exv4w1






Exhibit 4.1




NETAPP, INC.




AND




U.S. BANK NATIONAL ASSOCIATION




Trustee




 






Indenture




Dated as of June 10, 2008




 






1.75% Convertible Senior Notes due 2013




 









 





TABLE OF CONTENTS


 




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	Definitions and Other Provisions of General Application
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions 

	 	 	1	 
	Section 1.02. Compliance Certificates and Opinions 

	 	 	12	 
	Section 1.03. Form of Documents Delivered to Trustee 

	 	 	13	 
	Section 1.04. Acts of Holders; Record Dates 

	 	 	14	 
	Section 1.05. Notices, Etc., to Trustee and Company 

	 	 	15	 
	Section 1.06. Notice to Holders; Waiver 

	 	 	15	 
	Section 1.07. Conflict With Trust Indenture Act 

	 	 	16	 
	Section 1.08. Effect of Headings and Table of Contents 

	 	 	16	 
	Section 1.09. Successors and Assigns 

	 	 	16	 
	Section 1.10. Separability Clause 

	 	 	16	 
	Section 1.11. Benefits of Indenture 

	 	 	16	 
	Section 1.12. Governing Law 

	 	 	16	 
	Section 1.13. Legal Holidays 

	 	 	16	 
	Section 1.14. Indenture and Securities Solely Corporate Obligations 

	 	 	17	 
	Section 1.15. Indenture May Be Executed in Counterparts 

	 	 	17	 
	Section 1.16. Acceptance of Trust 

	 	 	17	 
	Section 1.17. Calculations in Respect of Notes

	 	 	17	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	Security Forms
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms Generally 

	 	 	18	 
	Section 2.02. Form of Face of Security 

	 	 	18	 
	Section 2.03. Form of Reverse of Security 

	 	 	20	 
	Section 2.04. Form of Legend for Global Securities 

	 	 	24	 
	Section 2.05. Form of Notice of Conversion 

	 	 	25	 
	Section 2.06. Form of Assignment 

	 	 	26	 
	Section 2.07. Form of Trustee’s Certificate of Authentication 

	 	 	28	 
	Section 2.08. Form of Fundamental Change Repurchase Notice 

	 	 	28	 
	Section 2.09. Legend on Restricted Securities

	 	 	28	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	The Securities
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Title and Terms; Principal and Interest 

	 	 	29	 
	Section 3.02. Denominations 

	 	 	30	 
	Section 3.03. Global Securities; Non-Global Securities; Book-entry Provisions 

	 	 	30	 






i









 






	 	 	 	 	 
	 	 	Page
	Section 3.04. Execution, Authentication, Delivery and Dating 

	 	 	32	 
	Section 3.05. Temporary Securities 

	 	 	33	 
	Section 3.06. Registrar, Registration of Transfer and Exchange; Paying Agent 

	 	 	33	 
	Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities 

	 	 	36	 
	Section 3.08. Payment of Interest; Interest Rights Preserved 

	 	 	37	 
	Section 3.09. Persons Deemed Owners 

	 	 	38	 
	Section 3.10. Cancellation and Transfer Provisions 

	 	 	39	 
	Section 3.11. CUSIP Numbers 

	 	 	41	 
	Section 3.12. Computation of Interest 

	 	 	41	 
	Section 3.13. Special Record Date 

	 	 	41	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Principal and Interest 

	 	 	42	 
	Section 4.02. Maintenance of Office or Agency 

	 	 	42	 
	Section 4.03. Money for Security Payments to Be Held in Trust 

	 	 	43	 
	Section 4.04. Statement by Officers as to Default 

	 	 	44	 
	Section 4.05. Existence 

	 	 	44	 
	Section 4.06. Maintenance of Properties 

	 	 	44	 
	Section 4.07. Payment of Taxes and Other Claims 

	 	 	44	 
	Section 4.08. Additional Interest Under the Registration Rights Agreement 

	 	 	45	 
	Section 4.09. Waiver of Certain Covenants 

	 	 	45	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Repurchase At Option Of The Holder
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Repurchase at the Option of the Holder Upon a Fundamental Change 

	 	 	46	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Conversion Of Securities
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Conversion of Securities

	 	 	50	 
	Section 6.02. Adjustments to Conversion Rate

	 	 	54	 
	Section 6.03. Adjustment Upon Fundamental Changes 

	 	 	61	 
	Section 6.04. Notice of Adjustments of Conversion Rate 

	 	 	62	 
	Section 6.05. Company to Reserve Common Stock 

	 	 	63	 
	Section 6.06. Taxes on Conversions 

	 	 	63	 
	Section 6.07. Certain Covenants 

	 	 	63	 
	Section 6.08. Cancellation of Converted Securities 

	 	 	64	 
	Section 6.09. Provision in Case of Effect of Reclassification,
Consolidation, Merger or Sale 

	 	 	64	 
	Section 6.10. Responsibility of Trustee for Conversion Provisions 

	 	 	66	 
	Section 6.11. Stockholder Rights Plan

	 	 	67	 
	Section 6.12. Right to Set-off Withholding Taxes 

	 	 	67	 






ii









 






	 	 	 	 	 
	ARTICLE 7
	 	 	 	 
	Remedies
	 	 	 	 
	 	 	Page
	Section 7.01. Events of Default 

	 	 	67	 
	Section 7.02. Acceleration of Maturity; Rescission and Annulment 

	 	 	69	 
	Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee 

	 	 	70	 
	Section 7.04. Trustee May File Proofs of Claim 

	 	 	71	 
	Section 7.05. Trustee May Enforce Claims Without Possession of Securities 

	 	 	72	 
	Section 7.06. Application of Money Collected 

	 	 	72	 
	Section 7.07. Limitation on Suits 

	 	 	72	 
	Section 7.08. Unconditional Right of Holders to Receive Principal and Interest and to Convert 

	 	 	73	 
	Section 7.09. Restoration of Rights and Remedies 

	 	 	73	 
	Section 7.10. Rights and Remedies Cumulative 

	 	 	73	 
	Section 7.11. Delay or Omission Not Waiver 

	 	 	74	 
	Section 7.12. Control by Holders 

	 	 	74	 
	Section 7.13. Waiver of Past Defaults 

	 	 	74	 
	Section 7.14. Undertaking for Costs 

	 	 	75	 
	Section 7.15. Waiver of Stay or Extension Laws 

	 	 	75	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Consolidation, Merger, Conveyance, Transfer Or Lease
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Company May Consolidate, Etc., Only on Certain Terms 

	 	 	75	 
	Section 8.02. Successor Substituted 

	 	 	76	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	The Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Certain Duties and Responsibilities 

	 	 	76	 
	Section 9.02. Notice of Defaults 

	 	 	77	 
	Section 9.03. Certain Rights of Trustee 

	 	 	77	 
	Section 9.04. Not Responsible for Recitals or Issuance of Securities 

	 	 	78	 
	Section 9.05. May Hold Securities 

	 	 	78	 
	Section 9.06. Money Held in Trust 

	 	 	78	 
	Section 9.07. Compensation and Reimbursement 

	 	 	79	 
	Section 9.08. Disqualification; Conflicting Interests 

	 	 	79	 
	Section 9.09. Corporate Trustee Required; Eligibility 

	 	 	79	 
	Section 9.10. Resignation and Removal; Appointment of Successor 

	 	 	79	 
	Section 9.11. Acceptance of Appointment by Successor 

	 	 	81	 
	Section 9.12. Merger, Conversion, Consolidation or Succession to Business 

	 	 	81	 
	Section 9.13. Preferential Collection of Claims Against Company 

	 	 	82	 
	Section 9.14. Appointment of Authenticating Agent 

	 	 	82	 






iii









 






	 	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Holders’ Lists And Reports By Trustee And Company
	 	 	 	 
	 	 	Page
	Section 10.01. Company to Furnish Trustee Names and Addresses of Holders 

	 	 	83	 
	Section 10.02. Preservation of Information; Communications to Holders 

	 	 	84	 
	Section 10.03. Reports by Trustee 

	 	 	84	 
	Section 10.04. Reports by Company 

	 	 	84	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Satisfaction And Discharge
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Satisfaction and Discharge of Indenture 

	 	 	85	 
	Section 11.02. Application of Trust Money 

	 	 	86	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	Modification And Amendment
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Supplemental Indentures Without Consent of Holders 

	 	 	87	 
	Section 12.02. Supplemental Indentures with Consent of Holders 

	 	 	88	 
	Section 12.03. Execution of Supplemental Indentures 

	 	 	89	 
	Section 12.04. Effect of Supplemental Indentures; Notices 

	 	 	89	 
	Section 12.05. Conformity with Trust Indenture Act 

	 	 	89	 
	Section 12.06. Reference in Securities to Supplemental Indentures 

	 	 	89	 
	 
	 	 	 	 
	Signatures
	 	 	 	 
	Schedule A
	 	 	 	 






iv









 






     INDENTURE, dated as of June 10, 2008, between NetApp, Inc., a Delaware corporation (the
“Company”), having its principal office at 495 East Java Drive, Sunnyvale California 94089 and
U.S. Bank National Association, a national banking association, as Trustee (herein called the
“Trustee”).



Recitals of the Company




     The Company has duly authorized the creation of an issue of its 1.75% Convertible Senior Notes
due 2013 (herein called the “Initial Securities” and together with any Additional Securities, the
“Securities”) of substantially the tenor and amount hereinafter set forth, and to provide the terms
and conditions upon which the Securities are to be authenticated, issued and delivered, the Company
has duly authorized the execution and delivery of this Indenture.



     All things necessary to make the Securities, when executed by the Company and authenticated
and delivered as provided herein and duly issued by the Company, the valid obligations of the
Company, and to make this Indenture a valid agreement of the Company, in accordance with their and
its terms, have been done.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:



ARTICLE 1

Definitions and Other Provisions of General Application




     Section 1.01 . Definitions.



     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:



     (1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;



     (2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;



     (3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles,



 









 







and, except as otherwise herein expressly provided, the term “generally accepted accounting
principles” in the United States with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of this Indenture; and



     (4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.



     “Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.



     “Additional Interest” means Additional Interest as defined in the Registration Rights
Agreement.



     “Additional Securities” means an unlimited maximum aggregate principal amount of Securities
(other than the Initial Securities) issued under this Indenture.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct or cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.



