Post Holdings, Inc. (Form: 8-K, Received: 12/16/2013 16:59:11)

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): December 16, 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 December 10, 2013, Post Holdings, Inc. (the “Company” or “Post”) entered into a purchase agreement (the “Purchase Agreement”) with Barclays Capital Inc. and Goldman Sachs & Co. (the “Initial Purchasers”) relating to the sale by the Company of 3,000,000 shares of its 2.5% Series C Cumulative Perpetual Convertible Preferred Stock (the “Preferred Stock”), and up to an additional 450,000 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. The Company and its executive officers and directors have agreed, subject to certain exceptions, to not offer, sell or otherwise transfer or dispose of any shares of the Company's common stock or any securities convertible into or exercisable for the common stock, without the prior written consent of the Initial Purchasers for a period of 90 days after December 10, 2013.

On December 16, 2013, the offering of 3,000,000 shares of the Preferred Stock closed in accordance with the terms of the Purchase Agreement. Net proceeds from the offering, after commissions or discounts to the initial purchasers and the payment of certain expenses, were approximately $290,500,000. The Company intends to use the net proceeds from the offering for general corporate purposes, which may include, among other things, financing pending acquisitions and any additional acquisition opportunities, working capital and capital expenditures. 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.

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 December 12, 2013, Post filed with the Missouri Secretary of State a Certificate of Designation, Preferences and Rights of 2.5% Series C 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 (i) Post’s 3.75% Series B Cumulative Perpetual Convertible Preferred Stock and (ii) 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 2.5% 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 February 15, 2014.

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, 2019. On or after February 15, 2019, 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 150% 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 1.8477 shares of Post’s common stock per $100 liquidation preference, which is equivalent to an initial conversion price of approximately $54.12 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 $49.20 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 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 2.0325 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 4.0650 shares of common stock per $100 liquidation preference 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 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 January 31, 2015, the per annum dividend rate on the Preferred Stock will increase by 0.25% during the period from, and including, January 31, 2015 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 380th 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: December 16, 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 2.5% Series C Cumulative Perpetual Convertible Preferred Stock

10.1		Purchase Agreement

Exhibit 4.1

Certificate of Designation, Preferences and Rights of
2.5% Series C 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 December 7, 2013, adopted the following resolution (the “ Resolution ”) creating a series of Preferred Stock designated as 2.5% Series C 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 three million four hundred fifty thousand (3,450,000) shares of Preferred Stock as 2.5% Series C Cumulative Perpetual Convertible Preferred Stock, par value $.01 per share, by adopting the following resolutions:

RESOLVED, the Company is hereby authorized to issue three million four hundred fifty thousand (3,450,000) shares of 2.5% Series C 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 “2.5% Series C 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 3,450,000. 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 4.0650 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 January 31, 2015.

(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 1.8477 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 February 15, 2014, 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 2.5% 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 %4. 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; %4. 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 %4. 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 Error! Reference source not found. 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 %3. 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 %3. 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 from the most recent Dividend Payment Date to 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 2.0325 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.

(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 %3. such Person; %3. such Person and one or more Subsidiaries of such Person; or %3. 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 %3. the Company has earnings; %3. 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 380 ^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, %3. 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 %3. 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;

(ii) 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 %3. 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 %3. 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, 2019. On or after February 15, 2019, 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 150% 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, the Convertible Preferred Stock may not be called for redemption unless and until all accrued and unpaid dividends (whether or not declared) on all Outstanding shares of Convertible Preferred Stock (including accrued and unpaid dividends on any shares of the Convertible Preferred Stock that are not being redeemed) have been paid for all complete Dividend Periods prior to the Dividend Period in which the Redemption Date falls.

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 (i) the Company’s 3.75% Series B Cumulative Perpetual Convertible Preferred Stock, par value $.01 per share (“ Series B Preferred Stock ”) and (ii) 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 with the Series B Preferred Stock, 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 $49.20 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.

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	$49.20	$52.50	$54.12	$60.00	$70.00	$80.00	$100.00	$125.00	$150.00	$175.00	$200.00
December 16, 2013	0.1848	0.1642	0.1553	0.1279	0.0943	0.0711	0.0420	0.0220	0.0109	0.0047	0.0013
February 15, 2014	0.1848	0.1619	0.1531	0.1259	0.0927	0.0698	0.0412	0.0216	0.0107	0.0046	0.0013
February 15, 2015	0.1848	0.1469	0.1384	0.1126	0.0816	0.0608	0.0353	0.0183	0.0089	0.0037	0.0009
February 15, 2016	0.1848	0.1310	0.1228	0.0981	0.0692	0.0504	0.0286	0.0146	0.0070	0.0027	0.0005
February 15, 2017	0.1848	0.1161	0.1079	0.0835	0.0557	0.0388	0.0210	0.0105	0.0050	0.0018	0.0002
February 15, 2018	0.1848	0.1044	0.0958	0.0699	0.0409	0.0249	0.0117	0.0058	0.0028	0.0009	0.0000
February 15, 2019 and thereafter	0.1848	0.0992	0.0902	0.0621	0.0268	0.0024	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 $200.00 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:

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

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

(iii) 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.

[remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the foregoing as true under the penalties of perjury this 12th day of December, 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

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 500

2.5% Series C 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 2.5% Series C 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 December [__], 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.

2.5% Series C 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 2.5% Series C 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.
2.5% Series C 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

Execution Version

3,000,000 SHARES

POST HOLDINGS, INC.

2.5% SERIES C CUMULATIVE PERPETUAL CONVERTIBLE PREFERRED STOCK

PURCHASE AGREEMENT

December 10, 2013

BARCLAYS CAPITAL INC.

GOLDMAN, SACHS & CO.

As Representatives of the several
Initial Purchasers named in Schedule I attached hereto,

c/o Barclays Capital Inc.

745 Seventh Avenue

New York, New York 10019

and

c/o Goldman, Sachs & Co.

200 West Street,

New York, New York 10282-2198

Ladies and Gentlemen:

Post Holdings, Inc., a Missouri corporation (the “ Company ”), subject to the terms and conditions stated in this Purchase Agreement (this “ Agreement ”), proposes to issue and sell 3,000,000 shares of its 2.5% Series C Cumulative Perpetual Convertible Preferred Stock, $0.01 par value, Liquidation Preference, $100 per Share (the “ Firm Securities ”) to the persons listed in Schedule I hereto (the “ Initial Purchasers ”) for whom you are acting as representatives (the “ Representatives ”). The Company also proposes to issue and sell to the Initial Purchasers up to an additional 450,000 shares of its 2.5% Series C 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 Representatives, 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 3 hereof. The Firm Securities and the Additional Securities are hereinafter collectively referred to as the “ Securities .” Each such Initial Purchaser proposes to purchase from the Company the number of Firm Securities indicated for each such Initial Purchaser in Schedule I hereto. The Securities will be convertible into shares of the Company’s Common Stock, $.01 par value (the “ Underlying Securities ”). This Agreement is to confirm the agreement concerning the purchase of the Securities from the Company by the Initial Purchasers.

As used herein, the “ Post cereals business ” refers to the branded ready-to-eat cereal products business which, prior to its separation in a spin-off transaction consummated on February 3, 2012, comprised the operations of the Company.

