Post Holdings, Inc. (Form: 8-K, Received: 02/26/2013 17:14:57)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

______________________

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 20, 2013

Post Holdings, Inc.
(Exact name of registrant as specified in its charter)



Missouri	1-35305	45-3355106
(State of Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification Number)

2503 S. Hanley Road
St. Louis, Missouri 63144
(Address, including Zip Code, of Principal Executive Offices)

Registrant’s telephone number, including area code: (314) 644-7600

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On February 20, 2013, Post Holdings, Inc. (the “Company” or “Post”) entered into a purchase agreement (the “Purchase Agreement”) with Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC and Credit Suisse Securities (USA) LLC (the “Initial Purchasers”) relating to the sale by the Company of 2,100,000 shares of its 3.75% Series B Cumulative Perpetual Convertible Preferred Stock (the “Preferred Stock”), and up to an additional 315,000 shares of the Preferred Stock pursuant to an option granted to the Initial Purchasers by Post, in a private placement to “qualified institutional buyers” in the United States defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). The Purchase Agreement contains customary representations, warranties and covenants by the Company together with customary closing conditions. Under the terms of the Purchase Agreement, the Company has agreed to indemnify the Initial Purchasers against certain liabilities. On February 21, 2013, the Initial Purchasers exercised the option to acquire the full 315,000 additional shares of Preferred Stock, and the offering of 2,415,000 shares of the Preferred Stock, for gross proceeds of $241,500,000, closed on February 26, 2013 in accordance with the terms of the Purchase Agreement. The description of the Purchase Agreement contained in this Current Report on Form 8-K is qualified in its entirety by reference to the complete text of the Purchase Agreement, a copy of which is filed as Exhibit 10.1 and incorporated herein by reference.

Net proceeds from the offering, after commissions or discounts to the initial purchasers of approximately $6,300,000 and the payment of certain expenses, were approximately $233,500,000. The Company intends to use the net proceeds from the offering to repay in full all amounts outstanding under its term loan facility, which had a principal balance of $168.4 million as of December 31, 2012, and use the remaining net proceeds for general corporate purposes which could include, among other things, financing acquisitions.

Item 3.02 Unregistered Sales of Equity Securities.

The information with respect to the issuance of the Preferred Stock set forth in Items 1.01 and 5.03 hereof is incorporated by reference herein.

Item 3.03 Material Modification to Rights of Security Holders.

The information with respect to the terms of the Preferred Stock set forth in Item 5.03 hereof is incorporated by reference herein.

Item 5.03 Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Effective February 22, 2013, Post filed with the Missouri Secretary of State a Certificate of Designation, Preferences and Rights of 3.75% Series B Cumulative Perpetual Convertible Preferred Stock (the “Certificate”), which sets forth the terms and conditions of the Preferred Stock and becomes a part of the Company’s Amended and Restated Articles of Incorporation. The description of the Preferred Stock contained in this Current Report on Form 8-K is qualified in its entirety by reference to the complete text of the Certificate, a copy of which is filed as Exhibit 4.1 and incorporated herein by reference.

Ranking. The Preferred Stock will rank, with respect to dividend rights and rights upon Post’s liquidation, dissolution or winding up:


•	senior to all classes or series of Post’s common stock and to any other class or series of Post’s capital stock expressly designated as ranking junior to the Preferred Stock;


•	on parity with any other class or series of Post’s capital stock expressly designated as ranking on parity with the Preferred Stock;


•	junior to any other class or series of Post’s capital stock expressly designated as ranking senior to the Preferred Stock;


•	junior to all of Post’s existing and future indebtedness; and


•	structurally junior to all existing and future indebtedness and other liabilities (including trade payables) of Post’s subsidiaries and any capital stock of Post’s subsidiaries not held by Post.

The term “capital stock” does not include convertible or exchangeable debt securities, which, prior to conversion or exchange, rank senior in right of payment to the Preferred Stock.

Dividends. Holders of the Preferred Stock are entitled to receive cumulative cash dividends at the rate of 3.75% per annum (the “dividend rate”) of the $100 liquidation preference per share of the Preferred Stock, subject to adjustment as noted below and provided for in the Certificate. Dividends on the Preferred Stock will be payable, when, as and if declared by Post’s board of directors, quarterly in arrears on February 15, May 15, August 15 and November 15 of each year (each, a “dividend payment date”), commencing on May 15, 2013.

Cumulative dividends on the Preferred Stock will accrue from the first date of original issuance. Dividends on the Preferred Stock will accrue even if any of Post’s agreements prohibit the current payment of dividends, Post does not have earnings or funds legally available to pay such dividends or Post does not declare the payment of dividends. Accrued and unpaid dividends for any past dividend periods may be declared and paid at any time to holders of record not more than 30 nor less than 10 calendar days immediately preceding such payment date, and holders will not receive any interest or sum of money in lieu of interest on account of the delay in payment. A “dividend period” means the period from, and including, each dividend payment date to, but excluding, the next succeeding dividend payment date, except for the initial dividend period, which will be the period from, and including, the first date of original issuance of the Preferred Stock to, but excluding, the next succeeding dividend payment date.

Liquidation Preference. If Post liquidates, dissolves or winds up, holders of shares of the Preferred Stock will have the right to receive $100 per share of the Preferred Stock, plus accrued and unpaid dividends (whether or not authorized or declared) up to, but excluding, the date of payment, before any payment is made to holders of Post’s common stock and any other class or series of capital stock ranking junior to the Preferred Stock as to liquidation rights.

Optional Redemption. Post may not redeem the Preferred Stock prior to February 15, 2018. On or after February 15, 2018, Post will have the option to redeem some or all the shares of the Preferred Stock at a redemption price equal to 100% of the liquidation preference per share, plus accrued and unpaid dividends to the redemption date if the closing sale price of Post’s common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period ending on, and including, the trading day immediately preceding the date on which Post provides notice of redemption. The redemption price will be paid solely in cash. However, if accrued and unpaid dividends on the Preferred Stock for all complete dividend periods prior to the dividend period in which the redemption date falls have not been paid, the Preferred Stock may not be called for redemption. Post’s right to redeem the Preferred Stock is subject to the right of holders of Preferred Stock to convert their Preferred Stock prior to the redemption date, as noted below and provided for in the Certificate.

Post will give notice of any redemption not fewer than 25 scheduled trading days nor more than 90 calendar days prior to the redemption date.

Limited Voting Rights. Holders of shares of the Preferred Stock will generally have no voting rights, except as otherwise required by Missouri law, or in matters where holders are entitled to vote or as follows. If dividends on any shares of the Preferred Stock or any other class or series of preferred stock that ranks equally with the Preferred Stock as to payment of dividends and with equivalent voting rights have not been declared and paid for the equivalent of six or more dividend periods, whether or not for consecutive dividend periods, holders of the outstanding shares of the Preferred Stock, voting together as a single class with holders of any other series of Post’s preferred stock ranking equally with the Preferred Stock as to payment of dividends and with equivalent voting rights, will be entitled to vote for the election of two additional directors to Post’s board, subject to the terms and to the limited extent noted below and provided for in the Certificate. Without the consent of the holders of at least two-thirds of the outstanding shares of Preferred Stock together with any other series of Post’s preferred stock ranking on parity as to dividends or liquidation rights and with equivalent voting rights, voting as a single class, Post will not create, or increase the shares of, any class or series of stock ranking senior to the Preferred Stock with respect to

dividend payments or liquidation rights, or create any obligation or security convertible into or evidencing the right to purchase any such shares, or amend the Company’s Amended and Restated Articles of Incorporation so as to materially and adversely affect any rights of the Preferred Stock.

Conversion Rights. Holders of shares of the Preferred Stock, at their option, may, at any time and from time to time, convert some or all of their outstanding shares of the Preferred Stock at an initial conversion rate of 2.1192 shares of Post’s common stock per $100 liquidation preference, which is equivalent to an initial conversion price of approximately $47.19 per share of Post’s common stock (subject to adjustment in certain events). Post will not make any payments in respect of, or adjust the conversion rate to account for, accrued and unpaid dividends on the Preferred Stock to the conversion date except as provided in the Certificate and noted below.

Upon surrender of Preferred Stock for conversion, we will deliver shares of Post’s common stock, together with cash in lieu of fractional shares, on the third business day immediately following the relevant conversion date.

Make-Whole Premium Upon a Fundamental Change. If a fundamental change occurs, a holder may elect to convert the Preferred Stock in connection with the fundamental change as follows:

•

if Post’s stock price (as defined in the Certificate) is greater than or equal to $37.75 per share (subject to adjustment as described in the Certificate), the holder may elect to have the conversion rate increased by a number of additional shares of Post’s common stock (the “fundamental change make-whole premium”) determined based on the stock price and effective date (each as defined in the Certificate) of the fundamental change; or

•

regardless of the stock price, the holder may elect to have the conversion rate increased to equal the $100 liquidation preference, plus all accrued and unpaid dividends to, but excluding, the fundamental change settlement date (as defined in the Certificate) (unless the conversion date for a share of convertible preferred stock occurs after the record date for the payment of dividends and prior to the related dividend payment date, in which case the conversion rate calculation for such share will not include accrued and unpaid dividends that will be paid to holders of record on such record date), divided by the average of the closing sale prices of Post’s common stock for the five consecutive trading days ending on the third business day prior to the fundamental change settlement date. Notwithstanding the foregoing, the conversion rate as adjusted as described in this bullet will not exceed 2.6490 shares of Post’s common stock per share of Preferred Stock (the “share cap”), unless and until Post receives the shareholder approval (as defined below), in which case the conversion rate as so adjusted will not exceed 5.2980 shares of common stock per share of Preferred Stock (the “adjusted share cap”).

A description of how the fundamental change make-whole premium will be determined and a table showing the fundamental change make-whole premium that would apply at various stock prices and effective dates is set forth in the Certificate.

A “fundamental change” will be deemed to have occurred at the time that any of the following occurs:


(i)	a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than Post, its subsidiaries and its and their employee benefit plans, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, of Post’s common equity representing more than 50% of the voting power of such common equity;

(ii)

the consummation of (A) any recapitalization, reclassification or change of Post’s common stock (other than changes resulting from a subdivision or combination) as a result of which Post’s common stock would be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of Post pursuant to which Post’s common stock will be converted into cash, securities or other property; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of Post and its subsidiaries, taken as a whole, to any person other than one of Post’s subsidiaries; provided, however, that a transaction described in clause (B) in which the holders of all classes of Post’s common equity immediately prior to such

transaction own, directly or indirectly, more than 50% of all classes of common equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction shall not be a fundamental change pursuant to this clause (ii);


(iii)	Post’s shareholders approve any plan or proposal for the liquidation or dissolution of Post; or


(iv)	Post’s common stock (or other common stock underlying the convertible preferred stock) ceases to be listed or quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors).

A transaction or transactions described in clause (ii) above will not constitute a fundamental change, however, if at least 90% of the consideration received or to be received by Post’s common shareholders, excluding cash payments for fractional shares, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors), or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Preferred Stock becomes convertible into such consideration, excluding cash payments for fractional shares.

Shareholder Approval; Increased Dividend Rate. If Post does not obtain the requisite shareholder approval to increase the share cap to the adjusted share cap (the “shareholder approval”) by February 20, 2014, the per annum dividend rate on the Preferred Stock will increase by 0.25% during the period from, and including, February 20, 2014 to, but excluding, the date on which the requisite shareholder approval is obtained.

Conversion Rate Adjustments. The conversion rate is subject to adjustment upon the occurrence of certain events, including if Post distributes to holders of outstanding shares of Post’s common stock cash dividends.

Increased Dividend Rate. If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance of the Preferred Stock, Post fails to timely file any document or report that it is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (other than reports on Form 8-K), or the Preferred Stock is not otherwise freely tradable by holders other than Post’s affiliates (as a result of restrictions pursuant to U.S. securities laws or the terms of the Preferred Stock or the related certificate of designations), the per annum dividend rate on the Preferred Stock will increase by 0.50% during the period for which Post’s failure to file continues or the Preferred Stock fails to be so freely tradable, as the case may be.

Further, if, and for so long as,


•	the restrictive legend on the Preferred Stock has not been removed,


•	the Preferred Stock is assigned a restricted CUSIP number, or


•	the Preferred Stock is not otherwise freely tradable by holders other than Post’s affiliates (as a result of restrictions pursuant to U.S. securities laws or the terms of the Preferred Stock or the related certificate of designations),

as of the 365th day after the last date of original issuance of the Preferred Stock, the per annum dividend rate on the Preferred Stock will be increased by 0.50% until the restrictive legend is removed, the Preferred Stock is assigned an unrestricted CUSIP number and the Preferred Stock is freely tradable as described above.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

See Exhibit Index.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.



Date: February 26, 2013	Post Holdings, Inc.
	(Registrant)

	By:	/s/ Robert V. Vitale
		Name: Robert V. Vitale
		Title: Chief Financial Officer

EXHIBIT INDEX



Exhibits Number		Description
4.1		Certificate of Designation, Preferences and Rights of 3.75% Series B Cumulative Perpetual Convertible Preferred Stock
10.1		Purchase Agreement

Exhibit 4.1

Certificate of Designation, Preferences and Rights of
3.75% Series B Cumulative Perpetual Convertible Preferred Stock
of
Post Holdings, Inc.

Pursuant to Section 351.180 of

The General and Business Corporation Law of Missouri

We, Robert Vitale Chief Financial Officer, and Diedre J. Gray, Senior Vice President, General Counsel and Corporate Secretary, of Post Holdings, Inc., a corporation organized and existing under the General and Business Corporation Law of Missouri (the “ Company ”), in accordance with the provisions of Section 351.180 thereof, DO HEREBY CERTIFY:

That pursuant to the authority conferred upon the Board of Directors by the Amended and Restated Articles of Incorporation (the “ Restated Articles ”), of the Company, the said Board of Directors on February 20, 2013, adopted the following resolution (the “ Resolution ”) creating a series of Preferred Stock designated as 3.75% Series B Cumulative Perpetual Convertible Preferred Stock, par value $.01 per share, a copy of which Resolution was set forth in a certificate of designation that was executed by the Company’s President, acknowledged and filed with the Office of the Secretary of State, State of Missouri (the “ Certificate of Designation ”), setting forth the powers, preferences and relative, participating, optional and other special rights, and the qualifications, limitations, or restrictions thereof, as follows:

RESOLVED, that the Board of Directors hereby authorizes the designation of two million four hundred fifteen thousand (2,415,000) shares of Preferred Stock as 3.75% Series B Cumulative Perpetual Convertible Preferred Stock, par value $.01 per share, by adopting the following resolutions:

RESOLVED, the Company is hereby authorized to issue two million four hundred fifteen thousand (2,415,000) shares of 3.75% Series B Cumulative Perpetual Convertible Preferred Stock, par value $.01 per share and having the following preferences, qualifications, limitations, restrictions and special or relative rights:

Section 1. Designation and Amount . The shares of such series shall be designated as the “3.75% Series B Cumulative Perpetual Convertible Preferred Stock,” par value $.01 per share (the “ Convertible Preferred Stock ”), and the authorized number of shares constituting such series shall be 2,415,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided , no decrease shall reduce the number of shares of Convertible Preferred Stock to a number less than that of the shares Outstanding; provided , further , that shares of Convertible Preferred Stock that are redeemed, purchased or otherwise acquired by the Company, or that are converted into shares of Common Stock, shall be cancelled and shall revert to authorized but unissued shares of Preferred Stock.