     “Agent Member” means any member of, or participant in, the Depositary.



     “Applicable Procedures” with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of DTC or any successor
Depositary, in each case to the extent applicable to such transaction and as in effect from time to
time.



     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 9.14 to
act on behalf of the Trustee to authenticate Securities.



     “Bid Solicitation Agent” means the agency appointed by the Company to solicit bids for the
Trading Price of the Securities in accordance with Section 6.01(a)(i). The Bid Solicitation Agent
appointed by the Company shall initially be the Trustee.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by



2









 







the Board of Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the City of New York or the city or cities where the Corporate
Trust Office are located are authorized or obligated by law, regulation or executive order to
close.



     “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.



     “Commission” or “SEC” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.



     “Common Stock” means the shares of common stock, par value $0.001 per share, of the Company as
they exist on the date of this Indenture or any other shares of Capital Stock of the Company into
which the Common Stock shall be reclassified or changed or, in the event of a merger, consolidation
or other similar transaction involving the Company that is otherwise permitted hereunder in which
the Company is not the surviving corporation, the common stock, common equity interests, ordinary
shares or depositary shares or other certificates representing common equity interests of such
surviving corporation or its direct or indirect parent corporation.



     “Company” means the Person named as the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by the principal executive, financial or accounting officer of the Company.



     “Conversion Agent” means the person authorized by the Company to convert Securities in
accordance with Article 6.



     “Conversion Date” has the meaning specified in Section 6.01(b).



     “Conversion Price” means at any time the amount equal to $1,000 divided by the then applicable
Conversion Rate.



     “Conversion Rate” has the meaning specified in Section 6.01.



3









 





     “Corporate Trust Office” means the principal office of the Trustee at which at any particular
time the trust created by this Indenture shall be administered or the corporate trust office of the
Trustee located at 633 West Fifth Street, 24th Floor, Los Angeles, CA 90071, Attention:
Corporate Trust Services (NetApp 1.75% Convertible Senior Notes due 2013), as applicable.



     “corporation” means a corporation, association, company, joint-stock company or business
trust.



     “Daily Conversion Value” means, for each of the 20 consecutive VWAP Trading Days during the
Observation Period, one-twentieth (1/20th) of the product of (1) the applicable
Conversion Rate and (2) the Daily VWAP of the Common Stock (or, if applicable, the Reference
Property into which the Common Stock has been converted) on such VWAP Trading Day. Any such
determination shall be made by the Company and shall be conclusive absent manifest error.



     “Daily Settlement Amount,” for each of the 20 VWAP Trading Days during the Observation Period,
shall consist of:




     (i) cash equal to the lesser of (x) $50 and (y) the Daily Conversion Value for such
VWAP Trading Day; and




     (ii) to the extent the Daily Conversion Value exceeds $50, a number of shares equal
to (A) the difference between the Daily Conversion Value and $50, divided by (B) the Daily
VWAP of the Common Stock for such VWAP Trading Day.



     “Daily VWAP” means, for each of the 20 consecutive VWAP Trading Days during the Observation
Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP”
on Bloomberg page “NTAP.UQ <Equity> AQR”, or any equivalent successor page, in respect of the
period from the scheduled open of trading on the principal trading market for the Common Stock to
the scheduled close of trading on such market on such VWAP Trading Day (without regard to
after-hours trading), or if such volume-weighted average price is unavailable, the market value of
one share of Common Stock (or one unit of Reference Property consisting of marketable equity
securities) on such VWAP Trading Day using a volume-weighted method (or, in the case of Reference
Property consisting of cash, the amount of such cash or in the case of Reference Property other
than marketable equity securities or cash, the market value thereof), in each case as determined by
a nationally recognized independent investment banking firm retained for this purpose by the
Company.



     “Defaulted Interest” has the meaning specified in Section 3.13.



     “DTC” means The Depository Trust Company, a New York corporation, or any successor.



4









 





     “Effective Date” means the date on which a Fundamental Change occurs or becomes effective.



     “Event of Default” has the meaning specified in Section 7.01.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Ex-Date” means, with respect to any issuance or distribution on the Common Stock, the first
date on which the shares of the Common Stock trade on the relevant exchange or in the relevant
market, regular way, without the right to receive such issuance or distribution.



     “Fundamental Change” will be deemed to have occurred if any of the following occurs after the
Securities are originally issued:



     (1) any Person other than the Company files a Schedule TO or any other schedule, form or
report under the Exchange Act disclosing, or the Company otherwise becomes aware, that such person
has acquired beneficial ownership directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of the Company’s Capital Stock
entitling the Person to exercise 50% or more of the total voting power of all shares of the
Company’s Capital Stock entitled to vote generally in elections of directors (for purposes of this
clause (1), whether a Person is a “beneficial owner” shall be determined in accordance with Rule
13d-3 under the Exchange Act, and “Person” shall include any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act); or



     (2) the Company merges or consolidates with or into any other Person (other than a
Subsidiary), another Person merges with or into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of the Company’s assets to another Person other than
any merger or consolidation:



     (a) that does not result in a reclassification, conversion, exchange or cancellation of the
Company’s outstanding Common Stock and pursuant to which the consideration received by the holders
of the Company’s Common Stock immediately prior to the transaction entitles such holders to
exercise, directly or indirectly, 50% or more of the voting power of all shares of Capital Stock
entitled to vote generally in the election of directors of the continuing or surviving corporation
immediately following such transaction in substantially the same proportion as their respective
ownership of voting securities immediately prior to the transaction; or



     (b) which is effected solely to change the Company’s jurisdiction of incorporation and results
in a reclassification, conversion or exchange of outstanding shares of the Company’s Common Stock
solely into shares of common stock of the surviving entity; or



5









 





     (3) the Company is liquidated or dissolved or holders of the Common Stock approve any plan or
proposal for the Company’s liquidation or dissolution; or



     (4) the Common Stock, or shares of any other Capital Stock or American Depositary Receipts in
respect of shares of Capital Stock into which the Securities are convertible pursuant to the terms
of this Indenture, ceases to be listed for trading on any of the New York Stock Exchange, the
NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors),



provided, that, notwithstanding the foregoing, the definition of Fundamental Change shall not
include a merger or consolidation under clause (1) or any event specified under clause (2), in each
case, if at least 90% of the consideration received for the Company’s Capital Stock (excluding cash
payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights and
cash dividends) in connection with such event consists of shares of capital stock traded or quoted
on any of the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market
(or any of their respective successors) (or will be so traded or quoted immediately following the
completion of the merger or consolidation or such other transaction) and, as a result of such
transaction or transactions the Securities become convertible into such shares of such capital
stock pursuant to Section 6.09.



     “Fundamental Change Expiration Time” has the meaning specified in Section 5.01.



     “Fundamental Change Repurchase Date” has the meaning specified in Section 5.01.



     “Fundamental Change Repurchase Notice” has the meaning specified in Section 5.01.



     “Fundamental Change Repurchase Price” has the meaning specified in Section 5.01.



     “Global Security” means a Security that is registered in the Security Register in the name of
a Depositary or a nominee thereof.



     “Holder” means a Person in whose name a Security is registered in the Security Register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively.



6









 





     “Initial Purchasers” means Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated, as
representatives of the several initial purchasers.



     “Initial Securities” has the meaning specified in the Recitals.



     “Interest Payment Date” means each June 1 and December 1 of each year, beginning December 1,
2008.



     “Issue Date” with respect to the Initial Securities means June 10, 2008, and with respect to
any Additional Securities, the date of original issuance of such Additional Securities.



     “Last Reported 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 last bid and ask prices or, if
more than one in either case, the average of the average last bid and average last ask prices) on
that date as reported in the composite transactions for the principal U.S. national or regional
securities exchange on which the Common Stock is traded. If the Common Stock is not listed for
trading on a U.S. national or regional securities exchange on the relevant date, the Last Reported
Sale Price shall be the average of the last quoted bid and ask prices for the Common Stock in the
over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar
organization. If the Common Stock is not so quoted, the Last Reported Sale Price shall be the
average of the midpoint 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, which may
include any or all of the Initial Purchasers selected by the Company for this purpose. Any such
determination shall be made by the Company and shall be conclusive absent manifest error.



     “Make-Whole Reference Date” shall have the meaning in Section 6.01.



     “Market Disruption Event” means the occurrence or existence on any Scheduled Trading Day for
the Common Stock of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any
options contracts or futures contracts relating to the Common Stock, and such suspension or
limitation occurs or exists at any time within the 30 minutes prior to the closing time of the
relevant exchange on such day.



     “Measurement Period” has the meaning specified in Section 6.01(a).



     “Maturity”, when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, required repurchase or otherwise.



     “Maturity Date” means June 1, 2013.



7









 





     “Notice of Conversion” has the meaning specified in Section 6.01.



     “Observation Period” with respect to any Security means (i) with respect to any Conversion
Date occurring on or after the 25th Scheduled Trading Day prior to the Maturity Date,
the 20 consecutive VWAP Trading Day period beginning on, and including, the 22nd
Scheduled Trading Day prior to the Maturity Date (or if such day is not a VWAP Trading Day, the
next succeeding VWAP Trading Day) and (ii) in all other instances, the 20 consecutive VWAP Trading
Day period beginning on and including the third VWAP Trading Day following the Conversion Date.



     “Officer” means the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer, an
Assistant Treasurer, the Secretary or any Assistant Secretary.



     “Officers’ Certificate” means a certificate signed by the principal executive officer,
principal accounting officer or principal financial officer of the Company and delivered to the
Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Company.



     “Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




     (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




     (ii) Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; and




     (iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or
in lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company;



provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by



8









 







the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.



     “Paying Agent” means any Person authorized by the Company to pay the principal of or interest
on any Securities on behalf of the Company, and shall initially be the Trustee.



     “Person” means any individual, corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.07 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



     “Reference Property” has the meaning specified in Section 6.09(b).



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 10,
2008, between the Company and the Initial Purchasers, for the benefit of themselves and the
Holders, as the same may be amended or modified from time to time in accordance with the terms
thereof.



     “Regular Record Date” for the interest payable on any Interest Payment Date means the May 15
or November 15 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date.



     “Reporting Default” has the meaning specified in Section 7.02.



