Supplemental Indenture, dated as of November 7, 2012
Exhibit 4.1
EXECUTION COPY
SUPPLEMENTAL INDENTURE
dated as of November 7, 2012
among
AETNA INC.,
and
U.S. BANK
NATIONAL ASSOCIATION,
as Trustee
1.50% Senior
Notes due November 15, 2017
2.75% Senior Notes due November 15, 2022
4.125% Senior Notes due November 15, 2042
TABLE OF CONTENTS
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| ARTICLE 1 |
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| DEFINITIONS |
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| Section 1.01. Definitions |
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| Section 1.02. Section References |
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| ARTICLE 2 |
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| THE NOTES |
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| Section 2.01. Issue of Notes |
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| Section 2.02. Stated Maturity |
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| Section 2.03. Notes Issuable as Global Securities |
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| Section 2.04. Interest and Payment |
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| Section 2.05. Payment of Interest |
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| Section 2.06. Optional Redemption |
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| Section 2.07. Special Mandatory Redemption |
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| Section 2.08. Change of Control Offer to Purchase |
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| Section 2.09. Applicability of Certain Provisions of the Base Indenture in Respect of the Notes |
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| Section 2.10. Registrar and Paying Agent |
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| Section 2.11. No Sinking Fund |
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| Section 2.12. Minimum Denominations |
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| ARTICLE 3 |
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| MISCELLANEOUS |
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| Section 3.01. Relation to Indenture |
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| Section 3.02. Continued Effect |
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| Section 3.03. Provisions Binding on Company’s Successors |
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| Section 3.04. Certain Trustee Matters |
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| Section 3.05. Governing Law |
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| Section 3.06. Counterparts |
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| Exhibit A – Form of Security |
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SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
November 7, 2012, between AETNA INC., a corporation duly organized and validly existing under the laws of the Commonwealth of Pennsylvania (the “Company”), having its principal office at 151 Farmington Avenue, Hartford,
Connecticut 06156 and U.S. BANK NATIONAL ASSOCIATION, as successor-in-interest to State Street Bank and Trust Company, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company and the Trustee entered into a Senior
Indenture dated as of March 2, 2001 (the “Base Indenture”, and as supplemented by this Supplemental Indenture, the “Indenture”) providing for the issuance from time to time of the Company’s debentures,
notes or other evidences of indebtedness (the “Securities”), to be issued in one more series as in the Base Indenture provided;
WHEREAS, Sections 201 and 301 of the Base Indenture provide that the Company and the Trustee may establish the terms of a new series of Securities in an indenture supplemental to the Base Indenture;
WHEREAS, Section 901 of the Base Indenture provides that the Company and the Trustee may enter into an indenture
supplemental to the Base Indenture, without the consent of any Holders, to eliminate any of the provisions of the Base Indenture in respect of a new series of Securities so established pursuant to Section 301 of the Base Indenture;
WHEREAS, pursuant to resolutions adopted by the Board of Directors of the Company on September 23, 2011 and the Delegation of
Authority of Mark T. Bertolini, Chairman, Chief Executive Officer and President of the Company, dated October 25, 2012 (collectively, the “Company Resolutions”), the Company has approved to be established three new series of
Securities, designated as its 1.50% Senior Notes due November 15, 2017 (the “2017 Notes”), its 2.75% Senior Notes due November 15, 2022 (the “2022 Notes”) and its 4.125% Senior Notes due November 15,
2042 (the “2042 Notes” and together with the 2017 Notes and the 2022 Notes, the “Notes”) as in this Supplemental Indenture provided; and
WHEREAS, all requirements necessary to make this Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms and to make the Notes, when executed, authenticated and
delivered by the Company, the valid, binding and enforceable obligations of the Company have been done and performed.
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NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and
intending to be legally bound, the parties to this Supplemental Indenture hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.
(a) Capitalized terms used herein and not
otherwise defined herein have the respective meanings assigned to them in the Base Indenture.
(b) The following terms shall
have the meanings assigned to them in this Section 1.01(b):
“2017 Notes” has the meaning stated in the
fourth recital of this Supplemental Indenture.
“2022 Notes” has the meaning stated in the fourth recital of
this Supplemental Indenture.