Section 2. Definitions . As used herein, the following terms shall have the meanings given to them in this Section 2. Any capitalized term not otherwise defined herein shall have the meaning set forth in the Restated Articles, unless the context otherwise requires.

(a) “ Adjusted Share Cap ” shall mean 5.2980 shares of Common Stock per share of Convertible Preferred Stock, subject to adjustment in the same manner as the Conversion Rate as provided in Section 13.

(b) “ Affiliate ” shall have the meaning ascribed to it, on the date hereof, under Rule 144.

(d) “ Approval Deadline ” shall mean February 20, 2014.

(e) “ Board of Directors ” shall mean the Board of Directors of the Company or, with respect to any action to be taken by the Board of Directors, any committee of the Board of Directors duly authorized to take such action.

(f) “ Business Day ” shall mean, with respect to any share of the Convertible Preferred Stock, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

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

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

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

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

(k) “ Common Stock ” shall mean the common stock, par value $.01 per share, of the Company, subject to Section 8.

(l) “ Conversion Agent ” shall have the meaning specified in Section 19(a)

(m) “ Conversion Date ” shall have the meaning specified in Section 11(b).

(n) “ Conversion Price ” shall mean, at any time, $100 divided by the Conversion Rate in effect at such time.

(o) “ Conversion Rate ” per share of Convertible Preferred Stock shall mean 2.1192 shares of Common Stock, subject to adjustment as set forth herein.

(p) “ Convertible Preferred Stock Director ” shall have the meaning specified in Section 4(c).

(q) “ Date of First Issuance ” shall have the meaning specified in Section 3(b).

(r) “ Depository ” or “ DTC ” shall mean The Depository Trust Company, or any successor depository.

(s) “ Distributed Property ” shall have the meaning specified in Section 13(c).

(t) “ Dividend Payment Date ” shall mean February 15, May 15, August 15 and November 15 of each year, commencing on May 15, 2013, or if any such date is not a Business Day, on the next succeeding Business Day; provided , that if such Business Day falls in the next succeeding calendar month, the Dividend Payment Date shall be brought forward to the immediately preceding Business Day.

(u) “ Dividend Period ” shall mean the period from, and including, each Dividend Payment Date to, but excluding, the next succeeding Dividend Payment Date, except for the initial “ Dividend Period ,” which shall be the period from, and including, the Date of First Issuance to, but excluding, the first succeeding Dividend Payment Date; provided , however , with respect to any additional shares of Convertible Preferred Stock issued after the Date of First Issuance, the initial “ Dividend Period ” shall be the period from, and including, the Dividend Payment Date on which such additional shares are issued or, if such shares are not issued on a Dividend Payment Date, the scheduled Dividend Payment Date immediately preceding the issue date of such additional shares, in each case, to, but excluding, the first succeeding Dividend Payment Date.

(v) “ Dividend Rate ” shall mean the rate per annum of 3.75% of the Liquidation Preference per share of Convertible Preferred Stock, subject to increase pursuant to Sections 3(g), 3(h), and 3(i).

(w) “ Effective Date ” shall have the meaning specified in Section 12(b), except that, as used in Section 13, “ Effective Date ” shall mean the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

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

(y) “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

(z) A “ Fundamental Change ” shall be deemed to have occurred at the time that any of the following occurs:

(i) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Subsidiaries and the Company’s or its Subsidiaries’ employee benefit plans, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity;

(ii) the consummation of 1. any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; 1. any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property; or 1. any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries; provided , however , that a transaction described in clause (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (ii);

(iii) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or

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

provided , however , that a transaction or transactions described in clause (ii) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors), or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Convertible Preferred Stock becomes convertible into such consideration, excluding cash payments for fractional shares.

(aa) “ Fundamental Change Company Notice ” shall have the meaning specified in Section 12(e).

(bb) “Fundamental Change Conversion Deadline ” shall have the meaning specified in Section 12(e).

(cc) “ Fundamental Change Conversion Right ” shall have the meaning specified in Section 12(a).

(dd) “ Fundamental Change Make-Whole Premium ” shall have the meaning specified in Section 12(a).

(ee) “ Fundamental Change Settlement Date ” shall mean the date on which the Company delivers the Common Stock due in respect of conversions of Convertible Preferred Stock in connection with a Fundamental Change.

(ff) “ Fundamental Change Settlement Price ” shall have the meaning specified in Section 12(a).

(gg) “ Global Preferred Share ” shall have the meaning specified in Section 17(a).

(hh) “ Global Shares Legend ” shall have the meaning specified in Section 17(a).

(ii) “ Junior Stock ” shall have the meaning specified in Section 10(a).

(jj) “ Liquidation Preference ” shall have the meaning specified in Section 7(a).

(kk) “ Make-Whole Conversion Rate ” shall have the meaning specified in Section 12(a).

(ll) “ Officer ” shall mean the Chairman of the Board of Directors, the President, any Vice President, the Treasurer, the Secretary or any Assistant Secretary of the Company.

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

(nn) “ Outstanding ” shall mean, when used with respect to Convertible Preferred Stock, as of any date of determination, all Convertible Preferred Stock theretofore authenticated and delivered under this Certificate of Designation, except:

(i) shares of Convertible Preferred Stock redeemed and cancelled by the Company pursuant to Section 9; and

(ii) shares of Convertible Preferred Stock as to which any property deliverable upon conversion thereof has been delivered and required to be cancelled pursuant to Section 11(b);

provided , however , that, in determining whether the holders of Convertible Preferred Stock have given any request, demand, authorization, direction, notice, consent or waiver or taken any other action hereunder, Convertible Preferred Stock owned by the Company or its Affiliates shall be deemed not to be Outstanding, except that, in determining whether the Registrar shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Convertible Preferred Stock which the Registrar has actual knowledge of being so owned shall be so disregarded.

(oo) “ Parity Stock ” shall have the meaning specified in Section 10(b).

(pp) “ Paying Agent ” shall have the meaning specified in Section 19(a).

(qq) “ Person ” shall mean any individual, corporation, general partnership, limited partnership, limited liability partnership, joint venture, association, joint-stock company, trust, limited liability company, unincorporated organization or government or any agency or political subdivision thereof.

(rr) “ Preferred Dividend Default ” shall have the meaning specified in Section 4(c).

(ss) “ Record Date ” shall mean i. with respect to the dividends payable on each Dividend Payment Date, the first day of the month in which the Dividend Payment Date falls, or any other date designated by the Board of Directors as the record date for the payment of a dividend that is not more than 30 and not fewer than 10 calendar days prior to the scheduled Dividend Payment Date and i. solely for the purpose of Section 13 with respect to any dividend, distribution or other transaction or event in which the holders of the Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, statute, contract or otherwise).

(tt) “ Redemption Date ” shall mean a date that is fixed for redemption of the Convertible Preferred Stock by the Company in accordance with Section 9.

(uu) “ Redemption Notice ” shall have the meaning specified in Section 9(b).

(vv) “ Redemption Price ” shall mean an amount of cash equal to the Liquidation Preference per share of Convertible Preferred Stock being redeemed, plus an amount equal to all accrued and unpaid dividends thereon to, but excluding, the Redemption Date, subject to Section 9(g).

(ww) “ Reference Price ” shall have the meaning specified in Section 12(a).

(xx) “ Reference Property ” shall have the meaning specified in Section 8(a).

(yy) “ Registrar ” shall have the meaning specified in Section 15.

(zz) “ Resale Restriction Termination Date ” shall have the meaning specified in Section 17(b).

(aaa) “ Restricted Securities ” shall have the meaning specified in Section 17(c).

(bbb) “ Rule 144 ” shall mean Rule 144 as promulgated under the Securities Act.

(ccc) “ Scheduled Trading Day ” shall mean any day that is scheduled to be a Trading Day.

(ddd) “ SEC ” or “ Commission ” shall mean the Securities and Exchange Commission.

(eee) “ Securities Act ” shall mean the Securities Act of 1933, as amended.

(fff) “ Senior Stock ” shall have the meaning specified in Section 10(c).

(ggg) “ Share Cap ” shall mean 2.6490 shares of Common Stock per share of Convertible Preferred Stock.

(hhh) “ Shareholder Approval ” shall mean the requisite approval of the shareholders of the Company to increase the Share Cap to the Adjusted Share Cap.

(iii) “ Spin-Off ” shall have the meaning specified in Section 13(c).

(jjj) “ Stock Price ” shall have the meaning specified in Section 12(b).

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

(lll) “ Trading Day ” shall mean a day during which trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on the principal other national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “ Trading Day ” means a Business Day.

(mmm) “ Transfer Agent ” shall have the meaning specified in Section 15.

Section 3. Dividends and Distributions .

(a) Holders of Convertible Preferred Stock shall be entitled to receive, when, as and if authorized by the Board of Directors and declared by the Company out of funds legally available for the payment of dividends, cumulative cash dividends on each share of Convertible Preferred Stock at the Dividend Rate. The Dividend Rate shall be increased in the circumstances described in Sections 3(g), 3(h) and 3(i) below.

(b) Dividends on the Convertible Preferred Stock shall accrue from the first date of original issuance of the Convertible Preferred Stock (the “ Date of First Issuance ”), or if dividends have been paid on the Convertible Preferred Stock thereafter, from the most recent Dividend Payment Date. If additional shares of Convertible Preferred Stock are issued after the Date of First Issuance, dividends on those shares of Convertible Preferred Stock shall accrue at the Dividend Rate from the Dividend Payment Date on which such shares are issued or, if such shares are not issued on a Dividend Payment Date, on the scheduled Dividend Payment Date immediately preceding their issue date. Each such dividend shall be payable in arrears on each Dividend Payment Date to the holders of record of shares of the Convertible Preferred Stock as they appear on the Company’s stock register at the close of business on the applicable Record Date. Dividends on the Convertible Preferred Stock shall cease to accrue upon conversion, as described in Section 11.

(c) The Company shall not be obligated to and shall not pay holders of the Convertible Preferred Stock any interest or sum of money in lieu of interest if dividends are paid subsequent to the applicable Dividend Payment Date.

(d) The amount of dividends payable for each full Dividend Period for the Convertible Preferred Stock shall be computed by dividing the annual dividend rate by four. The amount of dividends payable for any other period shorter or longer than a full quarterly Dividend Period, on the Convertible Preferred Stock shall be appropriately prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Dollar amounts resulting from that calculation shall be rounded to the nearest cent, with one-half cent being rounded upward. Holders of Convertible Preferred Stock shall not be entitled to any dividends in excess of the full cumulative dividends on the Convertible Preferred Stock, as herein provided.

(e) When dividends are not paid in full (or a sum sufficient to pay them in full is not set apart) on the Convertible Preferred Stock and any other class or series of Capital Stock ranking, as to dividends, on parity with the Convertible Preferred Stock, the Company shall declare dividends on the Convertible Preferred Stock and each such other class or series of Capital Stock ranking, as to dividends, on parity with the Convertible Preferred Stock pro rata , so that the amount of dividends so declared per share of Convertible Preferred Stock and each such other class or series of Capital Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share of Convertible Preferred Stock and such other class or series of Capital Stock (which shall not include any accrual in respect of unpaid dividends on such other class or series of Capital Stock for prior dividend periods if such other class or series of Capital Stock does not have a cumulative dividend) bear to each other.

(f) Dividends on the Convertible Preferred Stock shall accrue whether or not i. the Company has earnings; i. there are funds legally available for the payment of those dividends; or (iii) those dividends are authorized or declared.

(g) If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance of the Convertible Preferred Stock, the Company fails to timely file any document or report that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (other than reports on Form 8-K), or shares of the Convertible Preferred Stock are not otherwise freely tradable by holders other than the Company’s Affiliates (as a result of restrictions pursuant to U.S. securities laws or the terms of the Convertible Preferred Stock or this Certificate of Designation), the per annum Dividend Rate on the Convertible Preferred Stock shall increase by 0.50% during the period for which the Company’s failure to file continues or shares of the Convertible Preferred Stock fail to be so freely tradable, as the case may be.

(h) Further, if, and for so long as:

(i) the restrictive legend contemplated by Section 17(c) on the Convertible Preferred Stock has not been removed,

(ii) the Convertible Preferred Stock is assigned a restricted CUSIP number, or

(iii) the Convertible Preferred Stock is not otherwise freely tradable by holders other than the Company’s Affiliates (without restrictions pursuant to U.S. securities laws or the terms of the Convertible Preferred Stock or this Certificate of Designation),

as of the 365 ^th day after the last date of original issuance of the Convertible Preferred Stock, the per annum Dividend Rate on the Convertible Preferred Stock shall be increased by 0.50% until the restrictive legend is removed, the Convertible Preferred Stock is assigned an unrestricted CUSIP number and the Convertible Preferred Stock is freely tradable as described above.

(i) The Company shall have no obligation to seek or otherwise obtain the Shareholder Approval; provided , however , that if the Company does not obtain the Shareholder Approval by the Approval Deadline, the per annum Dividend Rate on the Convertible Preferred Stock shall be increased by 0.25% during the period from, and including, the Approval Deadline to, but excluding, the date on which the Shareholder Approval is obtained. Upon receipt of the Shareholder Approval following the Approval Deadline, i. the Dividend Rate on the Convertible Preferred Stock shall decrease to the Dividend Rate that would then be in effect if the Approval Deadline had not passed without the Company’s obtaining the Shareholder Approval and i. the Dividend Rate shall not again increase pursuant to this Section 3(i). The Company shall notify holders of the Convertible Preferred Stock of the status of the Shareholder Approval on or before the third Business Day immediately succeeding the date on which the Shareholder Approval has been obtained or the date on which the Shareholder Approval has been sought but not obtained, as applicable.

(j) Any additional dividends paid pursuant to subsections (g), (h) or (i) above shall be payable at the times and in the manner provided for the payment of regular dividends in this Section 3. Unless the context otherwise requires, any reference to dividends in this Certificate of Designation shall be deemed to include additional dividends if, in such context, additional dividends are, were or would be payable pursuant to any of (g), (h) or (i) above. Unless the context otherwise requires, any express mention of additional dividends in any provision hereof shall not be construed as excluding additional dividends in those provisions hereof where such express mention is not made.

Section 4. Voting Rights .

(a) The holders of record of shares of the Convertible Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this Section 4, as otherwise provided in the Restated Articles and as otherwise provided by law. In matters where holders of the Convertible Preferred Stock are entitled to vote, each share of the Convertible Preferred Stock shall be entitled to one vote.

