Exhibit 4.1






Exhibit 4.1




MOLYCORP, INC.




AND



WELLS FARGO BANK, NATIONAL ASSOCIATION,



as Trustee



INDENTURE



Dated as of June 15, 2011



3.25% Convertible Senior Notes due 2016


 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1

Definitions

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. References to Interest
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes

	 
	 	 	 	 
	Section 2.01. Designation and Amount
	 	 	11	 
	Section 2.02. Form of Notes
	 	 	11	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts
	 	 	12	 
	Section 2.04. Execution, Authentication and Delivery of Notes
	 	 	14	 
	Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary
	 	 	14	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	20	 
	Section 2.07. Temporary Notes
	 	 	21	 
	Section 2.08. Cancellation of Notes Paid, Converted, Etc
	 	 	21	 
	Section 2.09. CUSIP Numbers
	 	 	21	 
	Section 2.10. Additional Notes; Repurchases
	 	 	21	 
	Section 2.11. Automatic Exchange
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 3

Satisfaction and Discharge

	 
	 	 	 	 
	Section 3.01. Satisfaction and Discharge
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 4

Particular Covenants of the Company

	 
	 	 	 	 
	Section 4.01. Payment of Principal and Interest
	 	 	23	 
	Section 4.02. Maintenance of Office or Agency
	 	 	23	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	24	 
	Section 4.04. Provisions as to Paying Agent
	 	 	24	 
	Section 4.05. Existence
	 	 	25	 
	Section 4.06. Rule 144A Information Requirement and Reports by The Company
	 	 	26	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	27	 





 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 5

Lists of Holders

	 
	 	 	 	 
	Section 5.01. Lists of Holders
	 	 	27	 
	Section 5.02. Preservation and Disclosure of Lists
	 	 	28	 
	Section 5.03. Compliance Certificate; Statements As To Defaults
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 6

Defaults and Remedies

	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	28	 
	Section 6.02. Acceleration; Rescission and Annulment
	 	 	29	 
	Section 6.03. Additional Interest
	 	 	30	 
	Section 6.04. Payments of Notes on Default; Suit Therefor
	 	 	31	 
	Section 6.05. Application of Monies Collected by Trustee
	 	 	32	 
	Section 6.06. Proceedings by Holders
	 	 	33	 
	Section 6.07. Proceedings by Trustee
	 	 	34	 
	Section 6.08. Remedies Cumulative and Continuing
	 	 	34	 
	Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders
	 	 	35	 
	Section 6.10. Notice of Defaults
	 	 	35	 
	Section 6.11. Undertaking to Pay Costs
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 7

Concerning the Trustee

	 
	 	 	 	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	36	 
	Section 7.02. Reliance on Documents, Opinions, Etc
	 	 	37	 
	Section 7.03. No Responsibility for Recitals, Etc
	 	 	38	 
	Section 7.04. Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes
	 	 	39	 
	Section 7.05. Monies and Shares of Common Stock to Be Held in Trust
	 	 	39	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	39	 
	Section 7.07. Officer’s Certificate as Evidence
	 	 	40	 
	Section 7.08. Eligibility of Trustee
	 	 	40	 
	Section 7.09. Resignation or Removal of Trustee
	 	 	40	 
	Section 7.10. Acceptance by Successor Trustee
	 	 	41	 
	Section 7.11. Succession by Merger, Etc
	 	 	42	 
	Section 7.12. Trustee’s Application for Instructions from the Company
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 8

Concerning the Holders

	 
	 	 	 	 
	Section 8.01. Action by Holders
	 	 	43	 
	Section 8.02. Proof of Execution by Holders
	 	 	43	 
	Section 8.03. Who Are Deemed Absolute Owners
	 	 	43	 
	Section 8.04. Company-Owned Notes Disregarded
	 	 	44	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	44	 





 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 9

Holders’ Meetings

	 
	 	 	 	 
	Section 9.01. Purpose of Meetings
	 	 	44	 
	Section 9.02. Call of Meetings by Trustee
	 	 	45	 
	Section 9.03. Call of Meetings by Company or Holders
	 	 	45	 
	Section 9.04. Qualifications for Voting
	 	 	45	 
	Section 9.05. Regulations
	 	 	45	 
	Section 9.06. Voting
	 	 	46	 
	Section 9.07. No Delay of Rights by Meeting
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 10

Supplemental Indentures

	 
	 	 	 	 
	Section 10.01. Supplemental Indentures Without Consent of Holders
	 	 	47	 
	Section 10.02. Supplemental Indentures with Consent of Holders
	 	 	48	 
	Section 10.03. Effect of Supplemental Indentures
	 	 	48	 
	Section 10.04. Notation on Notes
	 	 	49	 
	Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 11

Consolidation, Merger, Sale, Conveyance and Lease

	 
	 	 	 	 
	Section 11.01. Company May Consolidate, Etc. on Certain Terms
	 	 	49	 
	Section 11.02. Successor Corporation to Be Substituted
	 	 	50	 
	Section 11.03. Opinion of Counsel to Be Given to Trustee
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 12

Immunity of Incorporators, Stockholders, Officers and Directors

	 
	 	 	 	 
	Section 12.01. Indenture and Notes Solely Corporate Obligations
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 13

[Intentionally Omitted]

	 
	 	 	 	 
	ARTICLE 14

Conversion of Notes

	 
	 	 	 	 
	Section 14.01. Conversion Privilege
	 	 	51	 
	Section 14.02. Conversion Procedure; Settlement Upon Conversion
	 	 	51	 
	Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with
Make-Whole Fundamental Changes
	 	 	55	 
	Section 14.04. Adjustment of Conversion Rate
	 	 	57	 
	Section 14.05. Adjustments of Prices
	 	 	66	 
	Section 14.06. Shares to Be Fully Paid
	 	 	66	 





 


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	 	 	Page	 
	 
	 	 	 	 
	Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock
	 	 	66	 
	Section 14.08. Certain Covenants
	 	 	68	 
	Section 14.09. Responsibility of Trustee
	 	 	69	 
	Section 14.10. Notice to Holders Prior to Certain Actions
	 	 	69	 
	Section 14.11. Stockholder Rights Plans
	 	 	70	 
	Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion
	 	 	70	 
	 
	 	 	 	 
	ARTICLE 15

Repurchase of Notes at Option of Holders

	 
	 	 	 	 
	Section 15.01. [Intentionally Omitted]
	 	 	70	 
	Section 15.02. Repurchase at Option of Holders Upon a Fundamental Change
	 	 	70	 
	Section 15.03. Withdrawal of Fundamental Change Repurchase Notice
	 	 	73	 
	Section 15.04. Deposit of Fundamental Change Repurchase Price
	 	 	73	 
	Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 16

No Redemption

	 
	 	 	 	 
	Section 16.01. No Redemption
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 17

Miscellaneous Provisions

	 
	 	 	 	 
	Section 17.01. Provisions Binding on Company’s Successors
	 	 	74	 
	Section 17.02. Official Acts by Successor Corporation
	 	 	74	 
	Section 17.03. Addresses for Notices, Etc
	 	 	75	 
	Section 17.04. Governing Law
	 	 	75	 
	Section 17.05. Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee
	 	 	75	 
	Section 17.06. Legal Holidays
	 	 	76	 
	Section 17.07. No Security Interest Created
	 	 	76	 
	Section 17.08. Benefits of Indenture
	 	 	76	 
	Section 17.09. Table of Contents, Headings, Etc
	 	 	76	 
	Section 17.10. Authenticating Agent
	 	 	76	 
	Section 17.11. Execution in Counterparts
	 	 	78	 
	Section 17.12. Severability
	 	 	78	 
	Section 17.13. Waiver of Jury Trial
	 	 	78	 
	Section 17.14. Force Majeure
	 	 	78	 
	Section 17.15. Calculations
	 	 	78	 






EXHIBIT




	 	 	 	 	 

	Exhibit A Form of Note
	 	 	A-1	 





 


iv









 





INDENTURE dated as of June 15, 2011 between MOLYCORP, INC., a Delaware corporation, as issuer
(the “Company”, as more fully set forth in Section 1.01), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking organization, as trustee (the “Trustee”, as more fully set forth in
Section 1.01).



W I T N E S S E T H:




WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its 3.25% Convertible Senior Notes due 2016 (the “Notes”), initially in an aggregate principal
amount not to exceed $230,000,000, and in order to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution
and delivery of this Indenture; and



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



WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a
valid agreement according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.



NOW, THEREFORE, THIS INDENTURE WITNESSETH:



That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective Holders from time to time of the Notes
(except as otherwise provided below), as follows:



ARTICLE 1

Definitions




Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.


 


 









 





“Additional Interest” means all amounts, if any, payable pursuant to Section 4.06(c), Section
4.06(d) and Section 6.03, as applicable.



“Additional Shares” shall have the meaning specified in Section 14.03(a).



“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 or cause the direction of 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.



“Applicable Procedures” means, with respect to any payment, tender, conversion, transfer or
exchange of or for beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such payment, tender, conversion, transfer or exchange.



“Automatic Exchange” shall have the meaning set forth in Section 2.11.



“Automatic Exchange Notice” shall have the meaning set forth in Section 2.11.



“Board of Directors” means the board of directors of the Company or a committee of such board
duly authorized to act for it hereunder.



“Board Resolution” means a copy of a resolution 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 Trustee.



“Business Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a
day on which the Federal Reserve Bank of New York is authorized or required by law or executive
order to close or be closed.



“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.



“Cash Settlement” shall have the meaning specified in Section 14.02(a).



“Clause A Distribution” shall have the meaning specified in Section 14.04(c).



“Clause B Distribution” shall have the meaning specified in Section 14.04(c).



“Clause C Distribution” shall have the meaning specified in Section 14.04(c).



“Combination Settlement” shall have the meaning specified in Section 14.02(a).



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


 


2









 





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



“Common Stock” means the common stock of the Company, par value $0.001 per share, at the date
of this Indenture, subject to Section 14.07.



“Company” shall have the meaning specified in the first paragraph of this Indenture, and
subject to the provisions of Article 11, shall include its successors and assigns.



“Company Order” means a written order of the Company, signed by one Officer of the Company,
and delivered to the Trustee.



“Conversion Agent” shall have the meaning specified in Section 4.02.



“Conversion Date” shall have the meaning specified in Section 14.02(c).



“Conversion Obligation” shall have the meaning specified in Section 14.01.



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



“Conversion Rate” shall have the meaning specified in Section 14.01.



“Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business in relation to this Indenture shall be principally administered, which
office at the date hereof is located at Wells Fargo Bank, National Association, 230 W. Monroe
Street, Suite 2900, Chicago, IL 60606, Attn: Corporate Trust Services, and for purposes of Section
2.03(a), Section 2.05 and Section 4.02 of this Indenture and the terms set forth on the face of any
Global Note or Physical Note, such office shall also mean the offices or agencies of the Trustee
located at 608 Second Avenue South, N9303-121, Minneapolis, MN 55479, Attn: Corporate Trust
Operations, or such other address or addresses as the Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate trust office of any successor
trustee (or such other address or addresses as such successor trustee may designate from time to
time by notice to the Holders and the Company).



“Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to
the Global Notes, or any successor entity thereto.



“Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the
Observation Period, 5% of the product of (a) the Conversion Rate on such Trading Day and (b) the
Daily VWAP on such Trading Day.



“Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 20.


 


3









 





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




(a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii)
the Daily Conversion Value on such Trading Day; and




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



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



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



“Defaulted Amounts” means any amounts on any Note (including, without limitation, the
Fundamental Change Repurchase Price, principal and interest) that are payable but are not
punctually paid or duly provided for.



“Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c)
as the Depositary with respect to such Notes, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.



“Distributed Property” shall have the meaning specified in Section 14.04(c).



“Effective Date” shall have the meaning specified in Section 14.03(c).



“Event of Default” shall have the meaning specified in Section 6.01.



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



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



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


 


4









 





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



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



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




(a) (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d)
and 14(d) of the Exchange Act, whether or not applicable), other than the TNA Group, the
Resource Group, the Pegasus Group, the Company, any of the Company’s Subsidiaries or any of
the Company’s or its Subsidiaries’ employee benefit plans, becoming the “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of more than 50% of
the total voting power in the aggregate of all classes of Capital Stock then outstanding
entitled to vote generally in elections of the Company’s directors, or (ii) the TNA Group,
the Resource Group and the Pegasus Group, in the aggregate, becoming the “beneficial owner,”
as so defined, directly or indirectly, of more than 65% of the total voting power in the
aggregate of all classes of Capital Stock then outstanding entitled to vote generally in the
elections of the Company’s directors;




(b) the consummation of (i) any recapitalization, reclassification or change of the
Common Stock (other than changes resulting from a subdivision or combination) as a result of
which the Common Stock would be converted into, or exchanged for, stock, other securities,
other property or assets; (ii) any share exchange, consolidation or merger of the Company
pursuant to which the Common Stock will be converted into cash, securities or other
property; or (iii) any sale, lease or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries;
provided, however, that a transaction described in clause (i) or (ii) in which the holders
of all classes of the Company’s Common Equity immediately prior to such transaction own,
directly or indirectly, more than 50% of all classes of Common Equity of the continuing or
surviving corporation or transferee or the parent thereof immediately after such transaction
in substantially the same proportions as such ownership immediately prior to such
transaction shall not be a Fundamental Change pursuant to this clause (b); or




(c) the Common Stock (or other common stock underlying the Notes) ceases to be listed
or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The
NASDAQ Global Market (or any of their respective successors);



provided, however, that a transaction or transactions described in clause (b) above shall not
constitute a Fundamental Change if 90% or more of the consideration received or to be received by
the common stockholders of the Company, excluding cash payments for fractional shares, in
connection with such transaction or transactions consists of shares of common stock that are listed
or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market
or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted
when issued or exchanged in connection with such transaction or transactions and as a result of
such transaction or transactions the Notes become convertible into such consideration, excluding
cash payments for fractional shares (subject to the provisions of Section 14.02(a)).



 


5









 








“Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(c).



“Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02(a).



“Fundamental Change Repurchase Notice” shall have the meaning specified in Section
15.02(b)(i).



“Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02(a).



“Global Note” shall have the meaning specified in Section 2.05(b).



“Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial
holder”), shall mean any person in whose name at the time a particular Note is registered on the
Note Register.



“Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.



“Interest Payment Date” means each June 15 and December 15 of each year, beginning on December
15, 2011.



“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and the average ask prices) on that date as
reported in composite transactions for the principal U.S. national or regional securities exchange
on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall
be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant
date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not
so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and
ask prices for the Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for this purpose.



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


 


6









 





“Market Disruption Event” means (a) a failure by the principal U.S. 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 (b) 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.



“Maturity Date” means June 15, 2016.



“Merger Event” shall have the meaning specified in Section 14.07(a).



“Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of
this Indenture.