“2042 Notes” has the meaning stated in the fourth recital of this Supplemental
Indenture.
“Base Indenture” has the meaning stated in the first recital of this Supplemental Indenture.
“Below Investment Grade Rating Event” means the Notes of a series are rated below an Investment Grade Rating
by each of the Rating Agencies on any date from the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect a Change of Control, in each case until the end of the 60-day period
following the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect a Change of Control; provided, however, that if (i) during such 60-day period one or more Rating
Agencies has publicly announced that it is considering the possible downgrade of the Notes of such series, and (ii) a downgrade by each of the Rating Agencies that has made such an announcement would result in a Below Investment Grade Rating
Event, then such 60-day period shall be extended for such time as the rating of the Notes of such series by any such Rating Agency remains under publicly announced consideration for possible downgrade to a rating below an Investment Grade Rating and
a downgrade by such Rating Agency to a rating below an Investment Grade Rating could cause a Below Investment Grade Rating Event. Notwithstanding the foregoing, a rating event otherwise arising by virtue of a particular reduction in rating will not
be deemed
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to have occurred in respect of a particular Change of Control (and thus will not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering
Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company’s or the Trustee’s request that the reduction
was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the rating
event).
“Change of Control” means the occurrence of any of the following: (1) direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any
“person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or one of its subsidiaries becomes the beneficial owner, directly or indirectly, of more than 50% of the
then outstanding number of shares of the Company’s voting stock; or (3) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; provided, however, that a transaction
will not be deemed to involve a Change of Control if (A) the Company becomes a wholly owned subsidiary of a holding company and (B)(x) the holders of the voting stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s voting stock immediately prior to that transaction or (y) immediately following that transaction no “person” (as that term is used in Section 13(d)(3) of the Exchange
Act) is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company. For purposes of this definition, “voting stock” means capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of the Company, even if the right to vote has been suspended by the happening of such a contingency.
“Change of Control Offer” has the meaning stated in Section 2.08(a) of this Supplemental Indenture.
“Change of Control Payment” has the meaning stated in Section 2.08(a) of this Supplemental Indenture.
“Change of Control Payment Date” has the meaning stated in Section 2.08(a) of this Supplemental Indenture.
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“Change of Control Triggering Event” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event.
“Company” means the Person named as the
“Company” in the first paragraph of this Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person.
“Company Resolutions” has the meaning stated in the fourth recital of this Supplemental Indenture.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment
Banker as having a maturity comparable to the remaining term of the Notes of the series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes of such series to be redeemed.
“Comparable
Treasury Price” means, with respect to any Redemption Date for any Notes of a series, the average of all Reference Treasury Dealer Quotations obtained.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of the Board of Directors of the Company on
the date of the issuance of the Notes; or (2) was nominated for election or elected to the Board of Directors of the Company with the approval of a majority of the Continuing Directors who were members of such Board of Directors of the Company
at the time of such nomination or election (either by specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).
“Coventry” means Coventry Health Care, Inc., a Delaware corporation.
“DTC” means The Depository Trust Company.
“End Date” has the meaning ascribed to such term in the Merger Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute thereto.
“Fitch” means Fitch Ratings Inc.
“Indenture” has the meaning stated in the first recital of this Supplemental Indenture.
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“Independent Investment Banker” means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
“Investment Grade Rating” means a rating by
Moody’s equal to or higher than Baa3 (or the equivalent under any successor rating category of Moody’s), a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P), a rating by Fitch
equal to or higher than BBB- (or the equivalent under any successor rating category of Fitch), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances
permitting the Company to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of “Rating Agencies”.
“Merger” means the acquisition of Coventry by the Company on the terms and subject to the conditions set forth in the
Merger Agreement.
“Merger Agreement” means the Agreement and Plan of Merger, dated August 19, 2012,
among the Company, Jaguar Merger Subsidiary, Inc. and Coventry, as amended from time to time.
“Moody’s”
means Moody’s Investors Service, Inc.
“Notes” has the meaning stated in the fourth recital of this
Supplemental Indenture.
“Primary Treasury Dealer” has the meaning stated in the definition of
“Reference Treasury Dealer” in this Section 1.01(b).