     “Reporting Interest” has the meaning specified in Section 7.02.



     “Resale Registration Statement” means a registration statement under the Securities Act
registering the Securities for resale pursuant to the terms of the Registration Rights Agreement.



     “Responsible Officer”, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or any



9









 







vice-chairman of the executive committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with the particular
subject.



     “Restricted Security” or “Restricted Securities” has the meaning specified in Section 2.09.



     “Rule 144” means Rule 144 under the Securities Act, as may be amended from time to time.



     “Scheduled Trading Day” means a day that is scheduled to be a trading day on the principal
U.S. national or regional securities exchange or market on which the Common Stock is listed or
admitted for trading or, if the Common Stock is not listed or admitted for trading on any exchange
or market, a Business Day.



     “Security” and “Securities” have the meaning specified in the Recitals and include the Initial
Securities and any Additional Securities. The Initial Securities and Additional Securities shall be
treated as a single class for all purposes under this Indenture.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.06.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Settlement Amount” has the meaning specified in Section 6.01(c).



     “Significant Subsidiaries” means any direct or indirect Subsidiary of the Company within the
meaning of Section 1-02(w) of Regulation 

S-X as promulgated by the Commission.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.13.



     “Stated Maturity”, when used with respect to any Security, means the date specified in such
Security as the fixed date on which the principal of such Security is due and payable.



     “Stock Price” means the price paid per share of Common Stock in connection with a Fundamental
Change pursuant to which Additional Shares shall be added to the Conversion Rate as set forth in
Article 6, which shall be equal to



10









 




(i) if holders of Common Stock receive only cash in such Fundamental Change, the cash amount
paid per share of Common Stock and (ii) in all other cases, the average of the Last Reported Sale
Prices of the Common Stock over the ten Trading Day period ending on the Trading Day preceding the
date on which such Fundamental Change occurs or becomes effective.




     “Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock”
means stock which ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of any contingency.



     “Trading Day” means a day during which (i) trading in the Common Stock generally occurs on the
principal U.S. national or regional securities exchange or market on which our common stock is
listed or admitted for trading and (ii) there is no Market Disruption Event.



     “Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Bid Solicitation Agent for $2,000,000 principal
amount of the Securities of such series at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities dealers selected by the
Company (which may include any or all of the Initial Purchasers); provided that, if three such bids
cannot reasonably be provided to the Trustee, but two such bids are obtained from a nationally
recognized securities dealer on a date of determination, then the average of the two bids will be
used, and if only one such bid is obtained, that one bid will be used. If at least one bid for
$2,000,000 in principal amount of the Securities cannot reasonably be obtained, then the Trading
Price per $1,000 in principal amount of the Securities will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate for
such date of determination. Any such determination shall be made by the Company and shall be
conclusive absent manifest error.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.



11









 





     “Vice President,” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president.”



     “VWAP Market Disruption Event” means (i) a failure by the principal U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted to trading to open
for trading during its regular trading session or (ii) the occurrence or existence on any Scheduled
Trading Day for the Common Stock for an aggregate one half-hour period of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts
related to the Common Stock and traded on a principal national or regional exchange or market
located in the United States.



     “VWAP Trading Day” means a day during which (i) trading in the Common Stock generally occurs
on the principal U.S. national or regional securities exchange or market on which the Common Stock
is listed or admitted for trading, (ii) there is no VWAP Market Disruption Event. If the Common
Stock is not listed or admitted for trading on a U.S. national or regional securities exchange or
market, then, “VWAP Trading Day” shall mean a Business Day.



     This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms have the following meanings:



     “Indenture Securities” means the Securities.



     “Indenture Security Holder” means a Holder.



     “Indenture to be Qualified” means this Indenture.



     “Indenture Trustee” or “Institutional Trustee” means the Trustee.



     All other terms in this Indenture that are defined by the Trust Indenture Act, defined by it
by reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions. If any provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by the Trust Indenture Act, such required
provision shall control.



     Section 1.02 . Compliance Certificates and Opinions.



     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or
an Opinion



12









 







of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;



     (2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;



     (3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and



     (4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.



     Section 1.03 . Form of Documents Delivered to Trustee.



     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of, or representations by, an accountant (who may be an employee of the
Company) or firm of accountants, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to such matters are
erroneous.



13









 





     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



     Section 1.04 . Acts of Holders; Record Dates.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to
the Company copies of all such instruments or instruments and records delivered to the Trustee.
Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 9.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.



     (c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as
the record date for the purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to be provided
pursuant to Section 10.01) prior to such first solicitation or vote, as the case may be. With
regard to any record date, only the Holders on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.



14









 





     (d) The ownership of Securities shall be proved by the Security Register.



     (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.



     Section 1.05 . Notices, Etc., to Trustee and Company.



     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,



     (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (or by facsimile transmission to (213)
615-6197 or such other telephone number specified by the Trustee), provided that oral confirmation
of receipt shall have been received) to or with the Trustee at its Corporate Trust Office, or such
other means reasonably acceptable to the Trustee, or



     (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously furnished in writing to
the Trustee by the Company, Attention: Chief Financial Officer, with a copy to the Secretary or
such other means reasonably acceptable to the Company.



     Section 1.06 . Notice to Holders; Waiver.



     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, or by such other means reasonably acceptable to the Holder, in each case not
later than the latest date (if any), and not earlier than the earliest date (if any), prescribed
for the giving of such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such waiver.




15











 





     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     Section 1.07 . Conflict With Trust Indenture Act.



     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.



     Section 1.08 . Effect of Headings and Table of Contents.



     The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



     Section 1.09 . Successors and Assigns.



     All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.



     Section 1.10 . Separability Clause.



     In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     Section 1.11 . Benefits of Indenture.



     Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 1.12 . Governing Law.



     This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.



     Section 1.13 . Legal Holidays.



     In any case where any Interest Payment Date, Fundamental Change Repurchase Date, Stated
Maturity, or the last date on which a Holder has the right to convert his Securities, shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or



16









 







principal or conversion of the Securities need not be made on such date, but may be made on
the next succeeding Business Day (or, with respect to a Fundamental Change Repurchase Date,
promptly following the later of (i) such next succeeding Business Day and (ii) the time of book
entry transfer or the delivery of the Securities as set forth in Section 5.01) with the same force
and effect as if made on the Interest Payment Date, Fundamental Change Repurchase Date, the Stated
Maturity, or on such last day for conversion, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Fundamental Change Repurchase Date or Stated Maturity,
as the case may be.



     Section 1.14 . Indenture and Securities Solely Corporate Obligations.



     None of the Company’s past, present or future directors, officers, employees or stockholders,
as such, shall have any liability for any of the Company’s obligations under this Indenture or the
Securities or for any claim based on, or in respect or by reason of, such obligations or their
creation. By accepting a Security, each Holder waives and releases all such liability.



     This waiver and release is part of the consideration for the issuance of the Securities.



     Section 1.15 . Indenture May Be Executed in Counterparts.



     This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute one and the same instrument.



     Section 1.16 . Acceptance of Trust.



     U.S. Bank National Association, the Trustee named herein, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions set forth herein.



     Section 1.17 . Calculations in Respect of Notes.



     Except as otherwise provided in this Indenture, the Company shall be responsible for making
all calculations called for hereunder and under the Securities or in connection with a conversion.
These calculations include, but are not limited to, determinations of the Last Reported Sales
Price, accrued interest payable on the Securities and the Conversion Rate on the Securities. The
Company shall make all these calculations in good faith and, absent manifest error, the Company’s
calculations will be final and binding on the Holders. The Company shall provide a schedule of the
Company’s calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and
the Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s
calculations without independent verification. The Trustee will forward its calculations to any
Holder upon the request of such Holder.



17









 





ARTICLE 2

Security Forms




     Section 2.01 . Forms Generally.



     The Securities and the Trustee’s certificates of authentication shall be in substantially the
forms set forth in this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or any depositary therefore or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities.



     Notices of Conversion shall be in substantially the form set forth in Section 2.05.



     The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their execution of such
Securities.



     Section 2.02 . Form of Face of Security.



[INCLUDE IF SECURITY IS A RESTRICTED SECURITY — THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY,
THIS SECURITY MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) ONE YEAR AFTER
THE LATEST ISSUE DATE OF THIS SECURITY AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE
(WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER, OFFER, RESELL, PLEDGE OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITY, EXCEPT (A) TO THE ISSUER; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF
AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION



18









 







REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY
WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE ISSUER HAS NOT SATISFIED THE CURRENT PUBLIC
INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER THE LAST ISSUE DATE OF THIS SECURITY
(INCLUDING THROUGH THE EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL SECURITIES) AND (Y) THREE
MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE
SECURITIES ACT) OF THE ISSUER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT TO THE INDENTURE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]



NetApp, Inc.




1.75% Convertible Senior Note due 2013




No.                 $




CUSIP No. 64110D AA2

ISIN No. US64110DAA28




     NetApp, Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of                                          Dollars set forth on the Principal Schedule attached
to this Security on June 1, 2013, and to pay interest thereon from June 10, 2008 or from the most
recent Interest Payment Date to which interest has been paid or duly provided for to but excluding
the next Interest Payment Date, semi-annually on June 1 and December 1 in each year, commencing
December 1, 2008, at the rate of 1.75% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 calendar days prior to such Special Record Date (or



19









 







such lesser period that is acceptable to the Trustee), or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of and interest on this Security will be
made at the office or agency of the Company maintained for that purpose, which shall initially be
the corporate trust operations office of U.S. Bank National Association in St. Paul, Minnesota, in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.



     Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed



     Dated:



	 	 	 	 	 
	 	NETAPP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     Section 2.03 . Form of Reverse of Security.