“Note Register” shall have the meaning specified in Section 2.05(a).



“Note Registrar” shall have the meaning specified in Section 2.05(a).



“Notice of Conversion” shall have the meaning specified in Section 14.02(b).



“Observation Period” with respect to any Note surrendered for conversion means: (a) if the
relevant Conversion Date occurs prior to the 25th Scheduled Trading Day immediately
preceding the Maturity Date, the 20 consecutive Trading Day period beginning on, and including, the
third Trading Day after such Conversion Date; and (b) if the relevant Conversion Date occurs on or
after the 25th Scheduled Trading Day immediately preceding the Maturity Date, the 20
consecutive Trading Days beginning on, and including, the 22nd Scheduled Trading Day immediately
preceding the Maturity Date.



“Offering Memorandum” means the preliminary offering memorandum dated June 7, 2011, as
supplemented by the pricing term sheet dated June 9, 2011, relating to the offering and sale of the
Notes.



“Officer” means, with respect to the Company, the President, the Chief Executive Officer, the
Treasurer, the Secretary, any Executive or Senior Vice President, or any Vice President (whether or
not designated by a number or numbers or word or words added before or after the title “Vice
President”), the Treasurer or any Assistant Treasurer or Controller, or Secretary or any Assistant
Secretary.



“Officer’s Certificate,” when used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed by one Officer of the Company. Each such certificate
shall include the statements provided for in Section 17.05 if and to the extent required by the
provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 5.03
shall be the principal executive, financial or accounting officer of the Company.



“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is
delivered to the Trustee. Each such opinion shall include the statements provided for in
Section 17.05 if and to the extent required by the provisions of such Section 17.05.


 


7









 





“outstanding,” when used with reference to Notes, shall, subject to the provisions of Section
8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:




(a) Notes theretofore canceled by the Trustee or accepted by the Trustee for
cancellation;




(b) Notes, or portions thereof, that have become due and payable and in respect of
which monies in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent);




(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in
substitution for which, other Notes shall have been authenticated and delivered pursuant to
the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any
such Notes are held by protected purchasers in due course;




(d) Notes converted pursuant to Article 14 and required to be cancelled pursuant to
Section 2.08; and




(e) Notes repurchased by the Company pursuant to the penultimate sentence of Section
2.10.



“Paying Agent” shall have the meaning specified in Section 4.02.



“Pegasus Entities” means PP IV Mountain Pass II, LLC, PP IV MP AIV 1, LLC, PP IV MP AIV 2,
LLC, PP IV MP AIV 3, LLC and any Affiliate to which they transfer shares of Common Stock.



“Pegasus Group” means the Pegasus Entities and any group with which the Pegasus Entities files
a report on Schedule 13D from time to time.



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



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



“Physical Settlement” shall have the meaning specified in Section 14.02(a).



“Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note that it replaces.


 


8









 





“Record Date” means, with respect to any dividend, distribution or other transaction or event
in which the holders of Common Stock (or other applicable security) 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 stockholders entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).



“Reference Property” shall have the meaning specified in Section 14.07(a).



“Regular Record Date,” with respect to any Interest Payment Date, shall mean the June 1 or
December 1 (whether or not such day is a Business Day) immediately preceding the applicable June 15
or December 15 Interest Payment Date, respectively.



“Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).



“Resource Entities” means Resource Capital Fund IV L.P., Resource Capital Fund V L.P. and any
Affiliate to which they transfer shares of Common Stock.



“Resource Group” means the Resource Entities and any group with which the Resource Entities
files a report on Schedule 13D from time to time.



“Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer who shall have direct responsibility for
the administration of this Indenture at the Corporate Trust Office, or any other officer of the
Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and
familiarity with the particular subject.



“Restricted Global Note” shall have the meaning set forth in Section 2.11.



“Restricted Securities” shall have the meaning specified in Section 2.05(c).



“Rule 144A” means Rule 144A as promulgated under the Securities Act.



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



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



“Settlement Amount” has the meaning specified in Section 14.02(a)(iv).


 


9









 





“Settlement Method” means, with respect to any conversion of Notes, Physical Settlement, Cash
Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Company.



“Settlement Notice” has the meaning specified in Section 14.02(a)(iii).



“Significant Subsidiary” means a Subsidiary of the Company that meets the definition of
“significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act.



“Specified Dollar Amount” means the maximum cash amount per $1,000 principal amount of Notes
to be received upon conversion as specified in the Settlement Notice related to any converted
Notes.



“Spin-Off” shall have the meaning specified in Section 14.04(c).



“Stock Price” shall have the meaning specified in Section 14.03(c).



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



“Successor Company” shall have the meaning specified in Section 11.01(a).



“TNA Group” means TNA Moly Group LLC and any group with which it files a report on Schedule
13D from time to time.



“Trading Day” means a day on which (i) trading in the Common Stock generally occurs on The New
York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange, on
the principal other U.S. national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then traded and (ii) a Last
Reported Sale Price for the Common Stock is available on such securities exchange or market;
provided that if the Common Stock (or other security for which a closing sale price must be
determined) is not so listed or traded, “Trading Day” means a Business Day; and provided, further,
that for purposes of determining amounts due upon conversion only, “Trading Day” means a day on
which (x) there is no Market Disruption Event and (y) 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 U.S. national or regional securities exchange on which the Common
Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional
securities exchange, on the principal other market on which the Common Stock is then listed or
admitted for trading, except that if the Common Stock is not so listed or admitted for trading,
“Trading Day” means a Business Day.


 


10









 





“transfer” shall have the meaning specified in Section 2.05(c).



“Trigger Event” shall have the meaning specified in Section 14.04(c).



“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939, as so amended.



“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder.



“unit of Reference Property” shall have the meaning specified in Section 14.07(a).



“Unrestricted Global Note” shall have the meaning set forth in Section 2.11.



“Valuation Period” shall have the meaning specified in Section 14.04(c).



Section 1.02. References to Interest. Unless the context otherwise requires, any reference
to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional
Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of
Section 4.06(c), Section 4.06(d) and Section 6.03. Unless the context otherwise requires, any
express mention of Additional Interest in any provision hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express mention is not made.



ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




Section 2.01. Designation and Amount. The Notes shall be designated as the “3.25%
Convertible Senior Notes due 2016.” The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is initially limited to $230,000,000, subject to
Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of other Notes pursuant to Section 2.05, Section 2.06, Section 10.04,
Section 14.02 and Section 15.04.



Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the
terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a
part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.


 


11









 





Any Global Note may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Indenture as may be required by
the Custodian or the Depositary, or as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities exchange or automated
quotation system upon which the Notes may be listed or traded or designated for issuance or to
conform with any usage with respect thereto, or to indicate any special limitations or restrictions
to which any particular Notes are subject.



Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the Officer executing the same may approve (execution thereof
to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Notes are subject.



Each Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement
of the Global Note to reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with
this Indenture. Payment of principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Global Note shall be made to the Holder of
such Note on the date of payment, unless a record date or other means of determining Holders
eligible to receive payment is provided for herein.



Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.
(a) The Notes shall be issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. Each Note shall be dated the date of its
authentication and shall bear interest from the date specified on the face of the form of Note
attached as Exhibit A hereto. Accrued interest on the Notes shall be computed on the basis of a
360-day year composed of twelve 30-day months.



(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note
Register at 5:00 p.m., New York City time, on any Regular Record Date with respect to any Interest
Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.
Interest shall be payable at the office or agency of the Company maintained by the Company for such
purposes in the United States, which shall initially be the Corporate Trust Office or the office or
agency of the Trustee in Minneapolis, Minnesota. The Company shall pay interest (i) on any
Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of
$5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in
the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of
more than $5,000,000, either by check mailed to such Holders or,
upon application by such Holder to the Note Registrar not later than the relevant Regular
Record Date, by wire transfer in immediately available funds to that Holder’s account within the
United States, which application shall remain in effect until the Holder notifies, in writing, the
Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available
funds to the account of the Depositary or its nominee.


 


12









 





(c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant
payment date but shall accrue interest per annum at the rate borne by the Notes plus one percent,
subject to the enforceability thereof under applicable law, from, and including, such relevant
payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:




(i) The Company may elect to make payment of any Defaulted Amounts to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at 5:00 p.m.,
New York City time, on a special record date for the payment of such Defaulted Amounts,
which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date
of the proposed payment (which shall be not less than 25 days after the receipt by the
Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the
same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall
fix a special record date for the payment of such Defaulted Amounts which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment, and not
less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Company shall promptly notify the Trustee of such special record date and the Trustee,
in the name and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Amounts and the special record date therefor to be mailed, first-class
postage prepaid, to each Holder at its address as it appears in the Note Register, not less
than 10 days prior to such special record date. Notice of the proposed payment of such
Defaulted Amounts and the special record date therefor having been so mailed, such Defaulted
Amounts shall be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at 5:00 p.m., New York City time, on such special record
date and shall no longer be payable pursuant to the following clause (ii) of this Section
2.03(c).




(ii) The Company may make payment of any Defaulted Amounts in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, and upon such notice as
may be required by such exchange or automated quotation system, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.


 


13









 





Section 2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of one of its Chief
Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive
or Senior Vice Presidents.



At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes, without any further action by
the Company hereunder.



Only such Notes as shall bear thereon a certificate of authentication substantially in the
form set forth on the form of Note attached as Exhibit A hereto, executed manually or by facsimile
by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as
provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon
any Note executed by the Company shall be conclusive evidence that the Note so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of
this Indenture.



In case any Officer of the Company who shall have signed any of the Notes shall cease to be
such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Notes had not ceased to be such Officer of the
Company; and any Note may be signed on behalf of the Company by such person as, at the actual date
of the execution of such Note, shall be an Officer of the Company, although at the date of the
execution of this Indenture any such Person was not such an Officer.



Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the
register maintained in such office or in any other office or agency of the Company designated
pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Notes and of transfers of
Notes. Such register shall be in written form or in any form capable of being converted into
written form within a reasonable period of time. The Trustee is hereby initially appointed the
“Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided.
The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.



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


 


14









 





Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or
agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration
numbers not contemporaneously outstanding.



All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note
Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and duly executed, by the Holder thereof or its
attorney-in-fact duly authorized in writing.



No service charge shall be imposed by the Company, the Trustee, the Note Registrar or any
co-Note Registrar for any exchange or registration of transfer of Notes, but the Company or the
Trustee may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar
issue or transfer tax required by law or permitted pursuant to Section 14.02(d) or Section
14.02(e).



None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be
required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a
portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion
or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in
accordance with Article 15.



All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Indenture shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Notes surrendered upon such registration
of transfer or exchange.



(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c), all
Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered
in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of
beneficial interests in a Global Note that does not involve the issuance of a Physical Note, shall
be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the Applicable Procedures.



(c) Every Note that bears or is required under this Section 2.05(c) to bear the legend set
forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes
and required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c)
(including the legend set forth below), unless such restrictions on transfer shall be eliminated or
otherwise waived by written consent of the Company, and the Holder of each such Restricted
Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any
sale, pledge, transfer or other disposition whatsoever of any Restricted Security.


 


15









 





Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date
that is one year after the last date of original issuance of the Notes, or such shorter period of
time as permitted by Rule 144 under the Securities Act or any successor provision thereto, and (2)
such later date, if any, as may be required by applicable law, any certificate evidencing such Note
(and all securities issued in exchange therefor or substitution thereof, other than Common Stock,
if any, issued upon conversion thereof which shall bear the legend set forth in Section 2.05(d), if
applicable) shall bear a legend in substantially the following form (unless such Notes have been
transferred pursuant to a registration statement that has become or been declared effective under
the Securities Act and that continues to be effective at the time of such transfer, or sold
pursuant to the exemption from registration provided by Rule 144 or any similar provision then in
force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice
thereof to the Trustee):



THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT; AND




(2) AGREES FOR THE BENEFIT OF MOLYCORP, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO
THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,
EXCEPT:




(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF; OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT; OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT; OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.


 


16









 





PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.



No transfer of any Note prior to the Resale Restriction Termination Date will be registered by
the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been
checked.



Any Note (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may, upon surrender of
such Note for exchange to the Note Registrar in accordance with the provisions of this Section
2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a
restricted CUSIP number. In addition, the Company shall be entitled to effect an Automatic
Exchange pursuant to Section 2.11 with respect to any Global Note as to which such restrictions on
transfer shall have expired in accordance with their terms. The Company shall promptly notify the
Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a
registration statement, if any, with respect to the Notes or any Common Stock issued upon
conversion of the Notes has been declared effective under the Securities Act.



Notwithstanding any other provisions of this Indenture (other than the provisions set forth in
this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) 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 or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global
Note in certificated form made upon request of a member of, or a participant in, the Depositary
(for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on
behalf of the Depositary in accordance with Applicable Procedures and in compliance with this
Section 2.05(c).



The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company to act as Depositary with respect to each Global
Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede
& Co.



 


17









 





If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or
unable to continue as depositary for the Global Notes and a successor depositary is not appointed
within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange
Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default with
respect to the Notes has occurred and is continuing and a beneficial owner of any Note requests
that its beneficial interest therein be issued as a Physical Note, the Company shall
execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the
authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause
(iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount
of such Note corresponding such beneficial owner’s beneficial interest and (y) in the case of
clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a
portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such
Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the
Trustee such Global Notes shall be canceled.




Physical Notes issued in exchange for all or a part of the Global Note pursuant to this
Section 2.05(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical
Notes to the Persons in whose names such Physical Notes are so registered.



At such time as all interests in a Global Note have been converted, canceled, repurchased or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance
with the Applicable Procedures. At any time prior to such cancellation, if any interest in a
Global Note is exchanged for Physical Notes, converted, canceled, repurchased or transferred to a
transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred
for part of such Global Note, the principal amount of such Global Note shall, in accordance with
the Applicable Procedures, be appropriately reduced or increased, as the case may be, and an
endorsement shall be made on the “Schedule of Exchanges of Notes” on such Global Note, by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.



Neither the Company, the Trustee nor any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



 


18









 






(d) Until the Resale Restriction Termination Date, any stock certificate representing Common
Stock issued upon conversion of such Note shall bear a legend in substantially the following form
(unless the Note or such Common Stock has been transferred pursuant to a registration statement
that has become or been declared effective under the Securities Act and that continues to be
effective at the time of such transfer, or pursuant to the exemption from registration provided by
Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock has
been issued upon conversion of Notes that have been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to
be effective at the time of such transfer, or pursuant to the exemption from registration provided
by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise
agreed by the Company with written notice thereof to the Trustee and any transfer agent for the
Common Stock):




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT; AND




(2) AGREES FOR THE BENEFIT OF MOLYCORP, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO
THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE SERIES
OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:




(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF; OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT; OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT; OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.



Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).


