0909	 
	$1.25
	 	 	7.5842	 	 	 	7.9929	 	 	 	8.5466	 	 	 	9.0909	 
	$1.50
	 	 	7.5900	 	 	 	7.9585	 	 	 	8.4697	 	 	 	9.0909	 
	$1.75
	 	 	7.5892	 	 	 	7.9140	 	 	 	8.3746	 	 	 	9.0909	 
	$2.00
	 	 	7.5848	 	 	 	7.8682	 	 	 	8.2750	 	 	 	9.0909	 
	$2.25
	 	 	7.5802	 	 	 	7.8250	 	 	 	8.1789	 	 	 	9.0909	 
	$2.50
	 	 	7.5770	 	 	 	7.7859	 	 	 	8.0902	 	 	 	9.0909	 
	$2.75
	 	 	7.5728	 	 	 	7.7513	 	 	 	8.0108	 	 	 	9.0909	 
	$3.00
	 	 	7.5728	 	 	 	7.7212	 	 	 	7.9410	 	 	 	8.3333	 
	$3.25
	 	 	7.5728	 	 	 	7.6952	 	 	 	7.8806	 	 	 	7.6923	 
	$3.30
	 	 	7.5728	 	 	 	7.6905	 	 	 	7.8696	 	 	 	7.5758	 
	$3.50
	 	 	7.5728	 	 	 	7.6729	 	 	 	7.8288	 	 	 	7.5758	 
	$3.75
	 	 	7.5728	 	 	 	7.6540	 	 	 	7.7846	 	 	 	7.5758	 
	$4.00
	 	 	7.5728	 	 	 	7.6380	 	 	 	7.7473	 	 	 	7.5758	 
	$4.25
	 	 	7.5728	 	 	 	7.6245	 	 	 	7.7157	 	 	 	7.5758	 
	$4.50
	 	 	7.5728	 	 	 	7.6132	 	 	 	7.6893	 	 	 	7.5758	 
	$4.75
	 	 	7.5728	 	 	 	7.6040	 	 	 	7.6671	 	 	 	7.5758	 






39









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Effective Date
	 	 	May 4,	 	May 15,	 	May 15,	 	May 15,
	Stock Price	 	2010	 	2011	 	2012	 	2013
	$5.00
	 	 	7.5728	 	 	 	7.5965	 	 	 	7.6486	 	 	 	7.5758	 






     The exact Stock Prices and Effective Dates may not be set forth in the table above, in which
case:




          (i) if the Stock Price is between two Stock Prices in the table or the Effective Date
is between two Effective Dates in the table, the Fundamental Change Early Settlement Rate
shall be determined by a straight-line interpolation between the number of shares set forth
for the higher and lower Stock Prices and the earlier and later Effective Dates, as
applicable, based on a 365-day year;




          (ii) if the Stock Price is greater than $5.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the table above), the Fundamental Change Early
Settlement Rate shall be the Minimum Settlement Rate; or




          (iii) if the Stock Price is less than $1.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the table above), the “Minimum Stock
Price,” the Fundamental Change Early Settlement Rate shall be determined as if the Stock
Price equaled the Minimum Stock Price, and using straight line interpolation, as described
in clause (i) of this Section 5.03(e), if the Effective Date is between two dates in the
table.


The maximum number of shares of Common Stock deliverable under a Purchase Contract is 9.0909,
subject to adjustment in the same manner as the Fixed Settlement Rates as set forth under Section
5.01.




          (f) If a Holder exercises its Fundamental Change Early Settlement Right following the
Effective Date of a Fundamental Change described in clause (ii) of the definition thereof, the
Company shall deliver to such Holder, for each Purchase Contract being settled early, the kind and
amount of securities, cash or other property that such Holder would have been entitled to receive
in such Fundamental Change as a holder of a number of shares of the Common Stock equal to the
Fundamental Change Settlement Rate. If such Fundamental Change 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 shareholder election) and the Holder exercises the Fundamental Change Early
Settlement Right, the Company shall deliver to such Holder the types and amounts of consideration
as are proportional to the types and amounts of consideration received by the holders of the Common
Stock that affirmatively make such an election. The Company shall deliver the shares of Common
Stock, securities, cash or other property payable as a result of such Holder’s exercise of the
Fundamental Change Early Settlement Right on the third Business Day following the Fundamental
Change Early Settlement Date.




          (g) If a Holder does not elect to exercise the Fundamental Change Early Settlement Right, such
Holder’s Purchase Contracts shall remain outstanding and shall be subject






40









 







to normal settlement on any subsequent Early Settlement Date or any subsequent Fundamental
Change Early Settlement Date or the Mandatory Settlement Date, including, if applicable, the
provisions set forth in Section 5.02 regarding the occurrence of a Business Combination.




     Section 5.04. Early Settlement. (a) Subject to and upon compliance with the
provisions of this Section 5.04, on any Trading Day prior to the close of business on the third
Business Day immediately preceding the Mandatory Settlement Date, a Holder may elect to settle its
Purchase Contracts early (“Early Settlement”), in whole or in part, and receive shares of
Common Stock, at the Early Settlement Rate, subject to adjustment as described in Section 5.01.



          (b) A Holder’s right to receive Common Stock upon Early Settlement of any of its Purchase
Contracts is subject to the following conditions:





          (i) delivery of a written and signed notice of election (an “Early Settlement
Notice”) to the Purchase Contract Agent electing Early Settlement of such Purchase
Contract;




          (ii) surrendering the relevant Definitive Security, if such Purchase Contract or the
Unit that includes such Purchase Contract is in the form of a Definitive Security, to the
Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early on the reverse thereof duly
completed, or if such Purchase Contract is represented by a Global Security, compliance with
the applicable procedures of the Depositary; and




          (iii) payment by such Holder of any transfer or similar taxes payable in connection
with the issuance of Common Stock to any Person other than such Holder pursuant to
subsection (c) below.


If a Holder complies with the requirements set forth in clauses (i) through (iii) above earlier
than the close of business on any Business Day, then that Business Day shall be considered the
“Early Settlement Date.” If a Holder complies with the requirements set forth in clauses
(i) through (iii) above after the close of business on any Business Day or at any time on a day
that is not a Business Day, then the next Business Day shall be considered the “Early
Settlement Date.”




          (c) Upon surrender or book-entry transfer of such Purchase Contracts or the related Units, the
Company shall cause a number of shares of Common Stock, calculated at the Early Settlement Rate, to
be issued and delivered, together with payment in lieu of any fraction of a share as provided in
Section 4.04, as promptly as practicable, but no later than the third Business Day following the
Early Settlement Date. Such shares shall be registered in the name of the Holder or the Holder’s
designee, and shall be delivered, as specified on the applicable form of Election to Settle Early
provided by the Holder to the Purchase Contract Agent. If any shares of Common Stock deliverable
in respect of a Purchase Contract are to be registered to a Person other than the Person in whose
name the Security evidencing such Purchase Contract is registered, no such registration shall be
made unless the Person requesting such registration has paid any transfer and other taxes required
by reason of such registration in a name other than that of the registered Holder of the
Certificate evidencing such Purchase Contract or has established to the satisfaction of the Company
that such tax either has been paid or is not payable.







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          (d) In the event that Early Settlement is effected with respect to Purchase Contracts that are
a component of Units, upon such Early Settlement the Company shall execute and the Trustee shall
execute on behalf of the Holder, authenticate and deliver to the Holder thereof, at the expense of
the Company, a Security, in the same form as the Units submitted to effect such Early Settlement,
evidencing a number of Separate Notes equal to the number of Purchase Contracts as to which Early
Settlement was effected.




          (e) In the event that Early Settlement is effected with respect to Purchase Contracts
represented by fewer than all the Purchase Contracts evidenced by a Security, upon such Early
Settlement the Company shall execute and the Purchase Contract Agent shall execute on behalf of the
Holder, authenticate and deliver to the Holder thereof, at the expense of the Company, a Security
evidencing the Purchase Contracts as to which Early Settlement was not effected.




ARTICLE 6

REMEDIES




     Section 6.01. Unconditional Right of Holders to Receive Shares of Common Stock. Each
Holder of a Purchase Contract (whether or not included in a Unit) shall have the right, which is
absolute and unconditional, to receive the shares of Common Stock pursuant to such Purchase
Contract and to institute suit for the enforcement of any such right to receive the shares of
Common Stock, and such right shall not be impaired without the consent of such Holder.



     Section 6.02. Notice to Purchase Contract Agent; Limitation on Proceedings. Holders
of not less than 25% of outstanding Equity Linked Securities, by notice given to the Purchase
Contract Agent, may request that Purchase Contract Agent to institute proceedings with respect to a
default relating to any covenant hereunder. No Holder of Equity Linked Securities may institute
any proceedings, judicial or otherwise, with respect to this Agreement or for any remedy hereunder,
except in the case of failure of the Purchase Contract Agent, for 60 days, to act after the
Purchase Contract Agent has received a written request to institute proceedings in respect of a
default with respect to any covenant hereunder from the Holders of not less than 25% of the
Outstanding Purchase Contracts, as well as an offer of indemnity reasonably satisfactory to the
Purchase Contract Agent. This provision will not prevent any Holder of Purchase Contracts from
instituting suit for the delivery of Common Stock deliverable upon settlement of the Purchase
Contracts on the Mandatory Settlement Date or any Early Settlement Date or Fundamental Change
Settlement Date.



     Section 6.03. Restoration of Rights and Remedies. If any Holder has instituted any
proceeding to enforce any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and
in every such case, subject to any determination in such proceeding, the Company and such Holder
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of such Holder shall continue as though no such proceeding had been instituted.