     This Security is one of a duly authorized issue of Securities of the Company designated as its
1.75% Convertible Senior Notes due 2013 (herein called the “Initial Securities”), initially limited
in aggregate principal amount to $1,265,000,000, issued and to be issued under an Indenture, dated
as of June 10, 2008 (herein called the “Indenture”), between the Company and U.S. Bank National
Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The Company



20









 







may from time to time, without notice to or the consent of the Holders of the Securities,
create and issue further Securities (the “Additional Securities”, and together with the Initial
Securities, the “Securities”) having the same terms and ranking equally and ratably with the
Initial Securities, as part of one series, in all respects and with the same CUSIP number as the
Initial Securities, or in all respects except for payment of interest accruing prior to the Issue
Date of such Initial Securities, provided that such Additional Securities are fungible with the
Initial Securities for U.S. federal income tax purposes. Any Additional Securities shall be
consolidated and form a single series with the Initial Securities and shall have the same terms as
to status, redemption, and otherwise as the Initial Securities. Any Additional Securities may be
issued pursuant to authorization provided by a resolution of the Board of Directors of the Company,
a supplement to the Indenture, or under an Officer’s Certificate pursuant to the Indenture. No
Additional Securities may be issued if an Event of Default has occurred and is continuing with
respect to the Initial Securities.



     In any case where the due date for the payment of the principal of or interest on any Security
or the last day on which a Holder of a Security has a right to convert his Security shall be, at
any Place of Payment or Place of Conversion, as the case may be, a day on which banking
institutions at such Place of Payment or Place of Conversion are authorized or obligated by law or
executive order to close, then payment of principal, interest or delivery for conversion of such
Security need not be made on or by such date at such place but may be made on or by the next
succeeding day at such place which is not a day on which banking institutions are authorized or
obligated by law, regulation or executive order to close, with the same force and effect as if made
on the date for such payment or the date fixed for redemption or repurchase, or by such last day
for conversion, and no interest shall accrue on the amount so payable for the period after such
date.



     Subject to the provisions of the Indenture, upon the occurrence of a Fundamental Change, the
Holder has the right, at such Holder’s option, to require the Company to repurchase all of such
Holder’s Securities or any portion thereof (in principal amounts of $1,000 or integral multiples
thereof) on the Fundamental Change Repurchase Date at a price equal to 100% of the principal amount
of the Securities such Holder elects to require the Company to repurchase, together with accrued
and unpaid interest to but excluding the Fundamental Change Repurchase Date. The Company or, at the
written request of the Company, the Trustee shall mail to all Holders of record of the Securities a
notice of the occurrence of a Fundamental Change and of the repurchase right arising as a result
thereof after the occurrence of any Fundamental Change, but on or before the 10th
calendar day following such occurrence.



     Subject to and upon compliance with the provisions of the Indenture (including, without
limitation, the conditions of conversion set froth in  Article 6 hereof), the Holder of this
Security is entitled, at his or her option, to convert this Security (or any portion of the
principal amount hereof which is $1,000 or an



21









 







integral multiple thereof), at the principal amount hereof, or of such portion, into cash and
fully paid and non-assessable shares of Common Stock of the Company, if any, at the Conversion Rate
specified in the Indenture, by surrender of this Security together with a Notice of Conversion, a
form of which is set forth in Section 2.05, as provided in the Indenture and this note, duly
endorsed or assigned to the Company or in blank, to the Company at its office or agency, which
shall be initially the corporate trust operations office of U.S. Bank National Association in St.
Paul, Minnesota, and, unless the cash and shares of Common Stock, if any, deliverable on conversion
are to be issued in the same name as this note, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company or its agent duly executed by, the Holder or by his
duly authorized attorney, or if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and, in case such surrender shall be made during the period
from the close of business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date, also accompanied by payment in dollars of an
amount equal to the interest payable on such Interest Payment Date on the principal amount of this
Security then being converted. Subject to the aforesaid requirement for payment and, in the case of
a conversion after the Regular Record Date next preceding any Interest Payment Date and on or
before such Interest Payment Date, to the right of the Holder of this Security (or any Predecessor
Security) of record at such Regular Record Date to receive an installment of interest (with certain
exceptions provided in the Indenture), no payment or adjustment is to be made on conversion for
interest accrued hereon or for dividends on the Common Stock issued on conversion. No fractions of
shares or scrip representing fractions of shares will be issued on conversion, but instead of any
fractional interest the Company shall pay a cash adjustment as provided in the Indenture. The
conversion rate is subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall be amended, without
the consent of any Holders of Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be convertible as specified above, by
reference to the kind and amount of cash, securities and other property or assets 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.



     No sinking fund is provided for the Securities and the Securities are not subject to
redemption at the option of the Company.



     In the event of conversion of this Security in part only, a new Security or Securities for the
unconverted portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.



     If an Event of Default shall occur and be continuing, the principal of all the Securities may
be declared due and payable in the manner and with the effect provided in the Indenture.



22









 





     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages
in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders
of all the Securities, to waive compliance by the Company with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided in the Indenture.



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.



     The Securities are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, provided that such denomination is a minimum of $1,000 or
an integral multiple thereof, as requested by the Holder surrendering the same.



     Prior to the first anniversary of the Issue Date set forth on the face of this Security, this
Security may not be transferred to or sold by any affiliate (within the meaning of Rule 144 under
the Securities Act) of the Company, except pursuant to an effective registration statement or an
exemption from registration.



23









 





     No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.



     All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.



PRINCIPAL SCHEDULE




NETAPP, INC.




1.75% Convertible Senior Notes due 2013



No.           




     The initial principal amount of this Global Security is $   ,000,000. The following decreases
or increases in this Global Security have been made:



	 	 	 	 	 	 	 
	Date of decrease or
increase

	 	Amount of decrease
in principal amount
of this Global
Security
	 	Amount of increase
in principal amount
of this Global
Security
	 	Principal amount of
this Global
Security following
such increase or
decrease
	 

	 	 
	 	 
	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 





     Section 2.04 . Form of Legend for Global Securities.



     Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A



24









 






NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     Section 2.05 . Form of Notice of Conversion.



Conversion notices shall be in substantially the following form:




NOTICE OF CONVERSION




     The undersigned Holder of this Security hereby irrevocably exercises the option to convert
this Security, or any portion of the principal amount hereof (which is U.S. $1,000 or an integral
multiple of U.S. $1,000 in excess thereof, provided that the unconverted portion of such principal
amount is U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof) below designated,
into cash and shares of Common Stock or Reference Property, if any, in accordance with the terms of
the Indenture referred to in this Security, and directs that such shares, if any, together with a
check in payment for any fractional share and any Securities representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned unless a different
name has been indicated below. If cash, shares of Common Stock, Reference Property or Securities
are to be delivered to or registered in the name of a Person other than the undersigned, the
undersigned shall pay all transfer taxes payable with respect thereto.



     Dated:                      Signature(s):                                        
                     



     If shares or Securities are to be registered in the name of a Person other than the Holder,
please print such Person’s name and address:


(Name)



(Address)



Social Security or other



Identification Number, if any



If only a portion of the Securities are to be converted, please indicate:



1. Principal amount to be converted: U.S. $                      



2. Principal amount and denomination of Securities representing unconverted principal amount to be
issued:



Amount: U.S. $                      Denominations: U.S. $                     




25









 








     (U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof, provided that the
unconverted portion of such principal amount is U.S. $1,000 or any integral multiple of U.S. $1,000
in excess thereof)



     Section 2.06 . Form of Assignment.



ASSIGNMENT




     For value received,                                            hereby sell(s), assign(s) and
transfer(s) unto                                           (Please insert Social Security or
other identifying number of assignee) the within Security, and hereby irrevocably constitutes and
appoints                                            as attorney to transfer the said Security on
the books of the Company, with full power of substitution in the premises.



     Dated:                      Signature(s):                                      
                       



     Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.



     Signature Guaranteed



     In connection with any transfer of this Security occurring prior to the date which is the
earlier of (i) the date of the declaration by the Commission of the effectiveness of a registration
statement under the Securities Act, as amended (the “Securities Act”), covering resales of this
Security (which effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the first anniversary of the Issue Date set forth on the face of this Security,
the undersigned confirms that it has not utilized any general solicitation or general advertising
in connection with the transfer and that this Security is being transferred:



     [Check One]



	 	 	 	 	 
	(1)

	 	o
	 	to the Company or a subsidiary thereof; or
	 
	 	 	 	 
	(2)

	 	o
	 	to a “Qualified Institutional Buyer” pursuant to and in compliance with
Rule 144A under the Securities Act; or
	 
	 	 	 	 
	(3)

	 	o
	 	pursuant to the exemption from registration provided by Rule 144 under
the Securities Act.





Unless one of the above boxes is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any Person other than the registered Holder thereof,
provided that if box (3) is checked, the Company may require (and shall deliver to the Trustee and
the Security Registrar), prior to registering any such transfer of the Securities, in its sole
discretion, such legal


26









 






opinions, certifications and other information as the Company may reasonably request to confirm
that such transfer is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.




If none of the foregoing boxes is checked, the Trustee or Security Registrar shall not be obligated
to register this Security in the name of any Person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth herein and in Section 3.10 of the
Indenture shall have been satisfied.



In connection with any transfer prior to the first anniversary of the Issue Date set forth on the
face of this Security (other than transfers pursuant to an effective registration statement), the
undersigned represents and warrants that to its knowledge the transferee is not an affiliate
(within the meaning of Rule 144 under the Securities Act) of the Company.



     Dated:                      Signature(s):                                     
                        



     Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.



     Signature Guaranteed



     TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED



     The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.



     TO BE COMPLETED BY ALL PURCHASERS



     In connection with any purchase (except if pursuant to an effective registration statement) of
this Security occurring prior the first anniversary of the Issue Date set forth on the face of this
Security, the undersigned represents and warrants that it is not an affiliate (within the meaning
for Rule 144 under the Securities Act) of the Company.



     Dated:                      Signature(s):                                     
                        



27









 





     NOTICE: To be executed by an executive officer.



     Section 2.07. Form of Trustee’s Certificate of Authentication.



     This is one of the Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




     Section 2.08 . Form of Fundamental Change Repurchase Notice.


To: NetApp, Inc.




     The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
NetApp, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the
Company and hereby directs the Company to pay, or cause the Trustee to pay,
                                           an amount in cash equal to 100% of the entire principal
amount, or the portion thereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, to be repurchased plus interest accrued to, but excluding, the Fundamental Change
Repurchase Date, except as provided in the Indenture.