 


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(e) Any Note that is repurchased or owned by the Company or any Affiliate thereof and that
constitutes “restricted securities” (as defined in Rule 144 under the Securities Act) may not be
resold by the Company or such Affiliate.



Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its
written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate
and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in
exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity
as may be required by them to save each of them harmless from any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.



The Trustee or such authenticating agent may authenticate any such substituted Note and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substitute Note, the
Company or the Trustee may require the payment by the Holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note that has matured or is about to mature or has been
surrendered for required repurchase or is about to be converted in accordance with Article 14 shall
become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead
of issuing a substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a mutilated Note), as the
case may be, if the applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or expense caused by
or connected with such substitution, and, in every case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent
evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof.



Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment or
conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment or conversion of negotiable instruments or
other securities without their surrender.


 


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Section 2.07. Temporary Notes. Pending the preparation of Physical Notes, the Company may
execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon written
request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Physical Notes but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as the Physical Notes.
Without unreasonable delay, the Company shall execute and deliver to the Trustee or such
authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary
Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate
principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits and subject to the same limitations under this Indenture as Physical
Notes authenticated and delivered hereunder.



Section 2.08. Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes
surrendered for the purpose of payment, repurchase, registration of transfer or exchange or
conversion, if surrendered to any Person other than the Trustee (including any of the Company’s
Agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation. All Notes
delivered to the Trustee shall be canceled promptly by it, and no Notes shall be authenticated in
exchange thereof except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such
disposition, shall deliver a certificate of such disposition to the Company, at the Company’s
written request in a Company Order. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered to the Trustee for cancellation.



Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to
Holders as a convenience to such Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or on
such notice and that reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



Section 2.10. Additional Notes; Repurchases. The Company may, without the consent of the
Holders and notwithstanding Section 2.01, issue additional Notes hereunder with the same terms and
as part of the same series as the Notes initially issued hereunder in an unlimited aggregate
principal amount; provided that if any such additional Notes are not fungible with the Notes
initially issued hereunder for U.S. federal income tax purposes, such additional Notes shall have a
separate CUSIP number. Prior to the issuance of any such additional Notes, the Company shall
deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such
Officer’s Certificate and Opinion of Counsel to cover such
matters, in addition to those required by


 


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Section 17.05, as the Trustee shall reasonably request. In addition, the Company
or its Subsidiaries may, to the extent permitted by law, and directly or indirectly (regardless of
whether such Notes are surrendered to the Company), repurchase Notes in the open market or
otherwise, whether by the Company or its Subsidiaries or through a private or public tender or
exchange offer or through counterparties to private agreements, including by cash-settled swaps or
other derivatives. The Company shall cause any Notes so repurchased (other than Notes repurchased
pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for
cancellation in accordance with Section 2.08.




Section 2.11. Automatic Exchange. The Company shall be entitled to automatically exchange
beneficial interests in any Global Note that is a Restricted Security (a “Restricted Global Note”)
on any date as of which the restrictions on transfer specified in Section 2.05(c) shall have
expired in accordance with their terms for beneficial interests in a Global Note which shall not
bear the restrictive legend specified in Section 2.05(c) and which shall not be assigned a
restricted CUSIP (an “Unrestricted Global Note”) without any action by or on behalf of any Holder
thereof (any such exchange, an “Automatic Exchange”). In order to effect an Automatic Exchange,
the Company shall (a) provide written notice to the Trustee at least 10 calendar days prior to the
date designated by the Company for the Automatic Exchange (the “Automatic Exchange Date”)
instructing the Trustee to direct the Depositary to exchange all of the outstanding beneficial
interests in the relevant Restricted Global Note for beneficial interests in an Unrestricted Global
Note which the Company shall have previously otherwise made eligible for exchange with the
Depositary, and (b) provide prior written notice (the “Automatic Exchange Notice”) to each Holder
at such Holder’s address appearing in the Note Register at least 10 calendar days prior to the
Automatic Exchange Date, which notice must include (i) the Automatic Exchange Date, (ii) the
section of the Indenture pursuant to which the Automatic Exchange shall occur, (iii) the “CUSIP”
number of the Restricted Global Note from which such Holder’s beneficial interests will be
transferred and (iv) the “CUSIP” number of the Unrestricted Global Note to which such Holder’s
beneficial interests will be transferred, and (c) if an Unrestricted Global Note is not then
outstanding, deliver, on or prior to the Automatic Exchange Date, to the Trustee for authentication
one or more Unrestricted Global Notes, duly executed by the Company, in an aggregate principal
amount equal to the aggregate principal amount of Restricted Global Notes to be exchanged pursuant
to the Automatic Exchange. At the Company’s request, on no less than five calendar days’ notice,
the Trustee shall deliver, in the Company’s name and at its expense, the Automatic Exchange Notice
to each Holder at such Holder’s address appearing in the Note Register. Notwithstanding anything to
the contrary in this Section 2.11, during the 10-day period between the Automatic Exchange Notice
Date and the Automatic Exchange Date, no transfers or exchanges of the relevant Restricted Global
Note other than pursuant to this Section 2.11 shall be permitted without the prior written consent
of the Company. As a condition to any Automatic Exchange, the Company shall provide, and the
Trustee shall be entitled to rely upon, an Officer’s Certificate in form reasonably acceptable to
the Trustee, to the effect that (A) the Automatic Exchange shall be effected in compliance with the
Securities Act, (B) as of the Automatic Exchange Date, the Restricted Global Note shall no longer
be required to bear the legend set forth in Section 2.05(c), and (C) the aggregate principal amount
of the relevant Restricted Global Note is to be transferred to the relevant Unrestricted Global
Note by adjustment made on the records of the Trustee, as Custodian for the Depositary, to reflect
the Automatic Exchange. Upon such Automatic Exchange pursuant to this Section
2.11, the aggregate principal amount of the relevant Restricted Global Note shall be
decreased, and the aggregate principal amount of the relevant Unrestricted Global Note shall be
increased, in each case, by adjustments made on the records of the Trustee, as Custodian for the
Depositary, to reflect the relevant decrease or increase, respectively, in the principal amount of
such Global Notes resulting from the Automatic Exchange. Following any Automatic Exchange pursuant
to this Section 2.11, the Restricted Global Note from which beneficial interests are transferred
pursuant to such Automatic Exchange shall be canceled.


 


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ARTICLE 3

Satisfaction and Discharge




Section 3.01. Satisfaction and Discharge. This Indenture shall upon request of the Company
contained in an Officer’s Certificate cease to be of further effect, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than (x)
Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.06 and (y) Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 4.04(d)) have been delivered to the Trustee for cancellation; or
(ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the
Notes have become due and payable, whether at the Maturity Date, any Fundamental Change Repurchase
Date, upon conversion or otherwise, cash or cash, shares of Common Stock or a combination thereof,
as applicable, solely to satisfy the Company’s Conversion Obligation, as applicable, sufficient to
pay all of the outstanding Notes and all other sums due and payable under this Indenture by the
Company; and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under
Section 7.06 shall survive.



ARTICLE 4

Particular Covenants of the Company




Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.



Section 4.02. Maintenance of Office or Agency. The Company will maintain in the United
States an office or agency where the Notes may be surrendered for registration of transfer or
exchange or for presentation for payment or repurchase (“Paying Agent”) or for conversion
(“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Company will give prompt written notice to the Trustee 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 Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office or the office or agency of the Trustee in Minneapolis,
Minnesota.


 


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The Company may also from time to time designate as co-Note Registrars one or more other
offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the United States for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other
office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or
other offices or agencies, as applicable.



The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian and Conversion Agent and the Corporate Trust Office and the office or agency of the
Trustee in Minneapolis, Minnesota, each shall be considered as one such office or agency of the
Company for each of the aforesaid purposes.



Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.



Section 4.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent
other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section 4.04:




(i) that it will hold all sums held by it as such agent for the payment of the
principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued
and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;




(ii) that it will give the Trustee prompt notice of any failure by the Company to make
any payment of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due and
payable; and




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



The Company shall, on or before each due date of the principal (including the Fundamental
Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit
with the Paying Agent a sum sufficient to pay such principal (including the Fundamental Change
Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of any failure to
take such action; provided that if such deposit is made on the due date, such deposit must be
received by the Paying Agent by 11:00 a.m., New York City time, on such date.


 


24









 





(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued
and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the
Holders of the Notes a sum sufficient to pay such principal (including the Fundamental Change
Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company
to make any payment of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and
payable.



(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the
Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be
held by the Trustee upon the trusts herein contained and upon such payment or delivery by the
Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from
all further liability but only with respect to such sums or amounts.



(d) Any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal (including the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, any Note and
remaining unclaimed for two years after such principal (including the Fundamental Change Repurchase
Price, if applicable) or interest has become due and payable shall, subject to applicable abandoned
property law, be paid to the Company on request of the Company contained in an Officer’s
Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money and shares of Common Stock, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each Business Day and of
general circulation in The Borough of Manhattan, The City of New York, notice that such money and
shares of Common Stock remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of such money and
shares of Common Stock then remaining will be repaid or delivered to the Company.



Section 4.05. Existence. Subject to Article 11, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.


 


25









 





Section 4.06. Rule 144A Information Requirement and Reports by The Company. (a) At any time
the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall, so long
as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such
time, constitute “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act, promptly provide to the Trustee and shall, upon written request,
provide to any Holder, beneficial owner or prospective purchaser of such Notes or any shares of
Common Stock issued upon conversion of such Notes, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or
shares of Common Stock pursuant to Rule 144A under the Securities Act. The Company shall take such
further action as any Holder or beneficial owner of such Notes or such Common Stock may reasonably
request to the extent required from time to time to enable such Holder or beneficial owner to sell
such Notes or shares of Common Stock in accordance with Rule 144A under the Securities Act, as such
rule may be amended from time to time.



(b) The Company shall file with the Trustee within 15 days after the same are required to be
filed with the Commission, copies of any documents or reports that the Company is required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace
period provided by Rule 12b-25 under the Exchange Act). Any such document or report that the
Company files with the Commission via the Commission’s EDGAR system (or any successor system) and
that are freely available to the public without charge shall be deemed to be filed with the Trustee
for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system (or
any successor system); provided that the Trustee shall have no obligation to determine whether or
not any such information, documents or reports have been so filed or are available.



(c) If, at any time during the six-month period beginning on, and including, the date that is
six months after the last date of original issuance of the Notes, the Company fails to timely file
any document or report that it is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
thereunder and other than reports on Form 8-K), or the Notes are not otherwise freely tradable by
Holders other than the Company’s Affiliates (as a result of restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Notes), the Company shall pay Additional
Interest on the Notes. Such Additional Interest shall accrue on the Notes at the rate of 0.50% per
annum of the principal amount of the Notes outstanding for each day during such period for which
the Company’s failure to file has occurred and is continuing. As used in this Section 4.06(c),
documents or reports that the Company is required to “file” with the Commission pursuant to Section
13 or 15(d) of the Exchange Act do not include documents or reports that the Company furnishes to
the Commission pursuant to Section 13 or 15(d) of the Exchange Act.



(d) If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c)
has not been removed, the Notes are assigned a restricted CUSIP or the Notes are not otherwise
freely tradable by Holders other than the Company’s Affiliates (without restrictions pursuant to
U.S. securities law or the terms of this Indenture or the Notes) as of the 365th day after the last
date of original issuance of the Notes, the Company shall pay Additional Interest on the Notes at a
rate equal to 0.50% per annum of the principal amount of Notes outstanding until the restrictive
legend on the Notes has been removed in accordance with Section 2.05(c) and the Notes are freely
tradable by Holders other than the Company’s Affiliates (without restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Notes).


 


26









 





(e) Additional Interest will be payable in arrears on each Interest Payment Date following
accrual in the same manner as regular interest on the Notes.



(f) The Additional Interest that is payable in accordance with Section 4.06(c) or Section
4.06(d) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as
a result of the Company’s election pursuant to Section 6.03.



(g) If Additional Interest is payable by the Company pursuant to Section 4.06(c) or Section
4.06(d), the Company shall deliver to the Trustee an Officer’s Certificate to that effect stating
(i) the amount of such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at
the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting
forth the particulars of such payment.



(h) Delivery of such reports, information and documents described in this Section 4.06 to the
Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer’s Certificates).



Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the principal of or interest on
the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that
may affect the covenants or the performance of this Indenture; and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.



ARTICLE 5

Lists of Holders




Section 5.01. Lists of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than 15 days after each June 15 and
December 15, beginning with June 15, 2012, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request (or such lesser time as
the Trustee may reasonably request in order to enable it to timely provide any notice to be
provided hereunder), a list in such form as the Trustee may reasonably require of the names and
addresses of Holders as of a date not more than 15 days (or such lesser time as the Trustee may
reasonably request in order to so provide any such notices) prior to the time such list is
furnished, except that no such list need be furnished so long as the Trustee is the Note Registrar.


 


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Section 5.02. Preservation and Disclosure of Lists. The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained
by the Trustee in its capacity as Note Registrar, if so acting. If the Trustee is not the Note
Registrar, the Company shall furnish to the Trustee at least seven Business Days before each
Interest Payment Date and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of the
Holders. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.



Section 5.03. Compliance Certificate; Statements As To Defaults. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the
fiscal year ending on December 31, 2011) an Officer’s Certificate stating whether or not the
signers thereof have knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so, specifying each such
failure and the nature thereof.



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



ARTICLE 6

Defaults and Remedies




Section 6.01. Events of Default. The following events shall be “Events of Default” with
respect to the Notes:



(a) default in any payment of interest on any Note when due and payable, and the default
continues for a period of 30 days;



(b) default in the payment of principal of any Note when due and payable on the Maturity Date,
upon any required repurchase, upon declaration of acceleration or otherwise;



(c) failure by the Company to comply with its obligation to convert the Notes in accordance
with this Indenture upon exercise of a Holder’s conversion right and the failure continues for a
period of five days;



(d) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 15.02(c) when due;



(e) failure by the Company to comply with its obligations under Article 11;



(f) failure by the Company for 90 days after written notice from the Trustee or the Holders of
at least 25% in principal amount of the Notes then outstanding has been received by
the Company (and also the Trustee if given by Holders) to comply with any of its other
agreements contained in the Notes or this Indenture;


 


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(g) default by the Company or any Subsidiary of the Company with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $25.0 million in the
aggregate of the Company and/or any such Subsidiary, whether such indebtedness now exists or shall
hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable
or (ii) constituting a failure to pay the principal or interest of any such debt when due and
payable at its stated maturity, upon required repurchase, upon redemption or upon declaration of
acceleration, in each case, after giving effect to any applicable grace period and if such
indebtedness has not been discharged or such acceleration or required repurchase has not been
rescinded or annulled within 30 days, as applicable;



(h) the Company or any Significant Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to the Company or any
such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or any such Significant Subsidiary or any substantial part of
its property, or shall consent to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or



(i) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the
Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or such Significant Subsidiary or
any substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 30 consecutive days.