1. Purchase and Resale of the Securities . The Securities and the Underlying Securities will be offered and sold to the Initial Purchasers without registration under the Securities Act of 1933, as amended (the “ Securities Act ”), in reliance on an exemption pursuant to Section 4(a)(2) under the Securities Act therefrom. The Company has prepared a preliminary confidential offering memorandum, dated December 9, 2013 (the “ Preliminary Offering Memorandum ”), a pricing term sheet substantially in the form attached hereto as Schedule II (the “ Pricing Term Sheet ”) setting forth the terms of the Securities omitted from the Preliminary Offering Memorandum and a confidential Offering Memorandum, dated December 10, 2013 (the “ Offering Memorandum ”), setting forth information regarding the Company, and the Securities. The Preliminary Offering Memorandum, as supplemented and amended as of the Applicable Time (as defined below), together with the Pricing Term Sheet and any of the documents listed on Schedule III(A) hereto are collectively referred to as the “ Pricing Disclosure Package ”. For avoidance of doubt, the Pricing Disclosure Package does not include any Free Writing Offering Document (as defined below) listed on Schedule III(B). The Company hereby confirms that it has authorized the use of the Pricing Disclosure Package and the Offering Memorandum in connection with the offering and resale of the Securities by the Initial Purchasers. “ Applicable Time ” means 5:00 p.m. (New York City time) on the date of this Agreement.

Except as otherwise indicated herein, any reference to the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum shall be deemed to refer to and include the Company’s most recent Annual Report on Form 10-K and all subsequent documents filed (but not furnished) with the United States Securities and Exchange Commission (the “ Commission ”) pursuant to Section 13(a), 13(c) or 15(d) of the United States Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), on or prior to the date of the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, as the case may be, and which are incorporated by reference therein. Any reference to the Preliminary Offering Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the case may be, as amended or supplemented, as of any specified date, shall be deemed to include any documents filed (but not furnished) with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act after the date of the Preliminary Offering Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the case may be, and prior to such specified date. All documents filed under the Exchange Act and incorporated by reference into the Preliminary Offering Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the case may be, or any amendment or supplement thereto are hereinafter called the “ Exchange Act Reports ”. Except as otherwise indicated herein, all references to information or documents that are “included in”, “appear in”, or are “a part of” the Preliminary Offering Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the case may be, include the Exchange Act Reports.

You have advised the Company that you will offer and resell (the “ Exempt Resales ”) the Securities purchased by you hereunder on the terms set forth in each of the Pricing Disclosure Package and the Offering Memorandum, as amended or supplemented, solely to persons whom you reasonably believe to be “qualified institutional buyers” (“ QIBs ”) as defined in Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”).

2. Representations, Warranties and Agreements of the Company . The Company represents, warrants and agrees as follows:

(a) When the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system, and the Securities otherwise satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act.

(b) Assuming the accuracy of your representations and warranties in Section 3 and compliance with your agreements set forth therein, the purchase and resale of the Securities by the Initial Purchasers pursuant to and in the manner contemplated by this Agreement (including pursuant to the Exempt Resales) are exempt from the registration requirements of the Securities Act.

(c) No form of general solicitation or general advertising within the meaning of Regulation D under the Securities Act (“ Regulation D ”) (including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) was conducted by the Company, any of its respective affiliates or any of its respective representatives (other than you or your affiliates, as to whom the Company makes no representation) in connection with the offer and sale of the Securities or the Underlying Securities.

(d) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum, each as of its respective date, contains all the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.

(e) Neither the Company nor any other person acting on behalf of the Company has sold or issued any securities that would be integrated with the offering of the Securities contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the SEC.

(f) The Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued, and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.

(g) The Offering Memorandum will not, as of its date or as amended or supplemented as of the Closing Date, contain an 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; provided that no representation or warranty is made as to information contained in or omitted from the Offering Memorandum in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in Section 8(e).

(h) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in Section 8(e).

(i) The Company has not made any offer to sell or solicitation of an offer to buy the Securities that would constitute a “free writing prospectus” (if the offering of the Securities was made pursuant to a registered offering under the Securities Act), as defined in Rule 405, including any electronic roadshows, under the Securities Act (a “ Free Writing Offering Document ”) without the prior consent of the Representatives; any such Free Writing Offering Document the use of which has been previously consented to by the Initial Purchasers is listed on Schedule III(B).

(j) Each Free Writing Offering Document listed in Schedule III(B) hereto, when taken together with the Pricing Disclosure Package, did not, as of the Applicable Time, contain an 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; provided that no representation or warranty is made as to information contained in or omitted from the Free Writing Offering Document listed in Schedule III(B) hereto in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in Section 8(e).

(k) The Exchange Act Reports, when they were filed or are filed with the Commission, conformed or will conform in all material respects to the applicable requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder and did not and will not, when filed with the Commission, contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(l) The Company and each of its subsidiaries has been duly organized, is validly existing and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and its subsidiaries, taken as a whole (a “ Material Adverse Effect ”). Each of the Company and its subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries set forth on Schedule IV hereto.

(m) The Company has an authorized capitalization as set forth in each of the Pricing Disclosure Package and the Offering Memorandum (except for subsequent issuances of capital stock, if any, pursuant to employee benefit plans described in the Pricing Disclosure Package and the Offering Memorandum), and all of the issued shares of capital stock of the Company as of the Closing Date have been duly authorized and validly issued and are fully paid and non-assessable. All of the issued shares of capital stock or other ownership interests of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and (except as set forth in each of the Pricing Disclosure Package and the Offering Memorandum) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(n) The Certificate of Designation (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.

(o) 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. The Securities will conform in all material respects to the description thereof in each of the Pricing Disclosure Package and the Offering Memorandum.

(p) 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.

(q) The Company has all requisite corporate or limited liability power and authority, as applicable, to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company.

(r) The execution, delivery and performance by the Company of this Agreement and the Securities, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Offering Memorandum and the consummation by the Company of the transactions contemplated hereby and thereby, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of any of the Company or its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which any of the Company or its subsidiaries is a party or by which any of the Company or its subsidiaries is bound or to which any of the property or assets of any of the Company or its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of any of the Company or its subsidiaries, or (iii) assuming the accuracy of the Initial Purchasers’ representations and warranties in Section 3 and compliance with their agreements contained therein, result in any violation by the Company or its subsidiaries of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Company or its subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), conflicts or violations that would not reasonably be expected to have a Material Adverse Effect.

(s) Assuming the accuracy of the Initial Purchasers’ representations and warranties in Section 3 and compliance with their agreements contained therein, no consent, approval, authorization or order of, or filing, registration or qualification with any court or governmental agency or body having jurisdiction over any of the Company or its subsidiaries or any of their properties or assets is required for the issue and sale of the Securities, the execution, delivery and performance by the Company of this Agreement, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Offering Memorandum and the consummation by the Company of the transactions contemplated hereby, except for such consents, approvals, authorizations, orders, filings, registrations or qualifications (x) as may be required under state securities or Blue Sky laws or foreign laws in connection with the purchase and distribution of the Securities by the Initial Purchasers, (y) with respect to the approval of the supplemental listing application with the New York Stock Exchange or (z) as have been obtained or made and are in full force and effect.