     Dated:                     



     Signature                                         



     Principal amount to be repurchased (at least $1,000 or an integral multiple of $1,000 in
excess thereof):                     



     Remaining principal amount following such repurchase:                                          



	 	 	 	 	 
	By:

	 	 
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






     Section 2.09 . Legend on Restricted Securities. During the period beginning on the Issue
Date and ending on the date one year from such date, any Security, including any Security issued in
exchange therefor or in lieu thereof, shall be deemed a “Restricted Security” and shall be subject
to the restrictions on transfer provided in the legends set forth on the face of the form of
Security in  Section 2.02; provided, however, that the term “Restricted Security” shall not include
any Securities as to which restrictions have been terminated in accordance with  Section 3.10. All
Securities shall bear the applicable legends set forth on the face of the form of Security in
  Section 2.02. Except as provided in  Section 3.06



28









 





and Section 3.10, the Trustee shall not issue any unlegended Security until it has received
an Officers’ Certificate from the Company directing it to do so.



ARTICLE 3

The Securities




     Section 3.01 . Title and Terms; Principal and Interest.



     The aggregate principal amount of Initial Securities which may be authenticated and delivered
under this Indenture is limited to $1,265,000,000 and the aggregate amount of Additional Securities
is unlimited, except for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities pursuant to  Section 3.03,  Section 3.04,
 Section 3.05,  Section 3.06,  Section 3.07,  Section 12.06 or  Section 6.01.



     The Initial Securities and the Additional Securities, if any, shall be known and designated as
the “1.75% Convertible Senior Notes due 2013” of the Company.



     The Securities shall mature on June 1, 2013,



     The Securities shall bear interest at the rate of 1.75% per annum, from June 10, 2008 or from
the most recent Interest Payment Date to which interest has been paid or duly provided for, as the
case may be, payable semi-annually in arrears on June 1 and December 1, commencing December 1,
2008, until the principal thereof is paid or made available for payment.



     Principal of and interest (including Additional Interest and Reporting Interest) on, Global
Securities shall be payable to DTC in immediately available funds.



     Principal on definitive Securities shall be payable at the office or agency of the Company
maintained for such purpose, initially the agency of the Trustee at St. Paul, Minnesota (such
office and city in which the Paying Agent is located being herein after called the “Place of
Payment”). Interest (including Additional Interest and Reporting Interest), on definitive
Securities will be payable (i) to each Holder of Securities having an aggregate principal amount of
$5,000,000 or less, by check mailed to such Holder and (ii) to each Holder of Securities having an
aggregate principal amount of more than $5,000,000, either by check mailed to such Holder or, upon
application by such Holder to the Registrar not later than the relevant Regular Record Date, by
wire transfer in immediately available funds to that Holder’s account within the United States,
which application shall remain in effect until the Holder notifies, in writing, the Registrar to
the contrary.



29









 





     The Securities shall be convertible as provided in Article 6 (any city in which the
Conversion Agent is located being herein after called the “Place of Conversion”).



     Section 3.02 . Denominations.



     The Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof.



     Section 3.03 . Global Securities; Non-Global Securities; Book-entry Provisions.



     The Securities may be issued in Global or Non-Global (Definitive) Form as provided in this
Indenture.



     (a) Global Securities




     (i) Each Global Security authenticated under this Indenture shall be registered in
the name of, and delivered to, Cede & Co., as nominee of DTC (the “Depositary”). Each such
Global Security shall constitute a single Security for all purposes of this Indenture.




     (ii) Except for exchanges of Global Securities for definitive, non-Global Securities
at the sole discretion of the Company, no Global Securities may be exchanged in whole or
in part for Securities registered, and no transfer of a Securities in whole or in part may
be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (1) has notified the Company that
it is unwilling or unable to continue as Depositary for such Global Security or (2) has
ceased to be a clearing agency registered as such under the Exchange Act or announces an
intention permanently to cease business or does in fact do so or (B) there shall have
occurred and be continuing an Event of Default with respect to such Global Security. In
such event, if a successor Depositary for such Global Security is not appointed by the
Company within 90 calendar days after the Company receives such notice or becomes aware of
such ineligibility, the Company shall execute, and the Trustee, upon receipt of an
Officers’ Certificate directing the authentication and delivery of non-Global Securities,
shall authenticate and deliver, non-Global Securities, in any authorized denominations in
an aggregate principal amount equal to the principal amount of such Global Security in
exchange for such Global Security.




     (iii) If any Global Security is to be exchanged for other Securities or canceled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the
Trustee, as Registrar, for exchange or cancellation, as provided in this Article. If any
Global Security is to be exchanged for other Securities or canceled in part, or if another
Security is



30









 







to be exchanged in whole or in part for a beneficial interest in any Global Security,
in each case, as provided in Article 2 of this Indenture, then either (A) such Global
Security shall be so surrendered for exchange or cancellation, as provided in this
Article, or (B) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the principal
amount of such other Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the Trustee, as
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global Security, the
Trustee shall, subject to this Article, authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depositary or its authorized
representative. The Trustee shall be entitled to receive from the Depositary the names,
addresses and tax identification numbers of the Persons in whose name the Securities are
to be registered prior to such authentication and delivery. Upon the request of the
Trustee in connection with the occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article if such order, direction or
request is given or made in accordance with the Applicable Procedures (to the extent such
procedures are applicable to such direction or request).




     (iv) Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant
to this Article or otherwise, shall be authenticated and delivered in the form of, and
shall be, a registered Global Security, unless such Security is registered in the name of
a Person other than the Depositary for such Global Security or a nominee thereof, in which
case such Security shall be authenticated and delivered in accordance with clause (b) of
this Section 3.03.




     (v) The Depositary or its nominee, as registered owner of a Global Security, shall be
the Holder of such Global Security for all purposes under this Indenture and the
Securities, and owners of beneficial interests in a Global Security shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any such owner’s beneficial
interest in a Global Security shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its nominee or its
Agent Members and such owners of



31









 







beneficial interests in a Global Security shall not be considered the owners or
holders thereof.



     (b) Non-Global Securities. Securities issued upon the events described in Section 3.03(a)(ii)
shall be in definitive, fully registered form, without interest coupons.



     Section 3.04 . Execution, Authentication, Delivery and Dating.



     The Securities shall be executed on behalf of the Company by its Chairman of the Board, Vice
Chairman of the Board, Chief Executive Officer, Chief Financial Officer, President or one of its
Vice Presidents, Treasurer or Assistant Treasurer. The signature of any of these officers on the
Securities may be manual or facsimile.



     Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.10,
for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.



     The Company may, subject to Article 4 of this Indenture and applicable law, issue under this
Indenture Additional Securities; provided, however, that the Company may not issue Additional
Securities if an Event of Default with respect to any Outstanding Securities shall have occurred
and be continuing at the time of



32









 







such issuance. All Securities issued under this Indenture shall be treated as a single class
for all purposes under this Indenture.



     Section 3.05 . Temporary Securities.



     Pending the preparation of definitive Securities, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such Securities.



     If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.



     Section 3.06 . Registrar, Registration of Transfer and Exchange; Paying Agent.



     (a) Registrar. The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other office or agency
designated pursuant to Section 4.02 being herein sometimes collectively referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and for the transfers or exchange of
Securities. Such Security Register shall distinguish between Initial Securities and Additional
Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided. The Company may change the
Security Registrar without notice to any Holder. The Company or any of its Subsidiaries may act as
Security Registrar.



     Upon surrender for registration of transfer of any Security at an office or agency of the
Company designated pursuant to Section 4.02 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denomination, provided that such denomination is a
minimum of $1,000 or an integral multiple thereof, and of a like aggregate principal amount,



33









 







each such Security bearing such restrictive legends as may be required by this Indenture.



     At the option of the Holder and subject to the other provisions of this Section 3.06 and to
Section 3.10, Securities may be exchanged for other Securities of any authorized denominations and
of a like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing. As a condition to the
registration of transfer of any Restricted Securities, the Company or the Trustee may require
evidence satisfactory to them as to the compliance with the restrictions set froth in the legend of
such Securities.



     Except as provided in the following sentence and in Section 3.10, all Securities originally
issued hereunder and all Securities issued upon registration of transfer or exchange or replacement
thereof shall be Restricted Securities and shall bear the legends required by Section 2.02 and
Section 2.05, unless the Company shall have delivered to the Trustee (and the Security Registrar,
if other than the Trustee) a Company Order stating that the Security is not a Restricted Security
and may be issued without such legend thereon. Securities that are issued upon registration of
transfer of, or in exchange for, Securities that are not Restricted Securities shall not be
Restricted Securities and shall not bear such legend.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, Section 12.06 or Section 6.01 not
involving any transfer.



     (b) Restrictions on Transfer. Beneficial ownership of every Restricted Security shall be
subject to the restrictions on transfer provided in the legends required to be set forth on the
face of each Restricted Security pursuant to Section 2.02 and Section 2.05, unless such
restrictions on transfer shall be terminated in accordance with this Section 3.06(b) or Section
3.10. The Holder of each



34









 







Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by such
restrictions on transfer.



     The restrictions imposed by this Section 3.06 and by Section 2.02, Section 2.05 and
Section 3.10 upon the transferability of any particular Restricted Security shall cease and
terminate upon such Restricted Security having been sold pursuant to an effective Resale
Registration Statement under the Securities Act or transferred in compliance with Rule 144 under
the Securities Act (or any successor provision thereto). Any Restricted Security as to which the
restrictions on transfer shall have expired in accordance with their terms or shall have terminated
may, upon surrender of such Restricted Security for exchange to the Security Registrar in
accordance with the provisions of this Section 3.06, be exchanged for a new Security, of like
tenor and aggregate Principal Amount, which shall not bear the restrictive legends required by
Section 2.02 and Section 2.05. The Company shall inform the Trustee in writing of the effective
date of any Resale Registration Statement registering the Securities under the Securities Act. The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned resale registration statement.



     Prior to the first anniversary of the Issue Date, the Securities may not be transferred to or
sold by any affiliate (within the meaning of Rule 144 under the Securities Act) of the Company,
except pursuant to an effective registration statement or an exemption from registration.



     As used in the preceding three paragraphs of this Section 3.06, the term “transfer”
encompasses any sale, pledge, transfer or other disposition of any Restricted Security.



     (c) Paying Agent. The Company shall maintain an office or agency where Securities may be
presented for payment (the “Paying Agent”). The Company initially appoints the Trustee as Paying
Agent for the Securities. The Company may have one or more additional paying agents and the term
“Paying Agent” shall include any such additional paying agent.