Section 6.02. Acceleration; Rescission and Annulment. In case one or more Events of Default
shall have occurred and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any administrative or governmental
body), then, and in each and every such case (other than an Event of Default specified in Section
6.01(h) or Section 6.01(i) with respect to the Company or any of its Significant Subsidiaries),
unless the principal of all of the Notes shall have already become due and payable, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare 100% of the principal of, and accrued and unpaid interest on, all
the Notes to be due and payable immediately, and upon any such declaration the same shall become
and shall automatically be immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default specified in Section 6.01(h) or
Section 6.01(i) with respect to the Company or any of its Significant Subsidiaries occurs and is
continuing, 100% of the principal of, and accrued and
unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due
and payable.


 


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The immediately preceding paragraph, however, is subject to the conditions that if, at any
time after the principal of the Notes shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay installments of accrued and unpaid interest upon all Notes and the principal of any and all
Notes that shall have become due otherwise than by acceleration (with interest on overdue
installments of accrued and unpaid interest to the extent that payment of such interest is
enforceable under applicable law, and on such principal at the rate borne by the Notes plus one
percent at such time) and amounts due to the Trustee pursuant to Section 7.06, and if (1)
rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2)
any and all existing Events of Default under this Indenture, other than the nonpayment of the
principal of and accrued and unpaid interest, if any, on Notes that shall have become due solely by
such acceleration, shall have been cured or waived pursuant to Section 6.09, and (3) all amounts
owing to the Trustee shall have been paid, then and in every such case (except as provided in the
immediately succeeding sentence) 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
or Events of Default with respect to the Notes and rescind and annul such declaration and its
consequences and such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent Default or Event of
Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary
herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or
Event of Default resulting from (i) the nonpayment of the principal of, or accrued and unpaid
interest on, any Notes, (ii) a failure to repurchase any Notes when required or (iii) a failure to
pay or deliver, as the case may be, the consideration due upon conversion of the Notes.



Section 6.03. Additional Interest. Notwithstanding anything in this Indenture or in the
Notes to the contrary, to the extent the Company elects, the sole remedy for Event of Default
relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b)
shall, after the occurrence of such an Event of Default, consist exclusively of the right to
receive Additional Interest on the Notes at a rate equal to (a) 0.25% per annum of the principal
amount of the Notes outstanding for each day during the 90-day period beginning on, and including
the date on which such Event of Default first occurs and on which such Event of Default is
continuing and (b) 0.50% per annum of the principal amount of the Notes outstanding for each day
during the 90-day period beginning on, and including, the 91st day following, and including, the
date on which such an Event of Default first occurs and on which such Event of Default is
continuing. Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not
in lieu of, any Additional Interest payable pursuant to Section 4.06(c) or Section 4.06(d). If the
Company so elects, such Additional Interest shall be payable in the same manner and on the same
dates as regular interest on the Notes. On the 181st day after such Event of Default first occurs
(if the Event of Default relating to the Company’s failure to file is not cured or waived prior to
such 181st day), the Notes will be subject to acceleration as provided in Section 6.02. In
the event that (A) the Company does not elect to pay Additional Interest following an Event of
Default in accordance with this Section 6.03 or (B) the Company does elect to make such payment but
does not pay the Additional Interest when due, then in each such case, the Notes shall be subject
to acceleration as provided in Section 6.02.


 


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In order to elect to pay Additional Interest as the sole remedy during the first 180 days
after the occurrence of any Event of Default described in the immediately preceding paragraph, the
Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election
prior to the beginning of such 180-day period. Upon the failure to timely give such notice, the
Notes shall be immediately subject to acceleration as provided in Section 6.02.



Section 6.04. Payments of Notes on Default; Suit Therefor. If an Event of Default described
in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due
and payable on the Notes for principal and interest, if any, with interest on any overdue principal
and interest, if any, at the rate borne by the Notes plus one percent at such time, and, in
addition thereto, such further amount as shall be sufficient to cover any amounts due to the
Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any other obligor upon the
Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Notes, wherever situated.



In the event there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Notes under title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
event of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or documents and to take
such other actions as it may deem necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative
to the Company or any other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of any amounts due to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian
or similar official is hereby authorized by each of the Holders to make such payments to the
Trustee, as administrative expenses, and, in
the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances
and disbursements, including agents and counsel fees, and including any other amounts due to the
Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses, advances and disbursements out of the estate in
any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien
on, and shall be paid out of, any and all distributions, dividends, monies, securities and other
property that the Holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.


 


31









 





Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding. The Trustee may, on behalf
of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors’ or other similar committee.



All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Notes.



In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders
of the Notes parties to any such proceedings.



In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section
6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the Company, the Holders, and
the Trustee shall, subject to any determination in such proceeding, be restored respectively to
their several positions and rights hereunder, and all rights, remedies and powers of the Company,
the Holders, and the Trustee shall continue as though no such proceeding had been instituted.



Section 6.05. Application of Monies Collected by Trustee. After an Event of Default, any
monies or properties distributable in respect of the Company’s obligations under this Indenture, or
any monies collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be
applied in the order following, at the date or dates fixed by the Trustee for the distribution of
such monies, upon presentation of the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof, if fully paid:



First, to the payment of all amounts due the Trustee under Section 7.06;


 


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Second, in case the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in
the order of the date due of the payments of such interest and cash due upon conversion, as the
case may be, with interest (to the extent that such interest has been collected by the Trustee)
upon such overdue payments at the rate borne by the Notes at such time, such payments to be made
ratably to the Persons entitled thereto;



Third, in case the principal of the outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment
of the Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid
upon the Notes for principal and interest, if any, with interest on the overdue principal and, to
the extent that such interest has been collected by the Trustee, upon overdue installments of
interest at the rate borne by the Notes at such time plus one percent, and in case such monies
shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to
the payment of such principal (including, if applicable, the Fundamental Change Repurchase Price
and the cash due upon conversion) and interest without preference or priority of principal over
interest, or of interest over principal or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably to the aggregate of such
principal (including, if applicable, the Fundamental Change Repurchase Price and any cash due upon
conversion) and accrued and unpaid interest; and



Fourth, to the payment of the remainder, if any, to the Company.



Section 6.06. Proceedings by Holders. Except to enforce the right to receive payment of
principal (including, if applicable, the Fundamental Change Repurchase Price) or interest when due,
or the right to receive payment or delivery of the consideration due upon conversion, no Holder of
any Note shall have any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar
official, or for any other remedy hereunder, unless:



(a) such Holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as herein provided;



(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder;



(c) such Holders shall have offered to the Trustee such security or indemnity reasonably
satisfactory to it against any loss, liability or expense to be incurred therein or thereby;



(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or proceeding; and


 


33









 





(e) no direction that, in the opinion of the Trustee, is inconsistent with such written
request shall have been given to the Trustee by the Holders of a majority of the aggregate
principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,



it being understood and intended, and being expressly covenanted by the taker and Holder of every
Note with every other taker and Holder and the Trustee that no one or more Holders shall have any
right in any manner whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders
(except as otherwise provided herein). For the protection and enforcement of this Section 6.06,
each and every Holder and the Trustee shall be entitled to such relief as can be given either at
law or in equity.




Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including
the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if
any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective
due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the
enforcement of any such payment or delivery, as the case may be, on or after such respective dates
against the Company shall not be impaired or affected without the consent of such Holder.



Section 6.07. Proceedings by Trustee. In case of an Event of Default the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



Section 6.08. Remedies Cumulative and Continuing. Except as provided in the last paragraph
of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the
Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any
such right or power, or shall be construed to be a waiver of any such Default or Event of Default
or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Holders.


 


34









 





Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The
Holders of a majority of the aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04 shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to Notes; provided, however, that (a) such direction
shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such direction. The
Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights
of any other Holder (it being understood that the Trustee does not have an affirmative duty to
ascertain whether or not any such directions are unduly prejudicial to such Holders) or that would
involve the Trustee in personal liability. The Holders of a majority in aggregate principal amount
of the Notes at the time outstanding determined in accordance with Section 8.04 may on behalf of
the Holders of all of the Notes waive any past Default or Event of Default hereunder and its
consequences except (i) a default in the payment of accrued and unpaid interest, if any, on, or the
principal (including any Fundamental Change Repurchase Price) of, the Notes when due that has not
been cured pursuant to the provisions of Section 6.01, (ii) a failure by the Company to pay or
deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default
in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended
without the consent of each Holder of an outstanding Note affected. Upon any such waiver the
Company, the Trustee and the Holders of the Notes shall be restored to their former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder
shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall
for all purposes of the Notes and this Indenture be deemed to have been cured and to be not
continuing.



Section 6.10. Notice of Defaults. The Trustee shall, within 90 days after the occurrence and
continuance of a Default of which a Responsible Officer has actual knowledge, mail to all Holders
as the names and addresses of such Holders appear upon the Note Register, notice of all Defaults
known to a Responsible Officer, unless such Defaults shall have been cured or waived before the
giving of such notice; provided that, except in the case of a Default in the payment of the
principal of (including the Fundamental Change Repurchase Price, if applicable), or accrued and
unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration
due upon conversion, the Trustee shall be protected in withholding such notice if and so long as a
committee of Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interests of the Holders.



Section 6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder
of any Note by its acceptance thereof 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 Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, 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 expenses,
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 6.11
(to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Notes at the time outstanding determined in accordance with Section
8.04, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to,
the Fundamental Change Repurchase Price with respect to the Notes being repurchased as provided in
this Indenture) on or after the due date expressed or provided for in such Note or to any suit for
the enforcement of the right to convert any Note in accordance with the provisions of Article 14.


 


35









 





ARTICLE 7

Concerning the Trustee




Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing or waiver of all Events of Default that may have
occurred, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred that has not been cured or waived the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.



(a) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own grossly negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:




(i) prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default that may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




(ii) in the absence of bad faith and willful misconduct on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of any such certificates
or opinions that by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of any mathematical calculations or other facts stated therein);



(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;



(c) the Trustee 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 not less than a majority of the
aggregate principal amount of the Notes at the time outstanding determined as
provided in Section 8.04 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;


 


36









 





(d) whether or not therein provided, every provision of this Indenture relating to the conduct
or affecting the liability of, or affording protection to, the Trustee shall be subject to the
provisions of this Section;



(e) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected by the
Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the
Notes;



(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred, unless such
Responsible Officer of the Trustee had actual knowledge of such event;



(g) the Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company; and



(h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Conversion Agent or transfer agent hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent,
Conversion Agent or transfer agent.



None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.



Section 7.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
7.01:



(a) the Trustee may conclusively rely and shall be fully protected in acting or omitting to
act upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, Note, coupon or other paper or document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties;



(b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Company Order or an Officer’s Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;



(c) the Trustee may consult with counsel and require an Opinion of Counsel and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;


 


37









 





(d) the Trustee 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 or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney at the
expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;



(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, nominees or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of any agent,
custodian, nominee or attorney appointed by it with due care hereunder;



(f) the Trustee shall be under no obligation to take any action or exercise any of the rights
or powers vested in it by this Indenture at the request or direction of the Holders pursuant to
this Indenture unless and until such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory in form and substance to the Trustee against the costs, expenses,
or liabilities which might be incurred by the Trustee’s compliance with such request or direction;
and



(g) the permissive rights of the Trustee enumerated herein shall not be construed as duties.



In no event shall the Trustee be liable for any special, indirect, punitive or consequential
loss or damage of any kind whatsoever (including but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage and regardless of the form of
action other than any such loss or damage caused by the Trustee’s willful misconduct or gross
negligence. The Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of
such Default or Event of Default or (2) written notice of such Default or Event of Default shall
have been given to the Trustee at the Corporate Trust Office by the Company or by any Holder of the
Notes, and such notice references the Notes and this Indenture.



Section 7.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes
or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture. The Trustee shall have no responsibility or liability with respect
to any information, statement or recital in the Offering Memorandum or in any other disclosure
material prepared or distributed with respect to the issuance of the Notes.


 


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Section 7.04. Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company with the same rights it would have if it were not the Trustee, Paying Agent,
Conversion Agent or Note Registrar. However, in the event that the Trustee acquires any
conflicting interest as defined in Section 310(b) of the Trust Indenture Act, it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue as Trustee or
resign. The rights, privileges, protections, immunities and benefits given to the Trustee,
including without limitation its right to be compensated, reimbursed, and indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder.



Section 7.05. Monies and Shares of Common Stock to Be Held in Trust. All monies and shares
of Common Stock received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received. Money and shares of Common Stock held by the
Trustee in trust hereunder need not be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any money or shares of Common Stock
received by it hereunder except as may be agreed from time to time by the Company and the Trustee.



Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder
(including the reasonable compensation and the expenses and disbursements of its agents and counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as
shall have been caused by its gross negligence, willful misconduct or bad faith. The Company also
covenants to indemnify the Trustee in any capacity under this Indenture and any other document or
transaction entered into in connection herewith and its agents and any authenticating agent for,
and to hold them harmless against, any loss, claim, damage, liability or expense (including
reasonable attorneys’ fees and expenses) incurred without gross negligence, willful misconduct or
bad faith on the part of the Trustee, its officers, directors, agents or employees, or such agent
or authenticating agent, as the case may be, and arising out of or in connection with the
acceptance or administration of this trust or in any other capacity hereunder and the performance
of the Trustee’s duties hereunder or the exercise of its rights and powers under this Indenture,
including the costs and expenses of defending themselves against any claim of liability in the
premises. The obligations of the Company under this Section 7.06 to compensate or indemnify the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be
secured by a senior claim to which the Notes are hereby made subordinate on all money or property
held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in
trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive
payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability
or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or
the Trustee. The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06
shall extend to the officers, directors, agents and employees of the Trustee.


 


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Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee and its agents and counsel and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.



Section 7.07. Officer’s Certificate as Evidence. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s
Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross
negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.



Section 7.08. Eligibility of Trustee. There shall at all times be a Trustee hereunder that
is a Corporation, organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of the Trust Indenture
Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000 subject to supervision or examination by Federal or state authority.
If at any time the Trustee 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 or Removal of Trustee. (a) The Trustee may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof to the
Holders at their addresses as they shall appear on the Note Register. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 60 days after the mailing of such
notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to
the Company and the Holders, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least
six months may, subject to the provisions of Section 6.11, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.


 


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(b) In case at any time any of the following shall occur:




(i) the Trustee shall cease to be eligible in accordance with the provisions of Section
7.08 and shall fail to resign after written request therefor by the Company or by any such
Holder, or




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



then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona
fide holder of a Note or Notes 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 Trustee and
the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




(c) The Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten
days after notice to the Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a)
provided, may petition any court of competent jurisdiction for an appointment of a successor
trustee.



(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.10.