“Rating Agencies” means
(1) Moody’s, S&P and Fitch; and (2) if any or all of Moody’s, S&P or Fitch ceases to rate the Notes of a series or fails to make a rating of the Notes of such series publicly available for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, that the Company selects (pursuant to a resolution of the Company’s Board of
Directors) as a replacement agency for any of Moody’s, S&P or Fitch, or all of them, as the case may be, with respect to such series of Notes.
“Reference Treasury Dealer” means each of Goldman, Sachs & Co. and UBS Securities LLC. If any Reference Treasury Dealer ceases to be a primary U.S. government securities dealer
in the United States (a “Primary Treasury Dealer”), the Company shall substitute another Primary Treasury Dealer for that dealer.
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“Reference Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Trustee by that Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.
“Securities” has the meaning stated in the first recital of this Supplemental Indenture and more particularly means any
Securities authenticated and delivered under the Indenture, including, without limitation, the Notes.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
“Special Mandatory Redemption Date” means the 30th day (or if such day is not a Business Day, the first
Business Day thereafter) following the transmission of a notice of special mandatory redemption.
“Supplemental
Indenture” has the meaning stated in the first paragraph of this instrument.
“Treasury Rate” means,
with respect to any Redemption Date for any portion of the Notes of a series,
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the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to
constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the date of Maturity for the Notes of such series,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest
month), or |
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if the release referred to in the previous bullet (or any successor release) is not published during the week preceding the calculation date or does
not contain the yields referred to above, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that Redemption Date. |
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The Treasury Rate will be calculated on the third Business Day preceding the Redemption
Date.
“Trustee” means the Person named as the “Trustee” in respect of the Notes in the first
paragraph of this Supplemental Indenture until a successor Trustee in respect of the Notes shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean or include such Person who is
then a Trustee in respect of the Notes.
Section 1.02. Section References. Each reference to a particular section
set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture. Each reference to a particular section of the Base Indenture shall refer to that particular section of the Base Indenture.
ARTICLE 2
THE NOTES
Section 2.01. Issue of Notes.
The Notes shall be issued as three series of Securities under the Base Indenture as supplemented by this Supplemental Indenture, which such series shall be known and designated as the “1.50% Senior Notes due November 15, 2017”,
the “2.75% Senior Notes due November 15, 2022” and the “4.125% Senior Notes due November 15, 2042” of the Company. Each series of Notes shall constitute a separate series of Securities for all purposes under the
Indenture. The Notes shall be unsecured. The Notes shall be executed, authenticated and delivered in accordance with the provisions of the Indenture. The aggregate principal amount of the 2017 Notes which may be authenticated and delivered under the
Indenture is initially limited to $500,000,000, the aggregate principal amount of the 2022 Notes which may be authenticated and delivered under the Indenture is initially limited to $1,000,000,000 and the aggregate principal amount of the 2042 Notes
which may be authenticated and delivered under the Indenture is initially limited to $500,000,000 (except, in each case, for such Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of
the same series pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered thereunder).
Additional Notes of a series may be authenticated and delivered from time to time as contemplated in Section 301 of the Base Indenture; provided that if the additional Notes of a series are not fungible with the Notes of such series for
United States Federal income tax purposes, the additional Notes of the series will have a separate CUSIP number.
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The entire amount of Notes of each series may immediately be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered to or upon the order of
the Company pursuant to Section 303 of the Base Indenture.
Section 2.02. Stated Maturity. The Stated
Maturity of the principal of the 2017 Notes shall be November 15, 2017, the Stated Maturity of the principal of the 2022 Notes shall be November 15, 2022 and the Stated Maturity of the principal of the 2042 Notes shall be November 15,
2042.
Section 2.03. Notes Issuable as Global Securities.
(a) The Notes shall be issued in the form of one or more Global Securities registered in the name of DTC or its nominee, to be deposited
with, or on behalf of, DTC, New York, New York.
(b) The Notes shall be in such form or forms as may be approved by the
officers of the Company as provided in the Company Resolutions, such approval to be evidenced by any such officer’s manual or facsimile signature on the Notes, provided that such form or forms of the Notes are not inconsistent with the
requirements of the Indenture or the Company Resolutions and are substantially in the form or forms attached hereto as Exhibit A.