     Section 6.04. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the
last



42









 




paragraph of Section 3.10, no right or remedy herein conferred upon or reserved to the Holders
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.




     Section 6.05. Delay or Omission Not Waiver. No delay or omission of any Holder to
exercise any right or remedy upon a default hereunder shall impair any such right or remedy or
constitute a waiver of any such right. Every right and remedy given by this Article or by law to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by such
Holders.



     Section 6.06. Undertaking for Costs. All parties to this Agreement agree, and each
Holder of a Purchase Contract, by its acceptance of such Purchase Contract shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right
or remedy under this Agreement, or in any suit against the Purchase Contract Agent for any action
taken, suffered or omitted by it as Purchase Contract Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and costs against any
party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this Section shall
not apply to any suit instituted by (a) the Purchase Contract Agent, (b) any Holder, or group of
Holders, holding in the aggregate more than 10% of the Outstanding Purchase Contracts, or (c) any
Holder for the enforcement of the right to receive shares of Common Stock or other Reference
Property under the Purchase Contracts held by such Holder.



     Section 6.07. Waiver of Stay or Execution Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or assume or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or the performance of
this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had been enacted.



     Section 6.08. Control by Majority. The Holders of not less than a majority of the
Outstanding Purchase Contracts shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Purchase Contract Agent, or of exercising
any trust or power conferred upon the Purchase Contract Agent; provided that the Purchase
Contract Agent has received indemnity satisfactory to it. Notwithstanding the foregoing, the
Purchase Contract Agent may refuse to follow any direction that is in conflict with any law, rule,
regulation or order or the Purchase Contract Agreement, that may involve it in personal liability
or that may be unduly prejudicial to the Holders of Purchase Contracts not joining in the action.



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ARTICLE 7

THE PURCHASE CONTRACT AGENT




     Section 7.01. Certain Duties and Responsibilities. (a) The Purchase Contract Agent:




          (i) undertakes to perform, with respect to the Purchase Contracts, such duties and only
such duties as are specifically delegated to it and set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the Purchase
Contract Agent; and




          (ii) in the absence of bad faith on its own part, may, with respect to the Purchase
Contracts and Equity Linked Securities, conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Purchase Contract Agent and conforming to the requirements of this
Agreement but in the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Purchase Contract Agent, the Purchase
Contract Agent shall be under a duty to examine the same to determine whether or not they
conform in so far as matters of form but not substance are concerned to the requirements of
this Agreement (but need not confirm or investigate the accuracy or completeness of the
mathematical calculations or other facts, statements, opinions or conclusions stated or
contained therein and may assume the genuineness of all signatures).



          (b) No provision of this Agreement shall be construed to relieve the Purchase Contract Agent
from liability for its own grossly negligent action, its own grossly negligent failure to act, its
own willful misconduct or its own bad faith, except that:





          (i) this subsection (b) shall not be construed to limit the effect of subsections (a)
and (c) of this Section;




          (ii) the Purchase Contract Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer or any other Person, unless it shall be proved that a
Responsible Officer of the Purchase Contract Agent was grossly negligent in ascertaining the
pertinent facts;




          (iii) the Purchase Contract Agent shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of the Holders
of a majority in number of the Outstanding Purchase Contracts, determined as provided
herein, relating to the time, method and place of conducting any proceeding for any remedy
available to the Purchase Contract Agent, or exercising any trust or power conferred upon
the Purchase Contract Agent, under this Agreement with respect to the Outstanding Purchase
Contracts.



          (c) No provision of this Agreement shall require the Purchase Contract Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have






44









 







reasonable grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability satisfactory to the Purchase Contract Agent is not provided to it.




          (d) Whether or not herein or therein expressly so provided, every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection to the Purchase
Contract Agent shall be subject to the provisions of this Section 7.01.




     Section 7.02. Notice of Default. Within 90 days after a Responsible Officer of the
Purchase Contract Agent has actual knowledge of the occurrence of any default by the Company
hereunder, the Purchase Contract Agent shall transmit by mail to the Company and the Holders of
Equity Linked Securities, as their names and addresses appear in the Security Register, notice of
such default hereunder, unless such Responsible Officer of the Purchase Contract Agent has actual
knowledge that such default shall have been cured or waived.



     Section 7.03. Certain Rights of Purchase Contract Agent. Subject to the provisions of
Section 7.01:



          (a) the Purchase Contract Agent may conclusively rely and shall be fully protected in acting
or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties;




          (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by an Officers’ Certificate, Issuer Order or Issuer Request, and any resolution of the Board of
Directors of the Company may be sufficiently evidenced by a Board Resolution;




          (c) whenever in the administration of this Agreement the Purchase Contract Agent shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any action
hereunder, the Purchase Contract Agent (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate of
the Company;




          (d) the Purchase Contract Agent may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;




          (e) the Purchase Contract Agent shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Purchase Contract Agent, in its discretion may make such reasonable
further inquiry or investigation into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the Purchase Contract Agent shall
determine to make such further inquiry or investigation, it shall be given a reasonable
opportunity, during the Company’s normal business hours, to examine the relevant books, records and
premises of the Company, personally or by agent or attorney, and






45









 







shall incur no liability or additional liability of any kind by reason of such inquiry or
investigation;




          (f) the Purchase Contract Agent may execute any of the powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, or Affiliates and the Purchase
Contract Agent shall not be responsible for any misconduct or negligence on the part of any agent,
attorney or Affiliate appointed with due care by it hereunder;




          (g) the Purchase Contract Agent shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement at the request or direction of any of the Holders pursuant to
this Agreement, unless such Holders shall have provided to the Purchase Contract Agent security or
indemnity satisfactory to the Purchase Contract Agent against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction;




          (h) the Purchase Contract Agent shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;




          (i) the Purchase Contract Agent shall not be deemed to have notice or be charged with
knowledge of any default hereunder unless a Responsible Officer of the Purchase Contract Agent has
actual knowledge thereof or unless written notice of such a default is received by a Responsible
Officer of the Purchase Contract Agent at the Corporate Trust Office of the Purchase Contract
Agent, and such notice references the Purchase Contracts and this Agreement;




          (j) the Purchase Contract Agent may request that the Company deliver an Officers’ Certificate
setting forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Agreement, which Officers’ Certificate may be signed by any
person authorized to sign an Officers’ Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded;




          (k) the rights, privileges, protections, immunities and benefits given to the Purchase
Contract Agent, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Purchase Contract Agent in each of its capacities hereunder (including
as Trustee), and to each agent, custodian and other Person employed to act hereunder; and




          (l) in no event shall either of the Purchase Contract Agent or the Trustee be responsible or
liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Purchase Contact Agent
or the Trustee has been advised of the likelihood of such loss or damage and regardless of the form
of action.




     Section 7.04. Not Responsible for Recitals. The recitals contained herein and in the
Certificates shall be taken as the statements of the Company, and the Purchase Contract Agent
assumes no responsibility for their accuracy. The Purchase Contract Agent makes no representations
as to the validity or sufficiency of either this Agreement or of the Purchase



46









 




Contracts. The Purchase Contract Agent shall not be accountable for the use or application by
the Company of the proceeds in respect of the Purchase Contracts.




     Section 7.05. May Hold Units and Purchase Contracts. Any Security Registrar or any
other agent of the Company, or the Purchase Contract Agent or the Trustee and their respective
Affiliates, in their individual or any other capacity, may become the owner of Units, Separate
Purchase Contracts and Separate Notes and may otherwise deal with the Company or any other Person
with the same rights it would have if it were not Security Registrar or such other agent, or the
Purchase Contract Agent. The Company may become the owner of Units, Separate Purchase Contracts
and Separate Notes.



     Section 7.06. Money Held in Custody. Money held by the Purchase Contract Agent in
custody hereunder need not be segregated from other funds except to the extent required by law or
provided herein. The Purchase Contract Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder.



     Section 7.07. Compensation, Reimbursement and Indemnification. The Company agrees:



          (a) to pay to the Purchase Contract Agent, from time to time, compensation for all services
rendered by it hereunder as the Company and the Purchase Contract Agent shall from time to time
agree in writing (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);




          (b) except as otherwise expressly provided for herein, to reimburse the Purchase Contract
Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by
the Purchase Contract Agent in accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be determined to have been caused by the Purchase
Contract Agent’s own gross negligence, willful misconduct or bad faith; and




          (c) to indemnify the Purchase Contract Agent and any predecessor Purchase Contract Agent, the
Trustee and their respective agents and representatives for, and to hold them harmless against, any
loss, liability or expense (including, without limitation, damages, fines, penalties, suits,
actions, demands, costs, and legal fees and expenses) incurred without gross negligence, willful
misconduct or bad faith on their part, and further including taxes (other than taxes based upon,
measured by or determined by the income of the Purchase Contract Agent or the Trustee) related to,
arising out of or in connection with the acceptance or administration of the Purchase Contract
Agent’s or the Trustee’s duties hereunder, including the costs and expenses of defending itself
against any claim (whether asserted by the Company, a Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties hereunder, or in
connection with enforcing the provisions of this Section 7.07.




     The provisions of this Section shall survive the resignation and removal of the Purchase
Contract Agent, the satisfaction and discharge of the Equity Linked Securities and the termination
for any reason of this Agreement.



47









 





     As security for the performance of the obligations of the Company under this Section the
Purchase Contract Agent shall have a lien prior to the Securities upon all property and funds held
or collected by the Purchase Contract Agent as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities.