Section 7.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all
money or property held or collected by such trustee as such, except for funds held in trust for the
benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 7.06.


 


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No successor trustee shall accept appointment as provided in this Section 7.10 unless at the
time of such acceptance such successor trustee shall be eligible under the provisions of Section
7.08.



Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Holders at their addresses as they shall appear on the Note Register. If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



Section 7.11. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be eligible under the provisions of Section 7.08.



In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor trustee may
authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of
the successor trustee; and in all such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate of authentication of any
predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.



Section 7.12. Trustee’s Application for Instructions from the Company. Any application by
the Trustee for written instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer that the Company has indicated to
the Trustee should receive such application actually receives such application, unless any such
officer shall have consented in writing to any earlier date), unless, prior to taking any such
action (or the effective date in the case of any omission), the Trustee shall have received written
instructions in accordance with this Indenture in response to such application specifying the
action to be taken or omitted.


 


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ARTICLE 8

Concerning the Holders




Section 8.01. Action by Holders. Whenever in this Indenture it is provided that the Holders
of a specified percentage of the aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the Holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Article 9, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders. Whenever the Company
or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the
Trustee may fix, but shall not be required to, in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record date if one is
selected shall be not more than fifteen days prior to the date of commencement of solicitation of
such action.



Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or
proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.
The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.



Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name a Note shall be registered upon the Note Register to be, and may treat it 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 made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and (subject to Section
2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other
purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor
any Note Registrar shall be affected by any notice to the contrary. All such payments or
deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and
discharge the liability for monies payable or shares deliverable upon any such Note.
Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of
Default, any Holder of a beneficial interest in a Global Note may directly enforce against the
Company, without the consent, solicitation, proxy, authorization or any other action of the
Depositary or any other Person, such Holder’s right to exchange such
beneficial interest for a Note in certificated form in accordance with the provisions of this
Indenture.


 


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Section 8.04. Company-Owned Notes Disregarded. In determining whether the Holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company or any of its Affiliates
shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are
so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the
pledgee is not the Company or any of its Affiliates. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an
Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned
or held by or for the account of any of the above described Persons; and, subject to Section 7.01,
the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are outstanding for the
purpose of any such determination.



Section 8.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by
the Holders of the percentage of the aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be
included in the Notes the Holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such
action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Note and of any Notes issued in exchange or substitution
therefor or upon registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon
registration of transfer thereof.



ARTICLE 9

Holders’ Meetings




Section 9.01. Purpose of Meetings. A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 9 for any of the following purposes:



(a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article 6;


 


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(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 7;



(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 10.02; or



(d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or
under applicable law.



Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Holders to take any action specified in Section 9.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken at such meeting and
the establishment of any record date pursuant to Section 8.01, shall be mailed to Holders of such
Notes at their addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty nor more than ninety days
prior to the date fixed for the meeting.



Any meeting of Holders shall be valid without notice if the Holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by
duly authorized representatives or have, before or after the meeting, waived notice.



Section 9.03. Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of
the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by
written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of
such request, then the Company or such Holders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice
thereof as provided in Section 9.02.



Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a
Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or
(b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on
the record date pertaining to such meeting. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.



Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit.


 


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The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Holders of a majority in principal amount of the Notes represented
at the meeting and entitled to vote at the meeting.



Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or
proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section
9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.



Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall
be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 9.02. The record shall show the principal amount of
the Notes voting in favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.



Any record so signed and verified shall be conclusive evidence of the matters therein stated.



Section 9.07. No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under
any of the provisions of this Indenture or of the Notes.


 


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ARTICLE 10

Supplemental Indentures




Section 10.01. Supplemental Indentures Without Consent of Holders. The Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense,
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
one or more of the following purposes:



(a) to cure any ambiguity, omission, defect or inconsistency that does not adversely affect
Holders of the Notes;



(b) to provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 11;



(c) to provide for or confirm the issuance of additional Notes in accordance with the terms
hereof;



(d) to evidence and provide for the acceptance of appointment hereunder by a successor
trustee;



(e) to add guarantees with respect to the Notes;



(f) to secure the Notes;



(g) to add to the covenants for the benefit of the Holders or surrender any right or power
conferred upon the Company;



(h) to comply with Section 14.07(a) or make any change that does not adversely affect the
rights of any Holder; or



(i) to conform the provisions of this Indenture or the Notes to the “Description of Notes”
section of the Offering Memorandum.



Upon the written request of the Company, the Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.



Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 10.02.


 


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Section 10.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced
as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount
of the Notes then outstanding (determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for,
Notes), the Company and the Trustee, at the Company’s expense, may from
time to time and at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or any supplemental indenture or of modifying in any manner the rights of the
Holders; provided, however, that, without the consent of each Holder of an outstanding Note
affected, no such supplemental indenture shall:



(a) reduce the amount of Notes whose Holders must consent to an amendment;



(b) reduce the rate of or extend the stated time for payment of interest on any Note;



(c) reduce the principal of or extend the Maturity Date of any Note;



(d) make any change that adversely affects the conversion rights of any Notes;



(e) reduce the Fundamental Change Repurchase Price of any Note or amend or modify in any
manner adverse to the Holders the Company’s obligation to make such payments, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;



(f) make any Note payable in a currency other than that stated in the Note;



(g) change the ranking of the Notes;



(h) impair the right of any Holder to receive payment of principal of and interest, including
Additional Interest, if any, on such Holder’s Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such Holder’s Note; or



(i) make any change in this Article 10 that requires each Holder’s consent or in the waiver
provisions in Section 6.01 or Section 6.09.



Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.



Holders do not need under this Section 10.02 to approve the particular form of any proposed
supplemental indenture. It shall be sufficient if such Holders approve the substance thereof.
After any such supplemental indenture becomes effective, the Company shall mail to the Holders a
notice briefly describing such supplemental indenture. However, the failure to give such notice to
all the Holders, or any defect in the notice, will not impair or affect the validity of the
supplemental indenture.



Section 10.03. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.


 


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Section 10.04. Notation on Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s
expense, bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared
and executed by the Company, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then
outstanding, upon surrender of such Notes then outstanding.



Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee.
In addition to the documents required by Section 17.05, the Trustee shall receive an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 10 and is permitted or
authorized by the Indenture, and is valid and binding upon the Company in accordance with its
terms.



ARTICLE 11

Consolidation, Merger, Sale, Conveyance and Lease




Section 11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of
Section 11.02, the Company shall not consolidate with, merge with or into, or sell, convey,
transfer or lease all or substantially all of its properties and assets to another Person, unless:



(a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture all of the obligations of the Company
under the Notes and this Indenture; and



(b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing under this Indenture.



For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of one or more Subsidiaries of the Company to
another Person, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company to another Person.


 


49









 





Section 11.02. Successor Corporation to Be Substituted. In case of any such consolidation,
merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all
of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration
due upon conversion of the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such Successor Company (if not the
Company) shall succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, except in the case of a lease of all or
substantially all of the Company’s properties and assets. Such Successor Company thereupon may
cause to be signed, and may issue either in its own name or in the name of the Company any or all
of the Notes issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that
previously shall have been signed and delivered by an Officer of the Company to the Trustee for
authentication, and any Notes that such Successor Company thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or
transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as
the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have
become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated
at any time thereafter and, except in the case of a lease, such Person shall be released from its
liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the
Notes.



In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes
in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as
may be appropriate.



Section 11.03. Opinion of Counsel to Be Given to Trustee. No consolidation, merger, sale,
conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture, complies with the
provisions of this Article 11.


 


50









 





ARTICLE 12

Immunity of Incorporators, Stockholders, Officers and Directors




Section 12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment
of the principal of or accrued and unpaid interest on any Note, nor for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any
Note, nor because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or Subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.



ARTICLE 13

[Intentionally Omitted] 




ARTICLE 14

Conversion of Notes



Section 14.01. Conversion Privilege. Subject to and upon compliance with the provisions of
this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert
all or any portion (if the portion to be converted is $1,000 principal amount or an integral
multiple thereof) of such Note at any time prior to 5:00 p.m., New York City time, on the second
Scheduled Trading Day immediately preceding the Maturity Date at an initial conversion rate of
14.0056 shares of Common Stock (subject to adjustment as provided in Section 14.04, the “Conversion
Rate”) per $1,000 principal amount of Notes (subject to the settlement provisions of Section 14.02,
the “Conversion Obligation”).



Section 14.02. Conversion Procedure; Settlement Upon Conversion.



(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of
any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in
respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares
of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock
in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of
cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share
of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”),
at its election, as set forth in this Section 14.02.




(i) All conversions occurring on or after the 25th Scheduled Trading Day
immediately preceding the Maturity Date shall be settled using the same Settlement Method.




(ii) With respect to conversions occurring prior to the 25th Scheduled
Trading Day immediately preceding the Maturity Date, the Company shall use the same
Settlement Method for all conversions occurring on the same Conversion Date, but the
Company shall not have any obligation to use the same Settlement Method with respect to
conversions that occur on different Conversion Dates.


 


51









 






(iii) If, in respect of any Conversion Date (or the period beginning on, and including,
the 25th Scheduled Trading Day immediately preceding the Maturity Date and ending
at 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding
the Maturity Date, as the case may be), the Company elects to deliver a notice (the
“Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date
(or such period, as the case may be), the Company, through the Trustee, shall deliver such
Settlement Notice to converting Holders no later than 5:00 p.m., New York City time, on the
second Trading Day immediately following the relevant Conversion Date (or, in the case of
any conversions occurring on or after the 25th Scheduled Trading Day immediately
preceding the Maturity Date, no later than the 25th Scheduled Trading Day
immediately preceding the Maturity Date). If the Company does not elect a Settlement Method
for a conversion prior to the deadline set forth in the immediately preceding sentence, the
Company shall no longer have the right to elect Cash Settlement or Physical Settlement for
such conversion and the Company shall be deemed to have elected Combination Settlement in
respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal
amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant
Settlement Method and in the case of an election of Combination Settlement, the relevant
Settlement Notice shall indicate the Specified Dollar Amount. If the Company delivers a
Settlement Notice electing Combination Settlement in respect of its Conversion Obligation
prior to the deadline set forth in the second immediately preceding sentence but does not
indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount
shall be deemed to be $1,000.




(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock
in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as
follows:




(A) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by Physical Settlement, the Company shall deliver to the converting
Holder, in respect of each $1,000 principal amount of Notes being converted, a
number of shares of Common Stock equal to the Conversion Rate in effect on the
Conversion Date;




(B) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by Cash Settlement, the Company shall pay to the converting Holder,
in respect of each $1,000 principal amount of Notes being converted, cash in an
amount equal to the sum of the Daily Conversion Values for each of the 20
consecutive Trading Days during the related Observation Period; and




(C) if the Company elects (or is deemed to have elected) to satisfy its
Conversion Obligation in respect of such conversion by Combination Settlement, the
Company shall pay or deliver, as the case may be, in respect of each $1,000
principal amount of Notes being converted, a Settlement Amount equal to the
sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days
during the related Observation Period.


 


52









 






(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the
Observation Period. Promptly after such determination of the Daily Settlement Amounts or
the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of
any fractional share, the Company shall notify the Trustee and the Conversion Agent (if
other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as
the case may be, and the amount of cash payable in lieu of fractional shares of Common
Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no
responsibility for any such determination.



(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a
Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the
Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the
case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the
Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a
“Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the
principal amount of Notes to be converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon
settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed
to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at
the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer
documents and (4) if required, pay funds equal to interest payable on the next Interest Payment
Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if
different, the Conversion Agent) shall notify the Company of any conversion pursuant to this
Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any
Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change
Repurchase Notice to the Company in respect of such Notes and not validly withdrawn such
Fundamental Change Repurchase Notice in accordance with Section 15.03.



If more than one Note shall be surrendered for conversion at one time by the same Holder, the
Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate
principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so
surrendered.



(c) A Note shall be deemed to have been converted immediately prior to 5:00 p.m., New York
City time, on the date (the “Conversion Date”) that the Holder has complied with the requirements
set forth in subsection (b) above. Except as provided in Section 14.03(b) and Section 14.07(a),
the Company shall pay or deliver, as the case may be, the consideration due in respect of the
Conversion Obligation on the third Business Day immediately following the relevant Conversion Date,
if the Company elects Physical Settlement, or on the third Business Day immediately following the
last Trading Day of the Observation Period, in the case of any
other Settlement Method. If any shares of Common Stock are due to converting Holders, the
Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder,
or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary
for the full number of shares of Common Stock to which such Holder shall be entitled in
satisfaction of the Company’s Conversion Obligation.


 


53









 





(d) In case any Note shall be surrendered for partial conversion, the Company shall cause the
principal balance of a Global Note to be adjusted in accordance with the Applicable Procedures, or
shall execute and the Trustee shall authenticate and deliver to or upon the written order of the
Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note, without payment of any
service charge by the converting Holder but, if required by the Company or Trustee, with payment of
a sum sufficient to cover any transfer tax or similar governmental charge required by law or that
may be imposed in connection therewith as a result of the name of the Holder of the new Notes
issued upon such conversion being different from the name of the Holder of the old Notes
surrendered for such conversion.



(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion,
unless the tax is due because the Holder requests such shares to be issued in a name other than the
Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to
deliver the certificates representing the shares of Common Stock being issued in a name other than
the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such
Holder in accordance with the immediately preceding sentence.



(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Note as provided in this Article 14.



(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on the “Schedule of Exchanges of Notes” to such
Global Note as to the reduction in the principal amount represented thereby. The Company shall
notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent
other than the Trustee.



(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest, if any, except as set forth below. The Company’s settlement of the Conversion
Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the
Note and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be
deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of
Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be
deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing,
if Notes are converted after 5:00 p.m., New York City time, on a Regular Record Date, Holders of
such Notes as of 5:00 p.m., New York City time, on such Regular Record Date will receive the full
amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding
the conversion. Notes surrendered for conversion during the period from 5:00 p.m., New York City
time, on any Regular Record Date
to 9:00 a.m., New York City time, on the immediately following Interest Payment Date must be
accompanied by funds equal to the amount of interest payable on the Notes so converted; provided
that no such payment shall be required (1) for conversions following the Regular Record Date
immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change
Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately
following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts,
if any Defaulted Amounts exists at the time of conversion with respect to such Note.


 


54









 





(i) Each conversion shall be deemed to have been effected as to any Notes surrendered for
conversion as of the Conversion Date; provided, however, that the Person in whose name the
certificate for any shares of Common Stock delivered upon conversion is registered shall be treated
as a stockholder of record as of 5:00 p.m., New York City time, on the relevant Conversion Date (if
the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last
Trading Day of the relevant Observation Period (if the Company elects to satisfy the related
Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes,
such Person shall no longer be a Holder of such Notes surrendered for conversion.



