BMRN BioMarin Pharmaceutical Inc

DESCRIPTION OF OTHER INDEBTEDNESS

2018/2020 convertible notes

On October 15, 2013, we issued $750.0 million in aggregate principal amount of senior subordinated convertible notes consisting of $375.0 million in aggregate principal amount of 0.75% senior subordinated convertible notes due in October 2018 (the “2018 Notes”) and $375.0 million in aggregate principal amount of 1.50% senior subordinated convertible notes due in October 2020 (the “2020 Notes” and, together with the 2018 Notes, the “Subordinated Notes”). Net proceeds from the offering were $726.2 million.

The 2018 Notes and the 2020 Notes bear interest at a rate of 0.75% and 1.5% per year, respectively, which is payable semiannually in arrears on April 15 and October 15 of each year.

The Subordinated Notes are senior unsecured obligations, and rank (i) subordinated to any of our existing and future unsecured senior debt, (ii) equally to any of our existing and future senior subordinated debt, (iii) senior to any of our future indebtedness that is expressly subordinated to the Subordinated Notes, and (iii) effectively junior to any secured indebtedness to the extent of the value of the assets securing such indebtedness. Upon the occurrence of a “fundamental change”, as defined in the indenture, the holders may require us to repurchase all or a portion of the Subordinated Notes for cash at 100% of the principal amount of the Subordinated Notes being purchased, plus any accrued and unpaid interest.

The Subordinated Notes are convertible into 7,965,975 shares of our common stock under certain circumstances prior to maturity at a conversion rate of 10.6213 shares per $1,000 principal amount of the Subordinated Notes, which represents a conversion price of $94.15 per share, subject to adjustment under certain conditions. Holders may convert their notes at their option at any time prior to July 15, 2018, in the case of the 2018 Notes, and July 15, 2020, in the case of the 2020 Notes, only under the following circumstances: (1) during any calendar quarter commencing after the calendar quarter ending on March 31, 2014 (and only during such calendar quarter), if the last reported sale price of our common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the applicable conversion price on each applicable trading day; (2) during the five business day period after any five consecutive trading day period (the “measurement period”) in which the trading price per $1,000 principal amount of the relevant notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of our common stock and the applicable conversion rate on each such trading day; or (3) upon the occurrence of specified corporate events.

Upon conversion, we may pay cash, shares of our common stock or a combination of cash and stock, as determined by us in our discretion.

To minimize the impact of potential dilution upon conversion of the 2018 Notes and the 2020 Notes, we entered into capped call transactions separate from the issuance of the Subordinated Notes with certain counterparties covering 3,982,988 shares of our common stock, subject to adjustment. The capped calls have a strike price of $94.15 and a cap price of $121.05 and are exercisable when and if the Subordinated Notes are converted. If upon conversion of the Subordinated Notes, the price of our common stock is above the strike price of the capped calls, the counterparties will deliver shares of our common stock and/or cash with an aggregate value equal to the difference between the price of our common stock at the conversion date and the strike price, multiplied by the number of shares of our common stock related to the capped calls being exercised.

We intend to use a majority of the net proceeds from this offering to repay, repurchase or settle in cash some or all of the 2018 Notes, although we do not intend to effect any such repayment or repurchase concurrently with this offering.

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2017 convertible notes

In April 2007, we issued $324.9 million in aggregate principal amount of senior subordinated convertible notes due in April 2017 (the “2017 Notes”). The 2017 Notes were issued at face value and bore interest at the rate of 1.875% per annum, payable semi-annually in cash. The 2017 Notes were convertible, at the option of the holder, at any time prior to maturity or redemption, into shares of the Company’s common stock at a conversion price of $20.36 per share, subject to adjustment in certain circumstances. The 2017 notes matured on April 23, 2017 with conversion of $22.5 million in aggregate principal amounts, except for a final cash settlement of $26,000, into 1,103,704 shares of our common stock.

Revolving credit facility

In November 2016, we entered into a credit agreement (the “Credit Agreement”) with Bank of America, N.A., as the administrative agent, swing line lender and letter of credit issuer. The Credit Agreement provides for up to $100.0 million (the “Revolving Credit Facility”), a $10.0 million letter of credit subfacility and a $15.0 million swing line loan subfacility. The maturity date of the Revolving Credit Facility will occur on November 29, 2018. Interest on any outstanding balance of the Revolving Credit Facility is payable quarterly and draws may be voluntary prepaid at any time without penalty. As of June 30, 2017 and December 31, 2016, there were no outstanding amounts due under the Revolving Credit Facility.

In connection with the Revolving Credit Facility, we and certain of our subsidiaries are required to comply with covenants, including, among other things, restrictions on our and such subsidiaries’ ability to incur additional indebtedness, dispose of its assets, incur liens, make investments, and pay dividends or other distributions, in each case subject to specified exceptions. The Credit Agreement also contains customary indemnification obligations and customary events of default. If our Global Liquidity, which is defined as the sum of the market value of unrestricted cash, marketable securities and other assets to the extent constituting “cash and cash equivalents,” “short-term investments” or “long-term investments” as reflected in our consolidated balance sheet, in each case, held by us or certain of our subsidiaries at such time, regardless of where such assets are domiciled, falls below $225.0 million at the end of any month or at the time of any borrowing or issuance of a letter of credit under the Revolving Credit Facility, then our obligations under the Credit Agreement will also be secured by the assets held by us in a custody account. The custody account was established in the first quarter of 2017. As of June 30, 2017, we and certain of our subsidiaries that serve as guarantors were in compliance with all covenants.

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DESCRIPTION OF THE NOTES

This description highlights some information concerning the notes to be sold in this offering. We have included in this description what we believe is the most important information concerning the notes. However, this description may not contain all of the information that is important to you. Important information is incorporated by reference into this prospectus supplement. To understand the notes fully, you should read carefully the entire prospectus supplement and the accompanying prospectus, including “Risk factors,” the incorporated consolidated financial statements and related notes and the other information incorporated by reference in this prospectus supplement and the accompanying prospectus.

The 0.599% senior subordinated convertible notes due 2024 (the “notes”) will be issued under a base indenture (the “base indenture”), as supplemented by a supplemental indenture (the base indenture, as so supplemented, the “indenture”), each to be dated as of the date the notes are initially issued. Copies of the indenture and the notes will be made available to prospective investors in the notes upon request to us as set forth under “Where you can find more information”. This description of the notes supplements and, to the extent it is inconsistent with, replaces the description of the general provisions of our debt securities in the accompanying prospectus. The terms of the notes include those expressly set forth in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).

We have summarized portions of the indenture and the notes below. This summary is not complete and is subject to, and qualified by references to, all of the provisions of the indenture and the notes. We urge you to read the indenture and the notes because they define your rights as a holder of the notes. In this section, “BioMarin,” “we,” “our” and “us” each refers only to BioMarin Pharmaceutical Inc. and not to any existing or future subsidiary. References to any “note” in this section refer to any authorized denomination of a note, unless the context requires otherwise.