Section 2.04. Interest and Payment. The 2017 Notes shall bear interest at the rate of 1.50% per annum, the 2022 Notes shall bear interest at a rate of 2.75% per annum and the 2042
Notes shall bear interest at the rate of 4.125% per annum, which in each case will accrue from November 7, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually on May 15 and November 15 in each year, commencing May 15, 2013, to the Person in whose name such Notes (or one or more predecessor Notes) are registered at the close of business on the Regular Record Date next
preceding the Interest Payment Date. Each May 15 and November 15 shall be an “Interest Payment Date” for such Notes, and the May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding
an Interest Payment Date shall be the “Regular Record Date” for the interest payable on such Interest Payment Date. In any case where any Interest Payment Date is not a Business Day, then payment of interest may be made on the next
succeeding Business Day without any additional amount being payable in respect of any delay.
Section 2.05. Payment of
Interest. Payment of the principal of and premium, if any, and interest on the Notes will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, City of New York; provided, however,
that at any time that the Notes are not represented by Global Securities, at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register.
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Section 2.06. Optional Redemption
(a) At any time prior to October 15, 2017, the 2017 Notes will be redeemable upon not less than 30 calendar days’ nor more than
60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the 2017 Notes being redeemed, or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 2017 Notes being redeemed from the Redemption Date to the date of Maturity for the 2017 Notes
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 12.5 basis points,
plus, in each case, any interest accrued but not paid to the Redemption Date.
(b) At any time on or after October 15, 2017, the 2017 Notes will be redeemable upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at
the election of the Company, at a Redemption Price equal to 100% of the principal amount of the 2017 Notes being redeemed plus any interest accrued but not paid to the Redemption Date.
(c) At any time prior to August 15, 2022, the 2022 Notes will be redeemable upon not less than 30 calendar days’ nor more than
60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the 2022 Notes being redeemed, or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 2022 Notes being redeemed from the Redemption Date to the date of Maturity for the 2022 Notes
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points,
plus, in each case, any interest accrued but not paid to the Redemption Date.
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(d) At any time on or after August 15, 2022, the 2022 Notes will be redeemable upon not
less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of the 2022 Notes being redeemed plus any interest
accrued but not paid to the Redemption Date.
(e) At any time prior to May 15, 2042, the 2042 Notes will be redeemable
upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the 2042 Notes being redeemed, or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 2042 Notes being
redeemed from the Redemption Date to the date of Maturity for the 2042 Notes discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points,
plus, in each case, any interest accrued but not paid to the Redemption Date.
(f) At any time on or after May 15, 2042, the 2042 Notes will be redeemable upon not less than 30 calendar days’ nor more than
60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of the 2042 Notes being redeemed plus any interest accrued but not paid to the Redemption Date.
(g) Notice of any redemption will be mailed at least 30 calendar days but no more than 60 calendar days before the Redemption
Date to each holder of the Notes of the series to be redeemed.
(h) Unless the Company defaults in payment of the Redemption
Price, interest will cease to accrue on the Notes of the series or the portions of the Notes of the series called for redemption on and after the Redemption Date.
Section 2.07. Special Mandatory Redemption.
(a) If the Merger has
not been completed by November 19, 2013 (or such later date to which the End Date may be extended by agreement between the Company and Coventry pursuant to the terms of the Merger Agreement) or if, prior to such date, the Merger Agreement is
terminated, then the Company must redeem all of the Notes on the Special Mandatory Redemption Date at a special
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mandatory redemption price equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest from the date of initial issuance, or the most recent date to which
interest has been paid or provided for, whichever is later, to, but excluding, the Special Mandatory Redemption Date.
(b) The
Company shall cause notice of a special mandatory redemption to be transmitted to each Holder of Notes at its registered address, with a copy to the Trustee, no later than 60 days after the occurrence of the event triggering redemption. If funds
sufficient to pay the special mandatory redemption price of the Notes on the Special Mandatory Redemption Date (plus accrued and unpaid interest, if any, to the Special Mandatory Redemption Date) are deposited with the Trustee on or before such
Special Mandatory Redemption Date, the Notes will cease to bear interest on and after the Special Mandatory Redemption Date.
Section 2.08. Change of Control Offer to Purchase.