(t) The historical financial statements (including the related notes and supporting schedules) included in the Pricing Disclosure Package and the Offering Memorandum present fairly in all material respects the financial condition, results of operations and cash flows of the Company or the Post cereals business, as applicable, at the dates and for the periods indicated, and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved. The interactive data in eXtensible Business Reporting Language included in the Pricing Disclosure Package and the Offering 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.

(u) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company, whose report appears in the Pricing Disclosure Package and the Offering Memorandum and who have delivered the initial letter referred to in Section 7(e) hereof, are independent registered public accountants as required by the Securities Act and the rules and regulations thereunder and the rules and regulations of the Public Company Accounting Oversight Board (the “ PCAOB ”).

(v) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary (A) to permit preparation of the financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements and (B) to maintain accountability for assets, (iii) access to the assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for assets is compared with 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 in the Pricing Disclosure Package and the Offering Memorandum fairly presents the information called for in all material respects and is prepared in accordance with the Commission's rules and guidelines applicable thereto. As of the time the Company filed its annual report with the SEC for the prior fiscal year, the Company maintained a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complied in all material respects with the requirements of the Exchange Act applicable to the Company. As of the date of the most recent balance sheet of the Company reviewed or audited by PricewaterhouseCoopers LLP, there were no material weaknesses in the Company’s internal control over financial reporting.

(w) (i) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is (A) recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms and (B) accumulated and communicated to the Company’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure to be made and (iii) to the Company’s knowledge, such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.

(x) Since the date of the most recent balance sheet of the Company reviewed or audited by PricewaterhouseCoopers LLP, the Company has not been advised of or become aware of (A) any significant deficiencies in the design or operation of internal controls, that could adversely affect the ability of the Company or its subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal controls or (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of its subsidiaries.

(y) The section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Critical Accounting Policies and Estimates” included in the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum accurately describes in all material respects (i) the accounting policies that the Company believes are the most important in the portrayal of the Company’s financial condition and results of operations and that require management’s most difficult, subjective or complex judgments; (ii) the judgments and uncertainties affecting the application of critical accounting policies; and (iii) the likelihood that materially different amounts would be reported under different conditions or using different assumptions and an explanation thereof, in each case to the extent the same would be required to be described in a registration statement filed under the Securities Act.

(z) There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply, in all material respects, with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.

(aa) Since the date of the latest audited financial statements included in the Pricing Disclosure Package and the Offering Memorandum, none of the Company or its subsidiaries has (i) sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decree, (ii) issued or granted any securities (other than the Securities and the Underlying Securities contemplated hereby), (iii) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (iv) entered into any material transaction not in the ordinary course of business, (v) declared or paid any dividend on its capital stock, and (vi) since such date, there has not been any change in the capital stock or limited liability interests (other than the Securities and the Underlying Securities contemplated hereby), as applicable, or long-term debt of any of the Company or its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company or its subsidiaries, taken as a whole, in each case except (a) as described in the Pricing Disclosure Package and the Offering Memorandum or (b) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(bb) Each of the Company and its subsidiaries has good and marketable title to all real property and good and marketable title to all personal property owned by them, in each case, free and clear of all liens, encumbrances and defects, except (i) such liens, encumbrances and defects as are described in the Pricing Disclosure Package and the Offering Memorandum, (ii) such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company or its subsidiaries and (iii) such liens, encumbrances and defects as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All assets held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by the Company and its subsidiaries.

(cc) Each of the Company and its subsidiaries have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“ Permits ”) as are necessary under applicable law to own their properties and conduct their businesses in the manner described in the Pricing Disclosure Package and the Offering Memorandum, except for any of the foregoing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and each of its subsidiaries have fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that would not reasonably be expected to have a Material Adverse Effect. Neither the Company, nor any of its subsidiaries has received notice of any revocation or modification of any such Permits or has any reason to believe that any such Permits will not be renewed in the ordinary course, except where such event would not reasonably be expected to have a Material Adverse Effect.

(dd) Except as described in the Pricing Disclosure Package and the Offering Memorandum, the Company and its subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, know-how, software, systems and technology (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses (except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect), the conduct of their respective businesses will not conflict with, and have not received any notice of any claim of conflict with, any such rights of others that would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.

(ee) Except as described in the Pricing Disclosure Package and the Offering Memorandum, there are no legal or governmental proceedings pending to which any of the Company and its subsidiaries is a party or of which any property or assets of the Company and its subsidiaries is the subject that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the performance by the Company of this Agreement, the Certificate or the consummation of any of the transactions contemplated hereby. To the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.

(ff) The statements made in the Pricing Disclosure Package and the Offering Memorandum, insofar as they purport to constitute summaries of the terms of the contracts and other documents that are so described, constitute accurate summaries of the terms of such contracts and documents in all material respects.

(gg) The Company and its subsidiaries carry insurance, or are covered by insurance carried by other persons, from insurers of recognized financial responsibility in such amounts and covering such risks as is customary for companies engaged in similar businesses in similar industries. All such policies of insurance are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies in all material respects; and none of the Company or its subsidiaries has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance; there are no claims by the Company or its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Company does not have any reason to believe that any of the Company or its subsidiaries will not continue to be insured under a renewal of their existing insurance coverage when such coverage expires or be able to obtain similar coverage from similar insurers, in each case other than as would not reasonably be expected to have a Material Adverse Effect.

(hh) No transaction, direct or indirect, that would be required to be described in a registration statement of the Company pursuant to Item 404 of Regulation S-K, exists between or among any of the Company and its subsidiaries, on the one hand, and any related person (as such term is defined in Item 404 of Regulation S-K), on the other hand, that has not been described in the Pricing Disclosure Package and the Offering Memorandum.

(ii) No labor disturbance by or dispute with the employees of any of the Company or its subsidiaries exists or, to the knowledge of the Company, is imminent that would reasonably be expected to have a Material Adverse Effect.

(jj) None of the Company or its subsidiaries (i) is in violation of its charter or by-laws (or similar organizational documents), (ii) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject, or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(kk) The Company and its subsidiaries (i) are and, to the knowledge of the Company, in the five years immediately prior hereto were, in compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any governmental authority, including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating to pollution, the protection of human health or safety, the environment, or natural resources, or to the use, handling, storage, manufacturing, transportation, treatment, discharge, disposal or release of, or exposure to, hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with all Permits required by or issued pursuant to Environmental Laws to conduct their respective businesses in the manner described in the Pricing Disclosure Package and the Offering Memorandum, and (ii) have not received written notice or do not otherwise have knowledge (I) of any actual or alleged violation of Environmental Laws, or (II) of any actual or potential liability for the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except (A) in the case of clause (i) or (ii) where such non-compliance, violation or liability would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (B) as described in the Pricing Disclosure Package and the Offering Memorandum. Except as described in the Pricing Disclosure Package and the Offering Memorandum, (x) there are no proceedings that are pending or, to the knowledge of the Company, threatened (in writing or known by an officer of the Company to be threatened), or contemplated against the Company or its subsidiaries under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, and (y) the Company is not aware of any liabilities under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company or its subsidiaries.