General

The notes are our unsecured, senior subordinated obligations and are convertible into shares of our common stock (together with cash in lieu of any fractional share, if applicable), as described under “—Conversion rights” below. The notes are limited to an aggregate principal amount of $450,000,000 (or $495,000,000 if the underwriters exercise their over-allotment option in full) and will mature on August 1, 2024 unless earlier repurchased or converted.

The notes will bear interest at the rate of 0.599% per year from the date of issuance of the notes, or from the most recent date to which interest had been paid or provided for. Interest is payable semi-annually in arrears on February 1 and August 1 of each year, commencing February 1, 2018 to holders of record at the close of business on the preceding January 15 and July 15, respectively. Interest is computed on the basis of a 360-day year comprised of twelve 30-day months. In the event of the maturity, conversion or purchase by us at the option of the holder of a note, interest ceases to accrue on the note under the terms of, and subject to the conditions of, the indenture.

Special interest will accrue on the notes in some circumstances if we fail to comply with certain reporting obligations, as described under “—Events of default.” All references in this prospectus supplement to interest on the notes include any special interest payable on the notes, unless the context requires otherwise.

The notes will be subject to repurchase by us at your request upon a fundamental change, as described, and subject to the limited exception set forth, under “—Repurchase at option of holders upon a fundamental change”).

We will not have the right to redeem the notes prior to their maturity.

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Principal is payable, and notes may be presented for conversion, registration of transfer and exchange, without service charge, at our office or agency in Wilmington, Delaware, which is initially the office or agency of the trustee in Wilmington, Delaware.

The indenture will not contain any financial covenants or any restrictions on the payment of dividends, the incurrence of “senior debt” (as defined below under “—Subordination”) or other indebtedness, or the issuance or repurchase of securities by us. The indenture will not contain any covenants or other provisions to protect holders of the notes in the event of a highly leveraged transaction or a change of control, except to the extent described under “—Make-whole premium upon a make-whole fundamental change” and “—Repurchase at option of holders upon a fundamental change” below.

The notes will be issued only in minimum authorized denominations of $1,000 in principal amount and integral multiples of $1,000 in excess thereof.

Ranking

The notes will be our senior subordinated, unsecured obligations and will be:

The indenture will not prohibit us from incurring additional indebtedness, including senior debt, which would be senior in right of payment to the notes, and secured indebtedness, which would be effectively senior to the notes to the extent of the value of the collateral securing that indebtedness, or indebtedness that would rank equal in right of payment with the notes. The indenture will also not prohibit our subsidiaries from incurring any additional indebtedness or other liabilities that would be structurally senior to our obligations under the notes.

In the event of our bankruptcy, liquidation, reorganization or other winding up, our assets will not be available to make payments under the notes unless all of our senior debt is first paid in full. In the event of the bankruptcy, liquidation, reorganization or other winding up of any of our subsidiaries, we, as a common equity holder of that subsidiary, and, therefore, the noteholders, will rank behind that subsidiary’s creditors, including that subsidiary’s trade creditors, and (to the extent we are not a holder thereof) that subsidiary’s preferred equity holders. Even if we were a creditor of any of our subsidiaries, our rights as a creditor would be effectively subordinated to any security interest of others in the assets of that subsidiary, to the extent of the value of the those assets, and would be subordinated to any indebtedness of that subsidiary that is senior in right of payment to that held by us.

Our subsidiaries will have no obligations under the notes. The ability of our subsidiaries to pay dividends or make other payments to us is restricted by, among other things, corporate and other laws and by agreements to which our subsidiaries may become a party. Accordingly, we may be unable to gain access to the cash flow or assets of our subsidiaries to enable us to make payments on the notes.

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As of June 30, 2017, we had $759.3 million of indebtedness (excluding intercompany indebtedness), of which $9.3 million was secured indebtedness, consisting of collateralized standby letters of credit, and $750.0 million (undiscounted) was senior subordinated debt, including indebtedness under our 0.75% senior subordinated convertible notes due 2018 and our 1.50% senior subordinated convertible notes due 2020. As of June 30, 2017, our subsidiaries had $95.0 million of indebtedness and other liabilities, including trade payables but excluding intercompany liabilities.

See “Risk factors—Risks related to the notes and our common stock—The notes will be effectively subordinated to our existing and future secured indebtedness and structurally subordinated to the liabilities of our subsidiaries” and “—We may not have the ability to raise the funds necessary to repurchase notes upon a fundamental change.”

Subordination

The indenture will provide that in the event of any payment or distribution of our assets upon our dissolution, winding up, liquidation or reorganization, the holders of our senior debt shall first be paid in respect of all senior debt in full in cash or other payment satisfactory to the holders of senior debt for all obligations then due to such holders, including without limitation any payments of principal of, premium, if any, and interest on such senior debt, before we make any payments of principal of, or premium, if any, and interest on the notes. In addition, if the notes are accelerated because of an event of default, the holders of any senior debt would be entitled to payment in full in cash or other payment satisfactory to the holders of senior debt of all obligations in respect of senior debt before the holders of the notes are entitled to receive any payment or distribution. Under the indenture, we must promptly notify holders of senior debt if payment of the notes is accelerated because of an event of default.

The indenture will further provide that if any default by us has occurred and is continuing in the payment of principal of, premium, if any, or interest on, or other payment obligations in respect of, any senior debt, then no payment shall be made on account of principal of, premium, if any, or interest on the notes until all such payments due in respect of that senior debt have been paid in full in cash or other payment satisfactory to the holders of that senior debt; provided , however , that the issuance and delivery of shares of our common stock and cash in lieu of any fractional share of our common stock upon conversion of any note in accordance with the indenture and the notes will be deemed not to constitute a payment on or with respect to any note.

Any senior debt will continue to be senior debt and will be entitled to the benefits of the subordination provisions irrespective of any amendment, modification or waiver of any of its terms.

Because of these subordination provisions, if we become insolvent, funds that we would otherwise use to pay the holders of the notes can instead be required to be used to pay the holders of senior debt. As a result of these payments, our general creditors may recover less, ratably, than holders of senior debt, and such general creditors may recover more, ratably, than holders of the notes.

We will be obligated to pay reasonable compensation to the trustee and to indemnify the trustee on terms satisfactory to it against any losses, liabilities or expenses it incurs in connection with its duties relating to the notes. The trustee’s claims for such payments will not be subordinate to our senior debt and will be senior to those of holders of the notes in respect of all funds collected or held by the trustee.

The term “indebtedness” means, with respect to any person:

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The term “senior debt” means all the (i) principal of, (ii) premium, if any, on, (iii) interest, including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding, on, (iv) termination payments with respect to or in connection with and (v) fees, costs, expenses and other amounts accrued or due on or in connection with, our indebtedness, whether outstanding on the date of the indenture or subsequently created, incurred, assumed, guaranteed or in effect guaranteed by us, including all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to, the preceding, in each case except for:

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The term “senior subordinated debt” means, with respect to us, the notes and any other indebtedness of ours that specifically provides that such indebtedness is to have the same rank as the notes in right of payment and is not subordinated by its terms in right of payment to any indebtedness or other obligations of ours that is not senior debt.

No redemption

We may not redeem the notes prior to the maturity date, and no “sinking fund” is provided for the notes, which means that we are not required to redeem the notes periodically.