(b) So long as any shares of Convertible Preferred Stock remain Outstanding, the affirmative vote of holders of at least two-thirds of the Outstanding shares of Convertible Preferred Stock together with each other class or series of Preferred Stock ranking on parity (either as to dividend rights or rights upon liquidation, dissolution or winding-up of the Company) with the Convertible Preferred Stock and upon which equivalent voting rights have been conferred and are exercisable, voting as a single class, in person or by proxy, at an annual meeting of the Company’s shareholders or at a special meeting called for the purpose, or by written consent in lieu of such a meeting, shall be required:

(i) to authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of stock ranking senior to the Convertible Preferred Stock with respect to the payment of dividends, or the distribution of assets upon the liquidation, dissolution or winding-up of the Company’s affairs, or reclassify any of the authorized Capital Stock of the Company into any such shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such shares; and

(ii) to amend, alter or repeal the provisions of the Restated Articles, so as to materially and adversely affect any right, preference, privilege or voting power of the Convertible Preferred Stock.

No change shall be made to the terms of the Convertible Preferred Stock except under the limited circumstances as set forth in this Certificate of Designation.

Holders of Convertible Preferred Stock shall not be entitled to vote with respect to any increase in the total number of the authorized shares of Common Stock or Preferred Stock of the Company, any increase in the number of authorized shares of Convertible Preferred Stock, or the creation or issuance of any other class or series of Capital Stock, or any increase in the number of authorized shares of any other class or series of Capital Stock, in each case that is on parity with or junior to the Convertible Preferred Stock with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding-up, except as set forth above. Nor shall holders of Convertible Preferred Stock have any voting rights with respect to, and the consent of the holders of any Convertible Preferred Stock is not required for, the taking of any corporate action, including any merger or consolidation involving the Company or a sale of all or substantially all of the assets of the Company, regardless of the effect that such merger, consolidation or sale may have upon the powers, preferences, voting power or other rights or privileges of the Convertible Preferred Stock, except as set forth above.

In addition, the voting power as provided in this Section 4(b) shall not apply, if at or prior to the time when the act with respect to which the vote would otherwise be required would occur, the Company has converted or redeemed upon proper procedures all Outstanding shares of the Convertible Preferred Stock.

(c) If at any time dividends on the Convertible Preferred Stock or any other class or series of Preferred Stock ranking equally with the Convertible Preferred Stock as to payment of dividends and upon which voting rights equivalent to those described in this Section 4(c) have been conferred and are exercisable, have not been declared and paid for the equivalent of at least six or more Dividend Periods, whether or not for consecutive Dividend Periods (a “ Preferred Dividend Default ”), holders of shares of Convertible Preferred Stock (voting together as a single class with the holders of all other classes or series of Preferred Stock upon which equivalent voting rights have been conferred and exercisable (and with voting rights allocated pro rata based on the Liquidation Preference of the Convertible Preferred Stock and the liquidation preference of each such other class or series of Preferred Stock)) shall be entitled to vote for the election of two additional directors to serve on the Board of Directors (each, a “ Convertible Preferred Stock Director ”). In such a case, the number of directors serving on the Board of Directors shall be increased by two.

(d) The election of Convertible Preferred Stock Directors upon a Preferred Dividend Default shall take place:

(i) at a special meeting for such purpose called by holders of at least 10% of the Outstanding shares of Convertible Preferred Stock together with any other class or series of Preferred Stock ranking equally with the Convertible Preferred Stock as to payment of dividends and upon which equivalent voting rights have been conferred and exercisable, if this request is received more than 90 calendar days before the date fixed for the Company’s next annual meeting of shareholders, or, if the Company receives the request for a special meeting within 90 calendar days before the date fixed for the Company’s next annual or special meeting of shareholders, at such annual or special meeting of shareholders; and

(ii) each subsequent meeting (or special meeting held in its place) until all accrued and unpaid dividends on the Convertible Preferred Stock and any other class or series of Preferred Stock ranking equally with the Convertible Preferred Stock as to payment of dividends and upon which equivalent voting rights have been conferred and are exercisable for all complete Dividend Periods prior to the date of payment plus the dividend for the then-current Dividend Period have been paid in full, or declared and a sum sufficient for such payment is cash is set aside for payment.

At any meeting held for the purpose of electing a Convertible Preferred Stock Director, the presence in person or by proxy of the holders of at least a majority of the Outstanding Convertible Preferred Stock shall be required to constitute a quorum of such Convertible Preferred Stock and the Convertible Preferred Stock Directors shall be elected by a majority of the votes cast. Each Convertible Preferred Stock Director shall be entitled to one vote on any matter submitted for a vote by the Board of Directors.

(e) If and when all such dividends on the Convertible Preferred Stock or any other class or series of Preferred Stock ranking equally with the Convertible Preferred Stock as to payment of dividends and upon which voting rights equivalent to those described in Section 4(c) have been conferred and are exercisable shall have been paid in full, or declared and a sum sufficient for such payment in cash is set aside for payment, holders of shares of Convertible Preferred Stock shall be divested of the voting rights set forth in Section 4(c) (subject to re-vesting in the event of any subsequent Preferred Dividend Defaults) and the term of office of such Convertible Preferred Stock Directors so elected shall terminate and the entire Board of Directors shall be reduced accordingly.

(f) The Convertible Preferred Stock Directors shall agree, prior to their election to office, to resign upon any termination of the right of the holders of Convertible Preferred Stock and Preferred Stock ranking equally with the Convertible Preferred Stock as to payment of dividends and having equivalent voting rights to vote as a class for Convertible Preferred Stock Directors as herein provided, and upon such termination, the Convertible Preferred Stock Directors then in office shall forthwith resign and the number of directors serving on Board of Directors shall be reduced accordingly.

Section 5. Certain Restrictions .

(a) So long as any shares of Convertible Preferred Stock remain Outstanding, unless all accrued and unpaid dividends on the Convertible Preferred Stock for all prior Dividend Periods shall have been or contemporaneously are declared and paid in cash, or declared and a sum sufficient for the payment thereof in cash is set apart for payment, the Company shall not:

(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividend rights or rights upon liquidation, dissolution or winding-up of the Company) to the Convertible Preferred Stock;

(iii) declare or pay dividends on or make any other distributions on any shares of stock ranking on parity (either as to dividend rights or rights upon liquidation, dissolution or winding-up of the Company) with the Convertible Preferred Stock, except dividends paid ratably on the Convertible Preferred Stock and all such parity stock as described in Section 3(e);

(iii) except as permitted in Section 5(a)(iv) below, redeem or purchase or otherwise acquire for consideration any stock ranking on parity (either as to dividend rights or rights upon liquidation, dissolution or winding-up of the Company) with the Convertible Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for any shares of any stock ranking junior (either as to dividend rights or rights upon liquidation, dissolution or winding-up of the Company) to the Convertible Preferred Stock; and

(iv) purchase or otherwise acquire for consideration any shares of Convertible Preferred Stock, or any shares of Junior Stock or Parity Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.

(b) The Company shall not permit any Subsidiary of the Company to purchase or otherwise acquire for consideration any shares of stock of the Company unless the Company could, under Section 5(a), purchase or otherwise acquire such shares at such time and in such manner.

Section 6. Reacquired Shares .

Any shares of Convertible Preferred Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. The Company shall cause all such shares upon their cancellation to be authorized but unissued shares of Preferred Stock which may be reissued as part of a new series of Convertible Preferred Stock, subject to the conditions and restrictions on issuance set forth herein.

Section 7. Liquidation, Dissolution or Winding-Up .

(a) Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company’s affairs, before any distribution or payment of the Company’s assets (whether capital or surplus) shall be made to or set apart for the holders of shares of Common Stock or any other class or series of Capital Stock ranking, as to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company’s affairs, junior to the Convertible Preferred Stock, holders of Convertible Preferred Stock shall be entitled to be paid out of the Company’s assets legally available for distribution to its shareholders, after payment of or provision for the Company’s debts and other liabilities, a liquidation preference of $100 per share of Convertible Preferred Stock (the “ Liquidation Preference ”), plus an amount equal to all accrued and unpaid dividends (whether or not authorized or declared) to, but excluding, the date of payment, but shall not be entitled to any further payment or other participation in any distribution of the available assets of the Company. If, upon any liquidation, dissolution or winding-up of the Company, the Company’s available assets, or proceeds thereof, are insufficient to pay the full amount of the liquidating distributions on all Outstanding shares of Convertible Preferred Stock and the corresponding amounts payable on all shares of each other class or series of Capital Stock ranking, as to liquidation rights, on parity with the Convertible Preferred Stock in the distribution of assets, then holders of shares of Convertible Preferred Stock and each such other class or series of Capital Stock ranking, as to voluntary or involuntary liquidation rights, on parity with the Convertible Preferred Stock shall share ratably in any distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.

(b) The Company shall instruct DTC to notify the holders of shares of Convertible Preferred Stock, or if the Convertible Preferred Stock is in certificated form, send a written notice by first class email to each holder of record of the Convertible Preferred Stock at such holder’s registered address, of any event triggering the right to receive a distribution in connection with any voluntary or involuntary liquidation, dissolution or winding-up of the Company.

(c) Neither the consolidation or merger with or into any other Person, nor the voluntary sale, lease, transfer or conveyance of all or substantially all of the Company’s property or business shall be deemed to constitute a liquidation, dissolution or winding-up of the Company’s affairs.

(d) Subject to the rights of the holders of any shares of any class or series of Capital Stock ranking, as to liquidation rights, on parity with the Convertible Preferred Stock, after payment has been made in full to the holders of the Convertible Preferred Stock, as provided in this Section 7, holders of shares of Common Stock and any other class or series of Capital Stock ranking, as to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company’s affairs, junior to the Convertible Preferred Stock shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of Convertible Preferred Stock shall not be entitled to share therein.

Section 8. Effect of Recapitalizations, Reclassifications and Changes of Common Stock .

(a) In the case of:

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

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

(iii) any sale, lease or other transfer to any other Person of the consolidated assets of the Company and its Subsidiaries substantially as an entirety;

in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities or other property or assets (including cash or any combination thereof), then, at and after the effective time of the transaction, the right to convert each share of Convertible Preferred Stock shall be changed into a right to convert into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive (the “ Reference Property ”) upon such transaction; provided , however , that at and after the effective time of the transaction the number of shares of Common Stock that the Company would have been required to deliver upon conversion of Convertible Preferred Stock in accordance with Section 11(d) shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such transaction.

(b) If the transaction causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), then for the purposes of this Section 8, the Reference Property into which the Convertible Preferred Stock shall be convertible shall be deemed to be i. the weighted average of the types and amounts of consideration per share received by the holders of Common Stock that affirmatively make such election or i. if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration per share actually received by holders of Common Stock. The Company shall notify holders and the Conversion Agent of the weighted average as soon as practicable after such determination is made.

(c) The Company shall cause notice of the application of this Section 8 to be delivered to the Conversion Agent and each holder of the Convertible Preferred Stock at the address of such holder as it appears in the stock register within twenty (20) days after the occurrence of any of the events specified in Section 8(a) and shall issue a press release containing such information and publish such information on its website. Failure to deliver such notice shall not affect the legality or validity of any conversion right pursuant to this Section 8.

(d) The above provisions of this Section 8 shall similarly apply to successive recapitalizations, reclassifications, changes, consolidations, mergers, combinations, sales, leases and transfers, and the provisions of Section 13 shall apply to any shares of Capital Stock received by the holders of Common Stock in any such reclassification, change, consolidation, merger, combination, sale or conveyance; provided that if this Section 8 applies to any event or occurrence, Section 13 shall not apply to such event or occurrence.

Section 9. Optional Redemption . Shares of Convertible Preferred Stock shall be redeemable by the Company in accordance with this Section 9.

(a) The Company may not redeem any shares of Convertible Preferred Stock prior to February 15, 2018. On or after February 15, 2018, the Company shall have the option to redeem, subject to Section 9(j) below, some or all the shares of Convertible Preferred Stock at the Redemption Price if the Closing Sale Price of the Common Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days (whether or not consecutive) during any 30 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date on which the Company provides notice of redemption. The Redemption Price shall be paid solely in cash.

(b) In the event the Company elects to redeem shares of Convertible Preferred Stock, the Company shall:

(i) send a written notice to the Registrar and Transfer Agent of the Redemption Date, stating the number of shares to be redeemed and the Redemption Price, at least 30 Scheduled Trading Days before the Redemption Date (unless a shorter period shall be satisfactory to the Registrar and Transfer Agent);

(ii) instruct DTC to notify its participants holding Convertible Preferred Stock, or, if the Convertible Preferred Stock is in certificated form, send a written notice (the “ Redemption Notice ”) by first class mail to each holder of record of the Convertible Preferred Stock at such holder’s registered address, not fewer than 25 Scheduled Trading Days nor more than 90 calendar days prior to the Redemption Date stating:

(A) the Redemption Date;

(B) the Redemption Price;

(D) that shares of Convertible Preferred Stock called for redemption may be converted at any time before 5:00 p.m., New York City time, on the Business Day immediately preceding the Redemption Date;

(E) that holders who want to convert shares of Convertible Preferred Stock must satisfy the requirements set forth in Section 11;

(F) that shares of Convertible Preferred Stock called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;

(G) if fewer than all the Outstanding shares of Convertible Preferred Stock are to be redeemed by the Company, the number of shares to be redeemed;

(H) that, unless the Company defaults in making payment of such Redemption Price, dividends in respect of the shares of Convertible Preferred Stock called for redemption will cease to accrue on and after the Redemption Date;

(I) the CUSIP number of the Convertible Preferred Stock; and

(J) any other information the Company wishes to present; and

(iii) publish the information set forth in Section 9(b)(ii) once in a daily newspaper printed in the English language and of general circulation in the Borough of Manhattan, The City of New York, issue a press release containing such information and publish such information on the Company’s website.

(c) If the Company gives notice of redemption, then, by 12:00 p.m., New York City time, on the Redemption Date, to the extent sufficient funds are legally available, the Company shall, with respect to:

(i) shares of Convertible Preferred Stock held by DTC or its nominees, deposit or cause to be deposited, irrevocably with DTC cash sufficient to pay the Redemption Price and shall give DTC irrevocable instructions and authority to pay the Redemption Price to holders of such shares of Convertible Preferred Stock; and

(ii) shares of the Convertible Preferred Stock held in certificated form, deposit or cause to be deposited, irrevocably with the Paying Agent cash sufficient to pay the Redemption Price and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to holders of such shares of Convertible Preferred Stock upon surrender to the Paying Agent of their certificates evidencing their shares of Convertible Preferred Stock.

(d) If on the Redemption Date, DTC or the Paying Agent, as applicable, holds cash sufficient to pay the Redemption Price for the shares of Convertible Preferred Stock delivered for redemption as set forth herein, dividends shall cease to accrue as of the Redemption Date on those shares of the Convertible Preferred Stock called for redemption and all rights of holders of such shares shall terminate, except for the right to receive the Redemption Price pursuant to this Section 9.