(ll) Each of the Company and its subsidiaries has filed all federal, state, local and foreign tax returns required to be filed through the date hereof, subject to permitted extensions, and have paid all taxes due, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no tax deficiency has been determined adversely to any of the Company or its subsidiaries, nor does the Company have any knowledge of any tax deficiencies that have been, or would reasonably be expected to be asserted against any of the Company or its subsidiaries, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(mm) (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ ERISA ”)) for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “ Code ”)) would have any liability (each a “ Plan ”) has been maintained in compliance in all material respects with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) to the knowledge of the Company, no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no material “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) there has been no failure to satisfy the minimum funding standard of Sections 302 and 303 of ERISA or Sections 412 and 430 of the Code (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) and no failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a “multiemployer plan” within the meaning of Section 4001(c)(3) of ERISA (“ Multiemployer Plan ”), (C) present value of the aggregate benefit liabilities under such Plan (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Plan) did not exceed the aggregate current fair market value of the assets of such Plan by more than $5.0 million), (D) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any material liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a Multiemployer Plan); and (iv) each Plan intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service, and nothing has occurred that would prevent or cause the loss of such tax-qualified status.

(nn) Except as described in the Pricing Disclosure Package and the Offering Memorandum and except where such restrictions would not reasonably be expected to have a Material Adverse Effect, no subsidiary of the Company will be prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company.

(oo) The statistical and market-related data included in the Pricing Disclosure Package and the Offering Memorandum and the consolidated financial statements of the Post cereals business included in the Pricing Disclosure Package and the Offering Memorandum are based on or derived from sources that the Company believes to be reliable in all material respects.

(pp) Neither the Company is, nor after giving effect to the offer and sale of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Offering Circular, will be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.

(qq) The statements set forth in each of the Pricing Disclosure Package and the Offering Memorandum under the caption “Description of the Convertible Preferred Stock,” and ““Description of Capital Stock” insofar as they purport to constitute a summary of the terms of the Securities and its capital stock, and under the captions “Risk Factors—We may have a significant indemnity obligation to Ralcorp if the separation and/or certain related transactions are treated as a taxable transaction,” “Risk Factors—The tax rules applicable to the separation and our indemnification obligations contained in the Tax Allocation Agreement may restrict us from taking certain actions, engaging in certain corporate transactions or from raising equity capital beyond certain thresholds for a period of time after the separation,” “Material United States Federal Income Tax Considerations” and “Plan of Distribution”, insofar as they purport to summarize the provisions of the laws and documents referred to therein, are accurate summaries in all material respects.

(rr) Except as described in the Pricing Disclosure Package and the Offering Memorandum, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in any securities being registered pursuant to any registration statement filed by the Company under the Securities Act.

(ss) The Company is not a party to any contract, agreement or understanding with any person (other than this Agreement) that could give rise to a valid claim against any of them or the Initial Purchasers for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.

(tt) The Company and its affiliates have not taken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities.

(uu) The Company has not taken any action or omitted to take any action without the prior consent of the Representatives (such as issuing any press release relating to any Securities without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the Financial Services and Markets Act 2000 (the “ FSMA ”).

(vv) None of the Company or its subsidiaries, nor to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of any of the Company or its subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

(ww) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Company or its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(xx) None of the Company or its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of any of the Company or its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”), the United Nations Security Council (“ UNSC ”), the European Union (“ EU ”), Her Majesty’s Treasury (“ HMT ”), or other relevant sanctions authority (collectively, “ Sanctions ”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is subject of Sanctions; and 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 or entity (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as initial purchaser, advisor, investor or otherwise) of Sanctions.

(yy) No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in any of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

(zz) To the Company’s knowledge, the representations and warranties of (i) Viterra Inc. in that certain Stock Purchase Agreement, dated September 15, 2013, between the Company and Viterra Inc. (together with the schedules and exhibits thereto, the “ Viterra Acquisition Agreement ”), (ii) the Vendors (as defined in the Golden Boy Acquisition Agreement) in that certain Share Purchase Agreement, dated December 7, 2013 (together with the schedules and exhibits thereto, the “ Golden Boy Acquisition Agreement ”) and (iii) the Sellers (as defined in the Dymatize Acquisition Agreement) in that certain Securities Purchase Agreement, dated December 8, 2013 (together with the schedules and exhibits thereto, the “ Dymatize Acquisition Agreement ”, and together with the Viterra Acquisition Agreement and the Golden Boy Acquisition Agreement, the “ Acquisition Agreements ”), in each case, are true and correct in all respects as of the date hereof, subject to the qualifications thereto set forth in each of the Acquisition Agreements. The Acquisition Agreements are in full force and effect as of the date hereof.

(aaa) The Company is in compliance with the requirements of The New York Stock Exchange for continued listing of the Common Stock thereon. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on The New York Stock Exchange, nor has the Company received any notification that the Commission or The New York Stock Exchange is currently contemplating terminating such registration or listing. The transactions contemplated by this Agreement will not contravene the rules and regulations of The New York Stock Exchange. The Company will comply with all requirements of The New York Stock Exchange with respect to the issuance of the Securities and the Underlying Securities.

Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Initial Purchasers in connection with the offering of the Securities shall be deemed a representation and warranty made in the name and on behalf of the Company and not in such officer’s individual capacity, jointly and severally, as to matters covered thereby, to each Initial Purchaser.

3. Purchase of the Securities by the Initial Purchasers; Agreement to Sell, Purchase and Resell.

(a) The Company hereby agrees, on the basis of the representations, warranties, covenants and agreements of the Initial Purchasers contained herein and subject to all the terms and conditions set forth herein, to issue and sell to the Initial Purchasers and, upon the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions set forth herein, each of the Initial Purchasers agrees, severally and not jointly, to purchase from the Company, at a purchase price of $97.00 per share (the “ Purchase Price ”) plus accrued dividends, if any, to the Closing Date, the respective numbers of Firm Securities set forth in Schedule I hereto opposite its name. The Company shall not be obligated to deliver any of the securities to be delivered hereunder except upon payment for all of the securities to be purchased as provided herein.

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 450,000 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. 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.

(b) Each of the Initial Purchasers, severally and not jointly, hereby represents and warrants to, and agrees with, the Company that it will not offer the Securities for sale except upon the terms and conditions set forth in this Agreement and in the Pricing Disclosure Package. Each of the Initial Purchasers, severally and not jointly, hereby represents and warrants to, and agrees with, the Company, on the basis of the representations, warranties and agreements of the Company, that such Initial Purchaser: (i) is a QIB with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Securities; (ii) is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act; (iii) in connection with the Exempt Resales, will solicit offers to buy the Securities only from, and will offer to sell the Securities only to, the QIBs in accordance with this Agreement and on the terms contemplated by the Pricing Disclosure Package; and (iv) will not offer or sell the Securities, nor has it offered or sold the Securities by, or otherwise engaged in, any form of general solicitation or general advertising (within the meaning of Regulation D, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) and will not engage in any directed selling efforts within the meaning of Rule 902 under the Securities Act, in connection with the offering of the Securities. The Initial Purchasers have advised the Company that they will offer the Securities to QIBs at a price initially equal to $100 per share, plus accrued dividends, if any, to the Closing Date. Such price may be changed by the Initial Purchasers at any time without notice.