Conversion rights

The notes will be convertible, at the holders’ option, into shares of our common stock (together with cash in lieu of any fractional share, if applicable), at an initial conversion rate of 8.0212 shares per $1,000 principal amount of notes (which represents an initial conversion price of approximately $124.67 per share).

Noteholders may convert their notes at any time until the close of business on the second “scheduled trading day” (as defined below) immediately preceding the maturity date.

Upon conversion in connection with a make-whole fundamental change (as defined below), we will pay a make-whole premium to holders of the notes as described under “—Make-whole premium upon a make-whole fundamental change.”

Whenever in this prospectus supplement we refer to the conversion rate or conversion price as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the conversion rate immediately after 5:00 p.m., New York City time, on such date.

A holder may convert fewer than all of such holder’s notes so long as the amount of the notes converted is an integral multiple of $1,000 principal amount.

Upon conversion of a note, a holder will not receive any separate cash payment of interest (unless in certain circumstances such conversion occurs between a regular record date and the interest payment date to which it relates) and we will not adjust the conversion rate to account for accrued and unpaid interest. Our delivery of shares of our common stock together with any cash payment for such holder’s fractional shares, will be deemed to satisfy our obligation to pay the principal amount of the note and our obligation to pay accrued and unpaid interest. As a result, any accrued but unpaid interest as of the conversion date is deemed to be paid in full rather than cancelled, extinguished or forfeited. For a discussion of the tax treatment to you of receiving our common stock upon conversion, see “Certain material U.S. federal income tax considerations.”

If a holder converts its notes, we will pay any documentary, stamp or similar issue or transfer tax due on the issuance of shares of our common stock upon the conversion, unless the tax is due because the holder requests any such shares to be issued or delivered to a person other than the holder, in which case the holder will pay that tax.

A person with a beneficial interest in a global note that wishes to convert such beneficial interest must comply with the procedures of The Depository Trust Company (“DTC”) for converting a beneficial interest in a

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global note and, if required, pay funds equal to interest payable on the next interest payment date and, if required, pay all taxes or duties, if any. As such, if you are a beneficial owner of the notes, you must allow for sufficient time to comply with DTC’s procedures if you wish to exercise your conversion rights. The exercise of such conversion rights shall be irrevocable.

If a holder of a certificated note wishes to convert such note, such holder must:

Holders may obtain copies of the required form of the conversion notice from the conversion agent.

We refer to the date on which a holder complies with all the applicable procedures and requirements for conversion as the “conversion date.” Notes surrendered for conversion will be deemed to be converted at 5:00 p.m., New York City time, on the applicable conversion date. The trustee will initially act as the conversion agent.

If a holder has already delivered a repurchase notice as described under “—Repurchase at option of holders upon a fundamental change” with respect to a note, the holder may not surrender that note for conversion until the holder has withdrawn the repurchase notice in accordance with the indenture.

Holders of notes at the close of business on a regular record date will receive payment of interest payable on the corresponding interest payment date notwithstanding the conversion of such notes at any time after the close of business on the applicable regular record date. Notes surrendered for conversion by a holder during the period from the close of business on any regular record date to the opening of business on the corresponding interest payment date must be accompanied by payment of an amount equal to the interest that the holder is to receive on the notes; provided, however , that no such payment need be made (1) if we have specified a repurchase date following a fundamental change that is after a record date and on or prior to the business day following the corresponding interest payment date, (2) only to the extent of overdue interest, if any overdue interest exists at the time of conversion with respect to such note, or (3) if conversion occurs after the last record date prior to the maturity date.

Therefore, for the avoidance of doubt, all record holders on the regular record date immediately preceding the maturity date will receive the full interest payment due on the maturity date regardless of whether their notes have been converted following such regular record date.

Settlement upon conversion

Upon conversion of any note, we will deliver, for each $1,000 principal amount being converted, a number of shares of our common stock equal to the conversion rate in effect on the conversion date for such conversion. However, in lieu of delivering any fractional share of common stock otherwise due upon conversion, we will pay cash based on the “last reported sale price” (as defined below) per share of our common stock on the conversion date for such conversion (or, if such conversion date is not a “trading day” (as defined below), the immediately preceding trading day).

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“Last reported sale price” of our common stock on any date means the closing sale price (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) per share on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which our common stock is traded. If our 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” will be the last quoted bid price per share for our common stock in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If our common stock is not so quoted, the “last reported sale price” will be the average of the mid-point of the last bid and ask prices per share for our common stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by us for this purpose.

“Trading day” means a day on which (i) trading in our common stock (or other security for which a last reported sale price must be determined) generally occurs on the NASDAQ Global Select Market or, if our common stock (or such other security) is not then listed on the NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange on which our common stock (or such other security) is then listed or, if our common stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which our common stock (or such other security) is then traded and (ii) a last reported sale price for our common stock (or closing sale price for such other security) is available on such securities exchange or market. If our common stock (or such other security) is not so listed or traded, “trading day” means a “business day.”

“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 our common stock (or other security for which a closing sale price must be determined) is listed or admitted for trading. If our common stock (or such other security) is not so listed or admitted for trading, “scheduled trading day” means a “business day.”

Except as described under “—Adjustment of conversion rate,” we will deliver the consideration due in respect of conversion by the third (or, if the “t+2 effective date” (as defined below) has occurred on or before the relevant conversion date, the second) business day immediately following such conversion date; provided that with respect to any conversion date occurring on or after March 1, 2024, settlement will occur on the maturity date.

“T+2 effective date” means the date, if at all, the “relevant exchange” (as defined below) has adopted a normal settlement cycle of two business days for trading in our common stock, and the t+2 effective date will be the first date for which trades executed on that date are subject to such new cycle.

“Relevant exchange” means The NASDAQ Global Select Market or, if our common stock is not then listed on The NASDAQ Global Select Market, the principal U.S. national or regional securities exchange on which our common stock is listed for trading.

Each conversion will be deemed to have been effected as to any notes surrendered for conversion on the conversion date; provided, however , that the person in whose name shares of our common stock shall be issuable upon such conversion will become the holder of record of such shares as of the close of business on the relevant conversion date.

Adjustment of conversion rate

The initial conversion rate will be subject to adjustment, without duplication, upon the occurrence of any of the following events, except that we will not make any adjustments to the conversion rate if holders of the notes participate (other than in the case of (x) a share split or share combination or (y) a tender offer or exchange offer), at the same time and upon the same terms as holders of our common stock and solely as a result of holding the notes, in any of the transactions described below without having to convert their notes as if they held

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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:

An adjustment made under this clause (1) will 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 the case may be.

If any dividend, distribution, share split or share combination of the type described in this clause (1) is declared but not so paid or made, then the conversion rate shall be immediately readjusted, effective as of the date our board of directors or a committee thereof determines not to pay such dividend or distribution or to effect such share split or share combination, to the conversion rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared.

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where,

Any increase made under this clause (2) will be made successively whenever any such rights, options or warrants are issued and will 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 common stock are not delivered after expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the conversion rate shall be readjusted, effective as of the date of such expiration, 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, effective as of the date our board of directors or a committee thereof determines not to make such issuance, to the conversion rate that would then be in effect if such ex-dividend date for such issuance had not occurred.