     The Company shall enter into an appropriate agency agreement with any Paying Agent not a party
to this Indenture, which shall incorporate the terms of the Trust Indenture Act, except in the case
of a Paying Agent that acts as Paying Agent solely in connection with an offer to purchase the
Securities pursuant to Article 4 of this Indenture. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and
address of each such agent. If the Company fails to maintain a Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to Section 9.07. The
Company or any Subsidiaries may act as Paying Agent.




35












 





     The Company may remove any Paying Agent upon written notice to such Paying Agent and to the
Trustee; provided, however, that no such removal shall become effective until (i) acceptance of any
appointment by a successor as evidenced by an appropriate agreement entered into by the Company and
such successor Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification
to the Trustee that the Trustee or the Company shall serve as Paying Agent until the appointment of
a successor in accordance with clause (i) above. The Paying Agent may resign at any time upon
written notice to the Company and the Trustee.



     (d) Paying Agent to Hold Money in Trust. By no later than 11:00 a.m., New York City time, on
the date on which any principal of or interest and Additional Interest, if any, on any Security is
due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately
available funds to pay such principal or interest (including any Additional Interest and Reporting
Interest), when due. The Company shall require each Paying Agent (other than the Trustee) to agree
in writing that such Paying Agent shall hold in trust for the benefit of Security holders or the
Trustee all money held by such Paying Agent for the payment of principal of or interest (including
any Additional Interest and Reporting Interest), on the Securities and shall notify the Trustee in
writing of any default by the Company in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to
pay all money held by it to the Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section 3.06, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall
serve as Paying Agent for the Securities.



     (e) Custodian. The Company hereby appoints the Trustee as Custodian with respect to any
Global Securities.



     Section 3.07 . Mutilated, Destroyed, Lost and Stolen Securities.



     If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of



36









 







any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount
and bearing a number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.



     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



     Section 3.08 . Payment of Interest; Interest Rights Preserved.



     Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest.



     In the case of Securities represented by a Global Security registered in the name of or held
by a Depository or its nominee, payment of principal, premium, if any, and interest, if any, will
be made to the Depository or its nominee, as the case may be, as the registered owner or Holder of
such Global Security. None of the Company, the Trustee and the Paying Agent, any Authenticating
Agent or the Security Registrar for such Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of a beneficial ownership
interest in a Global Security or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.



     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



     Subject to the provisions of Article 6 hereof, a Holder of any Security at 5:00 p.m., New York
City time, on a Regular Record Date shall be entitled to



37









 







receive interest (including any Additional Interest), on such Security on the corresponding
Interest Payment Date. Holders of Securities at 5:00 p.m., New York City time, on a Regular Record
Date will receive payment of interest (including any Additional Interest) payable on the
corresponding Interest Payment Date notwithstanding the conversion of such Securities at any time
after 5:00 p.m., New York City time on such Regular Record Date. Securities surrendered for
conversion during the period after 5:00 p.m., New York City time, on any Regular Record Date to
9:00 a.m., New York City time, on the corresponding Interest Payment Date must be accompanied by
payment of an amount equal to the interest (including any Additional Interest) that the Holder is
to receive on the Securities. Notwithstanding the foregoing, no such payment of interest (including
any Additional Interest) need be made by any converting Holder (i) if the Company has specified a
Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the next
Scheduled Trading Day following the corresponding Interest Payment Date, (ii) to the extent of any
overdue interest (including any overdue Additional Interest) existing at the time of conversion of
such Security, or (iii) for conversions with a Conversion Date on or after May 15, 2013. Except
where Securities surrendered for conversion must be accompanied by payment as described above, no
interest or Additional Interest on converted Securities will be payable by the Company on any
Interest Payment Date subsequent to the Conversion Date and delivery of the cash and shares of
Common Stock, if applicable, pursuant to Article 6 hereunder, together with any cash payment for
any fractional share, upon conversion will be deemed to satisfy the Company’s obligation to pay the
principal amount of the Securities and accrued and unpaid interest and Additional Interest, if any,
to, but not including, the related Conversion Date. As a result, accrued and unpaid interest to,
but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled,
extinguished or forfeited



     Section 3.09 . Persons Deemed Owners.



     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.08) interest on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.



     In the case of a Global Security, so long as the Depository for such Global Security, or its
nominee, is the registered owner of such Global Security, such Depository or such nominee, as the
case may be, will be considered the sole owner or Holder of the Securities represented by such
Global Security for all purposes under this Indenture. Except as provided in Section 3.06, owners
of beneficial interests in a Global Security will not be entitled to have Securities that are
represented by such Global Security registered in their names, will not receive



38









 







or be entitled to receive physical delivery of such Securities in definitive form and will not
be considered the owners or Holders thereof under this Indenture.



     Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall (a)
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by a Depository or (b) impair, as
between a Depository and holders of beneficial interest in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depository as Holder of such Global
Security.



     Section 3.10 . Cancellation and Transfer Provisions.



     (a) All Securities surrendered for payment, redemption, registration of transfer or exchange
or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of in accordance with its customary
procedures. Copies of all cancelled Securities shall be provided to the Company by the Trustee,
promptly following cancellation of such Securities.



     (b) Transfers to QIBs. The following provisions shall apply with respect to the registration
of any proposed transfer of a Security constituting a Restricted Security to a QIB:




     (i) the Security Registrar shall register the transfer if such transfer is being made
by a proposed transferor who has checked the box provided for on the form of Security
stating, or has otherwise advised the Company and the Security Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A to a transferee who
has signed the certification provided for on the form of Security stating, or has
otherwise advised the Company and the Security Registrar in writing, that it is purchasing
the Security for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its



39









 







foregoing representations in order to claim the exemption from registration provided
by Rule 144A; and




     (ii) if the proposed transferee is an Agent Member, and the Securities to be
transferred consist of non-Global Securities which after transfer are to be evidenced by
an interest in the Global Security, upon receipt by the Security Registrar of instructions
given in accordance with the Depositary’s and the Security Registrar’s procedures, the
Security Registrar shall reflect on its books and records the date and an increase in the
Principal Amount of the Global Security in an amount equal to the Principal Amount of the
non-Global Securities to be transferred, and the Trustee shall cancel the non-Global
Securities so transferred.



     (c) Private Placement Legend. Upon the registration of transfer, exchange or replacement of
Securities not bearing the legends required by Section 2.02 and Section 2.05, the Security
Registrar shall deliver Securities that do not bear such legends. Except in the case of a
registration of transfer, exchange or replacement pursuant to an effective shelf registration
statement as contemplated by the Registration Rights Agreement upon the registration of transfer,
exchange or replacement of Securities bearing the legends required by Section 2.02 and Section
2.05, the Security Registrar shall, within the later of six months after the latest issue date of
such Security (or, if the Company has not satisfied the current public information requirements of
Rule 144, one year) deliver only Securities that bear such legends unless (x) there is delivered to
the Security Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee
to the effect that neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act and (y) the Security
Registrar shall have received a representation and warranty that the Holder in whose name the
Security is to be registered is not, and has not been for a period of three months prior to the
date such Security is to be delivered, an affiliate within the meaning of Rule 144.



     (d) General. By its acceptance of any Security bearing the legends required by Section 2.02
and Section 2.05, each Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in such legends and agrees that it will transfer such
Security only as provided in this Indenture. None of the Company or any Subsidiary of the Company
shall purchase or sell any Security after the date hereof, except as required under the terms of
this Indenture.



     The Security Registrar shall retain, in accordance with its customary procedures, copies of
all letters, notices and other written communications received pursuant to this Section 3.10. The
Company shall have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable written notice to the
Security Registrar.



40









 





     Section 3.11 . CUSIP Numbers.



     The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP numbers in all notices to Holders as a convenience to Holders of
the Securities; provided, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or on such notice and that reliance
may be placed only on the other identification numbers printed on the Securities. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.



     Section 3.12 . Computation of Interest.



     Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.



     Section 3.13 . Special Record Date.



     Any interest on any Security that is payable but not punctually paid or duly provided for on
any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his, her or its having been such a Holder, and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to Holders in whose names
the Securities are registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record Date”), which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the Defaulted Interest proposed to be paid on
each Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 calendar days and not less than 10 calendar days prior to the date of the
proposed payment and not less than 10 calendar days after the receipt by the Trustee of the notice
of the proposed payment (unless, in each case, a lesser period shall be acceptable to the Trustee).
The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holders of
the Securities at their addresses as they appear in the Note Register, or by such other means
reasonably acceptable to such Holders (or such lesser period that is acceptable to the Trustee),



41









 







not less than 10 calendar days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or
their predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (b).



     (b) The Company may make payment of any Defaulted Interest on the Securities in any other
lawful manner not inconsistent with the requirements of any automated quotation system or
securities exchange on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.



ARTICLE 4

Covenants




     Section 4.01 . Payment of Principal and Interest.



     The Company will duly and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.



     Section 4.02 . Maintenance of Office or Agency.



     The Company will maintain an office or agency (which shall be initially the Trustee’s
Corporate Trust Office) where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange, where Securities may be
surrendered for conversion and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt written notice to the
Trustee of any change in the location of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency for such purposes
as provided above. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



42









 





     Section 4.03 . Money for Security Payments to Be Held in Trust.



     If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of
the principal of or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.



     The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by
the Company (or any other obligor upon the Securities) in the making of any payment in respect of
the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent as such.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.



     Subject to any applicable abandoned property law, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest
on any Security and remaining unclaimed for two years after such principal or interest has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York, New York, notice that such money remains
unclaimed and that,



43









 







after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



     Section 4.04 . Statement by Officers as to Default.



     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have knowledge.



     In addition, the Company will deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any events that would constitute an Event of Default, the status of
those events and what action the Company is taking or propose to take in respect thereof.



     Section 4.05 . Existence.



     Subject to Article 8, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.



     Section 4.06 . Maintenance of Properties.



     The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect to the Holders.



     Section 4.07 . Payment of Taxes and Other Claims.



44









 





     The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.



     Section 4.08 . Additional Interest Under the Registration Rights Agreement.