     Section 7.08. Corporate Purchase Contract Agent Required; Eligibility. There shall at
all times be a Purchase Contract Agent hereunder which shall be a corporation organized and doing
business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having (or being a member
of a bank holding company having) a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority and having a corporate trust office in
the Borough of Manhattan, New York City, if there be such a corporation in the Borough of
Manhattan, New York City, qualified and eligible under this Article and willing to act on
reasonable terms. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Purchase Contract Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.



     Section 7.09. Resignation and Removal; Appointment of Successor. (a) No resignation
or removal of the Purchase Contract Agent and no appointment of a successor Purchase Contract Agent
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Purchase Contract Agent in accordance with the applicable requirements of Section 7.10.



     (b) The Purchase Contract Agent may resign at any time by giving written notice thereof to the
Company at least 60 days prior to the effective date of such resignation. If the instrument of
acceptance by a successor Purchase Contract Agent required by Section 7.10 shall not have been
delivered to the Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.



     (c) The Purchase Contract Agent may be removed at any time by Act of the Holders of a majority
in number of the Outstanding Purchase Contracts delivered to the Purchase Contract Agent and the
Company. If the instrument of acceptance by a successor Purchase Contract Agent required by
Section 7.10 shall not have been delivered to the Purchase Contract Agent within 30 days after the
delivery of such Act, the removed Purchase Contract Agent may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract
Agent.



     (d) If at any time:



48









 






          (i) the Purchase Contract Agent shall cease to be eligible under Section 7.08 and shall
fail to resign after written request therefor by the Company or by any such Holder; or




          (ii) the Purchase Contract Agent shall be adjudged a bankrupt or insolvent or a
receiver of the Purchase Contract Agent or of its property shall be appointed or any public
officer shall take charge or control of the Purchase Contract Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,



     then, in any such case, (x) the Company by a Board Resolution may remove the Purchase Contract
Agent, or (y) any Holder who has been a bona fide Holder of a Purchase Contract for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Purchase Contract Agent and the appointment of a successor
Purchase Contract Agent.



          (e) If the Purchase Contract Agent shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of the Purchase Contract Agent for any cause, the Company
shall promptly appoint a successor Purchase Contract Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Purchase Contract Agent shall have been so appointed
by the Company and accepted appointment in the manner required by Section 7.10, any Holder who has
been a bona fide Holder of a Purchase Contract for at least six months, on behalf of itself and all
others similarly situated, or the Purchase Contract Agent may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract
Agent.




          (f) The Company shall give, or shall cause such successor Purchase Contract Agent to give,
notice of each resignation and each removal of the Purchase Contract Agent and each appointment of
a successor Purchase Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to Holders as their names and addresses appear in the applicable Register. Each
notice shall include the name of the successor Purchase Contract Agent and the address of its
Corporate Trust Office.




          (g) At any time there shall be only one Purchase Contract Agent with respect to the
Securities.




     Section 7.10. Acceptance of Appointment by Successor. (a) In case of the appointment
hereunder of a successor Purchase Contract Agent, every such successor Purchase Contract Agent so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Purchase
Contract Agent an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Purchase Contract Agent shall become effective and such successor Purchase Contract
Agent, without any further act, deed or conveyance, shall become vested with all the rights,
powers, agencies and duties of the retiring Purchase Contract Agent; but, at the request of the
Company or the successor Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon
its receipt of payment of its charges and all other amounts payable to it hereunder, execute and
deliver an instrument transferring to such successor Purchase Contract Agent all the rights, powers
and trusts of the retiring Purchase Contract Agent



49









 




(other than rights to indemnification, compensation and reimbursement of expenses) and shall
duly assign, transfer and deliver to such successor Purchase Contract Agent all property and money
held by such retiring Purchase Contract Agent hereunder (other than those relating to unassigned
rights).




          (b) Upon request of any such successor Purchase Contract Agent, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor
Purchase Contract Agent all such rights, powers and agencies referred to in paragraph Section
7.10(a) of this Section.




          (c) No successor Purchase Contract Agent shall accept its appointment unless at the time of
such acceptance such successor Purchase Contract Agent shall be qualified and eligible under this
Article.




          (d) Upon acceptance of appointment by a successor Purchase Contract Agent as provided in this
Section, the Company shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Holders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after acceptance of
appointment by the successor Purchase Contract Agent, the successor Purchase Contract Agent shall
cause such notice to be transmitted at the expense of the Company.




     Section 7.11. Merger; Conversion; Consolidation or Succession to Business. Any
corporation into which the Purchase Contract Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Purchase Contract Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Purchase Contract Agent, shall be the successor of the
Purchase Contract Agent hereunder; provided that such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. If any Securities shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the Purchase Contract
Agent then in office, any successor by merger, conversion or consolidation to such Purchase
Contract Agent may adopt such authentication and execution and deliver the Securities so
authenticated and executed with the same effect as if such successor Purchase Contract Agent had
itself authenticated and executed such Purchase Contracts.



     Section 7.12. Preservation of Information; Communications to Holders. (a) The
Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders as received by the Purchase Contract Agent in its capacity as
Security Registrar.



          (b) If three or more Holders (such three or more Holders, the “applicants”) apply in
writing to the Purchase Contract Agent, and furnish to the Purchase Contract Agent reasonable proof
that each such applicant has owned a Unit or Separate Purchase Contract for a period of at least
six months preceding the date of such application, and such application states that the applicants
desire to communicate with other Holders with respect to their rights under this Agreement or under
the Units or Separate Purchase Contracts and is accompanied by a copy






50









 







of the form of proxy or other communication that such applicants propose to transmit, then the
Purchase Contract Agent shall mail to all the Holders copies of the form of proxy or other
communication that is specified in such request, with reasonable promptness after a tender to the
Purchase Contract Agent of the materials to be mailed and of payment, or provision for the payment
acceptable to the Purchase Contract Agent, of the reasonable expenses of such mailing.




     Section 7.13. No Obligations of Purchase Contract Agent. Except to the extent
otherwise expressly provided in this Agreement, the Purchase Contract Agent assumes no obligations
and shall not be subject to any liability under this Agreement or Security evidencing a Unit or
Purchase Contract in respect of the obligations of the Holder of any Unit or Purchase Contract
thereunder. The Company agrees, and each Holder of a Note, by his or her acceptance thereof, shall
be deemed to have agreed, that the Purchase Contract Agent’s execution of the Securities on behalf
of the Holders shall be solely as agent and attorney-in-fact for the Holders, and that the Purchase
Contract Agent shall have no obligation to perform such Purchase Contracts (whether held as
components of Units or Separate Purchase Contracts) on behalf of the Holders, except to the extent
expressly provided in Article 3 hereof. Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Purchase Contract Agent or its officers, employees or agents
be liable under this Agreement to any third party for indirect, special, punitive, or consequential
loss or damage of any kind whatsoever, including lost profits, whether or not the likelihood of
such loss or damage was known to the Purchase Contract Agent.



     Section 7.14. Tax Compliance. (a) The Company and the Purchase Contract Agent shall
comply with all applicable certification, information reporting and withholding (including “backup”
withholding) requirements imposed by applicable tax laws, regulations or administrative practice
with respect to (i) any payments made with respect to the Purchase Contracts or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the Purchase Contracts. Such
compliance shall include, without limitation, the preparation and timely filing at the expense of
the Company of required returns and the timely payment of all amounts required to be withheld to
the appropriate taxing authority or its designated agent. The Company shall deliver to the
Purchase Contract Agent an Officers’ Certificate similar to that required to be provided under
Section 4.06 of the Indenture setting forth all necessary information to enable the Purchase
Contract Agent to comply with the provisions of this Section 7.14.



     (b) The Purchase Contract Agent shall comply in accordance with the terms hereof with any
written direction received from the Company with respect to the execution or certification of any
required documentation and the application of such requirements to particular payments or Holders
or in other particular circumstances, and may for purposes of this Agreement conclusively rely on
any such direction in accordance with the provisions of Section 7.01(a)(ii) hereof.



     (c) The Purchase Contract Agent shall maintain, and the Company shall cooperate in the
maintenance of. all appropriate records documenting compliance with such requirements, and shall
make such records available, on written request, to the Company or its authorized representative
within a reasonable period of time after receipt of such request.




51











 





ARTICLE 8

SUPPLEMENTAL AGREEMENTS




     Section 8.01. Supplemental Agreements Without Consent of Holders. Without the consent
of any Holders, the Company, the Purchase Contract Agent and the Trustee, at any time and from time
to time, may enter into one or more agreements supplemental hereto, in form satisfactory to the
Company, the Purchase Contract Agent and the Trustee, to:




          (i) evidence the succession of another Person to the Company’s obligations;




          (ii) add to the covenants for the benefit of Holders or to surrender any of the
Company’s rights or powers;




          (iii) evidence and provide for the acceptance of appointment of a successor Purchase
Contract Agent;




          (iv) make provision with respect to the rights of Holders pursuant to adjustments in
the Settlement Rate due to Business Combinations as described in this Agreement;




          (v) conform the provisions of this Agreement to the “Description of the purchase
contracts” section in the Preliminary Prospectus Supplement, as supplemented by the related
pricing term sheet;




          (vi) cure any ambiguity or manifest error, to correct or supplement any provisions that
may be inconsistent; or




          (vii) to make any other provisions with respect to such matters or questions;


provided that any such action described in clauses (vi) and (vii) above shall not adversely
affect the interest of the Holders.