For the purpose of this clause (2), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of our common stock at less than such average of the last reported sale prices 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 our common stock, there shall be taken into account any consideration received by us 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 us in good faith.

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then the conversion rate will be increased based on the following formula:

If “FMV” (as defined above) is equal to or greater than “SP ₀ ” (as defined above), then, in lieu of the foregoing increase, provision shall be made for each holder of a note to receive, for each $1,000 principal amount of the relevant notes, at the same time and upon the same terms as holders of our common stock, the amount and kind of our capital stock, evidences of our indebtedness, other assets, securities or property of ours or rights, options or warrants to acquire our capital stock or other securities that such holder would have received as if such holder owned a number of shares of common stock equal to the conversion rate in effect on the record date for the distribution.

An adjustment made under this clause (3)(a) will 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, effective as of the date our board of directors or a committee thereof determines not to make such distribution, to the conversion rate that would then be in effect if such dividend or distribution had not been declared.

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where,

The adjustment to the conversion rate under the preceding paragraph will occur at 5:00 p.m., New York City time, on the last trading day of the valuation period; provided that in respect of any conversion of notes where the conversion date occurs within the valuation period, then, solely for purposes of such conversion, the valuation period will be deemed to be the period from, and including, the ex-dividend date for such spin-off to, and including, such conversion date (or, if such conversion date is not a trading day, to, and including, the immediately preceding trading day). If such spin-off is subsequently cancelled and does not become effective, the conversion rate shall be readjusted, as of the date of such cancellation, to be the conversion rate that would have been in effect if such spin-off had not been declared.

If “C” (as defined above) is equal to or greater than “SP ₀ ” (as defined above), then, in lieu of the foregoing increase, provision shall be made for each holder of a note to receive, for each $1,000 principal amount of the relevant, at the same time and upon the same terms as holders of our

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common stock, the amount of cash that such holder would have received as if such holder owned a number of shares of our common stock equal to the conversion rate on the record date for such cash dividend or distribution.

An adjustment made under the provision of this clause (4) will 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 our board of directors or a committee thereof 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.

The adjustment to the conversion rate under the preceding paragraph will occur immediately after 5:00 p.m., New York City time, on the last trading day of the averaging period; provided that in respect of any conversion of notes where the conversion date occurs within the averaging period, then, solely for purposes of such conversion, the averaging period will be deemed to be the period from, and including, the expiration date to, and including, such conversion date (or, if such conversion date is not a trading day, to, and including, the immediately preceding trading day).

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If we are, or one of our subsidiaries is, obligated to purchase our common stock pursuant to any such tender or exchange offer but we are, or such subsidiary is, permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the conversion rate shall be immediately decreased to the conversion rate that would be in effect if such tender or exchange offer had not been made.

Notwithstanding the foregoing, if (i) a conversion rate adjustment becomes effective on any ex-dividend date as described above; (ii) a holder that has converted any notes with a conversion date that occurs on or after such ex-dividend date and on or prior to the related record date; and (iii) such holder would be treated as the record holder, as of such record date, of the shares of our common stock due in connection with such conversion (based, for the avoidance of doubt, on an adjusted conversion rate for such ex-dividend date), then, notwithstanding the foregoing conversion rate adjustment provisions, the conversion rate adjustment relating to such ex-dividend date will not be made for such conversion. Instead, such holder will be treated as if such holder were the record owner of the shares of our common stock on an unadjusted basis and participate as such in the related dividend, distribution or other event giving rise to such adjustment.

Notwithstanding anything to the contrary, if:

then, solely for purposes of such conversion, we will, without duplication, give effect to such adjustment on such conversion date, and, for the avoidance of doubt, such shares will not be entitled to participate in such event. In such case, if the date we are otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined, then we will delay the settlement of such conversion until the third (or, if the t+2 effective date has occurred by such first date, the second) business day after such first date.

As used in this “—Adjustment of conversion rate” section, “ex-dividend date” means the first date on which the shares of our 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 us or, if applicable, from the seller of our common stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market, and “effective date” means the first date on which the shares of our common stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable. For these purposes, any alternative trading convention on the applicable exchange or market in respect of our common stock under a separate ticker symbol or CUSIP number will not be considered “regular way.”

If any adjustment of the conversion rate would be less than 1% of the then effective rate, such adjustment shall be carried forward and adjustment with respect thereto made at the time of and together with any subsequent adjustment which, together with the original adjustment, shall aggregate at least 1% of the then effective conversion rate; provided , however , that any carry forward amount shall be given effect (i) on each conversion date; (ii) if a fundamental change or make-whole fundamental change occurs; and (iii) on and after March 1, 2024. We refer to our ability to defer adjustments as described above as the “deferral exception.”

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Adjustments to the conversion rate will be calculated to the nearest 1/10,000th.

Except as stated above, in the second paragraph below or under the caption “—Make-whole premium upon a make-whole fundamental change” below, the conversion rate will not be adjusted. Without limiting the foregoing, we will not be required to adjust the conversion rate on account of:

If we make a distribution of property to holders of our common stock that would be taxable to them as a dividend for U.S. federal income tax purposes and the conversion rate is increased, this increase would generally be deemed to be the receipt of taxable income by U.S. holders (as defined in “Certain material U.S. federal income tax considerations”) of the notes and would generally result in withholding taxes for non-U.S. holders (as defined in “Certain material U.S. federal income tax considerations”). Any applicable withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase or maturity of the notes, or if any withholding taxes (including backup withholding) are paid on behalf of a holder, those withholding taxes may be set off against payments of cash or common stock payable on the notes (or, in some circumstances, any payments on our common stock) or sales proceeds received by or other funds or assets of the holder. See “Certain material U.S. federal income tax considerations.”

We may from time to time, to the extent permitted by applicable law and subject to the applicable rules of the principal securities exchange on which the common stock is then listed, increase the conversion rate of the notes by any amount for any period of at least 20 days. In that case we will give the trustee (in writing) and the holders at least 15 days’ notice of such increase. We may make such increase in the conversion rate, in addition to those set forth above, as our board of directors or a committee thereof deems advisable to avoid or diminish any income tax to holders of our common stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes, and it will be conclusive.

Stockholder rights plans

If we implement a stockholder rights plan, this rights plan must provide that upon conversion of the existing notes the holders will receive, in addition to the common stock issuable upon such conversion, the rights

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under such rights plan unless the rights have separated from the common stock before the time of conversion, in which case the conversion rate will be adjusted as if we distributed to all holders of our common stock, shares of our capital stock, evidences of indebtedness or assets as described in clause (3)(a) above under the caption “—Adjustment of conversion rate,” subject to readjustment in the event of the expiration, termination or redemption of such rights. For the avoidance of doubt, any issuance of stockholder rights will not cause an adjustment of the conversion rate unless and until such stockholder rights have separated from the common stock.