(j) The Company shall not issue any fractional share of Common Stock upon conversion of the
Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon
conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical
Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period
(in the case of Combination Settlement). For each Note surrendered for conversion, if the Company
has elected Combination Settlement, the full number of shares that shall be issued upon conversion
thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable
Observation Period and any fractional shares remaining after such computation shall be paid in
cash.



Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection with Make-Whole Fundamental Changes. (a) If the Effective Date of a Make-Whole
Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in
connection with such Make-Whole Fundamental Change, the Company shall, under the circumstances
described below, increase the Conversion Rate for the Notes so surrendered for conversion by a
number of additional shares of Common Stock (the “Additional Shares”), as described below. A
conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole
Fundamental Change if the relevant Notice of Conversion is received by the Conversion Agent from,
and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, 5:00
p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change
Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a
Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading
Day immediately following the Effective Date of such Make-Whole Fundamental Change). For the
avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to this Section
14.03 on account of an anticipated Fundamental Change that does not occur.


 


55









 





(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change,
the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement,
Cash Settlement or Combination Settlement in accordance with Section 14.02, based on the Conversion
Rate as increased to reflect the Additional Shares pursuant to the table set forth below; provided,
however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b)
of the definition of Fundamental Change, the Reference Property is composed entirely of cash, for
any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the
Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and
shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the
Conversion Rate (including any adjustment for Additional Shares), multiplied by such Stock Price.
In such event, the Conversion Obligation shall be paid to Holders in cash on the third Business Day
following the Conversion Date. The Company shall notify the Holders of Notes and the Trustee of
the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such
Effective Date no later than five Business Days after such Effective Date.



(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased
shall be determined by reference to the table below, based on the date on which the Make-Whole
Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock
Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental
Change. If the holders of the Common Stock receive only cash in a Make-Whole Fundamental Change
described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash
amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale
Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading
Day immediately preceding the Effective Date of the Make-Whole Fundamental Change. The Board of
Directors shall make appropriate adjustments to the Stock Price, in its good faith determination,
to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring
an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, during such
five consecutive Trading Day period.



(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as
of any date on which the Conversion Rate of the Notes 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 Conversion Rate immediately prior to such adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the
same manner and at the same time as the Conversion Rate as set forth in Section 14.04.


 


56









 





(e) The following table sets forth the number of Additional Shares to be received per $1,000
principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date
set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective Date	 	$51.00	 	 	$60.00	 	 	$70.00	 	 	$80.00	 	 	$100.00	 	 	$120.00	 	 	$140.00	 	 	$160.00	 	 	$180.00	 	 	$200.00	 	 	$240.00	 
	June 15, 2011
	 	 	5.6022	 	 	 	4.3327	 	 	 	3.2564	 	 	 	2.5291	 	 	 	1.6433	 	 	 	1.1472	 	 	 	0.8421	 	 	 	0.6406	 	 	 	0.5003	 	 	 	0.3984	 	 	 	0.2623	 
	June 15, 2012
	 	 	5.6022	 	 	 	4.1852	 	 	 	3.0709	 	 	 	2.3326	 	 	 	1.4596	 	 	 	0.9902	 	 	 	0.7118	 	 	 	0.5333	 	 	 	0.4120	 	 	 	0.3253	 	 	 	0.2117	 
	June 15, 2013
	 	 	5.6022	 	 	 	3.9765	 	 	 	2.8146	 	 	 	2.0662	 	 	 	1.2190	 	 	 	0.7912	 	 	 	0.5516	 	 	 	0.4051	 	 	 	0.3090	 	 	 	0.2421	 	 	 	0.1562	 
	June 15, 2014
	 	 	5.6022	 	 	 	3.6779	 	 	 	2.4492	 	 	 	1.6919	 	 	 	0.8964	 	 	 	0.5381	 	 	 	0.3576	 	 	 	0.2564	 	 	 	0.1939	 	 	 	0.1519	 	 	 	0.0987	 
	June 15, 2015
	 	 	5.6022	 	 	 	3.2305	 	 	 	1.8796	 	 	 	1.1190	 	 	 	0.4476	 	 	 	0.2230	 	 	 	0.1380	 	 	 	0.0991	 	 	 	0.0771	 	 	 	0.0624	 	 	 	0.0426	 
	June 15, 2016
	 	 	5.6022	 	 	 	2.6611	 	 	 	0.2801	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






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 above or the Effective
Date is between two Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional 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 $240.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above pursuant
to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and




(iii) if the Stock Price is less than $51.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above pursuant
to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.



Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of
Notes exceed 19.6078 shares of Common Stock, subject to adjustment in the same manner as the
Conversion Rate pursuant to Section 14.04.




(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant
to Section 14.04 in respect of a Make-Whole Fundamental Change.



(g) For the avoidance of doubt, if a Holder converts its Notes prior to the Effective Date of
any Make-Whole Fundamental Change, then, whether or not such Make-Whole Fundamental Change occurs,
such Holder shall not be entitled to an increase in the Conversion Rate pursuant to this Section
14.03 in connection with such conversion.



Section 14.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company shall
not make any adjustments to the Conversion Rate if Holders of the Notes have the right to
participate (other than in the case of a stock split or share combination), at the same time and
upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in
any of the transactions described in this Section 14.04, without having to convert their Notes, as
if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the
principal amount (expressed in thousands) of Notes held by such Holder.



 


57











 






(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on
shares of its Common Stock, or if the Company effects a share split or share combination, the
Conversion Rate shall be adjusted based on the following formula:



	 	 	 

	CR’ = CR0 x

	 	OS’
	 	 
	 	OS0






where,




	CR0 =	 	 the Conversion Rate in effect immediately prior to
9:00 a.m., New York City time, on the Ex-Dividend
Date of such dividend or distribution, or
immediately prior to 9:00 a.m., New York City
time, on the effective date of such share split or
share combination, as applicable;
	 
	CR’ = 	 	the Conversion Rate in effect immediately after
9:00 a.m., New York City time, on such Ex-Dividend
Date or effective date;
	 
	OS0 = 	 	the number of shares of Common Stock outstanding
immediately prior to 9:00 a.m., New York City
time, on such Ex-Dividend Date or effective date;
and
	 
	OS’ = 	 	the number of shares of Common Stock outstanding
immediately after giving effect to such dividend,
distribution, share split or share combination.





Any adjustment made under this Section 14.04(a) shall become effective immediately after 9:00 a.m.,
New York City time, on the Ex-Dividend Date for such dividend or distribution, or immediately after
9:00 a.m., New York City time, on the effective date for such share split or share combination, as
applicable. If any dividend or distribution of the type described in this Section 14.04(a) is
declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as
of the date the Board of Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.




(b) If the Company issues to all or substantially all holders of its Common Stock any rights,
options or warrants entitling them, for a period of not more than 45 calendar days after the
announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a
price per share that is less than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased based
on the following formula:



	 	 	 

	CR’ = CR0 x

	 	OS0 + X
	 	 
	 	OS0 + Y






where,




	CR0 = 	 	the Conversion Rate in effect immediately prior to
9:00 a.m., New York City time, on the Ex-Dividend
Date for such issuance;



 


58









 






	CR’  	 = 	the Conversion Rate in effect immediately after
9:00 a.m., New York City time, on such Ex-Dividend
Date;
	 
	OS0  	 = 	the number of shares of Common Stock outstanding
immediately prior to 9:00 a.m., New York City
time, on such Ex-Dividend Date;
	 
	X  	 = 	the total number of shares of Common Stock
issuable pursuant to such rights, options or
warrants; and
	 
	Y  	 = 	the number of shares of Common Stock equal to the
aggregate price payable to exercise such rights,
options or warrants, divided by the average of the
Last Reported Sale Prices of the Common Stock over
the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately
preceding the date of announcement of the issuance
of such rights, options or warrants.





Any increase made under this Section 14.04(b) shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after 9:00 a.m., New York
City time, on the Ex-Dividend Date for such issuance. To the extent that shares of the Common
Stock are not delivered after the expiration of such rights, options or warrants, the Conversion
Rate shall be decreased to the Conversion 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, the Conversion Rate shall be decreased to the Conversion Rate that would then be
in effect if such Ex-Dividend Date for such issuance had not occurred.




For purposes of this Section 14.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at a price per share
that is less than such average of the Last Reported Sale Prices of the Common Stock for the 10
consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the
date of announcement for such issuance, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration received by the Company
for such rights, 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.




 


59









 





(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other assets or property or rights, options or warrants to acquire its Capital Stock or other
securities, to all or substantially all holders of the Common Stock, excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a) or
Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as to which an
adjustment was effected pursuant to Section 14.04(d), and (iii) Spin-Offs as to which the
provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital
Stock, evidences of indebtedness, other assets or property or rights, options or warrants to
acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the
Conversion Rate shall be increased based on the following formula:



	 	 	 

	CR’ = CR0 x

	 	SP0
	 	 
	 	SP0 - FMV





where,




	CR0  	 = 	the Conversion Rate in effect immediately prior to
9:00 a.m., New York City time, on the Ex-Dividend
Date for such distribution;
	 
	CR’  	 = 	the Conversion Rate in effect immediately after
9:00 a.m., New York City time, on such Ex-Dividend
Date;
	 
	SP0  	 = 	the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading
Day period ending on, and including, the Trading
Day immediately preceding the Ex-Dividend Date for
such distribution; and
	 
	FMV  	 = 	the fair market value (as determined by the Board
of Directors) of the Distributed Property with
respect to each outstanding share of the Common
Stock on the Ex-Dividend Date for such
distribution.





Any increase made under the portion of this Section 14.04(c) above shall become effective
immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If
such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same
terms as holders of the Common Stock receive the Distributed Property, the amount of Distributed
Property such Holder would have received if such Holder owned a number of shares of Common Stock
equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board
of Directors determines the “FMV” (as defined above) of any distribution for purposes of this
Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it
shall in doing so consider the prices in such market over the same period used in computing the
Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.





 


60









 





With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or business unit of the Company,
that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities
exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:



	 	 	 

	CR’ = CR0 x

	 	FMV0 + MP0
	 	 
	 	MP0






where,




	CR0  	 = 	the Conversion Rate in effect immediately prior to the end of the Valuation Period;
	 
	CR’  	 = 	the Conversion Rate in effect immediately after the end of the Valuation Period;
	 
	FMV0  	 = 	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest
distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by
reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references
therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10
consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the
“Valuation Period”); and
	 
	MP0  	 = 	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.





The adjustment to the Conversion Rate under the preceding paragraph shall occur on the last Trading
Day of the Valuation Period; provided that in respect of any conversion during the Valuation
Period, references in the portion of this Section 14.04(c) related to Spin-Offs to 10 Trading Days
shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate.




For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights,
options or warrants distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares
of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this
Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be
required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or
warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right,
option or warrant, including any such existing rights, options or warrants distributed prior to the
date of this Indenture, are subject to events, upon the occurrence of which such rights, options or
warrants become exercisable to purchase different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such event shall be deemed to be the date
of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such
rights (in which case the existing rights, options or warrants shall be deemed to terminate and
expire on such date without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or
other event (of the type described in the immediately preceding sentence) with respect thereto that
was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options
or warrants that


 


61









 






shall all have been redeemed or purchased without
exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion
Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the
Conversion Rate shall then again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to
the per share redemption or purchase price received by a holder or holders of Common Stock with
respect to such rights, options or warrants (assuming such holder had retained such rights, options
or warrants), made to all holders of Common Stock as of the date of such redemption or purchase,
and (2) in the case of such rights, options or warrants that shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights,
options and warrants had not been issued.




For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), any dividend or
distribution to which this Section 14.04(c) is applicable that also includes one or both of:



(A) a dividend or distribution of shares of Common Stock to which Section 14.04(a) is
applicable (the “Clause A Distribution”); or



(B) a dividend or distribution of rights, options or warrants to which Section 14.04(b) is
applicable (the “Clause B Distribution”),



then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this
Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause
A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C
Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b)
with respect thereto shall then be made, except that, if determined by the Company (I) the
“Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be
the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in
the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding
immediately prior to 9:00 a.m., New York City time, on such Ex-Dividend Date or effective date”
within the meaning of Section 14.04(a) or “outstanding immediately prior to 9:00 a.m., New York
City time, on such Ex-Dividend Date” within the meaning of Section 14.04(b).




(d) If any cash dividend or distribution is made to all or substantially all holders of the
Common Stock, the Conversion Rate shall be adjusted based on the following formula:




	 	 	 

	CR’ = CR0 x

	 	SP0
	 	 
	 	SP0 - C






where,




	CR0 = 	 	 the Conversion Rate in effect immediately prior to
9:00 a.m., New York City time, on the Ex-Dividend
Date for such dividend or distribution;



 


62









 






	CR’  	 = 	the Conversion Rate in effect immediately after
9:00 a.m., New York City time, on the Ex-Dividend
Date for such dividend or distribution;
	 
	SP0 	 = 	the Last Reported Sale Price of the Common Stock
on the Trading Day immediately preceding the
Ex-Dividend Date for such dividend or
distribution; and
	 
	C  	 = 	the amount in cash per share the Company
distributes to holders of its Common Stock.





Any increase pursuant to this Section 14.04(d) shall become effective immediately after 9:00 a.m.,
New York City time, on the Ex-Dividend Date for such dividend or distribution. If such dividend or
distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the
Board of Directors determines not to make or pay such dividend or distribution, to the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as
holders of shares of the Common Stock, the amount of cash that such Holder would have received if
such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the
Ex-Dividend Date for such cash dividend or distribution.




(e) If the Company or any of its Subsidiaries make a payment in respect of a tender or
exchange offer for the Common Stock, to the extent that the cash and value of any other
consideration included in the payment per share of the Common Stock exceeds the Last Reported Sale
Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or
exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be
increased based on the following formula:



	 	 	 

	CR’ = CR0 x

	 	AC + (SP’xOS’)
	 	 
	 	OS0 x SP’






where,




	CR0  	 = 	the Conversion Rate in effect immediately prior to
5:00 p.m., New York City time, on the 10th Trading
Day immediately following, and including, the
Trading Day next succeeding the date such tender
or exchange offer expires;
	 
	CR’  	 = 	the Conversion Rate in effect immediately after
5:00 p.m., New York City time, on the 10th Trading
Day immediately following, and including, the
Trading Day next succeeding the date such tender
or exchange offer expires;
	 
	AC  	 = 	the aggregate value of all cash and any other
consideration (as determined by the Board of
Directors) paid or payable for shares of Common
Stock purchased in such tender or exchange offer;
	 
	OS0  	 = 	the number of shares of Common Stock outstanding
immediately prior to the date such tender or
exchange offer expires (prior to giving effect to
the purchase of all
shares of Common Stock accepted for purchase or exchange in such tender or
exchange offer);



 


63









 






	OS’ = 	 	the number of shares of Common Stock
outstanding immediately after the date such
tender or exchange offer expires (after
giving effect to the purchase of all shares
of Common Stock accepted for purchase or
exchange in such tender or exchange offer);
and
	 
	SP’ = 	 	the average of the Last Reported Sale Prices
of the Common Stock over the 10 consecutive
Trading Day period commencing on, and
including, the Trading Day next succeeding
the date such tender or exchange offer
expires.