     If at any time Additional Interest becomes payable by the Company pursuant to the Registration
Rights Agreement, the Company shall promptly deliver to the Trustee a certificate executed by an
officer of the Company who may execute a Company Order to that effect and stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such Additional Interest is
payable pursuant to the terms of the Registration Rights Agreement. Unless and until a Responsible
Officer of the Trustee receives such a certificate, the Trustee may assume without inquiry that no
Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to such Additional Interest, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.



     Notwithstanding the foregoing, in the event that Reporting Interest is payable under this
Indenture at any time when Additional Interest becomes payable pursuant to the Registration Rights
Agreement, no Additional Interest shall be payable under this Indenture unless the amount of such
Additional Interest payable exceeds the amount of such Reporting Interest then payable, in which
case Additional Interest shall be payable in lieu of Reporting Interest.



     Section 4.09 . Waiver of Certain Covenants.



     The Company may omit in any particular instance to comply with any covenant or condition set
forth in second and third paragraph of Section 10.04, if before the time for such compliance, the
Holders of at least a majority in principal amount of the Outstanding Securities shall, by Act of
such Holders, either waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.



45









 





ARTICLE 5

Repurchase At Option Of The Holder




     Section 5.01 . Repurchase at the Option of the Holder Upon a Fundamental Change.



     (a) If a Fundamental Change occurs at any time, then each Holder shall have the right, at such
Holder’s option, to require the Company to repurchase all of such Holder’s Securities or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Fundamental Change Repurchase Date”) specified by the Company that is not less than 15 calendar
days and not more than 45 calendar days after the date of the Fundamental Change Repurchase Right
Notice at a repurchase price equal to 100% of the principal amount thereof, together with accrued
and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the
“Fundamental Change Repurchase Price”).



     Repurchases of Securities under this Section 5.01 shall be made, at the option of the Holder
thereof, upon:




     (i) if the Securities are held in certificated form, delivery to the Trustee (or
other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the
Security or, if the Securities are held in global form, a notice that complies with the
Applicable Procedures, prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date; and




     (ii) delivery or book-entry transfer of the Securities to the Trustee (or other
Paying Agent appointed by the Company) at any time after delivery of the Fundamental
Change Repurchase Notice and prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date (together with all necessary
endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent
appointed by the Company), such delivery being a condition to receipt by the Holder of the
Fundamental Change Repurchase Price therefor; provided that such Fundamental Change
Repurchase Price shall be so paid pursuant to this Section 5.01 only if the Security so
delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in
all respects to the description thereof in the related Fundamental Change Repurchase
Notice.



     The Fundamental Change Repurchase Notice shall state:




     (A) if certificated, the certificate numbers of Securities to be delivered
for repurchase;



46









 






     (B) the portion of the principal amount of Securities to be repurchased,
which must be $1,000 or an integral multiple thereof; and




     (C) that the Securities are to be repurchased by the Company pursuant to
the applicable provisions of the Securities and this Indenture.



     Any purchase by the Company contemplated pursuant to the provisions of this Section 5.01 shall
be consummated by the delivery of the consideration to be received by the Holder promptly following
the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or
delivery of the Security.



     The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of subsection (c) of this Section 5.01.



     Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with,
if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security without service charge,
a new Security or Securities, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion
of the principal of the Security so surrendered.



     (b) After the occurrence of a Fundamental Change, but on or before the 10th
calendar day after the Effective Date of such Fundamental Change, the Company shall provide to all
Holders of record of the Securities and the Trustee and Paying Agent a notice (the “Fundamental
Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the repurchase
right, if any, at the option of the Holders arising as a result thereof. Such mailing shall be by
first class mail. Simultaneously with providing such Fundamental Change Repurchase Right Notice,
the Company shall publish a notice containing the information included therein on the Company’s
website or through such other public medium as the Company may use at such time.



     Each Fundamental Change Repurchase Right Notice shall specify (if applicable):




     (i) the events causing the Fundamental Change;




     (ii) the date of the Fundamental Change;



47









 






     (iii) the last date on which a Holder may exercise its repurchase rights under
Section 5.01, if applicable;




     (iv) the Fundamental Change Repurchase Price, if applicable;




     (v) the Fundamental Change Repurchase Date, if applicable;




     (vi) the name and address of the Paying Agent and the Conversion Agent, if
applicable;




     (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion
Rate;




     (viii) that the Securities with respect to which a Fundamental Change Repurchase
Notice has been delivered by a Holder may be converted only if the Holder withdraws the
Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and




     (ix) the procedures the Holder must follow to require the Company to purchase its
Securities under Section 5.01, if applicable.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Securities pursuant to this Section 5.01.



     (c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right
Notice at any time prior to the close of business on the Business Day prior to the Fundamental
Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:




     (i) the principal amount of the withdrawn Securities and, if certificated Securities
have been issued, the certificate numbers of the withdrawn Securities,




     (ii) the principal amount of the Security with respect to which such notice of
withdrawal is being submitted, and




     (iii) the principal amount, if any, of such Security that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in principal amounts
of $1,000 or an integral multiple of $1,000;


provided, however, that if the Securities are not in certificated form, the notice must comply with
the Applicable Procedures.




48









 








     (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in Section 9.06) an amount of money sufficient to repurchase on the Fundamental Change Repurchase
Date all of the Securities to be repurchased on such date at the Fundamental Change Repurchase
Price. Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent
appointed by the Company), payment for Securities properly surrendered for repurchase (and not
withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later
of (x) the Fundamental Change Repurchase Date with respect to such Security (provided the Holder
has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this
Section 5.01), and (y) the time of book-entry transfer or the delivery of such Security to the
Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner
required by this Section 5.01 by mailing checks for the amount payable to the Holders of such
Securities entitled thereto as they shall appear in the Register; provided, however, that all
payments shall be subject to Section 5.01(a) and payments to the Depositary shall be made by wire
transfer of immediately available funds to the account of the Depositary or its nominee. The
Trustee shall, promptly after such payment and upon written demand by the Company, return to the
Company any funds in excess of the Fundamental Change Repurchase Price.



     (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to
repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that
are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then
on and after the Fundamental Change Repurchase Date (i) such Securities shall cease to be
outstanding, (ii) interest shall cease to accrue on such Securities, and (iii) all other rights of
the Holders of such Securities shall terminate, in each case, whether or not book-entry transfer of
the Securities has been made or the Securities have been delivered to the Trustee or Paying Agent,
other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer
of the Securities.



     (f) No Securities may be repurchased at the option of Holders upon a Fundamental Change if the
principal amount of the Securities has been accelerated, and such acceleration has not been
rescinded on or prior to such date.



     (g) In connection with any repurchase upon the occurrence of a Fundamental Change, to the
extent required by applicable law, the Company shall:




     (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer
rules under the Exchange Act that may then be applicable; and



49









 






     (ii) otherwise comply with all federal and state securities laws as necessary to
effect a repurchase of Securities by the Company at the option of such Holder.



ARTICLE 6

Conversion Of Securities




     Section 6.01 . Conversion of Securities. (a) Right to Convert. Subject to the procedures for
conversion set forth in this Article 6, a Holder may convert its Securities at a conversion rate
(the “Conversion Rate”) equivalent to 31.4006 shares of Common Stock per $1,000 principal amount of
Securities, subject to adjustment as set forth in this Article 6 (i) prior to March 1, 2013, when
any of the conditions specified below are met and during the related specified period, and (ii) at
any time on or after March 1, 2013, on or prior to the close of business on the Scheduled Trading
Day immediately preceding the Stated Maturity. Whenever the Securities shall become convertible
upon one or more of the conditions stated in clauses (i), (ii) or (iv)(A) below, the Company or, at
the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the
Holders of the event triggering such convertibility in the manner provided in Section 1.06 and the
Company shall also publicly announce such information by publication on the Company’s website or
through such other public medium as it may use at such time. Whenever the Securities shall become
convertible upon one or more of the conditions stated in clauses (iii)(B) or (iii)(C), notice of
the event triggering such convertibility shall be given in accordance with the provisions of
Section 5.01(a) and Section 5.01(b). Any notice so given shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. A Holder may convert a portion of
the principal amount of Securities if the portion is $1,000 or a multiple of $1,000. The cash
payable, and the number of shares of Common Stock issuable, if any, upon conversion of a Security
shall be determined as set forth in Section 6.01(c).




     (i) Conversion Upon Satisfaction of Trading Price Condition. A Holder may surrender
its Securities for conversion during the five Business Day period after any five
consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per
$1,000 principal amount of Securities of such series, as determined following a request by
a Holder in accordance with the procedures set forth in this Section 6.01(a)(i), for each
day of that period was less than 98% of the product of the Last Reported Sale Price of the
Common Stock and the applicable Conversion Rate. In connection with any conversion in
accordance with this Section 6.01(a)(i), the Bid Solicitation Agent shall have no
obligation to determine the Trading Price of the Securities unless requested by the
Company; and the Company shall have no obligation to make such request unless a Holder
provides the Company with reasonable evidence that the Trading Price per $1,000 principal
amount of Securities of either series



50









 







would be less than 98% of the product of the Last Reported Sale Price of the Common
Stock and the applicable Conversion Rate. Promptly after receiving such evidence, the
Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the
Securities of such series beginning on the next Trading Day and on each successive Trading
Day until the Trading Price per $1,000 principal amount of Securities of such series is
greater than or equal to 98% of the product of the Last Reported Sale Price of the Common
Stock and the applicable Conversion Rate. If the Company does not, when obligated to do
so, make a request to the Bid Solicitation Agent to determine the Trading Price per $1,000
principal amount of Securities, or if the Company makes such request to the Bid
Solicitation Agent and the Bid Solicitation Agent does not make such determination, then
the Trading Price per $1,000 principal amount of Securities will be deemed to be less than
98% of the product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate for such day. If the condition set forth in this Section 6.01(a)(i) has
been met, the Company shall so notify the Trustee and the Holders. If at any time after
the condition set forth in this Section 6.01(a)(i) has been met, the Trading Price per
$1,000 principal amount of the applicable Securities is greater than or equal to 98% of
the product of the Last Reported Sale Price of Common Stock and the Conversion Rate for
such date, the Company shall so notify the Trustee and the Holders.