Recapitalizations, reclassifications and changes of our common stock

In the case of:

in each case as a result of which holders of our common stock are entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for our common stock (such an event, a “common stock change event,” and such other securities, cash or property, the “reference property,” and the amount and kind of reference property that a holder of one share of our common stock would be entitled to receive on account of such common stock change event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “reference property unit”), then, from and after the effective date of such common stock change event, (i) the consideration due upon conversion of any note will be determined in the same manner as if each reference to any number of shares of common stock in the provisions described under this “—Conversion Rights” caption (or in any related definitions) were instead a reference to the same number of reference property units; and (ii) for purposes of the definition of “fundamental change” and “make-whole fundamental change,” (x) the terms “common stock” and “capital stock” will be deemed to mean the common equity and capital stock, respectively (which terms will be deemed to include depositary receipts or shares representing common equity), if any, forming part of such reference property; and (y) references to us will be deemed to be references to the entity that is the issuer of such common equity or capital stock, as applicable. Prior to or at the effective time of such common stock change event, we or the successor or purchasing person (if other than us), as the case may be (us or such other person, as applicable, the “successor person”), will execute with the trustee (subject to the trustee’s rights as provided in the indenture) a supplemental indenture providing for the changes described in this section and such other provisions as we reasonably determine are appropriate to preserve the economic interests of the holders. If such reference property includes, in whole or in part, any stock or other securities, then such supplemental indenture will, to the extent applicable, provide for subsequent adjustments to the conversion rate in a manner consistent with the provisions described above. In addition, if the reference property includes, in whole or part, shares of stock or other securities or assets (other than cash or cash equivalents) of a person other than the successor person, then such other person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions we reasonably determine are appropriate to preserve the economic interests of holders.

At and after the effective time of the common stock change event, the last reported sale price will be calculated based on the value of a reference property unit. If the common stock change event causes our 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), the composition of the reference property unit

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will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make such an election (or, if no holders of our common stock affirmatively make such an election, the weighted average of the types and amounts of consideration actually received by the holders of our common stock). If the holders of our common stock receive only cash in such common stock change event, then for all conversions that occur after the effective date of such common stock change event, 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 applicable conversion date (as may be increased by any additional shares as described under “—Make-whole premium upon a make-whole fundamental change”), multiplied by the price paid per share of common stock in such common stock change event. We will notify holders and the trustee, including in its capacity as the conversion agent, in writing of the weighted average as soon as practicable after such determination is made.

We may not become a party to any such transaction unless its terms are consistent with the foregoing provisions. None of the foregoing provisions shall affect the right of a holder to exercise its conversion rights prior to the effective date of such transaction.

Adjustments of prices

Whenever any provision of the indenture requires us to calculate the last reported sale prices over a span of multiple days (including the “stock price” for purposes of a make-whole fundamental change), we will make appropriate adjustments to account for any adjustment to the conversion rate that becomes effective, or any event requiring an adjustment to the conversion rate where the record date or effective date of the event occurs, at any time during the period when the last reported sale prices are to be calculated.

Exchange in lieu of conversion

When a holder surrenders any note for conversion, we may, at our election (an “exchange election”), direct the conversion agent to surrender, on or prior to the business day immediately following the conversion date, such note to one or more financial institutions designated by us for exchange in lieu of conversion. In order to accept any notes surrendered for conversion, the designated financial institution(s) must agree to timely pay or deliver, as the case may be, in exchange for such note, the consideration that would otherwise be due upon conversion as described above under “—Conversion rights—Settlement upon conversion.” To make an exchange election with respect to any note, we must, by the close of business on the business day following the relevant conversion date, notify in writing the trustee, the conversion agent (if other than the trustee) and the holder of such note and we must notify the designated financial institution(s) of the relevant deadline for delivery of the consideration due upon conversion and the type of conversion consideration to be paid or delivered, as the case may be.

Any notes exchanged by the designated financial institution(s) will remain outstanding, subject to the depositary procedures, if applicable. If any financial institution agrees to accept any notes for exchange but does not timely pay or deliver, as the case may be, the related conversion consideration, or if such designated financial institution does not accept the notes for exchange, then we will pay or deliver, as the case may be, the relevant conversion consideration, as, and at the time, required pursuant to the indenture as if we had not made the exchange election.

Our designation of any financial institution(s) to which the notes may be submitted for exchange does not require such financial institution(s) to accept any notes.

Make-whole premium upon a make-whole fundamental change

If a fundamental change (as defined below under “—Repurchase at option of holders upon a fundamental change,” but without giving effect to the proviso to clause (2) of the definition of “change of

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control”) occurs (each, a “make-whole fundamental change”), we will, except as described below, pay a make-whole premium upon the conversion of the notes in connection with any such transaction by increasing the conversion rate on such notes. The make-whole premium will be in addition to, and not in substitution for, any cash, securities or other assets otherwise due to holders of notes upon conversion. The make-whole premium will be determined by reference to the table below and is based on the date on which the make-whole fundamental change becomes effective (such date, the “effective date”) and the price, referred to as the “stock price” paid, or deemed to be paid, per share of our common stock in such make-whole fundamental change, subject to adjustment as described below. If holders of our common stock receive only cash in the make-whole fundamental change, the stock price shall be the cash amount paid per share. In all other cases, the stock price shall be the average of the last reported sale prices of our common stock for the 15 trading days immediately prior to, but not including, the effective date.

The following table shows what the make-whole premium would be for each stock price and effective date set forth below, expressed as additional shares of common stock per $1,000 principal amount of notes.

The actual stock price and effective date may not be set forth on the table, in which case:

The stock prices set forth in the first column of the table above will be adjusted as of any date on which the conversion rate of the notes is adjusted. The adjusted stock price will equal the stock price applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the conversion rate immediately prior to the 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 above will be adjusted in the same manner as the conversion rate as set forth above under “—Conversion rights—Adjustment of conversion rate,” other than by operation of an adjustment to the conversion rate by adding the make-whole premium as described above.

A conversion of notes by a holder will be deemed for these purposes to be “in connection with” a make-whole fundamental change if the relevant conversion date occurs on or subsequent to the effective date of the make-whole fundamental change but on or before the business day immediately preceding the related repurchase date relating to the fundamental change (or, if such make-whole fundamental change does not also constitute a

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fundamental change, or constitutes an exempted fundamental change, on or before the 35th trading day following the effective date of such make-whole fundamental change). We will notify the trustee in writing and the holders of the occurrence of each make-whole fundamental change no later than two business days after the effective date of such make-whole fundamental change.

Notwithstanding the foregoing, in no event will the conversion rate exceed 11.2296 shares per $1,000 principal amount of notes, subject to adjustments in the same manner as the conversion rate with respect to the events described in clauses (1) through (5), inclusive, under “—Conversion rights—Adjustment of conversion rate.”

Our obligation to pay the make-whole premium may constitute a penalty under applicable contract law, and therefore its enforceability cannot be assured.

Repurchase at option of holders upon a fundamental change

If a fundamental change occurs, each holder of the notes will have the right to require us to repurchase all or any portion of that holder’s notes that is equal to $1,000 or a whole multiple of $1,000, on a business day (which we refer to as the “repurchase date”) that is no more than 35, nor less than 20, business days after the date we give notice of the occurrence of a fundamental change, at a price (which we refer to as the “repurchase price”), payable in cash, equal to 100% of the principal amount of the notes to be repurchased, together with interest accrued and unpaid to, but excluding, the repurchase date. However, if the repurchase date is after a regular record date and on or before the next interest payment date, then (i) the holder of such note at the close of business on such regular record date will be entitled, notwithstanding such repurchase, to receive, on or before such interest payment date, the unpaid interest that would have accrued on such note to, but not including, such interest payment date; and (ii) the repurchase price will not include accrued and unpaid interest on such note to, but excluding, the repurchase date.