(e) Payment of the Redemption Price for shares of Convertible Preferred Stock is conditioned upon book-entry transfer or physical delivery of certificates representing the Convertible Preferred Stock, together with any necessary endorsements, to the Paying Agent, or to the Paying Agent’s account at DTC, at any time after delivery of the Redemption Notice.

(f) Payment of the Redemption Price for shares of Convertible Preferred Stock shall be made (i) if book-entry transfer or physical delivery of the Convertible Preferred Stock has been made by or on the Redemption Date, on the Redemption Date, or (ii) if book-entry transfer or physical delivery of the Convertible Preferred Stock has not been made by or on the Redemption Date, at the time of such transfer or delivery.

(g) If the Redemption Date falls after a Record Date for the payment of dividends declared and before the open of business on the Dividend Payment Date corresponding to that Record Date, holders of the shares of Convertible Preferred Stock at the close of business on that Record Date shall be entitled to receive the dividend payable on those shares on the corresponding Dividend Payment Date. The Redemption Price payable on such Redemption Date will include only the Liquidation Preference, but will not include any amount in respect of dividends declared and payable on such corresponding Dividend Payment Date.

(h) If fewer than all the Outstanding shares of Convertible Preferred Stock are to be redeemed, the number of shares to be redeemed shall be determined by the Board of Directors and the shares to be redeemed shall be selected on a pro rata basis (with any fractional shares being rounded to the nearest whole share), by lot or any other method as may be determined by the Board of Directors, in its discretion, to be fair and appropriate.

(i) Upon surrender of a certificate or certificates representing shares of the Convertible Preferred Stock that is or are redeemed in part, the Company shall execute, and the Transfer Agent shall authenticate and deliver to the holder, a new certificate or certificates representing shares of the Convertible Preferred Stock in an amount equal to the unredeemed portion of the shares of Convertible Preferred Stock surrendered for partial redemption.

(j) Notwithstanding the foregoing provisions of this Section 9, if accrued and unpaid dividends (whether or not declared) on all Outstanding shares of Convertible Preferred Stock for all complete Dividend Periods prior to the Dividend Period in which the Redemption Date falls have not been paid, the Convertible Preferred Stock may not be called for redemption.

Section 10. Ranking . The Convertible Preferred Stock shall, with respect to dividend rights or rights upon liquidation, dissolution or winding-up of the Company, rank:

(a) senior to all classes or series of common stock and to any other class or series of Capital Stock of the Company, the terms of which expressly provide that such class or series ranks junior to the Convertible Preferred Stock with respect to payment of dividends and the distribution of assets upon the liquidation, dissolution or winding-up of the Company’s affairs (collectively, the “ Junior Stock ”);

(b) on parity with any other class or series of Capital Stock of the Company, the terms of which expressly provide that such class or series ranks on parity with the Convertible Preferred Stock with respect to payment of dividends and the distribution of assets upon the liquidation, dissolution or winding-up of the Company’s affairs (collectively, the “ Parity Stock ”);

(c) junior to any other class or series of Capital Stock of the Company, the terms of which expressly provide that such class or series ranks senior to the Convertible Preferred Stock with respect to payment of dividends and the distribution of assets upon the liquidation, dissolution or winding-up of the Company’s affairs (collectively, the “ Senior Stock ”);

(d) junior to all of the Company’s existing and future indebtedness; and

(e) structurally junior to all existing and future indebtedness and other liabilities (including trade payables) of the Company’s Subsidiaries and any Capital Stock of the Company’s Subsidiaries not held by the Company.

Section 11. Conversion .

(a) Right to Convert. Holders of shares of Convertible Preferred Stock, at their option, shall have the right, at any time and from time to time, to convert some or all of their shares of Convertible Preferred Stock at the Conversion Rate in accordance with, and subject to, this Section 11. Notwithstanding the foregoing, if any shares of Convertible Preferred Stock are called for redemption pursuant to Section 9, such conversion right shall cease and terminate, as to the shares of the Convertible Preferred Stock to be redeemed, at 5:00 p.m., New York City time, on the Business Day immediately preceding the Redemption Date, unless the Company shall default in the payment of the Redemption Price therefor, as provided herein.

(b) Conversion Procedures . Conversion of shares of the Convertible Preferred Stock may be effected by any holder thereof (i) if such holder’s shares of Convertible Preferred Stock are in certificated form, upon the surrender to the Company, at the principal office of the Company or at the office of the Conversion Agent, as may be designated by the Board of Directors, of the certificate or certificates, if any, for such shares of the Convertible Preferred Stock to be converted accompanied by a complete and manually signed Notice of Conversion (as set forth in the form of Convertible Preferred Stock certificate set forth in Exhibit A) along with (x) appropriate endorsements and transfer documents as required by the Registrar or Conversion Agent and (y) if required pursuant to Section 11(c), funds equal to the dividend payable on the next Dividend Payment Date or (ii) if such holder’s shares of Convertible Preferred Stock are in the form of Global Preferred Shares, by (x) complying with the procedures of the Depositary in effect at that time and (y) if required pursuant to Section 11(c), paying funds equal to the dividend payable on the next Dividend Payment Date. In case such Notice of Conversion shall specify a name or names other than that of such holder, such notice shall be accompanied by payment of all transfer taxes payable upon the issuance of shares of Common Stock in such name or names. Other than such taxes, the Company shall pay any documentary, stamp or similar issue or transfer taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of the Convertible Preferred Stock pursuant hereto. The conversion of the Convertible Preferred Stock will be deemed to have been made as of the close of business on the date (the “ Conversion Date ”) the foregoing procedures have been complied with.

As promptly as practicable after the Conversion Date with respect to any shares of Convertible Preferred Stock, the Company shall reflect in its stock records the cancellation of the Convertible Preferred Stock that is being converted and the issuance of such number of validly issued, fully paid and non-assessable shares of Common Stock to which the holders of such shares of the Convertible Preferred Stock are entitled as a result of the conversion as of such Conversion Date. If any Common Stock to be issued upon conversion is certificated, promptly after the issuance of the Common Stock certificate (or, if the Convertible Preferred Stock is certificated, promptly after, and in any case no later than 3 Business Days after, the surrender of the certificates representing the shares that are converted), the Company shall deliver or cause to be delivered (1) certificates representing the number of validly issued, fully paid and non-assessable whole shares of Common Stock to which the holder of shares of the Convertible Preferred Stock being converted (or such holder’s transferee) shall be entitled, and (2) if the Convertible Preferred Stock is then certificated and less than the full number of shares of the Convertible Preferred Stock evidenced by the surrendered certificate or certificates is being converted, a new certificate or certificates, of like tenor, for the number of shares evidenced by such surrendered certificate or certificates less the number of shares being converted. As of the close of business on the Conversion Date, the rights of the holder of the Convertible Preferred Stock as to the shares being converted shall cease, except for the right to receive shares of Common Stock.

(i) Upon settlement of a conversion of Convertible Preferred Stock and subject to clause (iii) below, a holder shall not receive cash payment of accrued and unpaid dividends and the Company shall not make any payments in respect of or adjust the Conversion Rate to account for accrued and unpaid dividends to the Conversion Date except as provided in Section 12(a)(ii).

(ii) Upon conversion of the Convertible Preferred Stock, except for conversions during the period from the close of business on any Record Date for the payment of dividends declared to the open of business on the Dividend Payment Date corresponding to that Record Date, in which case the holder on such Record Date shall receive the dividends payable on such Dividend Payment Date, accrued and unpaid dividends on the converted share of Convertible Preferred Stock shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the holder thereof through delivery of the Common Stock (together with the cash payment in lieu of fractional shares) in exchange for the Convertible Preferred Stock being converted pursuant to the provisions hereof. Shares of the Convertible Preferred Stock surrendered for conversion after the close of business on any Record Date for the payment of dividends declared and before the open of business on the Dividend Payment Date corresponding to that Record Date must be accompanied by a payment to the Company in cash of an amount equal to the dividend payable in respect of those shares on such Dividend Payment Date, subject to clause (iii) below.

(iii) Notwithstanding the foregoing, if shares of Convertible Preferred Stock are surrendered for conversion during the period after the close of business on any Record Date for the payment of dividends declared and before the open of business on the Dividend Payment Date corresponding to that Record Date and the Company has called such shares of Convertible Preferred Stock for redemption prior to such Dividend Payment Date, the holder who tenders such shares for conversion shall receive the dividend payable on such Dividend Payment Date and need not include payment of the amount of such dividend upon surrender of shares of the Convertible Preferred Stock for conversion.

(d) Settlement upon Conversion .

(i) Subject to Section 8, to satisfy the Company’s obligations upon conversion of any Convertible Preferred Stock, the Company shall deliver to converting holders, in respect of the Liquidation Preference per share of Convertible Preferred Stock, shares of Common Stock, together with cash in lieu of any fractional share of Common Stock.

(ii) The Company shall deliver the consideration due in respect of conversion of any Convertible Preferred Stock on the third Business Day immediately following the relevant Conversion Date, but such holders shall be deemed to be the owners of the shares of Common Stock included in such consideration as of the close of business on the relevant Conversion Date.

(e) Fractional Shares. In connection with the conversion of any shares of the Convertible Preferred Stock, no fractions of shares of Common Stock shall be issued, but the Company shall pay cash in lieu of any fractional interest in a share in an amount equal to the fractional interest, multiplied by the Closing Sale Price of the Common Stock on the relevant Conversion Date, rounded to the nearest whole cent.

(f) Total Shares. If more than one share of Convertible Preferred Stock shall be surrendered for conversion by the same holder at the same time, the number of whole shares of Common Stock issuable on conversion of those shares of Convertible Preferred Stock shall be computed on the basis of the total number of shares so surrendered.

(g) Reservation of Shares; Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock . The Company shall:

(i) at all times reserve and keep available, free from preemptive rights, for issuance upon the conversion of shares of the Convertible Preferred Stock such number of its authorized but unissued shares of Common Stock as shall from time to time be sufficient to permit the conversion of all Outstanding shares of the Convertible Preferred Stock, including the payment of any Fundamental Change Make-Whole Premium;

(ii) prior to the delivery of any securities that the Company shall be obligated to deliver upon conversion of the Convertible Preferred Stock, comply with all applicable federal and state laws and regulations that require action to be taken by the Company (including, without limitation, the registration or approval, if required, of any shares of Common Stock to be provided for the purpose of conversion of the Convertible Preferred Stock hereunder); and

(iii) ensure that all shares of Common Stock delivered upon conversion of the Convertible Preferred Stock will, upon delivery, be duly and validly issued, fully paid and non-assessable, free of all liens and charges and not subject to any preemptive rights.

Section 12. Fundamental Change Conversions .

(a) If a Fundamental Change occurs, a holder of Convertible Preferred Stock may elect to convert shares of Convertible Preferred Stock in connection with the Fundamental Change (such right of conversion, “ Fundamental Change Conversion Right ”) at an adjusted Conversion Rate as follows:

(i) if the Stock Price is greater than or equal to $37.75 per share, subject to adjustment in the same manner as the Stock Price as provided in subsection (c) below (the “ Reference Price ”), the holder may elect to have the Conversion Rate increased by a number of additional shares of Common Stock (such additional shares, the “ Fundamental Change Make-Whole Premium ”) determined by reference to the table in subsection (d) below; or

(ii) regardless of the Stock Price, the holder may elect to have the Conversion Rate increased to equal the Liquidation Preference per share of Convertible Preferred Stock, plus all accrued and unpaid dividends thereon to, but excluding, the Fundamental Change Settlement Date (unless the Conversion Date for a share of Convertible Preferred Stock occurs after the Record Date for the payment of dividends and prior to the related Dividend Payment Date, in which case the Conversion Rate calculation for such share under this clause (ii) shall not include accrued and unpaid dividends that shall be paid to holders of record on such Record Date as set forth in Section 11(c) above), divided by the average of the Closing Sale Prices of the Common Stock for the five consecutive Trading Days ending on, and including, the third Business Day prior to the Fundamental Change Settlement Date (or if such third Business Day is not a Trading Day, ending on, and including, the Trading Day immediately preceding such third Business Day) (such average price, the “ Fundamental Change Settlement Price ” and such adjusted Conversion Rate, the “ Make-Whole Conversion Rate ”). Notwithstanding the foregoing, the Conversion Rate as adjusted pursuant to this clause (a)(ii) shall not exceed the Share Cap unless and until the Company obtains the Shareholder Approval, in which case the Conversion Rate as adjusted pursuant to this clause (a)(ii) shall not exceed the Adjusted Share Cap.

The Share Cap shall not be subject to adjustment in accordance with Section 13 prior to the Company’s receipt of the Shareholder Approval.

A conversion of Convertible Preferred Stock shall be deemed for purposes of this Section 12 to be “in connection with” a Fundamental Change if the Conversion Date occurs from, and including, the Effective Date of such Fundamental Change to, and including, the Fundamental Change Conversion Deadline. The Convertible Preferred Stock as to which the Fundamental Change Conversion Right has been properly exercised shall be converted into shares of the Common Stock in accordance with Section 11(d).

(b) The Fundamental Change Make-Whole Premium, if any, will be determined by reference to the table in subsection (d) below, based on the date on which the Fundamental Change occurs or becomes effective (the “ Effective Date ”) and the price (the “ Stock Price ”) paid or deemed to be paid per share of the Common Stock in the Fundamental Change. If holders of the Common Stock receive in exchange for their Common Stock only cash in a Fundamental Change described in clause (ii) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share of the Common Stock. In all other cases, the Stock Price shall be the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days immediately prior to, but not including, the Effective Date of the Fundamental Change.

(c) The Stock Prices set forth in the first row of the table (i.e., the column headings) in subsection (d) below shall be adjusted as of any date on which the Conversion Rate is adjusted. The adjusted Stock Prices shall equal the Stock Prices 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. In addition, the Fundamental Change Make-Whole Premiums set forth in the table shall be subject to adjustment in the same manner as the Conversion Rate as set forth in Section 13.

(d) The following table sets forth the Fundamental Change Make-Whole Premium that shall be added to the Conversion Rate as described in this Section 12 for each Stock Price and Effective Date set forth below.