(a) If a Change of Control Triggering Event occurs with respect to the Notes of a series, unless the Company has exercised its right to redeem the Notes of such series in full pursuant to
Section 2.06, the Company will make an offer to each Holder of Notes of such series (the “Change of Control Offer”) to repurchase any and all (equal to $2,000 or an integral multiple of $1,000) of such Holder’s Notes of
such series at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes of such series to be repurchased plus accrued and unpaid interest, if any, thereon, to the date of repurchase (the “Change of Control
Payment”). Within 30 days following any Change of Control Triggering Event with respect to the Notes of a series, the Company will mail a notice to Holders of Notes of such series describing the transaction or transactions that constitute
the Change of Control Triggering Event and offering to repurchase the Notes of such series on the date specified in the notice (the “Change of Control Payment Date”), which date will be no less than 30 days and no more than 60 days
from the date such notice is mailed, pursuant to the procedures required by the Notes of such series and described in such notice.
(b) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in
connection with the repurchase of the Notes of a series as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control repurchase provisions of the
Notes of a series, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control repurchase provisions of the Notes by virtue of such conflicts.
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(c) The Company will not be required to offer to repurchase the Notes of a series upon the
occurrence of a Change of Control Triggering Event with respect to the Notes of such series if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the
third party repurchases on the applicable date all Notes of such series properly tendered and not withdrawn under its offer; provided that for all purposes of the Notes of such series and the Indenture, a failure by such third party to comply
with the requirements of such offer and to complete such offer shall be treated as a failure by the Company to comply with its obligations to offer to purchase the Notes of such series unless the Company promptly makes an offer to repurchase the
Notes of such series at 101% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, thereon, to the date of repurchase, which shall be no later than 30 days after the third party’s scheduled Change of Control
Payment Date.
(d) On the Change of Control Payment Date for Notes of a series to be repurchased, the Company will, to the
extent lawful:
(i) accept or cause a third party to accept for payment all Notes of such series or portions of
Notes of such series properly tendered pursuant to the Change of Control Offer;
(ii) deposit or cause a third
party to deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes of such series or portions of Notes of such series properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes of such series properly accepted, together with an
officer’s certificate stating the aggregate principal amount of Notes of such series or portions of Notes of such series being purchased.
Section 2.09. Applicability of Certain Provisions of the Base Indenture in Respect of the Notes.
(a) The Event of Default specified in Section 501(5) of the Base Indenture shall not apply to the Notes.
(b) Section 1005 of the Base Indenture shall not apply to the Notes.
Section 2.10. Registrar and Paying Agent. U.S. Bank National Association shall act as Paying Agent and registrar with respect
to the Notes.
Section 2.11. No Sinking Fund. The Company shall not be obligated to redeem or purchase the Notes
of either series pursuant to any sinking fund or analogous provision, or at the option of any Holder thereof, except as provided in Sections 2.07 or 2.08 of this Supplemental Indenture.
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Section 2.12. Minimum Denominations. The Notes shall be issuable only in
registered form without coupons in denominations of $2,000 and any multiple of $1,000 in excess thereof.
ARTICLE 3
MISCELLANEOUS
Section 3.01. Relation to Indenture. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound hereby.
Section 3.02. Continued Effect. Except as expressly
supplemented and amended by this Supplemental Indenture, the Base Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Base Indenture is in all respects hereby ratified and confirmed. This Supplemental
Indenture and all its provisions shall be deemed a part of the Indenture in the manner and to the extent herein and therein provided.
Section 3.03. Provisions Binding on Company’s Successors. All of the covenants, stipulations, promises and agreements in this Supplemental Indenture by the Company shall bind its
successors and assigns whether so expressed or not.
Section 3.04. Certain Trustee Matters.
(a) The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their
correctness.
(b) The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or the
Notes or the proper authorization or the due execution hereof or thereof by the Company.
Section 3.05. Governing Law.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the internal laws of the State of New York.
Section 3.06. Counterparts. This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.
[signatures follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the
date first above written.