On or before the 20th calendar day after the effective date of a fundamental change, we will give notice (a “fundamental change notice”) to all holders of the notes, as provided in the indenture, of the occurrence of the fundamental change and of their resulting repurchase right. We must also deliver a copy of our notice to the trustee.

To exercise its fundamental change repurchase right, the holder thereof must deliver a notice (a “fundamental change repurchase notice”) to the paying agent (in the case of certificated notes) or in accordance with DTC’s procedures (in the case of global notes) before the close of business on the business day immediately before the related repurchase date (or such later time as may be required by law). The fundamental change repurchase notice must contain certain information set forth in the indenture, including the certificate number of any certificated notes to be repurchased, or must otherwise comply with DTC’s procedures in the case of a global note.

A holder that has delivered a fundamental change repurchase notice with respect to a note may withdraw that notice by delivering a withdrawal notice to the paying agent (in the case of certificated notes) or in accordance with DTC’s procedures (in the case of global notes) at any time before the close of business on the business day immediately before the repurchase date. The withdrawal notice must contain certain information set forth in the indenture, including the certificate number of any certificated notes with respect to which the withdrawal notice is being delivered, or must otherwise comply with DTC’s procedures in the case of a global note.

Notes to be repurchased must be delivered to the paying agent (in the case of certificated notes) or in compliance with DTC’s procedures (in the case of global notes) for the holder of those notes to be entitled to receive the repurchase price.

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If a holder has validly delivered a fundamental change repurchase notice with respect to a note, then such note may not be converted, except to the extent (i) such notice is withdrawn in accordance with the procedures described above; or (ii) we fail to pay the related repurchase price for such note.

To exercise the repurchase right, a holder of the notes must deliver, prior to the close of business on the business day immediately before the repurchase date, written notice to the trustee of the holder’s exercise of its repurchase right, together with the notes with respect to which the right is being exercised. A holder may withdraw any such written notice by sending written notice of withdrawal to the trustee no later than the close of business on the business day immediately before the repurchase date. In the case of notes held in global form, a notice that satisfies the procedures of DTC will be deemed to be written for these purposes. Notes may be tendered for repurchase or withdrawn in accordance with the provisions described above only in authorized denominations.

A “fundamental change” will be deemed to have occurred upon a change of control or a termination of trading, each as defined below.

A “change of control” will be deemed to have occurred at such time after the original issuance of the notes when the following has occurred:

However, a change in control will not be deemed to have occurred if, in the case of a merger or consolidation, at least 90% of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting the change in control consists of common stock listed for trading on The New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors) (or which will be so listed when issued or exchanged in connection with such change in control) and such transaction constitutes a common stock change event whose reference property consists of such consideration (subject to the provisions set forth under “—Conversion rights—Settlement upon conversion”).

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A “termination of trading” will be deemed to have occurred if our common stock is not listed for trading on any of The New York Stock Exchange, the NASDAQ Global Market and the NASDAQ Global Select Market (or any of their respective successors).

The beneficial owner shall be determined in accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act. The term “person” includes any syndicate or group which would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

Rule 13e-4 under the Exchange Act requires the dissemination of certain information to security holders if an issuer tender offer occurs and may apply if the repurchase option becomes available to holders of the notes. We will comply with this rule to the extent applicable at that time.

We may, to the extent permitted by applicable law, at any time purchase the notes in the open market or by tender at any price or by private agreement. Any note so purchased by us may, to the extent permitted by applicable law, be reissued or resold or may be surrendered to the trustee for cancellation. Any notes surrendered to the trustee may not be reissued or resold and will be canceled promptly.

The preceding provisions would not necessarily protect holders of the notes if highly leveraged or other transactions involving us occur that may adversely affect holders.

Our ability to repurchase notes upon the occurrence of a fundamental change is subject to important limitations. The occurrence of a fundamental change could cause an event of default under, or be prohibited or limited by, the terms of existing or future senior debt. As a result, any repurchase of the notes would, absent a waiver, be prohibited under the subordination provisions of the indenture until the senior debt is paid in full.

Further, we cannot assure you that we would have the financial resources, or would be able to arrange financing, to pay the repurchase price for all the notes that might be delivered by holders of the notes seeking to exercise the repurchase right. Any failure by us to repurchase the notes when required following a fundamental change would result in an event of default under the indenture, whether or not such repurchase is permitted by the subordination provisions of the indenture. Any such default may, in turn, cause a default under existing or future senior debt. See “—Ranking” above.

Notwithstanding anything to the contrary above, we may not repurchase any of the notes in connection with a fundamental change if the principal amount of the notes has been accelerated (other than as a result of a default in the payment of the related repurchase price and any related interest) and such acceleration has not been rescinded on or before the repurchase date.

Notwithstanding anything to the contrary described above, we will be deemed to satisfy our obligations to repurchase notes pursuant to the provisions described above if (i) one or more third parties conduct the repurchase offer and repurchase tendered notes in a manner that would have satisfied our obligations to do the same if conducted directly by us; and (ii) an owner of a beneficial interest in the notes would not receive a lesser amount (as a result of taxes, additional expenses or for any other reason) than such owner would have received had we repurchased the notes.

Notwithstanding anything to the contrary, we will not be required to send a fundamental change notice, or offer to repurchase or repurchase any notes, as described above, in connection with a fundamental change occurring pursuant to clause (2)(A) or clause (2)(B) (or pursuant to clause (1) that also constitutes a fundamental change occurring pursuant to either clause (2)(A) or clause (2)(B)) of the definition of “change of control,” if:

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We refer to any fundamental change with respect to which, in accordance with the provision described above, we do not offer to repurchase any notes as an “exempted fundamental change.” We will send notice to the holders and the trustee in writing of such exempted fundamental change no later than two business days after the effective date of such fundamental change, stating that such fundamental change is an exempted fundamental change for which we are not required to make an offer to repurchase the notes.

No stockholder rights for holders of the notes

Holders of the notes, as such, will not have any rights as our stockholders (including, without limitation, voting rights and rights to receive any dividends or other distributions on shares of our common stock), except in limited circumstances described above under “—Conversion rights—Adjustment of conversion rate.”

Calculations in respect of the notes

Except as explicitly specified otherwise herein, we will be responsible for making all calculations required under the notes, including in connection with a conversion. These calculations include, but are not limited to, determinations of the last reported sale prices of our common stock, accrued interest (including any special interest) payable on the notes, the applicable conversion price and the conversion rate, and all such determinations by us will be binding on holders of the notes. We will provide a schedule of our calculations to the trustee, including in its capacity as the conversion agent, and the trustee is entitled to conclusively rely upon the accuracy of our calculations without responsibility for independent verification thereof and shall not be responsible for such calculations. The trustee will forward our calculations to any holder of the notes upon the written request of that holder.