     Section 8.02. Supplemental Agreements With Consent of Holders. With the consent of
the Holders of not less than a majority of the Outstanding Purchase Contracts voting together as
one class, by Act of said Holders delivered to the Company, the Purchase Contract Agent and the
Trustee, the Company, when authorized by a Board Resolution, and the Purchase Contract Agent and
the Trustee may enter into an agreement or agreements supplemental hereto for the purpose of
modifying in any manner the terms of the Purchase Contracts, or the provisions of this Agreement or
the rights of the Holders in respect of the Purchase Contracts; provided, however,
that, except as contemplated herein, no such supplemental agreement shall, without the consent of
each Holder of an Outstanding Purchase Contract affected thereby,




          (i) reduce the number of shares of Common Stock deliverable upon settlement of the
Purchase Contracts; change the Mandatory Settlement Date, the right to settle Purchase
Contracts early or the Fundamental Change Early Settlement Right; or otherwise adversely
affect the Holder’s rights under the Purchase Contract; or



52









 






          (ii) reduce the above-stated percentage of Outstanding Purchase Contracts the consent
of the Holders of which is required for the modification or amendment of the provisions of
the Purchase Contracts or this Agreement or




          (iii) impair the right to institute suit for the enforcement of the Purchase Contracts.


It shall not be necessary for any Act of Holders under this Section to approve the particular form
of any proposed supplemental agreement, but it shall be sufficient if such Act shall approve the
substance thereof.




     Section 8.03. Execution of Supplemental Agreements. In executing, or accepting the
additional agencies created by, any supplemental agreement permitted by this Article or the
modifications thereby of the agencies created by this Agreement, the Purchase Contract Agent and
the Trustee shall be provided, and shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement and that any and all conditions precedent to the
execution and delivery of such supplemental agreement have been satisfied. The Purchase Contract
Agent may, but shall not be obligated to, enter into any such supplemental agreement that affects
the Purchase Contract Agent’s own rights, duties or immunities under this Agreement or otherwise
and shall have the right to indemnity as provided in Article 7 of this Agreement.



     Section 8.04. Effect of Supplemental Agreements. Upon the execution of any
supplemental agreement under this Article, this Agreement shall be modified in accordance
therewith, and such supplemental agreement shall form a part of this Agreement for all purposes;
and every Holder of Securities theretofore or thereafter authenticated, executed on behalf of the
Holders and delivered hereunder, shall be bound thereby.



     Section 8.05. Reference to Supplemental Agreements. Securities authenticated,
executed on behalf of the Holders and delivered after the execution of any supplemental agreement
pursuant to this Article may, and shall if required by the Purchase Contract Agent, bear a notation
in form approved by the Purchase Contract Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Securities so modified as to conform, in the
opinion of the Purchase Contract Agent, the Trustee and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated, executed on behalf of the
Holders and delivered by the Purchase Contract Agent in exchange for outstanding Securities (by the
Purchase Contract Agent and the Trustee, as applicable).



     Section 8.06. Notice of Amendment. After any supplemental agreement under this
Article becomes effective, the Company shall mail to the Holders a notice briefly describing such
supplemental agreements; provided, however, that the failure to give such notice to all Holders, or
any defect therein, shall not impair or affect the validity of any supplemental agreement under
this Article 8.



53









 





ARTICLE 9

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




     Section 9.01. Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property
Except Under Certain Conditions. The Company covenants that it will not merge with and into,
consolidate with or convert into any other Person or sell, assign, transfer, lease or convey all or
substantially all of its properties and assets to any Person, unless:




          (i) the successor entity is a corporation organized and existing under the laws of the
United States of America or a U.S. state or the District of Columbia and that entity
expressly assumes all of the Company’s obligations under the Units, the Purchase Contracts
and this Agreement by an agreement supplemental hereto, executed and delivered to the
Purchase Contract Agent and the Trustee;




          (ii) the successor entity is not, immediately after the merger, consolidation,
conversion, sale, assignment, lease or conveyance, in default in the performance of its
covenants and conditions under the Units, the Purchase Contracts or this Agreement; and




          (iii) the Company has delivered to the Purchase Contract Agent an Officers’ Certificate
and an Opinion of Counsel, each stating that such merger, consolidation, conversion, sale,
assignment, transfer, lease or conveyance and such supplemental agreement comply with this
Article 8 and that all conditions precedent herein provided for related to such transaction
have been complied with.



     Section 9.02. Rights and Duties of Successor Entity. In case of any such merger,
consolidation, sale, assignment, transfer or conveyance (but not any such lease) and upon any such
assumption by a successor entity in accordance with Section 9.01, such successor entity shall
succeed to and be substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor entity thereupon may cause to be signed, and may issue either in
its own name or in the name of Synovus Financial Corp., any or all of the Securities evidencing
Units or Purchase Contracts issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Purchase Contract Agent; and, upon the order of such successor entity,
instead of the Company, and subject to all the terms, conditions and limitations in this Agreement
prescribed, the Purchase Contract Agent shall authenticate and execute on behalf of the Holders and
deliver any such Securities that previously shall have been signed and delivered by the officers of
the Company to the Purchase Contract Agent for authentication and execution, and any such Security
evidencing Units or Purchase Contracts that such successor corporation thereafter shall cause to be
signed and delivered to the Purchase Contract Agent for that purpose. All the Securities issued
shall in all respects have the same legal rank and benefit under this Agreement as the Securities
theretofore or thereafter issued in accordance with the terms of this Agreement as though all of
such Securities had been issued at the date of the execution hereof.



     In the event of any such merger, consolidation, conversion, sale, assignment, transfer, lease
or conveyance, such change in phraseology and form (but not in substance) may be made in the Equity
Linked Securities thereafter to be issued as may be appropriate.



54









 





ARTICLE 10

COVENANTS OF THE COMPANY




     Section 10.01. Performance Under Purchase Contracts. The Company covenants and agrees
for the benefit of the Holders from time to time of the Purchase Contracts that it will duly and
punctually perform its obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.



     Section 10.02. Maintenance of Office or Agency. The Company will maintain in the
Borough of Manhattan, New York City or Jacksonville, Florida an office or agency where Securities
may be presented or surrendered for acquisition of shares of Common Stock upon settlement of the
Purchase Contracts on the Mandatory Settlement Date or any Early Settlement Date and where notices
and demands to or upon the Company in respect of the Purchase Contracts and this Agreement may be
served. The Company will give prompt written notice to the Purchase Contract Agent of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Purchase
Contract Agent with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office, and the Company hereby appoints the Purchase Contract
Agent as its agent to receive all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
Securities may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, New York City or Jacksonville, Florida for such purposes. The
Company will give prompt written notice to the Purchase Contract Agent of any such designation or
rescission and of any change in the location of any such other office or agency. The Company
hereby designates as the place of payment for the Purchase Contracts the Corporate Trust Office and
appoints the Purchase Contract Agent at its Corporate Trust Office as paying agent in such city.



     Section 10.03. Statements of Officers of the Company as to Default; Notice of Default.
(a) The Company will deliver to the Purchase Contract Agent, within 120 days after the end of
each fiscal year of the Company (which fiscal year end as of the date hereof is December 31) ending
after the date hereof, an Officers’ Certificate (one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting officer of the Company),
stating whether or not to the knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions hereof, and if the
Company shall be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.



          (b) The Company shall deliver to the Purchase Contract Agent, as soon as possible but, in any
event, within five days after the Company becomes aware of the occurrence thereof, notice of any
default in the performance and observance of any of the terms, provisions and conditions hereof and
the status thereof.







55









 








     Section 10.04. Existence. Except as otherwise permitted under Article 9, the Company
will do or cause to be done all things necessary to maintain in full force its legal existence,
rights (charter and statutory) and franchises, except that the Company is not required to preserve
any right or franchise if the Company determines that it is no longer desirable in the conduct of
its business.



     Section 10.05. Company to Reserve Common Stock. The Company shall at all times prior
to the Mandatory Settlement Date reserve and keep available, free from preemptive rights or other
encumbrances, out of its authorized but unissued Common Stock, solely for issuance upon settlement
of the Purchase Contracts, that number of shares of Common Stock as shall from time to time be
issuable upon the settlement of all Outstanding Purchase Contracts (whether or not included in a
Unit), assuming settlement at the Maximum Settlement Rate.



     Section 10.06. Covenants as to Common Stock; Listing. The Company covenants that all
shares of Common Stock that may be issued upon settlement of any Purchase Contract represented by
the Outstanding Securities will, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable, free from all taxes, liens and charges and not subject to any preemptive rights.



     The Company further covenants that, if at any time the Common Stock shall be listed on the
NYSE or any other national securities exchange, the Company will, if permitted by the rules of such
exchange, list and keep listed, so long as the Common Stock shall be so listed on such exchange,
all Common Stock issuable upon settlement of the Purchase Contracts; provided,
however, that, if the rules of such exchange system permit the Company to defer the listing
of such Common Stock until the first delivery of Common Stock upon settlement of Purchase Contracts
in accordance with the provisions of this Agreement, the Company covenants to list such Common
Stock issuable upon settlement of the Purchase Contracts in accordance with the requirements of
such exchange at such time.



     The Company shall apply to list the Units on the NYSE under the symbol “SNV PR T.” In
addition, if (a) a sufficient number of Units are separated into Separate Purchase Contracts and
Separate Notes and traded separately such that applicable listing requirements are met and (b) the
Holders of such Separate Purchase Contracts and Separate Notes request that the Company list such
Separate Purchase Contracts and Separate Notes, the Company shall endeavor to list such Separate
Purchase Contracts and Separate Notes on an exchange of the Company’s choosing (which may or may
not be the NYSE) subject to applicable listing requirements.



     Section 10.07. Tax Treatment. The Company agrees, and by purchasing a Unit each
Holder agrees, for United States tax purposes, to treat (1) a Unit as an investment unit composed
of two separate instruments, in accordance with its form and (2) the Notes as indebtedness.



56









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.



	 	 	 	 	 
	 	SYNOVUS FINANCIAL CORP.