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| AETNA INC., as the Company |
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/s/ Alfred P. Quirk |
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Name: |
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Alfred P. Quirk |
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Title: |
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Vice President, Finance and Treasurer |
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: |
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/s/ Earl W. Dennison Jr. |
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Name: |
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Earl W. Dennison Jr. |
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Title: |
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Vice President |
Exhibit A
Form of Security
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A
NOMINEE THEREOF, AND NO SUCH TRANSFER MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY
SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to Aetna Inc. 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.
AETNA INC.
[—]% SENIOR NOTE DUE
20[—]
CUSIP: [—]
ISIN: [—]
AETNA INC., a Pennsylvania corporation (herein called the “Company”), which term
includes any successor Person under the Indenture hereinafter referred to, for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of
[ ] Dollars ($[—]) upon presentation and surrender of this Security on November 15, 20[—], and to pay interest thereon from November 7, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on May 15
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and November 15 in each year, commencing May 15, 2013, at the rate of [—]% per annum until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be the May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 calendar days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. In any case where any Interest Payment Date is not a Business Day, then payment of interest may be made on the next succeeding Business Day without any additional amount being payable in respect of any delay.
Payment of the principal of and premium, if any, and interest on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place. Such provisions include, without limitation, provisions relating to redemption of this Security by the Company.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated: November 7, 2012
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| AETNA INC. |
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| By: |
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Name: |
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Alfred P. Quirk, Jr. |
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Title: |
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Vice President, Finance and Treasurer |
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| [SEAL] |
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| Attest: |
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| Judith H. Jones |
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated under, and referred to in, the within-mentioned Indenture.
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: |
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Authorized Officer |
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(Back of Security)
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under a Senior Indenture,
dated as of March 2, 2001 (herein called the “Base Indenture”), between the Company, as issuer, and U.S. Bank National Association (as successor in interest to State Street Bank and Trust Company), as Trustee (herein called the
“Trustee”, which term includes any successor trustee under the Indenture), as supplemented by the Supplemental Indenture dated as of November 7, 2012, between the Company and the Trustee (together with the Base Indenture, the
“Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $[—], subject to future issuances of additional Securities pursuant to Section 301 of the Base Indenture.
At
any time prior to [—], 20[—], the Securities of this series are subject to redemption upon not less than 30 calendar days’ nor more than 60
calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of:
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100% of the principal amount of the Securities being redeemed, or |
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the sum of the present values of the remaining scheduled payments of principal and interest on the Securities being redeemed from the Redemption Date
to the date of Maturity for such Securities discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus [—] basis
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plus, in each case, any interest accrued but not paid to the Redemption Date.
At any time on or after [—], 20[—],
the Securities of this series are subject to redemption upon not less than 30 calendar days’ nor more than 60 calendar days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the
principal amount of the Securities being redeemed plus any interest accrued but not paid to the Redemption Date.
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“Treasury Rate” means, with respect to any Redemption Date for any portion
of the Securities of this series,
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the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to
constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the date of Maturity for the Securities of this
series to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight line basis,
rounding to the nearest month), or |
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if the release referred to in the previous bullet (or any successor release) is not published during the week preceding the calculation date or does
not contain the yields referred to above, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that Redemption Date. |
The Treasury Rate will
be calculated on the third Business Day preceding the Redemption Date.
“Comparable Treasury Issue” means the
United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date for any Securities of this series, the average of
all Reference Treasury Dealer Quotations obtained.
“Independent Investment Banker” means one of the
Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
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“Reference Treasury Dealer” means each of Goldman, Sachs & Co. and
UBS Securities LLC. If any Reference Treasury Dealer ceases to be a primary U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company shall substitute another Primary Treasury Dealer for that
dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.
Notice of any redemption will be mailed at least
30 calendar days but no more than 60 calendar days before the Redemption Date to each Holder of the Securities of this series to be redeemed.
Unless the Company defaults in payment of the Redemption Price, interest will cease to accrue on the Securities of this series or the portions of the Securities of this series called for redemption on and
after the Redemption Date.
If this Security is redeemed in part only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
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Special Mandatory Redemption. |
If the Merger has not been completed by November 19, 2013 (or such later date to which the End Date may be extended by agreement between the Company and Coventry pursuant to the terms of the Merger
Agreement) or if, prior to such date, the Merger Agreement is terminated, then the Company must redeem all of the Securities of this series on the Special Mandatory Redemption Date at a special mandatory redemption price equal to 101% of the
aggregate principal amount of the Securities of this series, plus accrued and unpaid interest from the date of initial issuance, or the most recent date to which interest has been paid or provided for, whichever is later, to, but excluding, the
Special Mandatory Redemption Date.