Consolidation, merger and sale of assets

We may, without the consent of the holders of the notes, consolidate with, merge into or transfer all or substantially all of our consolidated assets to any corporation organized under the laws of the U.S. or any of its political subdivisions provided that:

The provisions described above in this “—Consolidation, merger and sale of assets” section supersede and replace the description contained in the accompanying prospectus under the caption “Description of Debt Securities—Consolidation, Merger or Sale.”

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Reporting obligations

We will file in a timely fashion all quarterly and annual reports (on Form 10-K or 10-Q or any respective successor form) that we are required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (excluding any information, documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the SEC) and deliver such reports to the trustee within 15 days after we are required to file such reports with the SEC (giving effect to any grace period provided by Rule 12b-25 or any successor rule under the Exchange Act). Reports filed by us with the SEC via EDGAR (or any successor thereto) will be deemed to be filed with the trustee as of the time such documents are filed via EDGAR (or any successor thereto), provided that the trustee shall have no obligation whatsoever to determine whether or not any such documents have been filed via EDGAR (or any successor thereto). We will comply with the other provisions of Section 314(a) of the Trust Indenture Act. Furthermore, within 120 days after the end of each fiscal year, we will deliver to the trustee an officer’s certificate stating whether the signatory knows of any default or event of default under the indenture, and describe any default or event of default and the efforts to remedy the same.

Events of default

Each of the following will constitute an event of default under the indenture:

“Significant subsidiary” of any person means any subsidiary of that person that constitutes, or any group of subsidiaries of that person that, in the aggregate, would constitute, a “significant subsidiary” (as defined in

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Rule 1-02(w) of Regulation S-X under the Exchange Act) of that person; provided , however , that, if a subsidiary meets the criteria of clause (3) of the definition of “significant subsidiary” in Rule 1-02(w) but not clause (1) or (2) thereof, then such subsidiary will be deemed not to be a significant subsidiary of that person unless such subsidiary’s or group’s income from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principle, exclusive of amounts attributable to any non-controlling interests, for the last completed fiscal year before the date of determination exceeds $50.0 million.

If an event of default specified in clause (7) above occurs with respect to us (and not solely with respect to one or more significant subsidiaries of ours) and is continuing, then the principal of all the notes and the interest thereon shall automatically become immediately due and payable. If an event of default occurs and is continuing, other than an event of default specified in clause (7) above with respect to us (but including an event of default specified in clause (7) above solely with respect to one or more of our significant subsidiaries), then the trustee or the holders, with written notice to the trustee, of at least 25% in aggregate principal amount of the notes then outstanding may declare the notes due and payable at their principal amount together with accrued interest, and thereupon the trustee may, at its discretion, proceed to protect and enforce the rights of the holders of the notes by appropriate judicial proceedings. If an event of default occurs and is continuing, the trustee will be under no obligation to exercise any of the rights or powers under the indenture at the request or direction of any of the holders unless such holders have offered to the trustee indemnity or security satisfactory to the trustee against any loss, liability or expense. Such declaration may be rescinded and annulled with the written consent of the holders of a majority in aggregate principal amount of the notes then outstanding, subject to the provisions of the indenture.

Notwithstanding the foregoing, the indenture will provide that, to the extent elected by us, the sole remedy for an event of default relating to the failure to comply with the reporting obligations in the indenture with respect to SEC filings that are described above under the caption “—Reporting obligations,” and for any failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, will for the first 365 days after the occurrence of such an event of default consist exclusively of the right to receive special interest on the notes. Any special interest that accrues on a note will accrue at an annual rate equal to 0.25% of the outstanding principal amount of the notes for the first 180 days on which special interest accrues and, thereafter, at an annual rate equal to 0.50% of the outstanding principal amount of the notes from the 181st day to, and including, the 365th day on which special interest accrues. In order to exercise this right and elect to pay special interest as the sole remedy during the first 365 days after the occurrence of any event of default relating to the failure to comply with the reporting obligations, we must notify all holders of the notes and the trustee (in writing) and paying agent (if other than the trustee) of such election on or before the close of business on the date on which such event of default first occurs and comply with the other conditions in the indenture. This special interest will be paid semi-annually in arrears, with the first semi-annual payment (prorated for the number of days during which we are in default) due on the first interest payment date following the date on which the special interest began to accrue on any notes. The special interest will accrue on all outstanding notes from and including the date on which an event of default relating to a failure to comply with the reporting obligations in the indenture first occurs to and including the 365th day thereafter (or such earlier date on which the event of default shall have been cured or waived). On the 366th day (or earlier, if the event of default relating to the reporting obligations is cured or waived prior to such 366th day), such special interest will cease to accrue and, if the event of default relating to reporting obligations has not been cured or waived prior to such 366th day, the notes will be subject to acceleration as provided above. The provisions of the indenture described in this paragraph will not affect the rights of holders in the event of the occurrence of any other event of default. In the event we do not elect to pay special interest upon an event of default in accordance with this paragraph, the notes will be subject to acceleration as provided above.

The holders of a majority in aggregate principal amount of the notes at the time outstanding through their written consent, or the holders of a majority in aggregate principal amount of the notes then outstanding at a

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meeting at which a quorum is present by a written resolution, may waive any existing default or event of default and its consequences except any default or event of default:

Holders of a majority in aggregate principal amount of the notes then outstanding through their written consent, or the holders of a majority in aggregate principal amount of the notes then outstanding at a meeting at which a quorum is present by a written resolution, may direct 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, subject to the provisions of the indenture. The indenture contains a provision entitling the trustee to be indemnified by the holders of the notes before proceeding to exercise any right or power under the indenture at the request of such holders. The trustee may also refuse to follow any direction that conflicts with law or the indenture or that the trustee determines may be unduly prejudicial to the rights of other holders or that would involve the trustee in personal liability. Prior to taking any action under the indenture, the trustee is entitled to indemnification satisfactory to the trustee against losses and expenses caused by taking or not taking such action. The rights of holders of the notes to pursue remedies with respect to the indenture and the notes are subject to a number of additional requirements set forth in the indenture.

The right of any holder:

will not be impaired or affected without that holder’s consent.

The indenture will provide that the trustee shall, within 90 days of the occurrence of a default, of which a responsible officer of the trustee has received written notice or has actual knowledge, give to the registered holders of the notes notice of all uncured defaults known to such responsible officer, but the trustee shall be protected in withholding such notice if the trustee, in good faith, determines that the withholding of such notice is in the interests of such registered holders, except in the case of a default in the payment of the principal of, or premium, if any, or interest on, any of the notes when due or, if applicable, in the payment of any repurchase obligation. We are also required to deliver to the trustee, within 30 days after obtaining knowledge of the occurrence of any default or event of default, written notice of such default or event of default, its status and what action we are taking or proposing to take in respect thereof; provided , however , that we are not required to deliver such notice if such default or event of default has been cured.

We are required to furnish annually to the trustee a written statement as to the fulfillment of our obligations under the indenture.

The provisions described above in this “—Events of default” section supersede and replace the description contained in the accompanying prospectus under the caption “Description of Debt Securities—Events of Default under the Indenture.”

