JPMorgan - KASE

definition of Change of Control to require the Issuer to make a Change of Control Offer. In
addition, the existence of the Holder’s right to require the Issuer to repurchase such Holder’s
Notes upon the occurrence of a Change of Control may or may not deter a third party from
seeking to acquire shares of the Company in a transaction that would constitute a Change of
Control.
“Change of Control” means (i) such time as a “person” or “group” (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act) has become, directly or indirectly, the
“beneficial owner”, by way of merger, consolidation or otherwise, of 50% or more of the voting
power of the voting stock of the Company; (ii) the sale, conveyance, lease or transfer of all or
substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole to
any person or group (as defined above); (iii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by the Board of Directors of the
Company or whose nomination for election by the shareholders of the Company was approved
by a vote of a majority of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the directors of the Company then in
office, (iv) the adoption of a plan relating to the liquidation or dissolution of the Company or (v)
the Company consolidates with, or merges with or into, any Person, or any Person consolidates
with, or merges with or into, the Company, in any such event pursuant to a transaction in which
any of the outstanding Voting Stock of the Company or such other Person is converted into or
exchanged for cash, securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such transaction is converted into
or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
One of the events that constitutes a Change of Control under the Indenture is a sale, conveyance,
lease or transfer of all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole. The Indenture will be governed by New York law, and there is no
established quantitative definition under New York law of “substantially all” of the assets of a
corporation. Accordingly, if the Company and/or its Restricted Subsidiaries were to engage in a
transaction in which it or they disposed of less than all of the assets of the Company and its
Restricted Subsidiaries taken as a whole, a question of interpretation could arise as to whether
such disposition was of “substantially all” of its or their assets, as the case may be, and whether
the Company was required to make a Change of Control Offer.
Asset Sales
The Indenture will provide that the Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as
the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets or Equity Interests sold or otherwise disposed of and, in the case of a
lease of assets, a lease providing for rent and other conditions which are no less favorable to the
Company (or the Restricted Subsidiary, as the case may be) in any material respect than the then
prevailing market conditions (as determined in good faith by the Board of Directors which
determination shall be conclusive evidence of compliance with this provision and shall be set
forth in a Board Resolution) and (ii) at least 75% (100% in the case of lease payments) of the
consideration therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents or Replacement Assets. For purposes of this covenant (and not for
purposes of any other provision of the Indenture), the term “cash” shall be deemed to include (x)
any Notes or marketable securities received by the Company or any such Restricted Subsidiary
that are converted into cash or Cash Equivalents promptly but in no event more than 180 days
after the date of the Asset Sale, and (y) any Indebtedness and any other liabilities not
constituting trade or service accounts payable of the Company or such Restricted Subsidiary (as
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