(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company;

(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and

(iii) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “ Relevant Member State ”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “ Relevant Implementation Date ”), it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:


(A)	to any legal entity which is a qualified investor as defined in the Prospectus Directive;


(B)	to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive subject to obtaining the prior consent of the relevant dealer or dealers nominated by us for any such offer; or


(C)	in any other circumstances falling within Article 3(2) of the Prospectus Directive,

provided that no such offer of Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive.

For the purposes of this representation, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

(d) The Initial Purchasers have not nor, prior to the later to occur of (A) the Closing Date and (B) completion of the distribution of the Securities, will not, use, authorize use of, refer to or distribute any material in connection with the offering and sale of the Securities other than (i) the Preliminary Offering Memorandum, the Pricing Disclosure Package, the Offering Memorandum, (ii) any written communication that contains either (a) no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) or (b) “issuer information” that was included in the Preliminary Offering Memorandum, Pricing Disclosure Package, the Offering Memorandum or any Free Writing Offering Document listed on Schedule III hereto, (iii) the Free Writing Offering Documents listed on Schedule III hereto, (iv) any written communication prepared by such Initial Purchaser and approved by the Company in writing, or (v) any written communication relating to or that contains the terms of the Securities and/or other information that was included in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum.

(e) Each of the Initial Purchasers hereby acknowledges that upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Securities and the Underlying Securities issuable upon conversion shall bear legends substantially in the forms as set forth in the “Notice to Investors” section of the Pricing Disclosure Package and Offering Memorandum (along with such other legends as the Company and its counsel deem necessary).

Each of the Initial Purchasers understands that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 7(b) and 7(d) hereof, counsel to the Company and counsel to the Initial Purchasers, will rely upon the accuracy and truth of the foregoing representations, warranties and agreements, and the Initial Purchasers hereby consent to such reliance.

4. Delivery of the Securities and Payment Therefor . Delivery to the Initial Purchasers of and payment for the Securities shall be made at the office of Latham & Watkins LLP, at 10:00 A.M., New York City time, on December 16, 2013 (the “ Closing Date ”). The place of closing for the Securities and the Closing Date may be varied by agreement between the Initial Purchasers and the Company.

Payment for any Additional Securities shall be made to the Company 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 3 or at such other time on the same or on such other date.

The Securities will be delivered to the Initial Purchasers, or the transfer agent as custodian for The Depository Trust Company (“ DTC ”), against payment by or on behalf of the Initial Purchasers of the Purchase Price therefor plus accrued dividends, if any, to the date of payment and delivery, by wire transfer in immediately available funds, by causing DTC to credit the Securities to the account of the Initial Purchasers at DTC. The Securities will be evidenced by one or more global securities in definitive form (the “ Global Securities ”) and will be registered in the name of Cede & Co. as nominee of DTC. The Securities to be delivered to the Initial Purchasers shall be made available to the Initial Purchasers in New York City for inspection and packaging not later than 10:00 A.M., New York City time, on the business day next preceding the Closing Date or the applicable Option Closing Date, as the case may be.

5. Agreements of the Company . The Company agrees with each of the Initial Purchasers as follows:

(a) The Company will furnish to the Initial Purchasers, without charge, within three business days of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.

(b) The Company will prepare the Offering Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object in a timely manner after being so advised.

(c) Subject to Section 5(f), the Company consents to the use of the Pricing Disclosure Package and the Offering Memorandum by the Initial Purchasers in accordance with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchasers and by all dealers to whom Securities may be sold, in connection with the offering and sale of the Securities.

(d) If, at any time prior to completion of the distribution of the Securities by the Initial Purchasers to QIBs, any event occurs or information becomes known that, in the judgment of the Company or in the reasonable opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Memorandum in order to comply with any law, the Company will, subject to Section 5(b), forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.

(e) The Company will not make any offer to sell or solicitation of an offer to buy the Securities that would constitute a Free Writing Offering Document without the prior consent of the Representatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.

(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale (including to obtain exemption from any registration requirement) under the securities or Blue Sky laws of such jurisdictions in the United States as the Initial Purchasers may request (and in such foreign jurisdictions as the parties may mutually agree) and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.

The Company also agrees that, without the prior written consent of Representatives 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 Pricing Disclosure Package, 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 Representatives 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 Representatives 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).

(g) So long as any of the Securities are outstanding, the Company will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Securities and prospective purchasers of the Securities the information required by Rule 144A(d)(4) under the Securities Act (if any).

(h) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Memorandum under the caption “Use of Proceeds.”

(i) The Company will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities.

(j) So long as any Securities are outstanding, the Company will use their commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC (or any successor depositary).

(k) For a period of one year after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act.

(l) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers of the Securities or the sale by the Initial Purchasers to the QIBs of the Securities. The Company will take reasonable precautions designed to ensure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Securities or any substantially similar security issued by the Company, within six months subsequent to the date on which the distribution of the Securities has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Securities in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to Rule 144A under, or Regulations D of, the Securities Act.

(m) In connection with any offer or sale of the Securities, the Company will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company makes no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Securities and/or (ii) in any directed selling effort with respect to the Securities within the meaning of Regulation S under the Securities Act, and to comply with the offering restrictions requirement of Regulation S of the Securities Act.

(n) The Company agrees to comply in all material respects with all the terms and conditions set forth in the representation letters of the Company to DTC relating to the approval of the Securities by DTC for “book entry” transfer (except to the extent such terms and conditions are subsequently modified or amended by DTC).

(o) The Company will use commercially reasonable efforts to do and perform in all material respects all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy in all material respects all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Securities.

(p) The Company will not take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.

(q) The Company will 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 ”).

(r) The Company will 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.

6. Expenses . Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees, to pay all expenses, costs, fees and taxes incident to and in connection with: (a) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (including the fees, disbursements and expenses of the Company’s accountants and counsel, but not, however, legal fees and expenses of the Initial Purchasers’ counsel incurred in connection therewith); (b) the preparation, printing (including, without limitation, word processing and duplication costs) and delivery of this Agreement, all Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection therewith and with the Exempt Resales (but not, however, legal fees and expenses of the Initial Purchasers’ counsel incurred in connection with any of the foregoing other than reasonable and invoiced fees of such counsel plus reasonable and invoiced disbursements incurred in connection with the preparation, printing and delivery of such Blue Sky memoranda, which fees shall not exceed $15,000); (c) the issuance and delivery by the Company of the Securities and any taxes payable by the Company in connection therewith; (d) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and any foreign jurisdictions as the Initial Purchasers may designate (including, without limitation, the reasonable and documented fees and disbursements of the Initial Purchasers’ counsel relating to such registration or qualification, or obtaining exemptions from qualification or registration (which shall not exceed $25,000)); (e) the furnishing of such copies of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with the Exempt Resales; (f) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof); (g) the approval of the Securities by DTC for “book-entry” transfer; (h) the rating of the Securities; (i) the obligations of the transfer agent, any agent of the transfer agent and the counsel for the transfer agent in connection with the Securities; (j) the performance by the Company of its other obligations under this Agreement; (k) all reasonable and documented travel expenses (including expenses related to chartered aircraft if agreed by the Company in advance) of each Initial Purchaser and any other reasonable and documented expenses of each Initial Purchaser in connection with attending or hosting meetings with prospective purchasers of the Securities, and reasonable and documented expenses of each Initial Purchaser associated with any electronic road show; and (l) all travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Securities, and all expenses of the Company associated with any electronic road show. For the avoidance of doubt, nothing in this Section 6 shall require the Company to pay any fees or disbursements of counsel to the Initial Purchasers, other than those fees and disbursements described in clauses (b) and (d) above.