 	 
	 	By:  	/s/
Thomas J. Prescott 	 
	 	 	Name:  	Thomas J. Prescott 	 
	 	 	Title:  	Executive Vice President and
Chief Financial
Officer 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Purchase Contract Agent

 	 
	 	By:  	/s/
Christine Leppert 	 
	 	 	Name:  	Christine Leppert 	 
	 	 	Title:  	Vice President 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee under the Indenture

 	 
	 	By:  	/s/
Christine Leppert 	 
	 	 	Name:  	Christine Leppert 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST

COMPANY, N.A.,

as Attorney-in-Fact of the Holders from time to time as provided under the Purchase Contract Agreement

 	 
	 	By:  	/s/
Christie Leppert 	 
	 	 	Name:  	Christie Leppert 	 
	 	 	Title:  	Vice President 	 
	 




 









 





EXHIBIT A




[FORM OF FACE OF UNIT]




[INCLUDE IF A GLOBAL UNIT]



     [THIS UNIT IS A GLOBAL UNIT WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”), THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY. THIS UNIT IS EXCHANGEABLE FOR PURCHASE CONTRACTS REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS UNIT (OTHER THAN A TRANSFER OF THIS UNIT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS UNIT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY UNIT ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY HAS AN INTEREST HEREIN.]



A-1









 





SYNOVUS FINANCIAL CORP.




8.25% tMEDS


CUSIP No. 87161C 204




	 	 	 

	No.                     

	 	[Initial]1 Number of Units                     






     This Unit certifies that [CEDE & CO.]2
[                                        ] (the “Holder”), or registered assigns,
is the registered owner of [the number of Units set forth above] [the number of Units shown on
Schedule A hereto, which number may from time to time be reduced or increased, as appropriate in
accordance with the terms of the Purchase Contract Agreement (as defined below), but which shall
not exceed                      Units]3.



     Each Unit consists of (i) a Purchase Contract and (ii) a Note, in each case issued by the
Company. Each Unit evidenced hereby is governed by a Purchase Contract Agreement, dated as of May
4, 2010 (as may be supplemented from time to time, the “Purchase Contract Agreement”),
among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent
(including its successors hereunder, the “Purchase Contract Agent”), and The Bank of New
York Mellon Trust Company, N.A., as Trustee (including its successors hereunder, the
“Trustee”) under the Indenture.



     Reference is hereby made to the Purchase Contract Agreement and the Indenture and, in each
case supplemental agreements thereto, for a description of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Company,
and the Holders and of the terms upon which the Units are, and are to be, executed and delivered.



     Upon the conditions and under the circumstances set forth in the Purchase Contract Agreement,
Holders of Units shall have the right to separate a Unit into its component parts, and a Holder of
a Separate Purchase Contract and Separate Note shall have the right to re-create a Unit.



     The Company agrees, and by purchasing a Unit each Holder agrees, for United States tax
purposes, to treat (1) a Unit as an investment unit composed of two separate instruments, in
accordance with its form and (2) the Notes as indebtedness.



     The Units, and any claim, controversy or dispute arising under or related to the Units, shall
be governed by, and construed in accordance with, the laws of the State of New York, without regard
to conflicts of laws principles thereof.





 




			
	1	 	Include if a Global Unit.
	 
	2	 	Include if a Global Unit.
	 
	3	 	Include if a Global Unit.





A-2









 





     Capitalized terms used herein and not defined have the meanings given to such terms in the
Purchase Contract Agreement.



     In the case of any conflict between this Unit and the Purchase Contract Agreement, the
provisions of the Purchase Contract Agreement shall control.



[SIGNATURES ON THE FOLLOWING PAGE]




A-3









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	SYNOVUS FINANCIAL CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-4









 





	 	 	 	 	 
	 	REGISTERED HOLDER(S) (as to obligations of such holder(s) under the Purchase Contracts attached hereto)

 	 
	 	By:  	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not individually but solely as Attorney-in-Fact of such holder(s)
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-5









 





UNIT CERTIFICATE OF AUTHENTICATION

OF PURCHASE CONTRACT AGENT AND TRUSTEE UNDER THE INDENTURE




     This is one of the Units referred to in the within-mentioned Purchase Contract Agreement.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Purchase Contract Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee under the Indenture

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




A-6









 





[FORM OF REVERSE OF UNIT]




[Intentionally Blank]



A-7










 





SCHEDULE A




[INCLUDE IF A GLOBAL UNIT]



SCHEDULE OF INCREASES OR DECREASES IN A GLOBAL UNIT



     The initial number of Units evidenced by this Global Unit is                     . The
following increases or decreases in this Global Unit have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of Units	 	 
	 	 	Amount of increase	 	Amount of decrease	 	evidenced by the	 	Signature of
	 	 	in number of Units	 	in number of	 	Global Unit following	 	authorized signatory
	 	 	evidenced by the	 	Units evidenced by the	 	such decrease or	 	of Purchase
	Date	 	Global Unit	 	Global Unit	 	increase	 	Contract Agent
	 	 	 	 	 	 	 	 	 





A-8














 





ATTACHMENT 1




[FORM OF SEPARATION NOTICE]




The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, FL 32256

Attention: Trust Division – Corporate Finance Unit

Telephone: (904) 998-4717

Facsimile: (904) 645-1921




Re:    Separation of [Global]4 Units



The undersigned [Beneficial Owner]4 hereby notifies you that it wishes to separate
                     Units [as to which it holds a Book-Entry Interest]4 into the
applicable number of Notes and the applicable number of Purchase Contracts in accordance with the
Purchase Contract Agreement (the “Purchase Contract Agreement”) dated May 4, 2010 among the
Company, The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and as Paying
Agent, and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture. Terms
used and not defined herein have the meaning assigned to such terms in the Purchase Contract
Agreement.



The undersigned [includes herewith]5 [Beneficial Owner has instructed the undersigned
Depository Participant to transfer to you its Book-Entry Interests]4 the number of Units
specified in the immediately succeeding paragraph. The undersigned [includes herewith]5
[Beneficial Owner has furnished the undersigned Depository Participant with]4 the
appropriate endorsements and documents and paid all applicable transfer or similar taxes, if any,
to the extent required by the Purchase Contract Agreement.



Please [deliver to the undersigned’s address specified below]5 [transfer to the account
of the undersigned Beneficial Owner with the undersigned Depositary Participant the beneficial
interests in]4 (i) the number of Separate Notes and (ii) number of Separate Purchase
Contracts represented by the number of Units specified above.






 




			
	4	 	Include if a Global Unit.
	 
	5	 	Exclude if a Global Unit.





A-8









 





     IN WITNESS WHEREOF, the [undersigned has caused this instrument to be duly
executed]5 [Depository Participant has caused this instrument to be duly executed on
behalf of itself and the undersigned Beneficial Owner]4.


Dated:                     




	 	 	 	 	 
	 	[NAME OF BENEFICIAL OWNER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address:  	 	 
	 
	 	  	 	 
	 



	 	 	 	 	 

	[NAME OF DEPOSITORY PARTICIPANT]4	 	 
	 
	 	 	 	 
	 

	 	 
 

Name:
	 	 
	 

	 	Address:	 	 





Attest



By:




A-9









 





ATTACHMENT 2




[FORM OF RECREATION NOTICE]




The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, FL 32256

Attention: Trust Division – Corporate Finance Unit

Telephone: (904) 998-4717

Facsimile: (904) 645-1921




Re:   Recreation of [Global]6 Units




     The undersigned [Beneficial Owner]6 hereby notifies you that it wishes to recreate
                     Units [as to which it holds a Book-Entry Interest]6 from the
applicable number of Separate Notes and the applicable number of Separate Purchase Contracts in
accordance with the Purchase Contract Agreement (the “Purchase Contract Agreement”) dated
May 4, 2010 among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase
Contract Agent and as Paying Agent, and The Bank of New York Mellon Trust Company, N.A., as Trustee
under the Indenture. Terms used and not defined herein have the meaning assigned to such terms in
the Purchase Contract Agreement.



     The undersigned [includes herewith]7 [Beneficial Owner has instructed the
undersigned Depository Participant to transfer to you its Book-Entry Interests in]6 the
applicable number of Separate Notes and the applicable number of Separate Purchase Contracts
sufficient for the recreation of the number of Units specified above. The undersigned [includes
herewith]7 [Beneficial Owner has furnished the undersigned Depository Participant
with]6 the appropriate endorsements and documents and paid all applicable transfer or
similar taxes, if any, to the extent required by the Purchase Contract Agreement.



     Please [deliver to the undersigned’s address specified below]7 [transfer to the
account of the undersigned Beneficial Owner with the undersigned Depositary Participant the
beneficial interests in]6 the number of Units specified above.





 




			
	6	 	Include if a Global Unit.
	 
	7	 	Exclude if a Global Unit.





A-10









 





     IN WITNESS WHEREOF, the [undersigned has caused this instrument to be duly
executed]7 [Depository Participant has caused this instrument to be duly executed on
behalf of itself and the undersigned Beneficial Owner]6.



Dated:                     




	 	 	 	 	 
	 	[NAME OF BENEFICIAL OWNER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address:  	 	 
	 
	 	  	 	 
	 



	 	 	 	 	 

	[NAME OF DEPOSITORY PARTICIPANT]5	 	 
	 
	 	 	 	 
	 

	 	 
 

Name:
	 	 
	 

	 	Address:	 	 





Attest



By:





A-11











 





ATTACHMENT 3




SYNOVUS FINANCIAL CORP.