	Stock Price
Effective Date	$37.75	$40.00	$45.00	$50.00	$55.00	$61.34	$70.00	$80.00	$95.00	$110.00	$130.00	$150.00
February 26, 2013	0.5298	0.5144	0.4240	0.3576	0.3077	0.2605	0.2150	0.1788	0.1426	0.1182	0.0954	0.0791
February 15, 2014	0.5298	0.4842	0.3906	0.3226	0.2724	0.2263	0.1833	0.1505	0.1191	0.0985	0.0796	0.0661
February 15, 2015	0.5298	0.4553	0.3562	0.2850	0.2335	0.1877	0.1473	0.1185	0.0927	0.0766	0.0620	0.0516
February 15, 2016	0.5298	0.4300	0.3223	0.2450	0.1902	0.1437	0.1060	0.0823	0.0635	0.0526	0.0427	0.0356
February 15, 2017	0.5298	0.4139	0.2936	0.2044	0.1414	0.0913	0.0573	0.0414	0.0320	0.0267	0.0218	0.0182
February 15, 2018 and thereafter	0.5298	0.4117	0.2846	0.1804	0.0930	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000

The exact Stock Price and Effective Date may not be set forth on the table above, in which case:

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

(ii) if the Stock Price is greater than $150.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings in the table as provided in clause (c) above), no Fundamental Change Make-Whole Premium shall be added to the Conversion Rate; and

(iii) if the Stock Price is less than the Reference Price, no Fundamental Change Make-Whole Premium shall be added to the Conversion Rate and the Conversion Rate shall instead be determined in accordance with clause (a)(ii) of this Section 12.

(e) The Company shall notify all record holders of Convertible Preferred Stock of the anticipated effective date of a Fundamental Change at least 20 Business Days prior to such anticipated effective date, but in any event not later than two Business Days following its becoming aware of the occurrence of such Fundamental Change. In addition, the Company shall send a notice to all record holders of the occurrence of a Fundamental Change within five Business Days after the Effective Date of the Fundamental Change (the “ Fundamental Change Company Notice ”) and issue a press release announcing such Effective Date no later than five Business Days after such Effective Date. Such Fundamental Change Company Notice shall state:

(i) the events constituting the Fundamental Change;

(ii) the Effective Date and the Stock Price of the Fundamental Change;

(iii) the name and address of the Paying Agent and the Conversion Agent;

(iv) the Conversion Rate, any Fundamental Change Make-Whole Premium and the formula for determining the Make-Whole Conversion Rate;

(v) the procedures that the holder of Convertible Preferred Stock must follow to exercise the Fundamental Change Conversion Right; and

(vi) the last date on which the holder of Convertible Preferred Stock may exercise the Fundamental Change Conversion Right (such date, the “ Fundamental Change Conversion Deadline ”), which shall be a date no less than 20 Business Days nor more than 35 Business Days after the Effective Date of such Fundamental Change.

(f) To exercise the Fundamental Change Conversion Right, a holder of the Convertible Preferred Stock must convert its shares in accordance with Section 11(b). The relevant Notice of Conversion shall state:

(i) if certificated, the certificate numbers of the shares of Convertible Preferred Stock to be converted;

(ii) the whole number of shares of the Convertible Preferred stock to be converted pursuant to the Fundamental Change Conversion Right;

(iii) if the Stock Price is greater than or equal to the Reference Price, whether the Convertible Preferred Stock is to be converted at an adjusted Conversion Rate equal to (x) the then-applicable Conversion Rate, plus the Fundamental Change Make-Whole Premium, if any, or (y) the Make-Whole Conversion Rate; and

(iv) that the shares of the Convertible Preferred Stock are to be converted pursuant to the Fundamental Change Conversion Right.

(g) If the Stock Price is greater than or equal to the Reference Price, and the converting holder does not make a valid election with respect to the applicable adjusted Conversion Rate, the shares of Convertible Preferred Stock shall be converted at the then-applicable Conversion Rate, plus the Fundamental Change Make-Whole Premium, if any.

(h) Upon receipt of the Shareholder Approval, the Share Cap shall be increased to the Adjusted Share Cap and the Adjusted Share Cap shall be subject to adjustment in accordance with Section 13.

(i) Nothing in this Section 12 shall prevent an adjustment to the Conversion Rate pursuant to Section 13 in respect of a Fundamental Change.

Section 13. Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time for any of the following events that occur following the Date of First Issuance:

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



CR ₁ = CR ₀ x	OS ₁
	OS ₀

where,


CR ₀	= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as the case may be;


CR ₁	= the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date of such share split or share combination, as the case may be;


OS ₀	= the number of shares of Common Stock Outstanding immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as the case may be; and


OS ₁	= the number of shares of Common Stock Outstanding immediately after giving effect to such dividend or distribution, or such share split or share combination, as the case may be.

Any adjustment to the Conversion Rate made pursuant to this Section 13(a) shall become effective (x) immediately after the close of business on the Record Date for such dividend or distribution or (y) immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 13(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

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



CR ₁ = CR ₀ x	OS ₁ + X
	OS ₀ + Y

where,


CR ₀	= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution;


CR ₁	= the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution;


OS ₀	= the number of shares of Common Stock Outstanding immediately prior to the close of business on the Record Date for such distribution;


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


Y	= the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, options or warrants, divided by (B) the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution.

Any increase to the Conversion Rate made under this Section 13(b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the close of business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, 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 distribution 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 distributed, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors determines not to make such distribution, to be the Conversion Rate that would then be in effect if such Record Date for such distribution had not occurred.

For purposes of this Section 13(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets, securities or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Common Stock, excluding:

(iv) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 13(a) or Section 13(b),

(v) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 13(d); and

(vi) Spin-Offs as to which the provisions set forth in the last two paragraphs of this Section 13(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness or other assets, securities or property or rights, options or warrants to acquire Capital Stock or other securities, the “ Distributed Property ”),

then the Conversion Rate shall be increased based on the following formula:



CR ₁ = CR ₀ x	SP ₀
	SP ₀ – FMV

where,


CR ₀	= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution;


CR ₁	= the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution;


SP ₀	= the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and


FMV	= the fair market value as of the Record Date for such distribution (as determined in good faith by the Board of Directors) of the Distributed Property with respect to each Outstanding share of the Common Stock.

Any adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph of this Section 13(c) shall become effective immediately after the close of business on the Record Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors determines not to pay the distribution, to be the Conversion Rate that would then be in effect if such distribution had not been declared.

Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP ₀ ” (as defined above), in lieu of any adjustment under the above portion of this Section 13(c), each holder of Convertible Preferred Stock shall receive, for each share of Convertible Preferred Stock, at the same time and upon the same terms as holders of the Common Stock and without having to convert its shares of Convertible Preferred Stock, the amount and kind of Distributed Property that such holder would have received had such holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution.

With respect to an adjustment pursuant to this Section 13(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company where such Capital Stock or similar equity interest is, or will be when issued, listed or admitted for trading on a U.S. national securities exchange (a “ Spin-Off ”), the Conversion Rate shall be increased based on the following formula:



CR ₁ = CR ₀ x	FMV + MP ₀
	MP ₀

where,


CR ₀	= the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Ex-Dividend Date for the Spin-Off;


CR ₁	= the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Ex-Dividend Date for the Spin-Off;


FMV	= the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock over the 10 consecutive Trading Day period immediately following, and including, the Ex-Dividend Date for the Spin-Off; and


MP ₀	= the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period immediately following, and including, the Ex-Dividend Date for the Spin-Off.

Any adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph shall become effective at the close of business on the 10th Trading Day immediately following, and including, the Ex-Dividend Date for the Spin-Off; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the 10 Trading Days following, and including, the Ex-Dividend Date of any Spin-Off, references within the portion of this Section 13(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced with such lesser number of consecutive Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, but excluding, the relevant Conversion Date.

If any such dividend or distribution is declared but not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Board of Directors determines not to pay the distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

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



CR ₁ = CR ₀ x	SP ₀
	SP ₀ − C

where,


CR ₀	= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution;


CR ₁	= the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution;


SP ₀	= the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and


C	= the amount in cash per share of Common Stock the Company distributes to all or substantially all holders of the Common Stock.

Any adjustment to the Conversion Rate made pursuant to this Section 13(d) shall become effective immediately after the close of business on the Record Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors determines not to pay or make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP ₀ ” (as defined above), in lieu of any adjustment under this Section 13(d), each holder of Convertible Preferred Stock shall receive, for each share of Convertible Preferred Stock, at the same time and upon the same terms as holders of the Common Stock and without having to convert its shares of Convertible Preferred Stock, the amount of cash that such holder would have received had such holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution.

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



CR ₁ = CR ₀ x	AC + (SP ₁ X OS ₁ )
	SP ₁ X OS ₀

where,


CR ₀	= the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;


CR ₁	= the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;


AC	= the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;


OS ₀	= the number of shares of Common Stock Outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);


OS ₁	= the number of shares of Common Stock Outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and


SP ₁	= the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.

If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made.

Any adjustment to the Conversion Rate made pursuant to this Section 13(e) shall become effective at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the date that any such tender or exchange offer expires, references within this Section 13(e) to 10 consecutive Trading Days shall be deemed to be replaced with such lesser number of consecutive Trading Days as have elapsed from, and including, the date such tender or exchange offer expires to, but excluding, the relevant Conversion Date.

If the Company or one of its Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.

(f) All required calculations under this Section 13 shall be made by the Company and shall be made to the nearest cent or one-ten thousandth (1/10,000th) of a share, as the case may be.

(g) In addition to those adjustments required by clauses (a), (b), (c),(d) and (e) of this Section 13, the Company may, but is not required to, increase the Conversion Rate as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of Capital Stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. The Company may also, from time to time, to the extent permitted by applicable law, increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Company has determined that such increase would be in the best interests of the Company. If the Company makes such determination, it shall be conclusive and the Company shall mail to each holder of the Convertible Preferred Stock at the address of such holder as it appears in the stock register a notice at least 15 calendar days prior to the date the increased Conversion Rate takes effect in accordance with applicable law, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

(h) Notwithstanding anything to the contrary in this Section 13, the Conversion Rate shall not be adjusted for:

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

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

(iii) the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) of this subsection and outstanding as of the Date of First Issuance;

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

(v) accrued and unpaid dividends, if any.

Except as stated in this Section 13, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.

(i) No adjustment to the Conversion Rate shall be made if holders of the Convertible Preferred Stock, as a result of holding the Convertible Preferred Stock and without having to convert their Convertible Preferred Stock, are entitled to participate at the same time as the holders of Common Stock participate in any of the transactions described in clauses (a), (b), (c),(d) and (e) of this Section 13 as if such holders of the Convertible Preferred Stock held a number shares of Common Stock equal to the Conversion Rate, multiplied by the number of shares of Convertible Preferred Stock held by such holders.

(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Conversion Agent an Officer’s certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a responsible officer of the Conversion Agent shall have received such Officer’s certificate, the Conversion Agent shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to each holder of Convertible Preferred Stock at its last address appearing in the stock register within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

(k) For purposes of this Section 13, the number of shares of Common Stock at any time Outstanding shall not include shares held in the treasury of the Company, unless such treasury shares participate in any distribution or dividend that requires an adjustment pursuant to this Section 13, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

(l) Whenever any provision of this Section 13 requires the Company to calculate the Closing Sale Prices (including the Stock Price for purposes of Section 12) over a span of multiple days, the Company shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period when the Closing Sale Prices are to be calculated.

Section 14. Rights Issued in Respect of Common Stock Issued Upon Conversion . If the Company has in effect a rights plan while any Convertible Preferred Stock remains Outstanding, holders of Convertible Preferred Stock shall receive, upon a conversion of their Convertible Preferred Stock, in addition to shares of Common Stock, rights under the Company’s shareholder rights agreement. However, if, prior to conversion, the rights provided for in the rights plan adopted by the Company have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that holders of Convertible Preferred Stock would not be entitled to receive any rights in respect of the Common Stock delivered upon conversion of Convertible Preferred Stock, the Conversion Rate shall be adjusted at the time of separation as if the Company had distributed to all holders of the Common Stock, Capital Stock of the Company, evidences of indebtedness of the Company, or other assets, securities or property of the Company or rights, options or warrants to acquire Capital Stock or other securities of the Company pursuant to Section 13(c), subject to readjustment upon the subsequent expiration, termination or redemption of the rights.

Section 15. Transfer Agent and Registrar . The duly appointed transfer agent (the “ Transfer Agent ”) and Registrar (the “ Registrar ”) for the Convertible Preferred Stock shall be Computershare Trust Company N.A. The Company may, in its sole discretion, remove the Transfer Agent in accordance with the agreement between the Company and the Transfer Agent; provided that the Company shall appoint a successor transfer agent who shall accept such appointment prior to the effectiveness of such removal.

Section 16. Currency . All shares of Convertible Preferred Stock shall be denominated in U.S. currency, and all payments and distributions thereon or with respect thereto shall be made in U.S. currency. All references herein to “$”or “dollars” refer to U.S. currency.

Section 17. Form .

(a) The Convertible Preferred Stock shall be initially issued in the form of one or more permanent global shares of Convertible Preferred Stock (each, a “ Global Preferred Share ”) in definitive, fully registered form with the global legend (the “ Global Shares Legend ”) as set forth on the form of Convertible Preferred Stock certificate. The Convertible Preferred Stock certificate and the Transfer Agent’s certificate of authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in and expressly made a part of this Certificate of Designation.

The Global Preferred Shares may have notations, legends or endorsements required by law, stock exchange rules, agreements to which the Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). The Global Preferred Shares shall be deposited on behalf of the holders of the Convertible Preferred Stock represented thereby with the Registrar, at its New York office, as custodian for the Depositary, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and countersigned and registered by the Registrar as hereinafter provided. The aggregate number of shares represented by each Global Preferred Share may from time to time be increased or decreased by adjustments made on the records of the Registrar and the Depositary or its nominee as hereinafter provided. At such time as all interests in a Global Preferred Share have been converted, canceled, repurchased or transferred, such Global Preferred Share shall be, upon receipt thereof, canceled by the Company in accordance with standing procedures and existing instructions between the Depositary and the Company.

This Section 17(a) shall apply only to a Global Preferred Share deposited with or on behalf of the Depositary. The Company shall execute and the Registrar shall, in accordance with this Section 17, countersign and deliver initially one or more Global Preferred Shares that (i) shall be registered in the name of Cede & Co. or other nominee of the Depositary and (ii) shall be delivered by the Registrar to Cede & Co. or pursuant to instructions received from Cede & Co. or held by the Registrar as custodian for the Depositary pursuant to an agreement between the Depositary and the Registrar. Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Certificate of Designation, with respect to any Global Preferred Share held on their behalf by the Depositary or by the Registrar as the custodian of the Depositary, or under such Global Preferred Share, and the Depositary may be treated by the Company, the Registrar and any agent of the Company or the Registrar as the absolute owner of such Global Preferred Share for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Registrar or any agent of the Company or the Registrar from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Preferred Share.

Notwithstanding any other provisions of this Certificate of Designation (other than the provisions set forth in this Section 17(a)), a Global Preferred Share may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global Preferred Share in certificated form made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by notice by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section 17(a).

Owners of beneficial interests in Global Preferred Shares shall not be entitled to receive physical delivery of certificated shares of Convertible Preferred Stock, unless (x) DTC notifies the Company that is unwilling or unable to continue as Depositary for the Global Preferred Shares and the Company does not appoint a qualified replacement for DTC within 90 days, (y) DTC ceases to be a “clearing agency” registered under the Exchange Act and the Company does not appoint a qualified replacement for DTC within 90 days or (z) a beneficial owner seeking to exercise or enforce its rights under its shares of Convertible Preferred Stock requests that its shares be issued as definitive certificated shares of Convertible Preferred Stock. In any such case, the Global Preferred Shares shall be exchanged in whole for certificated shares of Convertible Preferred Stock in registered form, with the same terms and of an equal aggregate Liquidation Preference. Certificated shares of Convertible Preferred Stock shall be registered in the name or names of the Person or Person specified by DTC in a written instrument to the Registrar.