The adjustment to the Conversion Rate under this Section 14.04(e) shall occur at 5:00 p.m., New
York City time, on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; provided that in respect of any
conversion within the 10 Trading Days immediately following, and including, the expiration date of
any tender or exchange offer, references in this Section 14.04(e) with respect to 10 Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date
that such tender or exchange offer expires and the Conversion Date in determining the Conversion
Rate.




If the Company is obligated to purchase shares of Common Stock pursuant to any such tender or
exchange offer, but is permanently prevented by applicable law from effecting all or any such
purchases or all or any portion of such purchases are rescinded, the Conversion Rate shall be
decreased to the Conversion Rate that would then be in effect if such tender or exchange offer had
been made only in respect of the purchases actually effected.



(f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes,
if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has
converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date
would be treated as the record holder of the shares of Common Stock as of the related Conversion
Date as described under Section 14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend
Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.04, the
Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting
Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares
of Common Stock on an unadjusted basis and participate in the related dividend, distribution or
other event giving rise to such adjustment.



(g) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance
of shares of its Common Stock or any securities convertible into or exchangeable for shares of its
Common Stock or the right to purchase shares of its Common Stock or such convertible or
exchangeable securities.


 


64









 





(h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this
Section 14.04, and to the extent permitted by applicable law and subject to the applicable rules of
The New York Stock Exchange, the Company from time to time may increase the Conversion Rate by any
amount for a period of at least 20 Business Days. The Company may also increase
the Conversion Rate if the Board of Directors determines that such increase would be in the
Company’s best interest. In addition, the Company may (but is not required to) increase the
Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire
shares) or similar event. Whenever the Conversion Rate is increased pursuant to any of the
preceding three sentences, the Company shall mail to the Holder of each Note at its last address
appearing on the Note Register a notice of the increase at least 15 days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.



(i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not
be adjusted:




(i) upon the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on the Company’s
securities and the investment of additional optional amounts in shares of Common Stock under
any plan;




(ii) upon the issuance of any shares of Common Stock or options or rights to purchase
those shares pursuant to any present or future employee, director or consultant benefit plan
or program of or assumed by the Company or any of the Company’s Subsidiaries;




(iii) upon the issuance of any shares of the Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in clause
(ii) of this subsection and outstanding as of the date the Notes were first issued;




(iv) for a change in the par value of the Common Stock; or




(v) for accrued and unpaid interest, if any.



(j) All calculations and other determinations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share. The Company
shall not be required to make an adjustment in the Conversion Rate unless the adjustment would
require a change in the Conversion Rate of at least 1%. However, the Company shall carry forward
any adjustments that are less than 1% of the Conversion Rate and make such carried-forward
adjustments, regardless of whether the aggregate adjustment is less than 1%, (i) on December 31 of
each calendar year, (ii) upon a Make-Whole Fundamental Change, and (iii) on the Conversion Date for
any conversions of Notes or, with respect to any conversions that occur on or after the 25th
Scheduled Trading Day immediately preceding the Maturity Date, on each day during the Observation
Period for such conversions.


 


65









 





(k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officer’s Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the
last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting
forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Rate to each Holder at its last address
appearing on the Note Register of this Indenture. Failure to deliver such notice shall not affect
the legality or validity of any such adjustment.



(l) For purposes of this Section 14.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury
of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.



Section 14.05. Adjustments of Prices. Whenever any provision of this Indenture requires the
Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or
the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the
period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board
of Directors shall make appropriate adjustments to each to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, at any time during the period when the Last
Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts
are to be calculated.



Section 14.06. Shares to Be Fully Paid. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for conversion of the Notes from time to time as such Notes are presented
for conversion (assuming that at the time of computation of such number of shares, all such Notes
would be converted by a single Holder and that Physical Settlement is applicable).



Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common
Stock.



(a) In the case of:




(i) any recapitalization, reclassification or change of the Common Stock (other than
changes resulting from a subdivision or combination or a change in the par value of the
Common Stock);




(ii) any consolidation, merger or combination involving the Company;




(iii) any sale, lease or other transfer to a third party of the consolidated assets of
the Company and the Company’s Subsidiaries substantially as an entirety; or




(iv) any statutory share exchange,


 


66









 





in each case, as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any combination thereof) (any
such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Notes shall be changed into a right to convert
such principal amount of Notes into the kind and amount of shares of stock, other securities or
other property or assets (including cash or any combination thereof) that a holder of a number of
shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would
have owned or been entitled to receive (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) upon such Merger Event and, prior to or at the effective time of such
Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute
with the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such
change in the right to convert each $1,000 principal amount of Notes; provided, however, that at
and after the effective time of the Merger Event (A) the Company shall continue to have the right
to determine the form of consideration to be paid or delivered, as the case may be, upon conversion
of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of
the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of
Common Stock that the Company would have been required to deliver upon conversion of the Notes in
accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference
Property that a holder of that number of shares of Common Stock would have been entitled to receive
in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of
Reference Property.




If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right
to receive more than a single type of consideration (determined based in part upon any form of
stockholder election), then (i) the Reference Property into which the Notes will be convertible
shall be deemed to be the weighted average of the types and amounts of consideration received by
the holders of Common Stock that affirmatively make such an election, and (ii) the unit of
Reference Property for purposes of the immediately preceding paragraph shall refer to the
consideration referred to in clause (i) attributable to one share of Common Stock. If the holders
receive only cash in such Merger Event, then for all conversions that occur after the effective
date of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount
of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion
Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the
price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the
Conversion Obligation by paying cash to converting Holders on the third Business Day immediately
following the Conversion Date. The Company shall notify Holders, the Trustee and the Conversion
Agent (if other than the Trustee) of such weighted average as soon as practicable after such
determination is made.


 


67









 





Such supplemental indenture described in the second immediately preceding paragraph shall
provide for adjustments that shall be as nearly equivalent as is possible to the adjustments
provided for in this Article 14. If, in the case of any Merger Event, the Reference Property
includes shares of stock, securities or other property or assets (including cash or any combination
thereof) of a Person other than the successor or purchasing corporation, as the case may be, in
such Merger Event, then such supplemental indenture shall also be executed by such other
Person and shall contain such additional provisions to protect the interests of the Holders of the
Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent required by the Board of Directors and practicable the provisions providing
for the purchase rights set forth in Article 15.



(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a)
of this Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate
briefly stating the reasons therefore, the kind or amount of cash, securities or property or asset
that will comprise the Reference Property after any such Merger Event, any adjustment to be made
with respect thereto and that all conditions precedent have been complied with, and shall promptly
mail notice thereof to all Holders. The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register
provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.



(c) The Company shall not become a party to any Merger Event unless its terms are consistent
with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of
Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of
Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective
date of such Merger Event.



(d) The above provisions of this Section shall similarly apply to successive Merger Events.



Section 14.08. Certain Covenants. (a) The Company covenants that all shares of Common Stock
issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from
all taxes, liens and charges with respect to the issue thereof.



(b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will, to the extent then permitted by the rules and interpretations of the Commission,
secure such registration or approval, as the case may be.



(c) The Company further covenants that if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system the Company will list and keep listed,
so long as the Common Stock shall be so listed on such exchange or automated quotation system, any
Common Stock issuable upon conversion of the Notes.


 


68









 





Section 14.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Person to determine the Conversion Rate
(or any adjustment thereto) or whether any facts exist that may require any adjustment (including
any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities, property or
cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee
and any other Conversion Agent make no representations with respect thereto. Neither the Trustee
nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article. Without limiting the
generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 14.07 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders upon the conversion of their
Notes after any event referred to in such Section 14.07 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 7.01, may accept (without any
independent investigation) as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officer’s Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto.



Section 14.10. Notice to Holders Prior to Certain Actions. In case of any:



(a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 14.04 or Section 14.11;



(b) Merger Event; or



(c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of
its Subsidiaries;



then, in each case (unless notice of such event is otherwise required pursuant to another provision
of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent
(if other than the Trustee) and to be mailed to each Holder at its address appearing on the Note
Register, as promptly as possible but in any event at least 20 days prior to the applicable date
hereinafter specified, a notice stating (i) the date on which a record is to be taken for the
purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be
taken, the date as of which the holders of Common Stock of record are to be determined for the
purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such
Merger Event, dissolution, liquidation or winding-up is expected to become effective or occur, and
the date as of which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon such Merger Event,
dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such action by the Company or one of its Subsidiaries,
Merger Event, dissolution, liquidation or winding-up.



 


69









 








Section 14.11. Stockholder Rights Plans. To the extent that the Company has a rights plan in
effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such
conversion shall be entitled to receive the appropriate number of rights, if any, and the
certificates representing the Common Stock issued upon such conversion shall bear such legends,
if any, in each case as may be provided by the terms of any such stockholder rights plan, as
the same may be amended from time to time. If at the time of conversion, however, the rights have
separated from the shares of Common Stock in accordance with the provisions of the applicable
stockholder rights plan so that the Holders would not be entitled to receive any rights in respect
of Common Stock, if any, issuable upon conversion of the Notes, the Conversion Rate shall be
adjusted at the time of separation as if the Company distributed to all or substantially all
holders of Common Stock shares of Capital Stock of the Company, evidences of its indebtedness,
other assets or property or rights, options or warrants to acquire its Capital Stock or other
securities as provided in Section 14.04(c), subject to readjustment in the event of the expiration,
termination or redemption of such rights.



Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding
anything to the contrary in this Indenture, if at any time the Conversion Rate is increased
pursuant to Section 14.04(h) by an amount that would result in the Notes, in the aggregate,
becoming convertible into shares of Common Stock in excess of limitations imposed by shareholder
approval rules or listing standards of any national or regional securities exchange that are
applicable to the Company, the Company shall, at its option, either obtain stockholder approval of
any issuance of Common Stock upon conversion of the Notes in excess of such limitations or deliver
cash in lieu of any shares of Common Stock otherwise deliverable upon conversions in excess of such
limitations based on the Daily VWAP on each Trading Day of the relevant Observation Period in
respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant
to this Section 14.12.



ARTICLE 15

Repurchase of Notes at Option of Holders




Section 15.01. [Intentionally Omitted]



Section 15.02. Repurchase at Option of Holders Upon a Fundamental Change. (a) If a
Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option,
to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof
that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change
Repurchase Date”) specified by the Company that is not less than 20 Business Days or more than 45
Business Days following the date of the Fundamental Change Company Notice at a repurchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but
excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to
the Interest Payment Date to which such Regular Record Date relates, in which case the Company
shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such
Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the
principal amount of Notes to be repurchased pursuant to this Article 15.


 


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(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder
thereof, upon:




(i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of
Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with
the Applicable Procedures if the Notes are Global Notes, in each case on or before 5:00
p.m., New York City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date; and




(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any
time after delivery of the Fundamental Change Repurchase Notice (together with all necessary
endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or if the
Notes are Global Notes, in compliance with the Applicable Procedures, in each case such
delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase
Price therefor.



The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall
state:




(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered
for repurchase;




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




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



provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice
must comply with the Applicable Procedures.




Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to 5:00
p.m., New York City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 15.03.



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


 


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(c) On or before the 20th calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the
Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of
the repurchase right at the option of the Holders arising as a result thereof. Such notice shall
be by first class mail or, in the case of Global Notes, in accordance with the Applicable
Procedures. Simultaneously with providing such notice, the Company shall publish a notice
containing the information set forth in the Fundamental Change Company Notice in a newspaper
of general circulation in The City of New York or publish such information on the Company’s
website or through such other public medium as the Company may use at that time. Each Fundamental
Change Company Notice shall specify:




(i) the events causing the Fundamental Change;




(ii) the date of the Fundamental Change;




(iii) the last date on which a Holder may exercise the repurchase right pursuant to
this Article 15;




(iv) the Fundamental Change Repurchase Price;




(v) the Fundamental Change Repurchase Date;




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




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




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




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



No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 15.02.



At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Company Notice shall be
prepared by the Company.



(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at
the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been
accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the
case of an acceleration resulting from a Default by the Company in the payment of the Fundamental
Change Repurchase Price with respect to such Notes). The Paying Agent shall promptly return to the
respective Holders thereof any Physical Notes held by it during the acceleration of the Notes
(except in the case of an acceleration resulting from a Default by the Company in the payment of
the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for
book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to
have been cancelled, and, upon such return or
cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.


 


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(e) Notwithstanding the foregoing, the Company shall not be required to repurchase any Notes
in respect of which the Fundamental Change repurchase right has been exercised pursuant to this
Section 15.02 and in respect of which the relevant Fundamental Change Repurchase Notice has not
been withdrawn if a third party purchases such Notes on the Fundamental Change Repurchase Date in
the manner and otherwise in compliance with the requirements set forth herein applicable to the
repurchase of Notes upon a Fundamental Change.



Section 15.03. Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change
Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.03
at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the
Fundamental Change Repurchase Date, specifying:




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




(ii) if Physical Notes have been issued, the certificate number of the Note in respect
of which such notice of withdrawal is being submitted, and




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



provided, however, that if the Notes are Global Notes, the notice must comply and be delivered in
accordance with Applicable Procedures.




Section 15.04. Deposit of Fundamental Change Repurchase Price. (a) The Company shall
deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04)
on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount
of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental
Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying
Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn
prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental
Change Repurchase Date) shall be made on the later of (i) the Fundamental Change Repurchase Date
with respect to such Note (provided the Holder has satisfied the conditions in Section 15.02) and
(ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying
Agent appointed by the Company) by the Holder thereof in the manner required by Section 15.02 by
mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall
appear in the Note Register; provided, however, that payments to the Depositary shall be made by
wire transfer of immediately available funds to the account of the Depositary or its nominee. The
Trustee shall, promptly after such payment and upon written demand by the Company, return to the
Company any funds in excess of the Fundamental Change Repurchase Price.


 


73









 





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



(c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 15.02, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an
authorized denomination equal in principal amount to the unrepurchased portion of the Note
surrendered.



Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In
connection with any repurchase offer, the Company will, if required:



(a) comply with the provisions of the tender offer rules under the Exchange Act;



(b) file a Schedule TO or any successor or similar schedule; and



(c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to repurchase the Notes;



in each case, so as to permit the rights and obligations under this Article 15 to be exercised in
the time and in the manner specified in this Article 15.




ARTICLE 16

No Redemption




Section 16.01. No Redemption. The Notes shall not be redeemable by the Company prior to the
Maturity Date, and no sinking fund is provided for the Notes.