PURCHASE CONTRACTS



			
	 	 	 
	No. 2
	 	Initial Number of Purchase Contracts:                                        






     This Purchase Contract certifies that The Bank of New York Mellon Trust Company, N.A. (the
“Holder”), or registered assigns, is the registered owner of the number of Purchase
Contracts the number of Purchase Contracts shown on Schedule A hereto, which number may from time
to time be reduced or increased, as appropriate in accordance with the terms of the Purchase
Contract Agreement (as defined below), but which shall not exceed 13,800,000 Purchase Contracts.



     Each Purchase Contract consists of the rights of the Holder under such Purchase Contract with
the Company. All capitalized terms used herein that are defined in the Purchase Contract Agreement
(as defined on the reverse hereof) have the meaning set forth therein.



     Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this
Purchase Contract on the Mandatory Settlement Date a number shares of common stock, $1.00 par value
(“Common Stock”), of the Company equal to the Settlement Rate, unless such Purchase
Contract settles prior to the Mandatory Settlement Date, in which event the provisions of Section
5.03 or Section 5.04 of the Purchase Contract Agreement shall apply, all as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.



     Reference is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.



A-12









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	SYNOVUS FINANCIAL CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	REGISTERED HOLDER(S) (as to obligations of such

     holder(s) under the Purchase Contracts evidenced
hereby)

 	 
	 	By:  	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
not individually but solely as Attorney-in-Fact
of such holder(s) 	 




      



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-13









 






	 	 	 	 	 



PURCHASE CONTRACT CERTIFICATE OF AUTHENTICATION

OF PURCHASE CONTRACT AGENT AND TRUSTEE UNDER THE INDENTURE





     This is one of the Purchase Contracts referred to in the within-mentioned Purchase Contract
Agreement.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Purchase Contract Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee under the Indenture

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 


Dated:                                         







A-14









 








REVERSE OF PURCHASE CONTRACT





     Each Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement, dated as
of May 4, 2010 (as may be supplemented from time to time, the “Purchase Contract
Agreement”), among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase
Contract Agent (including its successors hereunder, the “Purchase Contract Agent”) and The
Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture. Reference is hereby
made to the Purchase Contract Agreement and supplemental agreements thereto for a description of
the respective rights, limitations of rights, obligations, duties and immunities thereunder of the
Purchase Contract Agent, the Company and the Holders and of the terms upon which the Purchase
Contracts are, and are to be, executed and delivered.



     Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this
Purchase Contract, on the Mandatory Settlement Date, a number of shares of Common Stock equal to
the Settlement Rate, unless such Purchase Contract settles prior to the Mandatory Settlement Date,
in either case, pursuant to the terms of the Purchase Contract Agreement.



     No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in Section 4.04 of the Purchase Contract Agreement.



     The Purchase Contracts are issuable only in registered form and only in denominations of a
single Purchase Contract and any integral multiple thereof. The transfer of any Purchase Contract
will be registered and Purchase Contracts may be exchanged as provided in the Purchase Contract
Agreement.



     The Holder of this Purchase Contract, by its acceptance hereof, authorizes the Purchase
Contract Agent to enter into and perform the Purchase Contract Agreement on its behalf as its
attorney-in-fact and agrees to be bound by the terms and provisions thereof.



     Subject to certain exceptions set forth in the Purchase Contract Agreement, the provisions of
the Purchase Contract Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.



     The Purchase Contracts, and any claim, controversy or dispute arising under or related to the
Purchase Contracts, shall be governed by, and construed in accordance with, the laws of the State
of New York, without regard to conflicts of laws principles thereof.



     The Company, the Purchase Contract Agent and its Affiliates and any agent of the Company or
the Purchase Contract Agent may treat the Person in whose name this Purchase Contract is registered
as the owner of the Purchase Contracts evidenced hereby for the purpose of performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect
thereof be overdue and notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract Agent nor any such agent shall be affected by notice to the contrary.



     The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any
of the rights of a holder of the Common Stock or other Reference Property.



A-15









 





     Each Purchase Contract (whether or not included in a Unit) is a security governed by Article 8
of the Uniform Commercial Code as in effect in the State of New York on the date hereof.



     In the case of any conflict between this Purchase Contract and the Purchase Contract
Agreement, the provisions of the Purchase Contract Agreement shall control.



     A copy of the Purchase Contract Agreement is available for inspection at the offices of the
Purchase Contract Agent.



A-16









 





ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:



	 	 	 	 	 	 	 

	TEN COM:

	 	as tenants in common	 	 	 	 
	 
	 	 	 	 	 	 
	UNIF GIFT MIN ACT:

	 	 	 	Custodian	 	 
	 

	 	 
	 	 	 	 
	 

	 	(cust)
	 	 	 	(minor)






	 	 	 	 	 

	 

	 	Under Uniform Gifts to Minors Act of	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	TENANT:	 	as tenants by the entireties
	 
	 	 	 	 
	JT TEN:	 	as joint tenants with right of survivorship and not as
tenants in common





Additional abbreviations may also be used though not in the above list.




     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto



 




(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)




 




(Please Print or Type Name and Address Including Postal Zip Code of Assignee)



the within Purchase Contracts and all rights thereunder, hereby irrevocably constituting and
appointing attorney                     , to transfer said Purchase Contracts on the books
of Synovus Financial Corp. with full power of substitution in the premises.




	 	 	 	 	 	 	 

	Dated:	 	 	 	Signature
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Purchase Contracts
in every particular, without alteration or enlargement or any
change whatsoever.







	 	 	 

	          Signature Guarantee:
	 	 
	 

	 	 





A-17









 






SETTLEMENT INSTRUCTIONS




     The undersigned Holder directs that a certificate for shares of Common Stock or other
securities deliverable upon settlement on or after the Mandatory Settlement Date of the number of
Purchase Contracts evidenced by this Purchase Contract be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below. The undersigned
will pay any transfer or similar taxes payable in connection with the issuance of Common Stock or
other securities to any Person other than the undersigned.



	 	 	 	 	 	 	 	 	 

	Dated:
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Signature	 	 	 	 
	 

	 	 	 	Signature Guarantee:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(if assigned to another Person)
	 
	 	 	 	 	 	 	 	 
	If shares are to be registered in the name
of and delivered to a Person other than
the Holder, please (i) print such Person’s
name and address and (ii) provide a
guarantee of your signature:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 
	Name

	 	 	 	Name	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 
	Address

	 	 	 	Address	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 
	Social Security or other

	 	 	 	 	 	 
	Taxpayer Identification

	 	 	 	 	 	 
	Number, if any

	 	 	 	 	 	 
	 	 	 	 	 





A-18









 






ELECTION TO SETTLE EARLY




     The undersigned Holder of this Purchase Contract hereby irrevocably exercises the option to
effect Early Settlement in accordance with the terms of the Purchase Contract with respect to the Purchase Contracts evidenced by this Purchase Contract specified below. The
undersigned Holder directs that a certificate for shares of Common Stock or other securities
deliverable upon such Early Settlement be registered in the name of, and delivered, together
with a check in payment for any fractional share and any Purchase Contract representing any
Purchase Contracts evidenced hereby as to which Early Settlement is not effected, to the
undersigned at the address indicated below unless a different name and address have been indicated
below. The undersigned will pay any transfer or similar taxes payable in connection with the
issuance of Common Stock or other securities to any Person other than the undersigned.



	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	Signature





Signature Guarantee:  
                
                
                 
                      
         







A-19









 








     Number of Purchase Contracts evidenced hereby as to which Early Settlement is being elected:



	 	 	 
	If shares of Common Stock or Purchase
Contracts are to be registered in the
name of and delivered to a Person
other than the Holder, please print
such Person’s name and address:

	 	REGISTERED HOLDER
	 
	 	 
	 

	 	Please print name and address of
Registered Holder:
	 
	 	 
	 

	 	 
	Name

	 	Name
	 
	 	 
	 

	 	 
	Address

	 	Address
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	Social Security or other
	 	 
	Taxpayer Identification
	 	 
	Number, if any
	 	 
	 

	 	 





A-20









 






SCHEDULE A



SCHEDULE OF INCREASES OR DECREASES IN THE PURCHASE CONTRACTS




     The initial number of Purchase Contracts evidenced by this certificate is                     . The
following increases or decreases in this certificate have been made:



	 	 	 	 	 	 	 	 	 
	 	 	Amount of increase	 	Amount of decrease	 	Number of Purchase	 	 
	 	 	in number of Purchase	 	in number of	 	Contracts evidenced	 	Signature of
	 	 	Contracts evidenced	 	Purchase Contracts	 	by this certificate	 	authorized signatory
	 	 	by this	 	evidenced by	 	following	 	of Purchase
	Date	 	Certificate	 	this
Certificate	 	such decrease or increase	 	Contract Agent
	 
	 	 	 	 	 	 	 	 






A-21











 





ATTACHMENT 4




SYNOVUS FINANCIAL CORP.