If the Company determines at any time that the shares of Convertible Preferred Stock shall no longer be represented by Global Preferred Shares, it shall inform the Depositary of such determination which will, in turn, notify participants of their right to withdraw such representation by Global Preferred Shares, and if such participants elect to withdraw their beneficial interests, the Company shall issue certificates in definitive form in exchange for such beneficial interests in the Global Preferred Shares.

(b)

(i) An Officer shall sign the Global Preferred Shares for the Company, in accordance with the Company’s bylaws and applicable law, by manual or facsimile signature.

(ii) If an Officer whose signature is on a Global Preferred Share no longer holds that office at the time the Transfer Agent authenticates the Global Preferred Share, the Global Preferred Share shall be valid nevertheless.

(iii) A Global Preferred Share shall not be valid until an authorized signatory of the Transfer Agent manually countersigns such Global Preferred Share. The signature shall be conclusive evidence that such Global Preferred Share has been authenticated under this Certificate of Designation. Each Global Preferred Share shall be dated the date of its authentication.

(c) Every share of Convertible Preferred Stock that bears or is required under this Section 17(c) to bear the legend set forth in this Section 17(c) (together with any Common Stock issued upon conversion of the Convertible Preferred Stock that is required to bear the legend set forth in Section 17(d), collectively “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 17(c) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the holder of each such Restricted Security, by such holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 17(c) and Section 17(d), the term “ transfer ” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

Until the date (the “ Resale Restriction Termination Date ”) that is the later of (1) the date that is one year or such other period of time as permitted by Rule 144 or any successor provision thereto after the last date of original issuance of the Convertible Preferred Stock and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Convertible Preferred Stock (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 17(d), if applicable) shall bear a legend in substantially the following form (unless such shares of Convertible Preferred Stock have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing with written notice thereof to the Transfer Agent):

THIS SHARE OF CONVERTIBLE PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SHARE OF CONVERTIBLE PREFERRED STOCK HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SHARE OF CONVERTIBLE PREFERRED STOCK OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SHARE OF CONVERTIBLE PREFERRED STOCK NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.

BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

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

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

(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR

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

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

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

Any share of Convertible Preferred Stock (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Convertible Preferred Stock for exchange to the Registrar, be exchanged for a new share or shares of Convertible Preferred Stock, of like aggregate number of shares of Convertible Preferred Stock, which shall not bear the restrictive legend required by this Section 17(c) and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Registrar in writing to so surrender any Global Preferred Share as to which such restrictions on transfer shall have expired in accordance with their terms for exchange, and, upon such instruction, the Registrar shall so surrender such Global Preferred Share for exchange; and any new Global Preferred Share so exchanged therefor shall not bear the restrictive legend specified in this Section 17(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Transfer Agent upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Convertible Preferred Stock or the Common Stock issued upon conversion of the Convertible Preferred Stock has been declared effective under the Securities Act.

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

THIS SHARE OF COMMON STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR ANY STATE SECURITIES LAWS. THIS SHARE OF COMMON STOCK NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.

BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR

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

Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the Transfer Agent, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 17(d).

(e) Any certificate evidencing Convertible Preferred Stock (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof) shall bear a legend in substantially the following form until the Resale Restriction Termination Date:

NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY PURCHASE OR OTHERWISE ACQUIRE THIS SHARE OF CONVERTIBLE PREFERRED STOCK OR A BENEFICIAL INTEREST HEREIN.

(f) The Company shall not, the Company shall cause its Subsidiaries not to, and the Company shall use its best efforts to cause any of its Affiliates that are not its Subsidiaries not to, resell any shares of the Convertible Preferred Stock that constitute “restricted securities” under Rule 144 that have been reacquired by any of them.

(g) The Convertible Preferred Stock shall initially be issued with a restricted CUSIP number.

Section 18. Transfer .

(a) Notwithstanding any provision to the contrary herein, so long as a Global Preferred Share remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Preferred Share, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with this Section 18.

(b) Transfers of a Global Preferred Share shall be limited to transfers of such Global Preferred Share in whole, but not in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.

Section 19. Paying Agent and Conversion Agent .

(a) The Company shall maintain in the United States (i) an office or agency where Convertible Preferred Stock may be presented for payment (the “ Paying Agent ”) and (ii) an office or agency where Convertible Preferred Stock may be presented for conversion (the “ Conversion Agent ”). The Transfer Agent shall act as Paying Agent and Conversion Agent, unless another Paying Agent or Conversion Agent is appointed by the Company. The Company may appoint the Registrar, the Paying Agent and the Conversion Agent and may appoint one or more additional paying agents and one or more additional conversion agents in such other locations as it shall determine. The term “Paying Agent” includes any additional paying agent and the term “Conversion Agent” includes any additional conversion agent. The Company may change any Paying Agent or Conversion Agent without prior notice to any holder. The Company shall notify the Registrar of the name and address of any Paying Agent or Conversion Agent appointed by the Company. If the Company fails to appoint or maintain another entity as Paying Agent or Conversion Agent, the Registrar shall act as such. The Company or any of its Affiliates may act as Paying Agent, Registrar or Conversion Agent.

(b) Payments due on the Convertible Preferred Stock shall be payable at the office or agency of the Company maintained for such purpose in The City of New York and at any other office or agency maintained by the Company for such purpose. Payments shall be payable by United States dollar check drawn on, or wire transfer (provided, that appropriate wire instructions have been received by the Registrar at least 15 days prior to the applicable date of payment) to a U.S. dollar account maintained by the holder with, a bank located in New York City; provided that at the option of the Company, payment of dividends may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Convertible Preferred Stock register. Notwithstanding the foregoing, payments due in respect of beneficial interests in the Global Preferred Shares shall be payable by wire transfer of immediately available funds in accordance with the procedures of the Depositary.

Section 20. Headings . The headings of the subsections of this Certificate of Designation are for convenience of reference only and shall not define, limit or affect any of the provisions hereof.

IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the foregoing as true under the penalties of perjury this 22 th day of February, 2013.



	POST HOLDINGS, INC.


	By:	/s/ Robert V. Vitale
		Robert V. Vitale, Chief Financial Officer



Attest:


By:	/s/ Diedre J. Gray
	Diedre J. Gray, Senior Vice President,
	General Counsel and Corporate Secretary

[Signature Page – Post Holdings, Inc. Certificate of Designation]

EXHIBIT A

[FORM OF FACE OF SECURITY]

[INCLUDE FOLLOWING LEGEND IF A GLOBAL PREFERRED SHARE]

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE CERTIFICATE OF DESIGNATION REFERRED TO BELOW.]

[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]

[THIS SHARE OF CONVERTIBLE PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SHARE OF CONVERTIBLE PREFERRED STOCK HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SHARE OF CONVERTIBLE PREFERRED STOCK OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SHARE OF CONVERTIBLE PREFERRED STOCK NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.

BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR

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

Number of Shares of
Certificate Number: Preferred Stock
[ ] [Initially:] ¹ [ ]

CUSIP NO.: 737446 203

3.75% Series B Cumulative Perpetual Convertible Preferred Stock

POST HOLDINGS, INC.

POST HOLDINGS, INC., a Missouri corporation (the “ Company ”), hereby certifies that [___________] ² [CEDE & CO.] ³ is the registered owner of [___________] ⁴ [a number of] ⁵ fully paid and non-assessable shares of convertible preferred stock, par value $.01 per share, of the Company designated as the 3.75% Series B Cumulative Perpetual Convertible Preferred Stock (the “ Convertible Preferred Stock ”) [as set forth in Schedule A hereto] ⁶ . The shares of Convertible Preferred Stock are transferable on the books and records of the Registrar, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Convertible Preferred Stock represented hereby are as specified in, and the shares of the Convertible Preferred Stock are issued and shall in all respects be subject to the provisions of, the Certificate of Designation, Preferences and Rights dated February 20, 2013, as the same may be amended from time to time (the “ Certificate of Designation ”), which is on file at the principal office of the Company. Capitalized terms used herein but not defined shall have the meaning given them in the Certificate of Designation. The Company will provide a copy of the Certificate of Designation to a holder without charge upon written request to the Company at its principal place of business.

Reference is hereby made to the Certificate of Designation, which shall for all purposes have the same effect as if set forth at this place.

Upon receipt of this certificate, the holder is bound by the Certificate of Designation and is entitled to the benefits thereunder.

Unless the Transfer Agent’s Certificate of Authentication hereon has been properly executed, these shares of Convertible Preferred Stock shall not be entitled to any benefit under the Certificate of Designation or be valid for any purpose.

_______________________

¹ Include if a global security.

² Include if a certificated security.

³ Include if a global security.

⁴ Include if a certificated security.

⁵ Include if a global security.

⁶ Include if a global security.

IN WITNESS WHEREOF, we have executed and subscribed this certificate and do affirm the foregoing as true under the penalties of perjury this ___ day of ________, 20__.



	POST HOLDINGS, INC.


	By:
	Name:
	Title:



Attest:


By:
Name:
Title:

[FORM OF TRANSFER AGENT’S CERTIFICATE OF AUTHENTICATION]

These are shares of the Preferred Stock referred to in the within-mentioned Certificate of Designation.

Dated: _______________



COMPUTER SHARE TRUST COMPANY N.A. , as Transfer Agent
By:
	Authorized Signatory

[FORM OF REVERSE OF SECURITY]

POST HOLDINGS, INC.

3.75% Series B Cumulative Perpetual Convertible Preferred Stock

Dividends on each share of Convertible Preferred Stock shall be payable in cash at a rate per annum set forth on the face hereof or as provided in the Certificate of Designation.

The shares of Convertible Preferred Stock shall be redeemable as provided in the Certificate of Designation. The shares of Convertible Preferred Stock shall be convertible in the manner and according to the terms set forth in the Certificate of Designation. If any holder of shares of Convertible Preferred Stock elects to convert its shares in connection with a Fundamental Change, the Company shall adjust the Conversion Rate for shares of Convertible Preferred Stock surrendered for conversion as set forth in the Certificate of Designation.

As required under Missouri law, the Company shall furnish to any holder upon request and without charge, a full summary statement of the designations, voting rights, preferences, limitations and special rights of the shares of each class or series authorized to be issued by the Company so far as they have been fixed and determined. Any such request is to be addressed to the Secretary of the Company or to the Registrar named on the face of this certificate.

[FORM OF NOTICE OF CONVERSION]

(To be executed by the registered holder in order to convert the Convertible Preferred Stock)

The undersigned hereby irrevocably elects to convert (the “ Conversion ”) shares of 3.75% Series B Cumulative Perpetual Convertible Preferred Stock (the “ Preferred Stock ”) of Post Holdings, Inc. (the “ Company ”), represented by stock certificate
No(s). _____________________________________________________________________
(the “ Preferred Stock Certificate(s) ”), into shares of common stock (the “ Common Stock ”) of the Company according to the conditions of the Certificate of Designation, Preferences and Rights of the Convertible Preferred Stock (the “ Certificate of Designation ”). The Company will pay any documentary, stamp or similar issue or transfer tax on the issuance of the shares of the Common Stock upon conversion of the Convertible Preferred Stock, unless the tax is due because the holder requests such shares to be issued in a name other than the holder’s name, in which case the holder will pay the tax. A copy of each Preferred Stock Certificate(s) are attached hereto (or evidence of loss, theft or destruction thereof).

Capitalized terms used but not defined herein shall have the meanings ascribed thereto in or pursuant to the Certificate of Designation.

Number of shares of Convertible Preferred Stock to be converted: _________________________________

Name or Names (with addresses) in which the certificate or certificate for any shares of Common Stock to be issued are to be registered ⁷ : _____________________________________________________________

______________________________________________________________________________________

Signature: _________________________________________________

Name of registered holder: ____________________________________

Fax No.: __________________________________________________

Telephone No.: _____________________________________________

_______________________

⁷ The Company is not required to issue shares of Common Stock until you (a) if required, furnish appropriate endorsements and transfer documents and (b) if required, pay funds equal to dividends payable on the next Dividend Payment Date to which you are not entitled.

[FORM OF ASSIGNMENT AND TRANSFER]

FOR VALUE RECEIVED, the undersigned assigns and transfers the shares of Convertible Preferred Stock evidenced hereby to:

________________________________________________________________

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

________________________________________________________________

(Insert address and zip code of assignee)

and irrevocably appoints:

________________________________________________________________

agent to transfer the shares of Convertible Preferred Stock evidenced hereby on the books of the Transfer Agent. The agent may substitute another to act for him or her.

In connection with any transfer of the within share of Convertible Preferred Stock occurring prior to the Resale Restriction Termination Date, as defined in the Certificate of Designation, the undersigned confirms that such Convertible Preferred Stock is being transferred:

□ To Post Holdings, Inc. or a Subsidiary thereof; or

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

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

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

Date: __________________

Signature: ______________________

(Sign exactly as your name appears on the other side of this Convertible Preferred Stock)

Signature Guarantee: _____________________ ⁸

_______________________

⁸ (Signature must be guaranteed by an “eligible guarantor institution” that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Transfer Agent, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Transfer Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.)

SCHEDULE A ⁹

SCHEDULE OF EXCHANGES

POST HOLDINGS, INC.
3.75% Series B Cumulative Perpetual Convertible Preferred Stock

The initial number of shares of Convertible Preferred Stock represented by this Global Preferred Share is [_______]. The following exchanges of a part of this Global Preferred Share have been made:



Date of exchange	Amount of decrease in number of shares represented by this Global Preferred Share	Amount of increase in number of shares represented by this Global Preferred Share	Number of shares represented by this Global Preferred Share following such decrease or increase	Signature of authorized signatory of Registrar

_______________________

⁹ Include if a global security.

Exhibit 10.1

2,100,000 Shares

POST HOLDINGS, INC.

3.75% SERIES B CUMULATIVE PERPETUAL CONVERTIBLE PREFERRED STOCK, $0.01 PAR VALUE, LIQUIDATION PREFERENCE $100 PER SHARE

PURCHASE AGREEMENT

February 20, 2013

Morgan Stanley & Co. LLC

Wells Fargo Securities, LLC
Credit Suisse Securities (USA) LLC


c/o	Morgan Stanley & Co. LLC 1585 Broadway New York, New York 10036

Ladies and Gentlemen:

Post Holdings, Inc., a Missouri corporation (the “ Company ”), proposes to issue and sell to the several purchasers named in Schedule I hereto (the “ Initial Purchasers ”) 2,100,000 shares of its 3.75% Series B Cumulative Perpetual Convertible Preferred Stock, $0.01 par value, Liquidation Preference, $100 per Share (the “ Firm Securities ”). The Company also proposes to issue and sell to the Initial Purchasers not more than an additional 315,000 shares of its 3.75% Series B Cumulative Perpetual Convertible Preferred Stock, $0.01 par value, Liquidation Preference, $100 per Share (the “ Additional Securities ”), if and to the extent that you, as managers of the offering (the “ Managers ”), shall have determined to exercise, on behalf of the Initial Purchasers, the right to purchase such shares of preferred stock granted to the Initial Purchasers in Section 2 hereof. The Firm Securities and the Additional Securities are hereinafter collectively referred to as the “ Securities .” The Securities will be convertible into shares of the Company’s Common Stock, $.01 par value (the “ Underlying Securities ”).