7. Conditions to Initial Purchasers’ Obligations . The Company acknowledges and agrees that the respective obligations of the Initial Purchasers hereunder on the Closing Date, are subject to the accuracy, when made and on and as of the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:

(a) All corporate or limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Certificate, the Securities, the Pricing Disclosure Package and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.

(b) Lewis, Rice & Fingersh, L.C. shall have furnished to the Initial Purchasers its written opinion and negative assurance, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit A hereto.

(d) The Initial Purchasers shall have received from Latham & Watkins LLP, counsel for the Initial Purchasers, such opinion or opinions and negative assurance letter, dated the Closing Date, with respect to the issuance and sale of the Securities, the Pricing Disclosure Package, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.

(e) At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter with respect to the Company, in form and substance reasonably satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are an independent registered public accounting firm with respect to the Company within the applicable rules and regulations adopted by the SEC and the PCAOB (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three calendar days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with the offering of securities.

(f) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “ initial letter ”), PricewaterhouseCoopers LLP shall have furnished to the Initial Purchasers a “bring-down letter” with respect to the Company, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are an independent registered public accounting firm with respect to the Company within the applicable rules and regulations adopted by the SEC and PCAOB, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Pricing Disclosure Package or the Offering Memorandum, as of a date not more than three calendar days prior to the date of the Closing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.

(g) (i) None of the Company or its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Pricing Disclosure Package and the Offering Memorandum, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) except as described in the Pricing Disclosure Package and the Offering Memorandum (exclusive of any amendments or supplements thereto), since such date, there shall not have been any change in the capital stock or long-term debt of any of the Company or its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management, business or prospects of the Company and its subsidiaries, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the good faith judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Pricing Disclosure Package and the Offering Memorandum.

(h) The Company shall have furnished or caused to be furnished to the Initial Purchasers dated as of the Closing Date a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company or other officers satisfactory to the Initial Purchasers (in the name and on behalf of the Company and not in individual capacities):

(i) Confirming that the representations, warranties and agreements of the Company in Section 2 are true and correct in all material respects on and as of the Closing Date, (or, in the case of representations, warranties and agreements that are qualified by materiality or Material Adverse Effect, confirming that such representations, warranties and agreements are true and correct on and as of the Closing Date);

(ii) Confirming that they have examined the Pricing Disclosure Package and the Offering Memorandum, and, in their opinion, the Pricing Disclosure Package, as of the Applicable Time, and the Offering Memorandum, as of its date and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not 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) To the effect of Section 7(g) ( provided that no representation with respect to the judgment of the Representatives need be made) and Section 7(i);

(i) Subsequent to the earlier of the Applicable Time and the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as that term is used by the SEC in Section 15E under the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s securities.

(j) The Securities shall be eligible for clearance and settlement through DTC.

(k) The Certificate shall have been filed with the Missouri Secretary of State.

(l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the SEC, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), or there shall have occurred any calamity or crisis as to make it, in the good faith judgment of the Representatives, impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum or that, in the good faith judgment of the Representatives, could materially and adversely affect the financial markets or the markets for the Securities and other securities.

(m) 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.

(n) The Company shall have furnished to the Initial Purchasers on the date hereof and on the Closing Date, a certificate, dated as of date hereof or the Closing Date, as applicable, of the Chief Financial Officer of the Company, in the name and on behalf of the Company and not in his individual capacity, with respect to (i) the EBITDA of the branded and private label cereal, granola and snacks business of Hearthside Food Solutions for the period from October 1, 2012 through May 27, 2013, (ii) the EBITDA of Premier Nutrition Corporation for the period from October 1, 2012 through August 31, 2013, (iii) the financial data of Dakota Growers Pasta Company, Inc., Golden Boy Foods Ltd. and Dymatize Enterprises LLC, in each case set forth in the Preliminary Offering Memorandum or the Offering Memorandum, as applicable and (iv) a reconciliation of earnings before income taxes to Adjusted EBITDA for each of Dakota Growers Pasta Company, Inc., Golden Boy Foods Ltd., Dymatize Enterprises, LLC, the Hearthside Business and the Premier Business, in each case set forth in the Preliminary Offering Memorandum or the Offering Memorandum, as applicable.

(o) On or prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers may reasonably request.

(p) 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.

(q) The Common Stock shall continue to be listed on The New York Stock Exchange as of the Closing Date and the shares of Common Stock into which the Securities are convertible, shall be approved for listing on The New York Stock Exchange as of the Closing Date, subject to official notice of issuance.

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), (e) and (f) of this Section 7 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.

All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.

8. Indemnification and Contribution .

(a) The Company hereby agrees to indemnify and hold harmless each Initial Purchaser, its affiliates, directors, officers and employees and each person, if any, who controls any Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Securities), to which that Initial Purchaser, affiliate, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Free Writing Offering Document, the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto, (B) in any Blue Sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Securities under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “ Blue Sky Application ”), or (C) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities and approved in advance by the Company, including any preliminary version of the Preliminary Offering Memorandum or other marketing materials used in connection with the marketing of the Securities prior to the announcement of the offering of the Securities (“ Marketing Materials ”), including any road show or investor presentations made to investors by the Company (whether in person or electronically), or (ii) the omission or alleged omission to state in any Free Writing Offering Document, the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, or in any amendment or supplement thereto, or in any Blue Sky Application or in any Marketing Materials, any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse each Initial Purchaser and each such affiliate, director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Initial Purchaser, affiliate, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided , however , that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Offering Memorandum, the Pricing Disclosure Package, the Offering Memorandum, or in any such amendment or supplement thereto, or in any Free Writing Offering Document, Blue Sky Application or Marketing Materials, in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Company through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any Initial Purchaser or to any affiliate, director, officer, employee or controlling person of that Initial Purchaser.

(b) Each Initial Purchaser, severally and not jointly, hereby agrees to indemnify and hold harmless the Company, its officers, employees, directors, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Free Writing Offering Document, Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto, (B) in any Blue Sky Application, or (C) in any Marketing Materials, or (ii) the omission or alleged omission to state in any Free Writing Offering Document, Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, or in any amendment or supplement thereto, or in any Blue Sky Application or in any Marketing Materials any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Company through the Representatives by or on behalf of that Initial Purchaser specifically for inclusion therein, which information is limited to the information set forth in Section 8(e). The foregoing indemnity agreement is in addition to any liability that any Initial Purchaser may otherwise have to the Company or any such director, officer, employee or controlling person.