13.00% JUNIOR SUBORDINATED DEFERRABLE INSTALLMENT DEBENTURES

DUE MAY 15, 2013



REGISTERED




			
	 	 	 
	No. 2
	 	Initial Number of Notes                     






     SYNOVUS FINANCIAL CORP., a Georgia corporation (the “Company,” which term includes any
successor corporation under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the initial principal sum of $5.098197 for
each of the number of Notes set forth above, or such other number of Notes as set forth in the
Schedule of Increases or Decreases in Global Note attached hereto, which shall not exceed
13,800,000, in quarterly installment payments (each constituting a payment of interest at the rate
per year of 13.00% and a partial repayment of principal) payable on February 15, May 15, August 15
and November 15 of each year (each such date, an “Installment Payment Date” and the period
from, and including, May 4, 2010 to, but excluding, the first Installment Payment Date and each
subsequent full quarterly period from and including an Installment Payment Date to, but excluding,
the immediately succeeding Installment Payment Date, an “Installment Payment Period”),
commencing on August 15, 2010, all as set forth on the reverse hereof, with the final installment
payment due and payable on May 15, 2013. The installment payments payable on any Installment
Payment Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
If an installment payment is payable for any period shorter than a full Installment Payment Period,
such installment payment shall be computed on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which an installment payment is payable is not a
Business Day, then the installment payment on such date will be made on the next succeeding day
that is a Business Day, and without any interest or other payment in respect of any such delay.
However, if such Business Day is in the next succeeding calendar year, then such installment
payment shall be made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. Installment payments shall be paid to the person in whose name
the Note is registered, with limited exceptions, at the close of business on the Business Day
immediately preceding the related Installment Payment Date (each, a “Regular Record Date”).
If the Notes do not remain in the form of Registered Global Securities, the Company shall have the
right to select Regular Record Dates, which will be more than 14 days but less than 60 days prior
to the relevant Installment Payment Date.



     Installments shall be payable at the office or agency of the Company maintained for that
purpose in accordance with the provisions of the Indenture.



     This Note shall not be entitled to any benefit under the Indenture hereinafter referred to or
be valid or obligatory for any purpose until the Certificate of Authentication shall have been
signed by or on behalf of the Trustee.



A-22









 





     The provisions of this Note are continued on the reverse side hereof and such continued
provisions shall for all purposes have the same effect as though fully set forth at this place.



A-23









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	SYNOVUS FINANCIAL CORP., as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title: 	 



A-24









 






	 	 	 	 	 



CERTIFICATE OF AUTHENTICATION





     This is one of the Securities of the series designated therein described in the
within-mentioned Indenture.



THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-25









 





REVERSE OF NOTE




SYNOVUS FINANCIAL CORP.



     This Note is one of a duly authorized series of Securities of the Company designated as its
13.00% Junior Subordinated Deferrable Installment Debentures due 2013 (herein sometimes referred to
as the “Notes”), issued under the Junior Subordinated Indenture, dated as of May 4, 2010,
between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the
“Trustee,” which term includes any successor trustee under the Indenture) (the “Base
Indenture,” and the Base Indenture, as supplemented by the First Supplemental Indenture, dated
May 4, 2010, (the “Supplemental Indenture”), between the Company and the Trustee, the
“Indenture”), to which Indenture reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders. The terms of other series of Securities issued under the Indenture may vary with
respect to interest rates, issue dates, maturity, redemption, repayment, currency of payment and
otherwise as provided in the Indenture. The Indenture further provides that securities of a single
series may be issued at various times, with different maturity dates and may bear interest at
different rates. This series of Securities is limited in aggregate principal amount as specified
in said First Supplemental Indenture.



     Each installment shall constitute a payment of interest (at a rate of 13.00% per annum) and a
partial repayment of principal on the Note, allocated as set forth in the schedule below:



	 	 	 	 	 	 	 	 	 
	Installment Payment Date	 	Amount of Principal	 	Amount of Interest
	August 15, 2010
	 	$	0.392703	 	 	$	0.185943	 
	November 15, 2010
	 	$	0.362696	 	 	$	0.152929	 
	February 15, 2011
	 	$	0.374484	 	 	$	0.141141	 
	May 15, 2011
	 	$	0.386655	 	 	$	0.128970	 
	August 15, 2011
	 	$	0.399221	 	 	$	0.116404	 
	November 15, 2011
	 	$	0.412196	 	 	$	0.103429	 
	February 15, 2012
	 	$	0.425592	 	 	$	0.090033	 
	May 15, 2012
	 	$	0.439424	 	 	$	0.076201	 
	August 15, 2012
	 	$	0.453705	 	 	$	0.061920	 
	November 15, 2012
	 	$	0.468451	 	 	$	0.047174	 
	February 15, 2013
	 	$	0.483675	 	 	$	0.031950	 
	May 15, 2013
	 	$	0.499395	 	 	$	0.016230	 






     This Note will not be subject to redemption at the option of the Company.



     This Note is not entitled to the benefit of any sinking fund. The Indenture contains
provisions for defeasance and covenant defeasance at any time of the indebtedness on this Note upon
compliance by the Company with certain conditions set forth therein, which provisions apply to this
Note.



     If an Event of Default relating to specified events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the Company occurs and
is continuing, then and in each such case either the Trustee or the Holders of not less than 25% in



A-26









 




aggregate initial principal amount of the Notes then outstanding, by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal amount of all the Notes
to be due and payable immediately, and upon any such declaration the same shall become immediately
due and payable. This provision, however, is subject to the condition that, at any time after such
a declaration of acceleration, and before any judgment or decree for the payment of the money due
shall have been obtained or entered, the Holders of a majority in aggregate principal amount of the
Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults
and rescind and annul such declaration and its consequences, if certain conditions are met as set
forth in the Indenture.




     There is no right of acceleration upon the occurrence of an Event of Default described in
Section 5.01(a) of the Supplemental Indenture or as described in Section 6.01(c) of the Base
Indenture.



     In the case of an Event of Default relating to the default by the Company in the payment in
full of all deferred installment payments on the Notes on or by May 15, 2015 and continuance of
such failure to pay for a period of 30 days, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the Holders of the Notes, the whole amount that then shall have
become due and payable on all such Notes for principal, premium, if any, or interest, or any
combination thereof, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon the overdue
installments of interest, at the rate borne by the Notes; and, in addition, such further amount as
shall be sufficient to cover the costs and expenses of collection, including reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent, attorneys and
counsel. If the Company does not pay such amounts upon such demand, the Trustee shall be entitled
and empowered to institute any actions or proceeding at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or any other obligor
on the Notes and collect in the manner provided by law out of the property of the Company or any
other obligor on the Notes, wherever situated, the money adjudged or decreed to be payable.



     The Indenture permits, with certain exceptions as therein provided, the Company and the
Trustee, with the consent of the Holders of not less than a majority in principal amount of the
Securities at the time outstanding of each series issued under the Indenture to be affected
thereby, to execute supplemental indentures for certain purposes as described therein.



     No provision of this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay installments on this Note at the time, place
and rate, and in the coin or currency, herein and in the Indenture prescribed, subject to the
Company’s right to defer installment payments as described therein.



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note shall be registered on the Security Register of the Company, upon surrender
of this Note for registration of transfer at the office or agency of the Company in Jacksonville,
Florida, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder hereof or by his attorney duly authorized



A-27









 




in writing, and thereupon one or more new Notes of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, shall be issued to the
designated transferee or transferees.




     The Notes are initially issued in the form of Registered Global Securities without coupons in
initial minimum denominations of one Note and integral multiples in excess thereof.



     No charge shall be made for any such registration of transfer or exchange, but the Company may
require the payment of a sum sufficient to cover any applicable tax or other governmental charge
payable in connection with the transfer.



     The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the
Holder in whose name any Note shall be registered upon the Security Register for the Notes as the
absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving installment payments
on such Note and for all other purposes; and neither the Company nor the Trustee nor any agent of
the Company or the Trustee shall be affected by any notice to the contrary.



     This Note and the Indenture, and any claim, controversy or dispute arising under or related to
the Indenture or this Note, for all purposes shall be governed by and construed in accordance with
the laws of the State of New York (without regard to the conflicts of laws provisions thereof).
Each of the Company and the Trustee, and each Holder of a Security by its acceptance thereof,
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right it
may have to trial by jury in any legal proceeding directly or indirectly arising out of or relating
to this Indenture, the Notes or the transactions contemplated hereby or thereby.



     All terms used in this Note which are defined in the Indenture and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.



     No recourse under or upon any obligation, covenant or agreement contained in the Indenture, or
this Note, or because of any indebtedness evidenced thereby, shall be had against any incorporator,
as such or against any past, present or future stockholder, Officer, director or employee, as such,
of the Company or of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of any assessment or by
any legal or equitable proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of this Note by the Holders hereof and as part of the consideration for
the issue of this Note.



     The Company and each Holder agrees, for United States tax purposes, to treat the Notes as
indebtedness.



     In the case of any conflict between this Note and the Supplemental Indenture, the provisions
of the Supplemental Indenture shall control.



A-28









 





ASSIGNMENT




FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:




 







 



 





(Insert assignee’s social security or tax identification number)




 







 



 





(Insert address and zip code of assignee)




and irrevocably appoints




 







 



 




agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.




Date:                                        




Signature:




Signature Guarantee:




(Sign exactly as your name appears on the other side of this Note)






A-29









 








SIGNATURE GUARANTEE




     Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.



	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name
	 	 
	 

	 	Title:	 	 






	 	 	 	 	 

	 

	 	 

as Trustee
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name 	 
	 	 	Title:  	 	 
	 



Attest:




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name
	 	 
	 

	 	Title:	 	 






A-30









 






SCHEDULE OF INCREASES OR DECREASES IN A GLOBAL NOTE



The
initial number of Notes evidenced by this certificate is                     . The following increases
or decreases in this certificate have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of Notes	 	 
	 	 	Amount of decrease	 	Amount of increase in	 	evidenced by this	 	 
	 	 	in number of Notes	 	number of Notes	 	certificate following	 	Signature of 
	 	 	evidenced by this	 	evidenced by this 	 	such decrease (or	 	authorized signatory of
	Date	 	certificate	 	certificate	 	increase)	 	Trustee
	 
	 	 	 	 	 	 	 	 





A-31









 





EXHIBIT B




[FORM OF FACE OF PURCHASE CONTRACT]




[INCLUDE IF A GLOBAL PURCHASE CONTRACT]



     [THIS PURCHASE CONTRACT IS A GLOBAL PURCHASE CONTRACT WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”), THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS PURCHASE CONTRACT IS EXCHANGEABLE FOR A PURCHASE
CONTRACT REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS PURCHASE
CONTRACT (OTHER THAN A TRANSFER OF THIS PURCHASE CONTRACT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS PURCHASE CONTRACT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PURCHASE CONTRACT ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY HAS AN INTEREST HEREIN.]