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Modification, waiver and meetings

The indenture contains provisions for convening meetings of the holders of the notes to consider matters affecting their interests.

The indenture (including the terms and conditions of the notes) may be modified or amended by us and the trustee, without the consent of the holder of any note, for the purposes of:

Modifications and amendments to the indenture or to the terms and conditions of the notes may also be made, and non-compliance by us with any provision of the indenture or the notes may be waived, either:

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However, no such modification, amendment or waiver may, without the written consent or the affirmative vote of the holder of the notes affected:

The quorum at any meeting called to adopt a resolution will be holders holding or representing a majority in aggregate principal amount of the notes at the time outstanding.

The provisions described above in this “—Modification, waiver and meetings” section supersede and replace the description contained in the accompanying prospectus under the caption “Description of Debt Securities—Modification of Indenture; Waiver.”

Unclaimed money

If money deposited with the trustee or paying agent for the payment of principal of, premium, if any, or accrued and unpaid interest on the notes remains unclaimed for two years, the trustee and paying agent will, subject to any applicable unclaimed property laws, pay the money back to us upon our written request. However, the trustee and paying agent have the right to withhold paying the money back to us until they publish in a newspaper of general circulation in New York City, or mail to each holder, a notice stating that the money will be paid back to us if unclaimed after a date no less than 30 days from the publication or mailing. After the trustee or paying agent pays the money back to us, holders of the notes entitled to the money must look to us for payment as general creditors, subject to applicable law, and all liability of the trustee and the paying agent with respect to the money will cease.

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Book-entry system

We will issue the notes in the form of one or more global securities. The global security will be deposited with the trustee as custodian for DTC and registered in the name of a nominee of DTC. Except as set forth below, the global security may be transferred, in whole and not in part, only to DTC or another nominee of DTC. You will hold your beneficial interests in the global security directly through DTC if you have an account with DTC or indirectly through organizations that have accounts with DTC.

Notes in definitive certificated form (called “certificated securities”) will be issued only in certain limited circumstances described below. DTC has advised us that it is:

DTC was created to hold securities of institutions that have accounts with DTC (called participants) and to facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, which may include the initial purchaser, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s book-entry system is also available to others such as banks, brokers, dealers and trust companies (called, the indirect participants) that clear through or maintain a custodial relationship with a participant, whether directly or indirectly.

We expect that pursuant to procedures established by DTC upon the deposit of the global security with DTC, DTC will credit, on its book-entry registration and transfer system, the principal amount of the notes represented by such global security to the accounts of participants. The accounts to be credited shall be designated by the underwriters. Ownership of beneficial interests in the global security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests in the global security will be shown on, and the transfer of those beneficial interests will be effected only through, records maintained by DTC (with respect to participants’ interests), the participants and the indirect participants.

The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of such securities in definitive form. These limits and laws may impair the ability to transfer or pledge beneficial interests in the global security. Accordingly, the ability to transfer beneficial interests in the notes represented by the global security to those persons may be limited. In addition, because DTC can act only on behalf of its participants, who in turn act on behalf of persons who hold interests through participants, the ability of a person having a beneficial interest in the notes represented by the global security to pledge or transfer those interests to persons or entities that do not participate in DTC’s system, or otherwise to take actions in respect of such interest, may be affected by the lack of a physical definitive security in respect of such interest.

Owners of beneficial interests in global securities who desire to convert their interests for common stock should contact their brokers or other participants or indirect participants through whom they hold such beneficial interests to obtain information on procedures, including proper forms and cut-off times, for submitting requests for conversion. So long as DTC, or its nominee, is the registered owner or holder of a global security, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the notes represented by the global security for all purposes under the indenture and the notes. In addition, no owner of a beneficial interest in a global security will be able to transfer that interest except in accordance with the applicable procedures of DTC.

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Except as set forth below, as an owner of a beneficial interest in the global security, you will not be entitled to have the notes represented by the global security registered in your name, will not receive or be entitled to receive physical delivery of certificated securities and will not be considered to be the owner or holder of any notes under the global security. We understand that under existing industry practice, if an owner of a beneficial interest in the global security desires to take any action that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to take such action. Additionally, in such case, the participants would authorize beneficial owners owning through such participants to take such action or would otherwise act upon the instructions of beneficial owners owning through them.

We will make payments of principal of, premium, if any, and interest on the notes represented by the global security registered in the name of and held by DTC or its nominee to DTC or its nominee, as the case may be, as the registered owner and holder of the global security. Neither we, the trustee, the registrar, the conversion agent, nor any paying agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in the global security or for maintaining, supervising or reviewing any records relating to such beneficial interests.

We expect that DTC or its nominee, upon receipt of any payment of principal of, premium, if any, or interest on the global security, will credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of DTC or its nominee. We also expect that payments by participants or indirect participants to owners of beneficial interests in the global security held through such participants or indirect participants will be governed by standing instructions and customary practices and will be the responsibility of such participants or indirect participants. Neither we, the trustee, the registrar, the conversion agent, nor any paying agent will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial interests in the global security for any note or for maintaining, supervising or reviewing any records relating to such beneficial interests or for any other aspect of the relationship between DTC and its participants or indirect participants or the relationship between such participants or indirect participants and the owners of beneficial interests in the global security owning through such participants.

Transfers between participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds.

DTC has advised us that it will take any action permitted to be taken by a holder of the notes only at the direction of one or more participants to whose account the DTC interests in the global security is credited and only in respect of such portion of the aggregate principal amount of the notes as to which such participant or participants has or have given such direction. However, if DTC notifies us that it is unwilling to be a depositary for the global security or ceases to be a clearing agency or there is an event of default under the notes and DTC requests that we issue certificated securities, DTC will convert the global security for certificated securities which it will distribute to its participants. Although DTC is expected to follow the foregoing procedures in order to facilitate transfers of interests in the global security among participants of DTC, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None of us, any of the underwriters, the trustee, the registrar, the conversion agent or any paying agent will have any responsibility or liability for the performance by DTC or the participants or indirect participants of their respective obligations under the rules and procedures governing their respective operations.

Satisfaction and discharge

We may discharge our obligations under the indenture while notes remain outstanding, subject to certain conditions.

Form, denomination and registration

The notes are being issued in fully registered form, without coupons, in minimum denominations of $1,000 in principal amount and integral multiples of $1,000 in excess thereof.

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Notices

Except as otherwise provided in the indenture, notices to holders of the notes will be given by mail to the addresses of holders of the notes as they appear in the note register, provided that notices to holders of notes of any global notes will be given in accordance with the applicable procedures of DTC as in effect from time to time, and any notice so given will be deemed to have been provided in writing.

Governing law

The indenture and the notes will be governed by, and construed in accordance with, the law of the State of New York.

Information regarding the trustee

Wilmington Trust, National Association, a national banking association, as trustee and custodian under the indenture, has been appointed by us as paying agent, conversion agent and registrar with regard to the notes. Computershare Shareholder Services is the transfer agent and registrar for our common stock. The trustee or its affiliates may from time to time in the future provide banking and other services to us in the ordinary course of their business.

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