(c) Promptly after receipt by an indemnified party under paragraph (a) or (b) above of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under paragraph (a) or (b) above, notify the indemnifying party in writing of the claim or the commencement of that action; provided , however , that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure and; provided , further , that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under paragraph (a) or (b) above. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable and costs of investigation; provided , however , that the Initial Purchasers shall have the right to employ counsel to represent jointly the Initial Purchasers and their respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Initial Purchasers against the Company under this Section 8, if (i) the Company and the Initial Purchasers shall have so mutually agreed; (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Initial Purchasers; (iii) the Initial Purchasers and their respective affiliates, directors, officers, employees and controlling persons shall have reasonably concluded, based on the advice of counsel, that there may be legal defenses available to them that are different from or in addition to those available to the Company; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Initial Purchasers or their respective affiliates, directors, officers, employees or controlling persons, on the one hand, and the Company, on the other hand, and representation of both sets of parties by the same counsel would present a conflict due to actual or potential differing interests between them, and in any such event the reasonable and documented fees and expenses of such separate counsel shall be paid by the Company. In no event shall the indemnifying parties be liable for the reasonable fees and expenses of more than one counsel (together with one local counsel in each jurisdiction) at any time for all indemnified parties in connection with any one action or separate but substantially similar or related actions arising in the same jurisdiction out of the same general allegations or circumstances; provided that if the use of such counsel chosen to represent all indemnified parties would present such counsel with a conflict of interest, each indemnified party shall have the right to select separate counsel to defend such action on behalf of such indemnified party and the indemnifying party shall be liable for the reasonable and documented fees and expenses of such counsel. No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or

contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.

(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or (b) in respect of any loss, claim, damage or liability, or any action in respect thereof referred to therein, for which such indemnification would otherwise be available pursuant to its terms, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand, and the Initial Purchasers on the other, from the offering of the Securities, or (ii) if the allocation provided by clause (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 (i) above but also the relative fault of the Company on the one hand, and the Initial Purchasers, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, 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, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company, on the one hand, and the total discounts and commissions received by the Initial Purchasers with respect to the Securities purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Securities under this Agreement. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Initial Purchasers, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be 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 into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), 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(d), no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the discount received by it exceeds the amount of any damages that such Initial Purchaser has otherwise paid or become liable to pay by reason of any 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 Initial Purchasers’ obligations to contribute as provided in this Section 8(d) are several in proportion to their respective purchase obligations and not joint.

(e) The Initial Purchasers severally confirm and the Company acknowledges and agree that the statements with respect to the offering of the Securities by the Initial Purchasers set forth under the caption “Plan of Distribution—Over-allotment, Stabilizing Transactions and Covering Transactions” in the Pricing Disclosure Package and the Offering Memorandum are correct and constitute the only information concerning such Initial Purchasers furnished in writing to the Company by or on behalf of the Initial Purchasers specifically for inclusion in the Preliminary Offering Memorandum, the Pricing Disclosure Package, the Offering Memorandum or in any amendment or supplement thereto, any Blue Sky Application or any Marketing Materials.

9. Default of Initial Purchasers . If any Initial Purchaser or Initial Purchasers default in their obligations to purchase the Securities hereunder and the aggregate number of shares of the Securities that such defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase does not exceed 10% of the total number of shares of the Securities, the Representatives may make arrangements satisfactory to the Company for the purchase of such Securities by other persons, including any of the Initial Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Initial Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Securities that such defaulting Initial Purchasers agreed but failed to purchase. If any Initial Purchaser or Initial Purchasers so default and the aggregate number of shares of the Securities with respect to which such default or defaults occur exceeds 10% of the total number of shares of the Securities and arrangements satisfactory to the Representatives and the Company for the purchase of such Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Initial Purchaser or the Company, except as provided in Section 14. As used in this Agreement, the term “Initial Purchaser” includes any person substituted for an Initial Purchaser under this Section. Nothing herein will relieve a defaulting Initial Purchaser from liability for its default.

10. Termination . The Company acknowledges and agrees that the obligations of the Initial Purchasers hereunder may be terminated by the Initial Purchasers by notice given to and received by the Company prior to delivery of and payment for the Securities by the Initial Purchasers if, prior to that time, any of the events described in Sections 7(g), (i) or (l) shall have occurred or if the Initial Purchasers shall decline to purchase the Securities for any reason permitted under this Agreement.

11. Reimbursement of Initial Purchasers’ Expenses . If (a) the Company for any reason fails to tender the Securities for delivery to the Initial Purchasers or (b) the Initial Purchasers shall decline to purchase the Securities for any reason permitted under this Agreement (other than the failure of the condition set forth in Section 7(l) of this Agreement to be satisfied (other than a halt in trading of the securities of the Company)), the Company shall reimburse the Initial Purchasers for all reasonable out-of-pocket expenses (including reasonable and documented fees and disbursements of counsel for the Initial Purchasers) incurred by the Initial Purchasers in connection with this Agreement and the proposed purchase and sale of the Securities, and upon demand the Company shall pay the full amount thereof to the Initial Purchasers. If this Agreement is terminated pursuant to Section 9 by reason of the default of one or more Initial Purchasers, the Company shall not be obligated to reimburse any defaulting Initial Purchaser on account of those expenses.

12. Notices, etc . All statements, requests, notices and agreements hereunder shall be in writing, and:

(a) if to any Initial Purchaser, shall be delivered or sent by hand delivery, mail, telex, overnight courier or facsimile transmission to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax: (646) 834-8133) and Goldman, Sachs & Co., 200 West Street, New York, New York 10282-2198, Attention: Registration Department with a copy to Latham & Watkins LLP, Attention: Ian D. Schuman (Fax: 212-751-4864); provided , however , that any notice to an Initial Purchaser pursuant to Section 8(c) shall be delivered or sent by hand delivery, mail, facsimile or electronic transmission to such Initial Purchaser.

(b) if to the Company, shall be delivered or sent by mail, telex, overnight courier or facsimile transmission to Post Holdings, Inc., 2503 S. Hanley Road, St. Louis, MO 63144, Attention: Diedre Gray (Fax: 314-646-3367), with a copy to Lewis, Rice & Fingersh, L.C., 600 Washington, Suite 2500, St. Louis, MO 63101, Attention: Tom Zook (Fax: 314-612-7671). Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Initial Purchasers by the Representatives.

13. Persons Entitled to Benefit of Agreement . This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Company and its successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that the representations, warranties, indemnities and agreements contained in this Agreement shall also be deemed to be for the benefit of the other indemnified persons referred to in Section 8(a) and 8(b) and their respective successors and assigns. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.

14. Survival . The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Initial Purchasers contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of any of them or any person controlling any of them.

15. Definition of the Terms “Business Day”, “Affiliate”, and “Subsidiary”. For purposes of this Agreement, (a) “business day” means any day on which the New York Stock Exchange, Inc. is open for trading, and (b) “affiliate” and “subsidiary” have the meanings set forth in Rule 405 under the Securities Act.

16. Governing Law . This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that any suit or proceeding arising in respect of this Agreement will be tried exclusively in the U.S. District Court of the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the parties hereto agree to submit to the jurisdiction of, and to venue in, such courts.