The Company shall cause notice of a special mandatory redemption to be transmitted to each
Holder of the Securities of this series at its registered address, with a copy to the Trustee, no later than 60 days after the occurrence of the event triggering redemption. If funds sufficient to pay the special mandatory redemption price of the
Securities of this series on the Special Mandatory Redemption Date (plus accrued and unpaid interest, if any, to the Special Mandatory Redemption Date) are deposited with the Trustee on or before such Special Mandatory Redemption Date, the
Securities of this series will cease to bear interest on and after the Special Mandatory Redemption Date.
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“Coventry” means Coventry Health Care, Inc., a Delaware corporation.
“End Date” has the meaning ascribed to such term in the Merger Agreement.
“Merger” means the acquisition of Coventry by the Company on the terms and subject to the conditions set forth in the
Merger Agreement.
“Merger Agreement” means the Agreement and Plan of Merger, dated August 19, 2012,
among the Company, Jaguar Merger Subsidiary, Inc. and Coventry, as amended from time to time.
“Special Mandatory
Redemption Date” means the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the transmission of a notice of special mandatory redemption.
If a
Change of Control Triggering Event occurs with respect to the Securities of this series, unless the Company has exercised its right to redeem the Securities of this series in full, as described under “Optional Redemption” above, the
Company will make an offer to each Holder of the Securities of this series (the “Change of Control Offer”) to repurchase any and all (equal to $2,000 or an integral multiple of $1,000) of such Holder’s Securities of this series
at a repurchase price in cash equal to 101% of the aggregate principal amount of the Securities of this series to be repurchased plus accrued and unpaid interest, if any, thereon, to the date of repurchase (the “Change of Control
Payment”). Within 30 days following any Change of Control Triggering Event with respect to the Securities of this series, the Company will mail a notice to Holders of the Securities of this series describing the transaction or transactions
that constitute the Change of Control Triggering Event and offering to repurchase the Securities of this series on the date specified in the notice (the “Change of Control Payment Date”), which date will be no less than 30 days and
no more than 60 days from the date such notice is mailed, pursuant to the procedures required hereby and described in such notice.
The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended from time to time, and any successor statute thereto (the “Exchange
Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Securities of this series as a result of a Change of Control Triggering Event.
To the extent that the provisions of any
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securities laws or regulations conflict with the Change of Control repurchase provisions of the Securities of this series, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the Change of Control repurchase provisions of the Securities of this series by virtue of such conflicts.
The Company will not be required to offer to repurchase the Securities of this series upon the occurrence of a Change of Control
Triggering Event with respect to the Securities of this series if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party repurchases on the
applicable date all Securities of this series properly tendered and not withdrawn under its offer; provided that for all purposes of the Securities of this series and the Indenture, a failure by such third party to comply with the
requirements of such offer and to complete such offer shall be treated as a failure by the Company to comply with its obligations to offer to purchase the Securities of this series unless the Company promptly makes an offer to repurchase the
Securities of this series at 101% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, thereon, to the date of repurchase, which shall be no later than 30 days after the third party’s scheduled Change of Control
Payment Date.
On the Change of Control Payment Date for the Securities of this series to be repurchased, the Company will, to
the extent lawful:
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accept or cause a third party to accept for payment all Securities of this series or portions of Securities of this series properly tendered pursuant
to the Change of Control Offer; |
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deposit or cause a third party to deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Securities of this
series or portions of Securities of this series properly tendered; and |
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deliver or cause to be delivered to the Trustee the Securities of this series properly accepted, together with an officer’s certificate stating
the aggregate principal amount of Securities of this series or portions of Securities being purchased. |
“Below Investment Grade Rating Event” means the Securities of this series are rated below an Investment Grade Rating by
each of the Rating Agencies on any date from the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect a Change of Control, in each case until the end of the 60-day period
following the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company’s intention to effect a Change of Control; provided, however, that if (i) during such 60-day period one
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or more Rating Agencies has publicly announced that it is considering the possible downgrade of the Securities of this series, and (ii) a downgrade by each of the Rating Agencies that has
made such an announcement would result in a Below Investment Grade Rating Event, then such 60-day period shall be extended for such time as the rating of the Securities of this series by any such Rating Agency remains under publicly announced
consideration for possible downgrade to a rating below an Investment Grade Rating and a downgrade by such Rating Agency to a rating below an Investment Grade Rating could cause a Below Investment Grade Rating Event. Notwithstanding the foregoing, a
rating event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Below Investment Grade Rating Event for purposes of the
definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company’s or the
Trustee’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control
has occurred at the time of the rating event).