B-1









 





SYNOVUS FINANCIAL CORP.




PURCHASE CONTRACTS



CUSIP No. 87161C 121




			
	 	 	 
	No.
	 	[Initial]8 Number of Purchase Contracts:                    






     This Purchase Contract certifies that [CEDE & CO.]9
[                                        ] (the “Holder”), or registered assigns, is the registered owner of [the
number of Purchase Contracts set forth above] [the number of Purchase Contracts shown on Schedule A
hereto, which number may from time to time be reduced or increased, as appropriate in accordance
with the terms of the Purchase Contract Agreement (as defined below), but which shall not exceed
                    Purchase Contracts].10



     Each Purchase Contract consists of the rights of the Holder under such Purchase Contract with
the Company. All capitalized terms used herein that are defined in the Purchase Contract Agreement
(as defined on the reverse hereof) have the meaning set forth therein.



     Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this
Purchase Contract on the Mandatory Settlement Date a number shares of common stock, $1.00 par value
(“Common Stock”), of the Company equal to the Settlement Rate, unless such Purchase
Contract settles prior to the Mandatory Settlement Date, in which event the provisions of Section
5.03 or Section 5.04 of the Purchase Contract Agreement shall apply, all as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.



     Reference is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.





 




			
	8	 	Include if a Global Purchase Contract.
	 
	9	 	Include if a Global Purchase Contract.
	 
	10	 	Include if a Global Purchase Contract.





B-2









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	SYNOVUS FINANCIAL CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 

	 	 	REGISTERED HOLDER(S) (as to obligations of such
holder(s) under the Purchase Contracts evidenced
hereby)
	 
	 	 	 	 
	 

	 	By:
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
not individually but solely as Attorney-in-Fact
of such holder(s)






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B-3









 





PURCHASE CONTRACT CERTIFICATE OF AUTHENTICATION

OF PURCHASE CONTRACT AGENT AND TRUSTEE UNDER THE INDENTURE




     This is one of the Purchase Contracts referred to in the within-mentioned Purchase Contract
Agreement.



	 	 	 	 	 	 	 

	 	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,	 	 
	 	 	as Purchase Contract Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,	 	 
	 	 	as Trustee under the Indenture	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 






Dated:                                        





B-4











 





[FORM OF REVERSE OF PURCHASE CONTRACT]




     Each Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement, dated as
of May 4, 2010 (as may be supplemented from time to time, the “Purchase Contract
Agreement”), among the Company, The Bank of New York Mellon Trust Company, N.A., as Purchase
Contract Agent (including its successors hereunder, the “Purchase Contract Agent”) and The
Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture. Reference is hereby
made to the Purchase Contract Agreement and supplemental agreements thereto for a description of
the respective rights, limitations of rights, obligations, duties and immunities thereunder of the
Purchase Contract Agent, the Company and the Holders and of the terms upon which the Purchase
Contracts are, and are to be, executed and delivered.



     Each Purchase Contract evidenced hereby obligates the Company to deliver to the Holder of this
Purchase Contract, on the Mandatory Settlement Date, a number of shares of Common Stock equal to
the Settlement Rate, unless such Purchase Contract settles prior to the Mandatory Settlement Date,
in either case, pursuant to the terms of the Purchase Contract Agreement.



     No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in Section 4.04 of the Purchase Contract Agreement.



     The Purchase Contracts are issuable only in registered form and only in denominations of a
single Purchase Contract and any integral multiple thereof. The transfer of any Purchase Contract
will be registered and Purchase Contracts may be exchanged as provided in the Purchase Contract
Agreement.



     The Holder of this Purchase Contract, by its acceptance hereof, authorizes the Purchase
Contract Agent to enter into and perform the Purchase Contract Agreement on its behalf as its
attorney-in-fact and agrees to be bound by the terms and provisions thereof.



     Subject to certain exceptions set forth in the Purchase Contract Agreement, the provisions of
the Purchase Contract Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.



     The Purchase Contracts, and any claim, controversy or dispute arising under or related to the
Purchase Contracts, shall be governed by, and construed in accordance with, the laws of the State
of New York, without regard to conflicts of laws principles thereof.



     The Company, the Purchase Contract Agent and its Affiliates and any agent of the Company or
the Purchase Contract Agent may treat the Person in whose name this Purchase Contract is registered
as the owner of the Purchase Contracts evidenced hereby for the purpose of performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect
thereof be overdue and notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract Agent nor any such agent shall be affected by notice to the contrary.



     The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any
of the rights of a holder of the Common Stock or other Reference Property.



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     Each Purchase Contract (whether or not included in a Unit) is a security governed by Article 8
of the Uniform Commercial Code as in effect in the State of New York on the date hereof.



     In the case of any conflict between this Purchase Contract and the Purchase Contract
Agreement, the provisions of the Purchase Contract Agreement shall control.



     A copy of the Purchase Contract Agreement is available for inspection at the offices of the
Purchase Contract Agent.



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ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:





	 	 	 

	TEN COM:

	 	as tenants in common
	 
	 	 
	UNIF GIFT MIN ACT:

	 	                     Custodian                     
	 

	 	(cust)                                    (minor)





	 	 	 	 	 

	 

	 	Under Uniform Gifts to Minors Act of	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	TENANT:	 	as tenants by the entireties
	 
	 	 	 	 
	JT TEN:	 	as joint tenants with right of survivorship and not as
tenants in common





Additional abbreviations may also be used though not in the above list.




FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto




 




(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)




 




(Please Print or Type Name and Address Including Postal Zip Code of Assignee)



the within Purchase Contracts and all rights thereunder, hereby irrevocably constituting and
appointing attorney                     , to transfer said Purchase Contracts on the books
of Synovus Financial Corp. with full power of substitution in the premises.




	 	 	 

	Dated:                    

	 	Signature                                                            
	 
	 	 
	 

	 	NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Purchase Contracts
in every particular, without alteration or enlargement or any
change whatsoever.







     Signature Guarantee:                                         



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SETTLEMENT INSTRUCTIONS




     The undersigned Holder directs that a certificate for shares of Common Stock or other
securities deliverable upon settlement on or after the Mandatory Settlement Date of the number of
Purchase Contracts evidenced by this Purchase Contract be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below. The undersigned
will pay any transfer or similar taxes payable in connection with the issuance of Common Stock or
other securities to any Person other than the undersigned.



	 	 	 

	Dated:                                        

	 	         
     
               
              
              
             
	 

	 	Signature
	 

	 	Signature Guarantee:                                        
	 

	 	(if assigned to another Person)
	 
	 	 
	If shares are to be registered in the name
of and delivered to a Person other than
the Holder, please (i) print such Person’s
name and address and (ii) provide a
guarantee of your signature:
	 	 
	 
	 	 
	 

	 	 
	Name

	 	Name
	 
	 	 
	 

	 	 
	Address

	 	Address
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	Social Security or other 

Taxpayer Identification 

Number, if any
	 	 
	 

	 	 





B-8









 





ELECTION TO SETTLE EARLY




     The undersigned Holder of this Purchase Contract hereby irrevocably exercises the option to
effect Early Settlement in accordance with the terms of the Purchase Contract with
respect to the Purchase Contracts evidenced by this Purchase Contract specified below. The
undersigned Holder directs that a certificate for shares of Common Stock or other securities
deliverable upon such Early Settlement be registered in the name of, and delivered, together
with a check in payment for any fractional share and any Purchase Contract representing any
Purchase Contracts evidenced hereby as to which Early Settlement is not effected, to the
undersigned at the address indicated below unless a different name and address have been indicated
below. The undersigned will pay any transfer or similar taxes payable in connection with the
issuance of Common Stock or other securities to any Person other than the undersigned.



	 	 	 

	Dated:                                         

	 	      
                                                                     
     
	 

	 	Signature






Signature Guarantee:                                        




B-9









 





     Number of Purchase Contracts evidenced hereby as to which Early Settlement is being elected:



	 	 	 

	If shares of Common Stock or Purchase
Contracts are to be registered in the
name of and delivered to a Person
other than the Holder, please print
such Person’s name and address:

	 	REGISTERED HOLDER
	 
	 	 
	 

	 	Please print name and address of
Registered Holder:
	 
	 	 
	 

	 	 
	Name

	 	Name
	 
	 	 
	 

	 	 
	Address

	 	Address
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	Social Security or other 

Taxpayer Identification 

Number, if any
	 	 
	 

	 	 





B-10









 





SCHEDULE A




[INCLUDE IF A GLOBAL PURCHASE CONTRACT]



SCHEDULE OF INCREASES OR DECREASES IN THE PURCHASE CONTRACTS



     The initial number of Purchase Contracts evidenced by this certificate is                     . The
following increases or decreases in this certificate have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of decrease	 	Number of Purchase	 	 
	 	 	 	 	Amount of increase	 	in number of	 	Contracts evidenced	 	Signature of
	 	 	 	 	in number of Purchase	 	Purchase Contracts	 	by the Global Purchase	 	authorized signatory
	 	 	 	 	Contracts evidenced by	 	evidenced by the	 	Contract following	 	of Purchase
	Date	 	the Global Purchase Contract	 	Global Purchase Contract	 	such decrease or increase	 	Contract Agent






B-11