17. Waiver of Jury Trial . The Company and each of the Initial Purchasers hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

18. No Fiduciary Duty. The Company acknowledges and agrees that in connection with this offering, or any other services the Initial Purchasers may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Initial Purchasers: (a) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Initial Purchasers on the other, exists; (b) the Initial Purchasers are not acting as advisors, expert or otherwise, to the Company including, without limitation, with respect to the determination of the price of the Securities, and such relationship between the Company and the Initial Purchasers, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Initial Purchasers may have to the Company shall be limited to those duties and obligations specifically stated herein; (d) the Initial Purchasers and their respective affiliates may have interests that differ from those of the Company; and (e) the Company has consulted their own legal and financial advisors to the extent they deemed appropriate. The Company hereby waives any claims that the Company may have against the Initial Purchasers with respect to any breach of fiduciary duty in connection with the Securities.

19. Patriot Act. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L, 107-56 (signed into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record information that identifies their clients, which may include the name and address of their clients, as well as other information that will allow the Initial Purchasers to properly identify their clients.

20. Counterparts . This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.

21. Headings . The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

[Signature Page Follows]

If the foregoing correctly sets forth the agreement among the Company and the Initial Purchasers, please indicate your acceptance in the space provided for that purpose below.



	Very truly yours,


	Post Holdings, Inc.

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

Purchase Agreement



Accepted:


BARCLAYS CAPITAL INC. GOLDMAN, SACHS & CO. as representatives of the Initial Purchasers

By BARCLAYS CAPITAL INC., as Authorized Representative

By:	/s/ Adam Taetle
	Name: Adam Taetle
	Title: Managing Director


By GOLDMAN, SACHS & CO., as Authorized Representative

By:	/s/ Daniel Young
	Name: Daniel Young
	Title: Managing Director

Purchase Agreement



SCHEDULE I

Initial Purchasers	Number of Firm Securities Acquired
Barclays Capital Inc...	810,000
Goldman, Sachs & Co	810,000
Credit Suisse Securities (USA) LLC	450,000
Wells Fargo Securities, LLC	450,000
BMO Capital Markets Corp.	120,000
J.P. Morgan Securities LLC	120,000
Nomura Securities International, Inc.	120,000
SunTrust Robinson Humphrey, Inc.	120,000
Total	3,000,000

SCHEDULE II

Post Holdings, Inc.

PRICING TERM SHEET

Purchase Agreement

SCHEDULE III


A.	None.


B.	Investor Presentation, dated December 9, 2013 (including to the extent presented in electronic form)

Purchase Agreement

SCHEDULE IV

Subsidiaries

Post Foods, LLC

Post Foods Canada Inc.

Attune Foods, LLC

Premier Nutrition Corporation

Premier Protein, Inc.

Purchase Agreement

Exhibit A

Form of Opinion of Lewis, Rice & Fingersh, L.C.

See attached.

OPINION OF COUNSEL FOR THE COMPANY

The opinion of the counsel for the Company, to be delivered pursuant to Section 7(b) of the Purchase Agreement shall be to the effect that:

1. The Company has been duly incorporated under the general corporation law of the State of Missouri. Post US and Attune have been duly formed under the LLCA. PNC has been duly incorporated under the DGCL. Based solely on a certificates of good standing for the Company from the Secretary of State of the State of Missouri dated December 16, 2013, and certificates of good standing for each of the Delaware Subsidiaries from the Secretary of State of the State of Delaware dated December 16, 2013, respectively, (i) the Company is validly existing as a corporation and in good standing under the laws of the State of Missouri, (ii) each of Post US and Attune is validly existing as a limited liability company and in good standing under the laws of the State of Delaware and (iii) PNC is validly existing as a corporation and in good standing under the laws of the State of Delaware. Each of the Company and the Delaware Subsidiaries has all requisite corporate or limited liability company power to own, lease and operate its material properties and assets and conduct its business in all material respects as described in the Pricing Disclosure Package and the Offering Memorandum. 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 and the Delaware Subsidiaries is duly qualified to transact business and is in good standing as a foreign corporation or limited liability company in the jurisdictions set forth on Exhibit A.

2. The execution and delivery of the Company of the Purchase Agreement and the consummation of its obligations thereunder are within the Company’s corporate power and authority. The Purchase Agreement has been duly authorized, executed and delivered by the Company.

3. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Pricing Disclosure Package and the Offering Memorandum.

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

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

6. 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.

7. 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.

8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Purchase Agreement, the issue and sale of the Securities, and the issuance and delivery of the Underlying Securities upon conversion of the Securities (assuming such Underlying Securities were issued and delivered upon conversion of the Securities on the date hereof), do not result in:

(a) a violation by the Company of the Amended and Restated Articles of Incorporation, as amended, or bylaws, as amended to date, of the Company, or

(b) a violation by the Company of any provision of applicable federal or Missouri state statute or regulation that we, based on our experience, recognize as applicable to the Company in a transaction of this type.

The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Purchase Agreement, the issue and sale of the Securities, and the issuance and delivery of the Underlying Securities upon conversion of the Securities (assuming such Underlying Securities were issued and delivered upon conversion of the Securities on the date hereof) do not result in a breach or default by the Company pursuant to any agreement, contract or instrument listed in Exhibit B hereto to which the Company is a party or by which it is bound.

9. No consent, approval, authorization or other action by any federal or Missouri governmental authority or regulatory body pursuant to any federal or Missouri statute that we, based on our experience, recognize as applicable to the Company in a transaction of this type, is required for the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Purchase Agreement, the issue and sale of the Securities, and the issuance and delivery of the Underlying Securities upon conversion of the Securities (assuming such Underlying Securities were issued and delivered upon conversion of the Securities on the date hereof), except for such consents, approvals, authorizations, or other actions as may be (a) required pursuant to federal and state securities laws or blue sky laws, or the rules of the Financial Industry Regulatory Authority, as to which we express no opinion or (b) have been obtained or made prior to the date hereof.

10. The Company is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Pricing Disclosure Package and the Offering Memorandum will not be, an “investment company” or an entity “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

11. The statements relating to legal matters, documents or proceedings included in the Pricing Disclosure Package and the Final Offering 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.

12. The statements in each of the Pricing Disclosure Package and the Offering 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.

13. 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.

During the preparation of the Pricing Disclosure Package and the Offering 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 Pricing Disclosure Package and the Offering Memorandum and related matters were discussed, reviewed and revised. Although we are not passing 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 11 and 12), 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 Pricing Disclosure Package 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 Offering 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 Pricing Disclosure Package or the information contained therein to investors.

Exhibit B

Form of Lock-Up Agreement

December [__], 2013

BARCLAYS CAPITAL INC.

745 Seventh Avenue
New York, New York 10019

GOLDMAN, SACHS & CO.

200 West Street,

New York, New York 10282-2198

Ladies and Gentlemen:

The undersigned understands that Barclays Capital Inc. and Goldman, Sachs & Co. (the “ Representatives ”) 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 Representatives (the “ Initial Purchasers ”), of shares (the “ Shares ”) of the Series C 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 Barclays Capital Inc. and Goldman, Sachs & Co. 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 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 Barclays Capital Inc. and Goldman, Sachs & Co. 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.

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 December 20, 2013, this agreement shall be of no further force or effect.

Very truly yours,

(Name)

(Address)