“Change of Control” means the occurrence of any of the
following: (1) direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company
and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its subsidiaries; (2) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or one of its subsidiaries becomes the beneficial owner,
directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s voting stock; or (3) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors;
provided, however, that a transaction will not be deemed to involve a Change of Control if (A) the Company becomes a wholly owned subsidiary of a holding company and (B)(x) the holders of the voting stock of such holding company
immediately following that transaction are substantially the same as the holders of the Company’s voting stock immediately prior to that transaction or (y) immediately following that transaction no “person” (as that term is used
in Section 13(d)(3) of the Exchange Act) is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company. For purposes of this definition, “voting stock” means capital stock of any
class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of the Company, even if the right to vote has been suspended by the
happening of such a contingency.
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“Change of Control Triggering Event” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event.
“Continuing Directors” means, as of any date of
determination, any member of the Board of Directors of the Company who (1) was a member of the Board of Directors of the Company on the date of the issuance of the Securities; or (2) was nominated for election or elected to the Board of
Directors of the Company with the approval of a majority of the Continuing Directors who were members of such Board of Directors of the Company at the time of such nomination or election (either by specific vote or by approval of the Company’s
proxy statement in which such member was named as a nominee for election as a director).
“Fitch” means Fitch
Ratings Inc.
“Investment Grade Rating” means a rating by Moody’s equal to or higher than Baa3 (or the
equivalent under any successor rating category of Moody’s), a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P), a rating by Fitch equal to or higher than BBB- (or the equivalent
under any successor rating category of Fitch), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances permitting the Company to select a replacement
agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of “Rating Agencies”.
“Moody’s” means Moody’s Investors Service, Inc.
“Rating Agencies” means (1) Moody’s, S&P and Fitch; and (2) if any or all of Moody’s, S&P or
Fitch ceases to rate the Securities of this series or fails to make a rating of the Securities of this series publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, that the Company selects (pursuant to a resolution of the Company’s Board of Directors) as a replacement agency for any of Moody’s, S&P or Fitch, or all of them, as
the case may be, with respect to the Securities of this series.
“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
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The
Indenture contains certain covenants that, among other things, limit the ability of the Company to consolidate, merge or sell all or substantially all of its assets. These covenants are subject to a number of important qualifications and exceptions.
Section 1005 of the Base Indenture, including, without limitation, the limitation on liens on the Common Stock of Principal Subsidiaries set forth therein, does not apply to the Securities of this series.
If an
Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. The Event of
Default set forth in Section 501(5) of the Base Indenture, including, without limitation, the cross-acceleration provisions thereof, does not apply to the Securities of this series.
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Amendment, Modification and Waiver. |
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security
at the times, place and rate, and in the coin or currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange of Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 304, 906 or 1107 of the Base Indenture not involving any transfer.
Prior to due and proper presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture provides that the Company, at the Company’s option, (a) will be discharged from any and all
obligations in respect of the Securities (except for certain obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold moneys for payment in trust) or
(b) need not comply with certain restrictive covenants of the Indenture, in each case if the Company deposits, in trust, with the Trustee money or U.S. Government Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide money, in an amount sufficient to pay all the principal of and premium, if any, and interest on, the Securities on the dates such payments are due in accordance with the terms of such Securities, and
certain other conditions are satisfied.
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No recourse shall be had for the payment of the principal of and premium, if any, or
interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer, employee, agent or director,
as such, past, present or future, of the Company or of 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, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
All terms used in
this Security which are defined in the Indenture shall have the respective meanings assigned to them in the Indenture.
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