The Securities and the Underlying Securities will be offered without being registered under the Securities Act of 1933, as amended (the “ Securities Act ”), to qualified institutional buyers in compliance with the exemption from registration provided by Rule 144A under the Securities Act.

In connection with the sale of the Securities, the Company has prepared a preliminary offering memorandum (the “ Preliminary Memorandum ”) and will prepare a final offering memorandum (the “ Final Memorandum ”) including or incorporating by reference a description of the terms of the Securities and the Underlying Securities, the terms of the offering and a description of the Company. For purposes of this Agreement, “ Additional Written Offering Communication ” means any written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities other than the Preliminary Memorandum or the Final Memorandum, and “ Time of Sale Memorandum ” means the Preliminary Memorandum together with the Additional Written Offering Communications, if any, each identified in Schedule II hereto. As used herein, the terms Preliminary Memorandum, Time of Sale Memorandum and Final Memorandum shall include the documents, if any, incorporated by reference therein on the date hereof. The terms “ supplement ”, “ amendment ” and “ amend ” as used herein with respect to the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any Additional Written Offering Communication shall include all documents subsequently filed by the Company with the Securities and Exchange Commission (the “ Commission ”) pursuant to the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), that are deemed to be incorporated by reference therein.

1. Representations and Warranties. The Company represents and warrants to, and agrees with, you that:

(a) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Time of Sale Memorandum does not, and at the time of each sale of the Securities in connection with the offering when the Final Memorandum is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Memorandum, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Preliminary Memorandum does not contain and the Final Memorandum, in the form used by the Initial Purchasers to confirm sales and on the Closing Date (as defined in Section 4), will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum based upon information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use therein.

( b) Except for the Additional Written Offering Communications, if any, identified in Schedule II hereto, and electronic road shows, if any, furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Additional Written Offering Communication.

( c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its material properties and to conduct its business as described in the Time of Sale Memorandum and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.

(d ) Each subsidiary of the Company has been duly incorporated or formed, as applicable, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, has the corporate or limited liability company power, as applicable, and authority to own its material properties and to conduct its business as described in the Time of Sale Memorandum and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or limited liability company interests, as applicable, of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims (each a “ Lien ”), except those Liens existing under the Credit Agreement, dated as of February 3, 2012, by and among the Company, Barclays Bank PLC, in its capacity as Administrative Agent, and the lenders and other agents named therein, as amended.

(e ) This Agreement has been duly authorized, executed and delivered by the Company.

(f ) The authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in each of the Time of Sale Memorandum and the Final Memorandum.

( g) The shares of common stock outstanding prior to the issuance of the Securities have been duly authorized and are validly issued, fully paid and non-assessable.

( h) The Certificate of Designations (the “ Certificate ”) creating the Securities, the proposed form of which has been furnished to you, will have been duly filed with the Secretary of State of Missouri and with all other offices where such filing is required, on or before the Closing Date.

( i) The Securities have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement and the Certificate and the Company’s Amended and Restated Articles of Incorporation, as amended (the “ Articles ”), will be validly issued, fully paid and non-assessable, and the issuance of such Securities will not be subject to any preemptive or similar rights.

(j ) The Company has duly authorized and reserved the maximum number of shares of Underlying Securities issuable upon conversion of the Securities (including the maximum number of shares of Common Stock that may be issued upon conversion of the Securities in connection with a fundamental change) (the “ Maximum Number of Underlying Securities ”) as of the date the Securities are initially issued, and, when issued upon conversion of the Securities in accordance with the terms of the Securities, such Maximum Number of Underlying Securities will be validly issued, fully paid and non assessable, and the issuance of the Maximum Number of Underlying Securities will not be subject to any preemptive or similar rights.

( k) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the Securities will not conflict with or result in a breach or violation of (i) the Articles or by-laws of the Company as in effect on the date hereof, (ii) any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary or (iv) any statute, law, rule or regulation applicable to the Company or any subsidiary, except in the case of clauses (ii), (iii) and (iv) where such breach, violation or default would not reasonably be expected to have a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”), and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement or the Securities, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities and with respect to the approval of the supplemental listing application with the New York Stock Exchange and except where the failure to obtain such consents, approvals, authorizations, orders or qualifications, individually or in the aggregate, would not have a Material Adverse Effect or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement.

(l ) There has not occurred any material adverse change, or any development involving a prospective material adverse change that could reasonably be expected to cause a Material Adverse Effect, from that set forth in the Time of Sale Memorandum provided to prospective purchasers of the Securities.

(m ) Other than proceedings accurately described in all material respects in the Time of Sale Memorandum, there are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that would reasonably be expected to have a Material Adverse Effect, or that would reasonably be expected to have a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement or the Securities or to consummate the transactions contemplated by the Time of Sale Memorandum.

( n) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a Material Adverse Effect.

( o) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect.

(p ) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).

( q) Neither the Company nor any affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act, an “ Affiliate ”) of the Company has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or will be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of the Securities or (ii) offered, solicited offers to buy or sold the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.

( r) [Reserved]

(s ) Assuming the accuracy of the representations and warranties of the Initial Purchasers herein, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers in the manner contemplated by this Agreement to register the Securities under the Securities Act.

( t) The Securities satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act.

( u) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer, or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and the Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.

( v) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(w ) (i) Neither the Company nor any of its subsidiaries, nor any director, officer, or employee thereof, nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“ Person ”) that is, or is owned or controlled by a Person that is:

(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“ OFAC ”), the United Nations Security Council (“ UNSC ”), the European Union (“ EU ”), Her Majesty’s Treasury (“ HMT ”), or other relevant sanctions authority (collectively, “ Sanctions ”), nor

(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria).

(ii) The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:

(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or

(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).

(iii) The Company and its subsidiaries have not, since their respective dates of organization, knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

(x) The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, have a Material Adverse Effect) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not have a Material Adverse Effect, or, except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a Material Adverse Effect.

(y) The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Time of Sale Memorandum is accurate. Except as described in the Time of Sale Memorandum, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

(z) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Time of Sale Memorandum fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

2 . Agreements to Sell and Purchase . The Company hereby agrees to sell to the several Initial Purchasers, and each Initial Purchaser, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective numbers of Firm Securities set forth in Schedule I hereto opposite its name at a purchase price of $97.00 per share (the “ Purchase Price ”) plus accrued dividends, if any, to the Closing Date.

On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Initial Purchasers the Additional Securities, and the Initial Purchasers shall have the right to purchase, severally and not jointly, up to 315,000 Additional Securities at the Purchase Price, provided, however, that the amount paid by the Initial Purchasers for any Additional Securities shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Securities but not payable on such Additional Securities plus accrued dividends, if any, to the date of payment and delivery. You may exercise this right on behalf of the Initial Purchasers in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Securities to be purchased by the Initial Purchasers and the date on which such Additional Securities are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Securities nor later than ten business days after the date of such notice. Additional Securities may be purchased as provided in Section 4 solely for the purpose of covering sales of securities in excess of the number of the Firm Securities. On each day, if any, that Additional Securities are to be purchased (an “ Option Closing Date ”), each Initial Purchaser agrees, severally and not jointly, to purchase the number of Additional Securities (subject to such adjustments to eliminate fractional Securities as you may determine) that bears the same proportion to the total number of Additional Securities to be purchased on such Option Closing Date as the number of Firm Securities set forth in Schedule I opposite the name of such Initial Purchaser bears to the total number of Firm Securities.

3 . Terms of Offering. You have advised the Company that the Initial Purchasers will make an offering of the Securities purchased by the Initial Purchasers hereunder as soon as practicable after this Agreement is entered into as in your judgment is advisable.

4 . Payment and Delivery. Payment for the Firm Securities shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Firm Securities for the respective accounts of the several Initial Purchasers at 10:00 a.m., New York City time, on February 26, 2013, or at such other time on the same or such other date, not later than March 5, 2013, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “ Closing Date .”

Payment for any Additional Securities shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Securities for the respective accounts of the several Initial Purchasers at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date, in any event not later than April 5, 2013, as shall be designated in writing by you.

The Securities shall be in definitive form or global form, as specified by you, and registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Securities shall be delivered to you on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Initial Purchasers, with any transfer taxes payable in connection with the transfer of the Securities to the Initial Purchasers duly paid, against payment of the Purchase Price therefor plus accrued dividends, if any, to the date of payment and delivery.

5 . Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:

(a ) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:

(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and

(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum.

( b) The Initial Purchasers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.

The officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.

( c) The Initial Purchasers shall have received on the Closing Date an opinion of Lewis, Rice & Fingersh, L.C., outside counsel for the Company, dated the Closing Date, substantially to the effect set forth in Exhibit A-1. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein, and the Initial Purchasers shall have received on the Closing Date an opinion of Diedre Gray, General Counsel of the Company, dated the Closing Date, substantially to the effect set forth in Exhibit A-2.

( d) The Initial Purchasers shall have received on the Closing Date an opinion of Davis Polk & Wardwell LLP, counsel for the Initial Purchasers, dated the Closing Date.

( e) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.

(f ) The “lock‑up” agreements, each substantially in the form of Exhibit B hereto, between you and certain officers and directors of the Company relating to sales and certain other dispositions of shares of common stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.

( g) The Maximum Number of Underlying Securities as of the date the Securities are initially issued shall have been approved for listing, subject to notice of issuance, on the New York Stock Exchange, and evidence thereof shall have been provided to the Initial Purchasers.

The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the items listed in subsections (b), (c), (d) and (e) of this Section 5 and such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Additional Securities.

6 . Covenants of the Company. The Company covenants with each Initial Purchaser as follows:

(a ) To furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.

( b) Before amending or supplementing the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object; provided that nothing in this section shall prohibit the Company from complying with its obligations under law or the rules of the New York Stock Exchange.

( c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.

(d ) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances under which they were made, when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.

(e ) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances under which they were made when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.

(f ) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.

(g ) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and any amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) any fees charged by rating agencies for the rating of the Securities, (v) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading any appropriate market system, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the cost of the preparation, issuance and delivery of the Securities, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other cost and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

( h) Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.

( i) Not to solicit any offer to buy or offer or sell the Securities or the Underlying Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.

( j) While any of the Securities or the Underlying Securities remain “restricted securities” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.

(k ) During the period of two years after the Closing Date or any Option Closing Date, if later, the Company will not be, nor will it become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.

( l) [Reserved]

(m ) During the period of one year after the Closing Date or any Option Closing Date, if later, the Company will not resell, and will use its best efforts to prevent any of its affiliates (as defined in Rule 144 under the Securities Act) from reselling, any of the Securities, or the Underlying Securities issued upon conversion of any such Securities, which constitute “restricted securities” under Rule 144 that have been reacquired by any of them.

( n ) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.

( o) To reserve and keep available at all times, free of preemptive rights, the Maximum Number of Underlying Securities, including any increase to the Maximum Number of Underlying Securities as a result of the Company’s receipt of the requisite approval by the holders of the Common Stock to increase the “Share Cap” (as defined in the Certificate) to the “Adjusted Share Cap” (as defined in the Certificate) (the “ Shareholder Approval ”).

(p ) To use all reasonable efforts to maintain the listing of the Maximum Number of Underlying Securities, including any increase to the Maximum Number of Underlying Securities as a result of the Company’s receipt of the Shareholder Approval, on the New York Stock Exchange for so long as the Securities are outstanding.

The Company also agrees that, without the prior written consent of Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC and Credit Suisse Securities (USA) LLC on behalf of the Initial Purchasers, it will not, during the period ending 90 days after the date of the Final Memorandum ( the “ Restricted Period ”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock or any securities convertible into or exercisable or exchangeable for common stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the common stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of common stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the sale of the Securities under this Agreement, (b) the issuance by the Company of any shares of common stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof, (c) any grants under the Company’s equity or stock plans in accordance with the terms of such plans as described in the Time of Sale Memorandum, as such plans may be amended, (d) common stock or rights to receive common stock (including securities convertible into or exercisable or exchangeable for common stock) issued or contemplated to be issued in connection with an acquisition or with a strategic or minority investment transaction; provided that (i) the aggregate number of shares of common stock issued or issuable upon exchange or conversion of any securities convertible into or exchangeable for common stock under clause (d) during the 90-day restricted period shall not exceed 15.0% of the total number of shares of common stock issued and outstanding as of the date of such acquisition or strategic or minority investment transaction, as the case may be, and (ii) any recipient of such common stock or rights to receive common stock (including securities convertible into or exercisable or exchangeable for common stock) shall have executed and delivered to the Managers a lock-up letter in the form of Exhibit B hereto or (e) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of common stock, provided that (i) such plan does not provide for the transfer of common stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period.

The Company also agrees that, without the prior written consent of Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC and Credit Suisse Securities (USA) LLC on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any preferred stock of the Company or warrants to purchase preferred stock of the Company substantially similar to the Securities (other than the sale of the Securities under this Agreement).

7 . Offering of Securities; Restrictions on Transfer . (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a “ QIB ”). Each Initial Purchaser, severally and not jointly, agrees with the Company that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be QIBs that in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption “Transfer Restrictions”.

8 . Indemnity and Contribution . (a) The Company agrees to indemnify and hold harmless each Initial Purchaser, each person, if any, who controls any Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Initial Purchaser within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum, the Time of Sale Memorandum or any amendment or supplement thereto, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company, any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”) or the Final Memorandum or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use therein.

( b) Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Initial Purchaser, but only with reference to information relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use in the Preliminary Memorandum, the Time of Sale Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by or referred to by the Company, road show, or the Final Memorandum or any amendment or supplement thereto.

(c ) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “ indemnified party ”) shall promptly notify the person against whom such indemnity may be sought (the “ indemnifying party ”) in writing; provided, however, that the failure to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under Section 8(a) or 8(b) except to the extent that it has been materially prejudiced by such failure (through the forfeiture of substantive rights and defenses) and shall not relieve the indemnifying party from any liability that the indemnifying party may have to an indemnified party other than under Section 8(a) or 8(b). The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by you, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

( d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Securities they have purchased hereunder, and not joint.

( e) The Company and the Initial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

( f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Initial Purchaser, any person controlling any Initial Purchaser or any affiliate of any Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.

9 . Termination. The Initial Purchasers may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE MKT LLC, the NASDAQ Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over‑the‑counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum or the Final Memorandum.