ARTICLE 17

Miscellaneous Provisions




Section 17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



Section 17.02. Official Acts by Successor Corporation. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or Officer of the Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation or other entity that shall at the time be the
lawful sole successor of the Company.


 


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Section 17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Holders on
the Company shall be deemed to have been sufficiently given or made, for all purposes if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed or being deposited with an overnight air courier guaranteeing next day delivery
(until another address is filed by the Company with the Trustee) to Molycorp, Inc., 5619 Denver
Tech Center Parkway, Suite 1000, Greenwood Village, CO 80111, Attention: General Counsel, with a
copy to Jones Day, 901 Lakeside Avenue, Cleveland, Ohio 44114, Attention: Michael J. Solecki. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box or being deposited with an overnight
air courier guaranteeing next day delivery addressed to the Corporate Trust Office. A copy (which
shall not itself constitute proper notice) of any notice, direction, demand or request given or
served upon the Trustee shall simultaneously be served upon the Trustee’s counsel at the following
address: Drinker Biddle & Reath LLP, 191 North Wacker Drive, Suite 3700, Chicago, Illinois
60606-1698, Attention: Steven M. Wagner.



The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.



Any notice or communication mailed to a Holder shall be mailed to it by first class mail,
postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given
to it if so mailed within the time prescribed.



Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.



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 to Holders by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.



Section 17.04. Governing Law. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officer’s Certificate and, if requested by the Trustee, an Opinion of Counsel stating that such
action is permitted by the terms of this Indenture.



Notwithstanding anything to the contrary in this Section 17.05, if any provision in this
Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in
connection with any action to be taken by the Trustee or the Company hereunder, the Trustee
shall be entitled to, or entitled to request, such Opinion of Counsel.


 


75









 





Each Officer’s Certificate or opinion provided for, by or on behalf of the Company in this
Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than
the Officer’s Certificates provided for in Section 5.03) shall include (a) a statement that the
Person making such certificate is familiar with the requested action and this Indenture; (b) a
brief statement as to the nature and scope of the examination or investigation upon which the
statement contained in such certificate is based; (c) a statement that, in the judgment of such
person, he or she has made such examination or investigation as is necessary to enable him or her
to express an informed judgment as to whether or not such action is permitted by this Indenture;
and (d) a statement as to whether or not, in the judgment of such Person, such action is permitted
by this Indenture.



Section 17.06. Legal Holidays. In any case where any Interest Payment Date, Fundamental
Change Repurchase Date, Conversion Date or Maturity Date is not a Business Day, then any action to
be taken on such date need not be taken on such date, but may be taken on the next succeeding
Business Day with the same force and effect as if taken on such date, and no interest shall accrue
in respect of the delay.



Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.



Section 17.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any
Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder or
the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



Section 17.09. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.



Section 17.10. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section
10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent had
been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes.
For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be
deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of
authentication.


 


76









 





Each Authenticating Agent shall be acceptable to the Company and, except as provided in or
pursuant to this Indenture, shall at all times be a corporation eligible to serve as trustee
hereunder pursuant to Section 7.08 that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable
law and by its charter to act as an Authenticating Agent and has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000.
If at any time an Authenticating 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 specified
in this Section.



Any corporation or other entity into which any authenticating agent may be merged or converted
or with which it may be consolidated, or any corporation or other entity resulting from any merger,
consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to the corporate trust business of any authenticating agent, shall be
the successor of the authenticating agent hereunder, if such successor corporation or other entity
is otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.



Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a
successor authenticating agent (which may be the Trustee), shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all Holders as the names
and addresses of such Holders appear on the Note Register.



The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.



The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section
17.10 shall be applicable to any authenticating agent.



If an authenticating agent is appointed pursuant to this Section, the Notes may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:



                                                            ,

as Authenticating Agent, certifies that this is one of the Notes described

in the within-named Indenture.




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Authorized Officer
	 	 





 


77









 





Section 17.11. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.



Section 17.12. Severability. In the event any provision of this Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or
impaired.



Section 17.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF
A NOTE 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 INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.



Section 17.14. Force Majeure. In no event shall 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 malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



Section 17.15. Calculations. The Company shall be responsible for making all calculations called
for under the Notes. These calculations include, but are not limited to, determinations of the
Last Reported Sale Prices of the Common Stock, accrued interest payable on the Notes and the
Conversion Rate of the Notes. The Company shall make all these calculations in good faith and,
absent manifest error, the Company’s calculations shall be final and binding on Holders of Notes.
The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion
Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the
accuracy of the Company’s calculations without independent verification. The Trustee will forward
the Company’s calculations to any Holder of Notes upon the request of that Holder at the sole cost
and expense of the Company.



 


78









 








IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.



	 	 	 	 	 
	 	MOLYCORP, INC.

 	 
	 	By:  	/s/ John
F. Ashburn, Jr., Esq.	 
	 	 	Name:  	John
F. Ashburn, Jr., Esq. 	 
	 	 	Title:  	Executive Vice President and General Counsel 	 



 


 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	/s/
Gregory S. Clarke 	 
	 	 	Name:  	Gregory S. Clarke 	 
	 	 	Title:  	Vice President 	 



 


 









 





EXHIBIT A




[FORM OF FACE OF NOTE]




[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]



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



[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]




[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




(2) AGREES FOR THE BENEFIT OF MOLYCORP, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO
THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,
EXCEPT:




(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF; OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT; OR


 


 









 






(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT; OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.]


 


A-2









 





MOLYCORP, INC.




3.25% Convertible Senior Note due 2016



			
	 	 	 
	No. [_____]
	 	Initially $[_____]
	CUSIP No. [_____]	 	 






MOLYCORP, INC., a corporation duly organized and validly existing under the laws of the State
of Delaware (the “Company,” which term includes any successor corporation or other entity under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum as set forth in the “Schedule of Exchanges of Notes”
attached hereto, which amount, taken together with the principal amounts of all other outstanding
Notes, shall not, unless permitted by the Indenture, exceed $230,000,000 in aggregate at any time,
in accordance with the Applicable Procedures, on June 15, 2016, and interest thereon as set forth
below.



This Note shall bear interest at the rate of 3.25% per year from June 15, 2011, or from the
most recent date to which interest had been paid or provided for to, but excluding, the next
scheduled Interest Payment Date until June 15, 2016. Interest is payable semi-annually in arrears
on each June 15 and December 15, commencing on December 15, 2011, to Holders of record at 5:00
p.m., New York City time, on the preceding June 1 and December 1 (whether or not such day is a
Business Day), respectively. Additional Interest will be payable as set forth in Section 4.06(c),
Section 4.06(d) and Section 6.03 of the within-mentioned Supplemental Indenture, and any reference
to interest on, or in respect of, any Note therein shall be deemed to include Additional Interest
if, in such context, Additional Interest is, was or would be payable pursuant to any of such
Section 4.06(c), Section 4.06(d) or Section 6.03 and any express mention of the payment of
Additional Interest in any provision therein shall not be construed as excluding Additional
Interest in those provisions thereof where such express mention is not made.



Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes plus one
percent, subject to the enforceability thereof under applicable law, from, and including, the
relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been
paid by the Company, at its election, in accordance with Section 2.03(c) of the Indenture.



The Company shall pay the principal of and interest on this Note, so long as such Note is a
Global Note, in immediately available funds to the Depositary or its nominee, as the case may be,
as the registered Holder of such Note. As provided in and subject to the provisions of the
Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global
Notes) at the office or agency in the United States designated by the Company for that purpose.
The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect
of the Notes and the Corporate Trust Office and its agency in Minneapolis, Minnesota as a place
where Notes may be presented for payment or for registration of transfer.


 


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Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Note the right to convert this
Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as
applicable, on the terms and subject to the limitations set forth in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth at this place.



This Note, and any claim, controversy or dispute arising under or related to this Note, shall
be construed in accordance with and governed by the laws of the State of New York.



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



This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.



[Remainder of page intentionally left blank]



 


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



	 	 	 	 	 
	 	MOLYCORP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 

	Dated:	 	 
	 
	 	 	 	 
	TRUSTEE’S CERTIFICATE OF AUTHENTICATION
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Officer
	 	 





 


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[FORM OF REVERSE OF NOTE]




MOLYCORP, INC.

3.25% Convertible Senior Note due 2016



This Note is one of a duly authorized issue of Notes of the Company, designated as its 3.25%
Convertible Senior Notes due 2016 (the “Notes”), limited to the aggregate principal amount of
$230,000,000 all issued or to be issued under and pursuant to an Indenture dated as of June 15,
2011 (the “Indenture”), between the Company and Wells Fargo Bank, National Association (the
“Trustee”), to which Indenture and all indentures supplemental thereto 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 of the Notes. Additional Notes may be issued in an
unlimited aggregate principal amount, subject to certain conditions specified in the Indenture.



In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or
Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions and certain exceptions set forth in the Indenture.



Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price and the principal amount on the
Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect
such payments in respect of the Note. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and private debts.



The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Notes, and in certain other circumstances,
with the consent of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures modifying the terms of the Indenture and the Notes as described therein. It is also
provided in the Indenture that, subject to certain exceptions, the Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all
of the Notes waive any past Default or Event of Default under the Indenture and its consequences.



No reference herein to the Indenture and 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 the
principal (including the Fundamental Change Repurchase Price, if applicable) of and accrued and
unpaid interest on this Note at the place, at the respective times, at the rate and in the lawful
money herein prescribed.


 


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The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. At the office or agency of the Company referred to on the
face hereof, and in the manner and subject to the limitations provided in the Indenture,
Notes may be exchanged for a like aggregate principal amount of Notes of other authorized
denominations, without payment of any service charge but, if required by the Company or Trustee,
with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in
connection therewith as a result of the name of the Holder of the new Notes issued upon such
exchange of Notes being different from the name of the Holder of the old Notes surrendered for such
exchange.



The Notes are not subject to redemption through the operation of any sinking fund or
otherwise.



Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase for cash all of such Holder’s Notes or any portion
thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change
Repurchase Date at a price equal to the Fundamental Change Repurchase Price.



Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, to
convert any Notes, or any portion thereof that is $1,000 or an integral multiple thereof, at any
time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately
preceding the Maturity Date, into cash, shares of Common Stock or a combination of cash and shares
of Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted from
time to time as provided in the Indenture.



The terms of the Notes include those stated in the Indenture.



Terms used in this Note and defined in the Indenture are used herein as therein defined.


 


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ABBREVIATIONS




The following abbreviations, when used in the inscription of the face of this Note, 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 = Uniform Gifts to Minors Act




CUST = Custodian




TEN ENT = as tenants by the entireties




JT TEN = joint tenants with right of survivorship and not as tenants in common




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


 


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SCHEDULE A




SCHEDULE OF EXCHANGES OF NOTES




MOLYCORP, INC.

3.25% Convertible Senior Notes due 2016



The initial principal amount of this Global Note is                      DOLLARS ($[                    ]). The
following increases or decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal amount	 	Signature of
	 	 	Amount of	 	Amount of	 	of this Global Note	 	authorized
	 	 	decrease in	 	increase in	 	following such	 	signatory of
	 	 	principal amount	 	principal amount	 	decrease or	 	Trustee or
	Date of exchange	 	of this Global Note	 	of this Global Note	 	increase	 	Custodian
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 

	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 





 


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ATTACHMENT 1




[FORM OF NOTICE OF CONVERSION]




To: Molycorp, Inc.




The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock,
as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs
that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion,
together with any cash for any fractional share, and any Notes representing any unconverted
principal amount hereof, be issued and delivered to the registered Holder hereof unless a different
name has been indicated below. If any shares of Common Stock or any portion of this Note not
converted are to be issued in the name of a Person other than the undersigned, the undersigned will
pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section
14.02(d) or Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned
on account of interest accompanies this Note.



	 	 	 
	Dated:                                                             

	 	 
	 
	 	 
	 

	 	 
	 

	 	Signature(s)






	 	 	 

	 

Signature Guarantee

	 	 
	 
	 	 
	Signature(s) must be guaranteed
by an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares
of Common Stock are to be issued, or
Notes are to be delivered, other than
to and in the name of the registered holder.
	 	 





 


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	Fill in for registration of shares if
to be issued, and Notes if to
be delivered, other than to and in the
name of the registered holder:
	 	 
	 
	 	 
	 	 	 
	(Name)
	 	 
	 
	 	 
	 	 
	 
	(Street Address)
	 	 
	 
	 	 
	 	 
	 
	(City, State and Zip Code)
	 	 
	Please print name and address
	 	 
	 
	 	 
	 

	 	Principal amount to be converted (if less than all): $_____,000
	 
	 	 
	 

	 	NOTICE: The above signature(s) of the Holder(s) hereof must
correspond with the name as written upon the face of the Note
in every particular without alteration or enlargement or any
change whatever.
	 
	 	 
	 

	 	 
	 

	 	Social Security or Other Taxpayer

Identification Number





 


2









 





ATTACHMENT 2




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]




To: Molycorp, Inc.




The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Molycorp, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the
Company and specifying the Fundamental Change Repurchase Date and requests and instructs the
Company to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture
referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that
is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such
Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and
on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any,
thereon to, but excluding, such Fundamental Change Repurchase Date.



In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as
set forth below:



	 	 	 

	Dated:                                                             
	 	 
	 
	 	 
	 

	 	 
	 

	 	Signature(s)
	 
	 	 
	 

	 	 
	 

	 	Social Security or Other Taxpayer

Identification Number
	 
	 	 
	 

	 	Principal amount to be repaid (if less than all): $_____,000
	 
	 	 
	 

	 	NOTICE: The above signature(s) of the Holder(s) hereof must
correspond with the name as written upon the face of the Note
in every particular without alteration or enlargement or any
change whatever.





 


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ATTACHMENT 3




[FORM OF ASSIGNMENT AND TRANSFER]




For value received                                                              hereby sell(s), assign(s) and transfer(s) unto
                                         (Please insert social security or Taxpayer Identification Number of assignee) the
within Note, and hereby irrevocably constitutes and appoints                                          attorney to
transfer the said Note on the books of the Company, with full power of substitution in the
premises.




In connection with any transfer of the within Note occurring prior to the Resale Restriction
Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that
such Note is being transferred:




o To Molycorp, Inc. or a subsidiary thereof; or




o Pursuant to a registration statement that has become or been declared effective under the
Securities Act of 1933, as amended; or




o Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or




o Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any
other available exemption from the registration requirements of the Securities Act of 1933, as
amended.




	 	 	 

	Dated:                                                             
	 	 
	 
	 	 
	 	 
	 
	 
	 	 
	 

Signature(s)

	 	 
	 
	 	 
	Signature Guarantee
	 	 
	 
	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.
	 	 






NOTICE: The signature on the assignment must correspond with the name as written upon the face of
the Note in every particular without alteration or enlargement or any change whatever.




 


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