10 . Effectiveness; Defaulting Initial Purchasers . This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

If, on the Closing Date, or an Option Closing Date, as the case may be, any one or more of the Initial Purchasers shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on such date, and the aggregate number of Securities which such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase is not more than one‑tenth of the aggregate number of Securities to be purchased on such date, the other Initial Purchasers shall be obligated severally in the proportions that the number of Firm Securities set forth opposite their respective names in Schedule I bears to the aggregate number of Firm Securities set forth opposite the names of all such non‑defaulting Initial Purchasers, or in such other proportions as you may specify, to purchase the Securities which such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase on such date; provided that in no event shall the number of Securities that any Initial Purchaser has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one‑ninth of such number of Securities without the written consent of such Initial Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase Firm Securities which it or they have agreed to purchase hereunder on such date and the aggregate number of Securities with respect to which such default occurs is more than one‑tenth of the aggregate number of Firm Securities to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non‑defaulting Initial Purchaser or of the Company. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Time of Sale Memorandum, the Final Memorandum or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase Additional Securities and the aggregate number of Additional Securities with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Securities to be purchased on such Option Closing Date, the non-defaulting Initial Purchasers shall have the option to (a) terminate their obligation hereunder to purchase the Additional Securities to be sold on such Option Closing Date or (b) purchase not less than the number of Additional Securities that such non-defaulting Initial Purchasers would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Initial Purchaser from liability to the Company, any other Initial Purchaser or otherwise in respect of any default of such Initial Purchaser under this Agreement.

If this Agreement shall be terminated by the Initial Purchasers, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Initial Purchasers or such Initial Purchasers as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Initial Purchasers in connection with this Agreement or the offering contemplated hereunder.

11. Entire Agreement . (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not expressly superseded by this Agreement) that relate to the offering of the Securities, represents the entire agreement between the Company and the Initial Purchasers with respect to the preparation of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, the conduct of the offering, and the purchase and sale of the Securities.

( b) The Company acknowledges that in connection with the offering of the Securities: (xi) the Initial Purchasers have acted at arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (xii) the Initial Purchasers owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement) if any, and (xiii) the Initial Purchasers may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Initial Purchasers arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.

12 . Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

13 . Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

14 . Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

15. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Initial Purchasers shall be delivered, mailed or sent to you at in care of (i) Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Convertible Debt Syndicate Desk, with a copy to the Legal Department, (ii) Wells Fargo Securities, LLC, 375 Park Avenue, New York, New York 10152, Attention: Equity Syndicate Department (fax no: (212) 214-5918) and (iii) Credit Suisse Securities (USA) LLC, 11 Madison Avenue, New York, New York 10010, Attn: LCD-IBD; and if to the Company shall be delivered, mailed or sent to 2503 South Hanley Road, St. Louis, MO 63144, Attention: General Counsel, with a copy to Lewis, Rice & Fingersh, L.C., 600 Washington Avenue, Suite 2500, St. Louis, Missouri 63101, Attention: Thomas C. Erb.

[Signature pages follow]



Very truly yours, POST HOLDINGS, INC.
By:	/s/ Robert Vitale
	Name: Robert Vitale
	Title: Chief Financial Officer

[Signature page to Purchase Agreement]



Accepted as of the date hereof Morgan Stanley & Co. LLC Wells Fargo Securities, LLC Credit Suisse Securities (USA) LLC Acting severally on behalf of themselves and the several Initial Purchasers named in Schedule I hereto. By: Morgan Stanley & Co. LLC
By:	/s/ Joel Carter
	Name: Joel Carter
	Title: Executive Director

By: Wells Fargo Securities, LLC



By:	/s/ David Herman
	Name: David Herman
	Title: Director

By: Credit Suisse Securities (USA) LLC



By:	/s/ Hugh Paisley
	Name: Hugh Paisley
	Title: Director

[Signature page to Purchase Agreement]

SCHEDULE I



Initial Purchaser	Number of Firm Securities to be Purchased
Morgan Stanley & Co. LLC	1,050,000
Wells Fargo Securities, LLC	630,000
Credit Suisse Securities (USA) LLC	420,000
Total:	2,100,000

I-1

SCHEDULE II

Time of Sale Memorandum


1.	Preliminary Memorandum issued February 19, 2013


2.	Pricing term sheet dated February 20, 2013

II-1

EXHIBIT A-1

OPINION OF COUNSEL FOR THE COMPANY

The opinion of the counsel for the Company, to be delivered pursuant to Section 5(c) of the Purchase Agreement shall be to the effect that:

A. The Company has been duly incorporated under the general corporation law of the State of Missouri. The Company is validly existing as a corporation, and is in good standing under the laws of the State of Missouri. The Company has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Memorandum and, based solely on good standing certificates, dated the dates set forth on Exhibit A attached hereto, from the Secretaries of State of the applicable jurisdictions set forth on Exhibit A, the Company is duly qualified to transact business and is in good standing as a foreign corporation company in the jurisdictions set forth on Exhibit A.

B. Post US has been duly organized under the LLCA. Post US is validly existing as a limited liability company, and is in good standing under the laws of the State of Delaware. Post US has the limited liability company power and authority to own its property and to conduct its business as described in the Time of Sale Memorandum and, based solely on good standing certificates, dated the dates set forth on Exhibit A attached hereto, from the Secretaries of State of the applicable jurisdictions set forth on Exhibit A, Post US is duly qualified to transact business and is in good standing as a foreign corporation company in the jurisdictions set forth on Exhibit A. The limited liability company interest of the sole member of Post US has been validly issued. Under the LLCA and the Amended and Restated Limited Liability Company Agreement, dated as of August 28, 2012, of Post US, the member of Post US has no obligation to make further payments for its acquisition of interests in Post US or contributions to Post US solely by reason of its ownership of such limited liability company interests in Post US. To our knowledge, the limited liability company interest in Post US is owned directly by the Company free and clear of all liens, encumbrances, equities or claims (each a “Lien”), except those Liens existing under the Credit Agreement, dated as of February 3, 2012, by and among the Company, Barclays Bank PLC, in its capacity as Administrative Agent, and the lenders and other agents named therein, as amended.

C. The Purchase Agreement has been duly authorized, executed and delivered by the Company.

D. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale Memorandum and the Final Memorandum.

E. The shares of common stock outstanding on the Closing Date have been duly authorized and are validly issued, fully paid and non assessable.

F. The Certificate of Designation creating the Securities has been duly filed with the Secretary of State of Missouri.

G. The Securities have been duly authorized and, when issued and delivered in accordance with the terms of the Purchase Agreement, will be validly issued, fully paid, non-assessable, and not subject to any preemptive or similar rights.

H. The Maximum Number of Underlying Securities issuable upon conversion of the Securities as of the date hereof has been duly authorized and reserved, and, when issued upon conversion of the Securities in accordance with the terms of the Securities, any Underlying Securities will be validly issued, fully paid, non assessable and not subject to any preemptive or similar rights.

A-1-1

I. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Purchase Agreement and the Securities, including the issuance and delivery of the Underlying Securities upon conversion of the Securities, do not conflict with or will not result in a breach or violation of (i) the Amended and Restated Articles of Incorporation, as amended, or bylaws, as amended to date, of the Company, (ii) any U.S. federal or Missouri or Delaware (under the LLCA) state statute, any rule, order or regulation known to us of any U.S. federal or Missouri or Delaware (under the LLCA) state court or governmental agency or body having jurisdiction over the Company or any of its properties, (iii) to our knowledge, any agreement filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended September 30, 2012 or the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2012, or, (iv) to our knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary. No consent, approval, authorization or order of, or qualification with, any federal, Missouri or Delaware (under the LLCA) state court or governmental body or agency is required for the performance by the Company of its obligations under the Purchase Agreement or the Securities, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities or as may otherwise be required by the Purchase Agreement.

J. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

K. The statements relating to legal matters, documents or proceedings included in the Time of Sale Memorandum and the Final Memorandum under the captions “Description of the Convertible Preferred Stock” and “Description of Capital Stock” insofar as such statements purport to constitute summaries of the legal matters, documents or proceedings referred to therein, accurately summarize such matters, documents or proceedings in all material respects.

L. The statements in each of the Time of Sale Memorandum and the Final Memorandum under the caption “Material U.S. Federal Income Tax Considerations,” insofar as such statements constitute a summary of the United States federal tax laws referred to therein, accurately summarize in all material respects the United States federal tax laws referred to therein.

M. Each document filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Memorandum or Final Memorandum (except for (i) the financial statements and financial schedules and other financial and statistical data included therein, and (ii) Forms 8-K, as to any of which we express no opinion) appeared on its face to be appropriately responsive as of its filing date in all material respects to the Exchange Act and the applicable rules and regulations of the Commission thereunder.

N. Based upon the representations, warranties and agreements of the Company in the Purchase Agreement and of the Initial Purchasers in the Purchase Agreement, and the due performance by, and compliance with, the Company and the Initial Purchasers of their respective covenants and agreements as set forth in the Purchase Agreement, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under the Purchase Agreement or in connection with the initial resale of such Securities by the Initial Purchasers to register the Securities under the Securities Act of 1933, it being understood that no opinion is expressed as to any subsequent resale of any Security or Underlying Security.

O. During the preparation of the Time of Sale Memorandum and the Final Memorandum, we have participated in conferences with officers and other representatives of the Company and its subsidiaries, representatives of the independent accountants for the Company and you and your representatives and counsel, at which conferences the contents of the Time of Sale Memorandum and the Final Memorandum and related matters were discussed, reviewed and revised. Although we are not passing

A-1-2

upon, and do not assume any responsibility for, the accuracy, completeness or fairness of such contents (except to the extent specified in the foregoing opinions D, K and L), and have not made any independent investigation or verification thereof, on the basis of the information which was developed in the course thereof, considered in light of our understanding of applicable law and the experience we have gained through our practice thereunder, this is to advise you that nothing has come to our attention which causes us to believe that, the Time of Sale Memorandum as of the date of the Purchase Agreement (except as to the financial statements and related notes and the other financial and accounting information, data and supporting schedules included therein or omitted therefrom, as to which we express no belief) or the Final Memorandum as of the date of the Purchase Agreement or as of the date hereof (except as to the financial statements and related notes and the other financial and accounting information, data and supporting schedules included therein or omitted therefrom, as to which we express no belief) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In addition, we express no view as to the conveyance of the Time of Sale Memorandum or the information contained therein to investors.

A-1-3

EXHIBIT A-2

OPINION OF COMPANY’S GENERAL COUNSEL

The opinion of the general counsel of the Company, to be delivered pursuant to Section 5(c) of the Purchase Agreement shall be to the effect that:

I am of the opinion that there are no legal or governmental proceedings pending or, to my knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject other than proceedings fairly summarized in all material respects in the Time of Sale Memorandum and proceedings which are not likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under the Purchase Agreement or the Securities.

A-2-1

EXHIBIT B

[FORM OF LOCK-UP LETTER]

_____________, 20__

Morgan Stanley & Co. LLC
Wells Fargo Securities, LLC
Credit Suisse Securities (USA) LLC

c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036

Ladies and Gentlemen:

The undersigned understands that Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC and Credit Suisse Securities (USA) LLC (the “ Managers ”) propose to enter into a Purchase Agreement (the “ Purchase Agreement ”) with Post Holdings, Inc., a Missouri corporation (the “ Company ”), providing for the offering (the “ Offering ”) by the several Initial Purchasers, including the Managers (the “ Initial Purchasers ”), of shares (the “ Shares ”) of the Series B Cumulative Perpetual Convertible Preferred Stock, $0.01 par value, Liquidation Preference, $100 per Share, of the Company (the “ Securities ”). The Securities will be convertible into shares of the Common Stock, $.01 par value, of the Company (the “ Common Stock ”). Capitalized terms used herein but not defined shall have the meanings given to them in the Purchase Agreement.

To induce the Initial Purchasers that may participate in the Offering to continue their efforts in connection with the Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC and Credit Suisse Securities (USA) LLC on behalf of the Initial Purchasers, it will not, during the period commencing on the date hereof and ending 90 days after the date of the final offering memorandum (the “ Restricted Period ”) relating to the Offering (the “ Final Memorandum ”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock, including the Securities or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to, (a) transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide gift or through the laws of succession, (b) distributions of shares of Common Stock or any security convertible into Common Stock to limited partners or stockholders of the undersigned, (c) transfers of shares of Common Stock or any security convertible into Common Stock to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that any such transfer shall not involve a disposition for value; provided further that in the case of any transfer or distribution pursuant to clause (a), (b), or (c), (A) each donee, distributee, or transferee shall sign and deliver a lock up letter substantially in the form of this letter and (B) no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (A) such plan does not provide for the transfer of

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Common Stock during the Restricted Period and (B) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period, (e) purchases of shares of Common Stock or any security convertible into Common Stock pursuant to any option or warrant, provided that, except with respect to shares of Common Stock or any security convertible into Common Stock sold to pay the exercise price or exercise costs or to satisfy tax obligations, the purchaser shall sign and deliver a lock up letter substantially in the form of this letter, (f) surrenders of shares of Common Stock or any security convertible into Common Stock to the Company in payment of the exercise price of any options to purchase Common Stock or any security convertible into Common Stock, or withholdings in respect of tax obligations of shares of Common Stock or any security convertible into Common Stock which was issuable upon such exercise, (g) sales or dispositions of shares of Common Stock solely for the purpose of sufficiently covering tax obligations which arise from the exercise or vesting of stock options or restricted stock units, (h) pledges of shares of Common Stock or any security convertible into Common Stock in connection with a bona fide loan transaction in which the pledgee acknowledges in writing the undersigned’s obligations hereunder, provided that (A) such pledge does not permit the pledgee, directly or indirectly, to make any transfer during the Restricted Period and (B) no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, (i) transfers of shares of Common Stock or any security convertible into Common Stock acquired in open market transactions by the undersigned after the completion of the Offering contemplated by the Purchase Agreement, provided that no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, or (j) tenders involving the acquisition of a majority of the Company’s Common Stock or a majority the of the Company’s securities convertible into Common Stock. In addition, the undersigned agrees that, without the prior written consent of Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC and Credit Suisse Securities (USA) LLC on behalf of the Initial Purchasers, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, including the Securities. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.

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For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, the undersigned now has, and, except as contemplated by clauses (a) through (j) above, for the duration of this agreement will have, good and marketable title to the undersigned’s shares of Common Stock or any security convertible into Common Stock, free and clear of all liens, encumbrances, and claims whatsoever.

The undersigned understands that the Company and the Initial Purchasers are relying upon this agreement in proceeding toward consummation of the Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.

Whether or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to a Purchase Agreement, the terms of which are subject to negotiation between the Company and the Initial Purchasers. Notwithstanding anything herein to the contrary, if the pricing of the Offering has not occurred prior to March 15, 2013, this agreement shall be of no further force or effect.

Very truly yours,

(Name)

(Address)

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