     (ii) Conversion Upon Satisfaction of Sale Price Condition. A Holder may surrender all
or a portion of its Securities for conversion during any calendar quarter (and only during
such calendar quarter) commencing after June 30, 2008 if the Last Reported Sale Price for
the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading
Days ending on the last Trading Day of the immediately preceding calendar quarter is
greater than 130% of the Conversion Price in effect on such last Trading Day.




     (iii) Conversion Upon Specified Corporate Events.




     (A) If the Company (1) distributes to all or substantially all holders of
Common Stock any rights or warrants entitling them, for a period expiring within
60 days after the date of the distribution, to subscribe for or purchase, shares
of Common Stock at a price per share less than the Last Reported Sale Price of a
share of Common Stock on the Trading Day immediately preceding the declaration
date for such distribution, or (2) distributes to all or substantially all
holders of Common Stock Capital Stock, evidences of indebtedness or other assets
or property (including cash), which distribution has a per share Fair Market
Value, as determined by the Company’s Board of Directors, exceeding 15% of the
Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the



51









 







declaration date for such distribution, then, in each case, the Company
must notify the Holders, in the manner provided in Section 1.06, and the
Trustee, in the manner provided in Section 1.05, at least 25 Scheduled Trading
Days prior to the Ex-Date for such distribution. Once the Company has given such
notice, Holders may surrender Securities for conversion at any time until the
earlier of 5:00 p.m., New York City time, on the Business Day immediately prior
to such Ex-Date for such distribution, or the Company’s announcement that such
distribution will not take place, even if the Securities are not otherwise
convertible at such time pursuant to the terms of this Indenture.




     (B) If the Company is party to an event constituting a Fundamental Change,
the Company shall use its reasonable efforts to notify (i) Holders, in the
manner provided in Section 1.06 and (ii) the Trustee, in the manner provided in
Section 1.05, at least 25 Scheduled Trading Days prior to the anticipated
effective date of any such event, and in no event later than the effective date
of such event. Once the Company has given such notice, Holders may surrender
Securities for conversion at any time from date of such notice until the related
Fundamental Change Repurchase Date.




     (C) If the Company is party to a transaction described in clause (ii) of
the definition of Fundamental Change (without giving effect to the proviso set
forth in clause (ii) of such definition or to the proviso set forth in such
definition relating to Publicly Traded Securities), the Company shall use its
reasonable efforts to notify Holders, to the extent practicable, in the manner
provided in Section 1.06, at least 25 Scheduled Trading Days prior to the
anticipated effective date for such transaction. Upon the earlier of the date
the Company has given such notice and the effective date of such transaction,
Holders may surrender Securities for conversion at any time until 35 Scheduled
Trading Days after the actual effective date of such transaction (or if such
transaction also constitutes a Fundamental Change, the related Fundamental
Change Repurchase Date).




Holders shall not have the right to convert their Securities pursuant to this Section
6.01(a)(iii) if in connection with the distribution described in this Section 6.01(a)(iii)
that gives rise to a right to convert their Securities, such Holders are entitled to
participate (as a result of holding their Securities, and at the same time as holders of
Common Stock participate) in any such transaction as if such Holders
held a number of shares of Common Stock equal to the applicable Conversion Rate on the Ex-Date for such
distribution, multiplied by the principal amount of Securities held



52









 







by such Holder divided by $1,000, without having to convert their Securities.



     (b) Conversion Procedures. The following procedures shall apply to the conversion of
Securities:




     (i) In respect of a Definitive Security, a Holder must (A) complete and manually sign
the conversion notice attached to the Security (the “Notice of Conversion”), or facsimile
of such Notice of Conversion; (B) deliver such Notice of Conversion, which is irrevocable,
and the Security to the Conversion Agent at the office maintained by the Conversion Agent
for such purpose; (C) to the extent any shares of Common Stock issuable upon conversion
are to be issued in a name other than the Holder’s, furnish endorsements and transfer
documents as may be required by the Conversion Agent and, if required pursuant to Section
6.06 below, pay all transfer or similar taxes; and (D) if required pursuant to Section
3.01 above, pay funds equal to interest payable on the next interest payment date to which
such Holder is not entitled.




     (ii) In respect of a beneficial interest in a Global Security, a Beneficial Owner
must comply with DTC’s procedures for converting a beneficial interest in a Global
Security and, if required pursuant to Section 3.01 above, pay funds equal to interest
payable on the next interest payment date to which such Beneficial Owner is not entitled,
and if required, taxes or duties, if any.



The date a Holder satisfies the foregoing requirements is the “Conversion Date” hereunder.



     No Notice of Conversion with respect to any Securities may be tendered by a Holder thereof if
such Holder has also tendered a Fundamental Change Repurchase Notice and not validly withdrawn such
Fundamental Change Repurchase Notice in accordance with the applicable provisions of Section 5.01.



     If a Holder converts more than one Security at the same time, the cash and number of shares of
Common Stock issuable upon the conversion, if any, shall be based on the total principal amount of
the Securities converted.



     Upon surrender of a Security that is converted in part, the Company shall execute, and the
Trustee or the Authenticating Agent shall authenticate and deliver to the Holder, a new Security in
an authorized denomination equal in principal amount to the unconverted portion of the Security
surrendered.



     (c) Payment Upon Conversion. Upon any conversion of any Security, the Company will deliver to
converting Holders, in respect of each $1,000 principal amount of Securities being converted, a
“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 VWAP
Trading Days



53









 







during the Observation Period for such Security. Except as provided in Section 6.03, the
Settlement Amount will be delivered by the Company on the third Business Day immediately following
the last day of the related Observation Period.



     (d) Cash Payments in Lieu of Fractional Shares. The Company shall not issue a fractional share
of Common Stock upon conversion of Securities. Instead the Company shall deliver cash for the
current market value of the fractional share. The current market value of a fractional share shall
be determined to the nearest 1/10,000th of a share by multiplying the Daily VWAP of a full share of
Common Stock on the last VWAP Trading Day of the related Observation Period by the fractional
amount and rounding the product to the nearest whole cent. The Company shall determine the number
of fractional shares for which cash shall be delivered by aggregating (i) all Securities a Holder
surrenders for conversion and (ii) fractional shares included in the Daily Settlement Amounts over
the entire related Observation Period rather than delivering cash in lieu of fractional shares for
(x) each individual Security of such Holder surrendered for conversion or (y) each day of the
related Observation Period.



     Section 6.02 . Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company as follows:



     (a) If the Company issues shares of Common Stock as a dividend or distribution on shares of
the Common Stock, or effects a share split or share combination, the Conversion Rate will be
adjusted based on the following formula:








     where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the day preceding the
Ex-Date for such dividend or distribution, or the
effective date of such share split or combination,
as the case may be;
	 
	 	 	 	 	 	 
	 

	 	CR’
	 	=
	 	the Conversion Rate in effect as of the opening of
business on the Ex-Date for such dividend or
distribution or the effective date of such share
split or combination, as the case may be;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the Ex- Date for such
dividend or distribution or the effective date of
such share split or combination, as the case may
be; and
	 
	 

	 	OS’
	 	=
	 	the number of shares of Common Stock that will be






54









 







	 	 	 	 	 	 	 
	 

	 	 	 	 	 	outstanding as of the Ex-Date for such dividend
or distribution immediately after giving effect to
such dividend or distribution or immediately after
the effective date of such share split or
combination, as the case may be.





Any adjustment made pursuant to this subsection (a) shall become effective on the date immediately
following (x) the Ex-Date for such dividend or other distribution or (y) the effective date of such
split or combination, as applicable. If any dividend or distribution of the type described in this
Section 6.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted 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 its Common Stock any
rights or warrants entitling them for a period of not more than 60 days after such distribution to
subscribe for or purchase shares of Common Stock at a price per share less than the average of the
Last Reported Sale Prices of the Common Stock on the 10 Trading Days immediately preceding the
Ex-Date for such distribution, the Conversion Rate will be adjusted based on the following formula:








     where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the day preceding the Ex-
Date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	CR’
	 	=
	 	the Conversion Rate in effect as of the opening of
business on the Ex-Date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the Ex-Date for such
distribution;
	 
	 	 	 	 	 	 
	 

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

	 	Y
	 	=
	 	the number of shares of Common Stock equal to the
aggregate price payable to exercise such rights or
warrants divided by the average of the Last
Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on the
Trading Day immediately preceding the Ex-Date for
the issuance of such rights or warrants.





For purposes of this subsection (b), in determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less





55












 




than such Last Reported Sale Price, and in determining the aggregate exercise or offering price
payable for such shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to be determined by
the Board of Directors. If any such rights or warrants are not exercised or converted prior to the
expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be
readjusted to the Conversion Rate that would have been in effect if such right or warrant had not
been issued.




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




     (i) dividends or distributions referred to in clause (a) or (b) above or (e) below;




     (ii) dividends or distributions paid exclusively in cash referred to in subsection (d) below; and




     (iii) Spin-Offs described below in this subsection (c);


then the Conversion Rate will be adjusted based on the following formula:









where,




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the day preceding the
Ex-Date for such distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect as of the opening of
business on the Ex-Date for such distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading
Day period ending on the Trading Day immediately
preceding the Ex-Date for such distribution; and
	 
	 	 	 	 
	FMV

	 	=
	 	the Fair Market Value as determined by the Board
of Directors of the shares of Capital Stock,
evidences of indebtedness, assets or property
distributed with respect to each outstanding share
of Common Stock on the Ex-Date for such
distribution.





With respect to an adjustment pursuant to this subsection (c) where there has been a payment of a
dividend or other distribution on the Common Stock or in shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a




56









 







Subsidiary or other business units of the Company (a “Spin-Off”), the Conversion Rate in effect
immediately before 5:00 p.m., New York City time, on the 10th Trading Day immediately
following, and including, the effective date of such Spin-Off will be increased based on the
following formula:









where,




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the 10th Trading Day immediately
following the effective date of the Spin-Off;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately after
the 10th Trading Day immediately
following the effective date of the Spin-Off;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of
the Capital Stock or similar equity interest
distributed to holders of Common Stock applicable
to one share of Common Stock over the first 10
consecutive Trading Day period immediately
following the effective date of the Spin-Off; and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of
Common Stock over the first 10 consecutive
Trading Day period immediately following the
effective date of the Spin-Off.





Such adjustment shall occur on the 10th Trading Day from the effective date of the
Spin-Off; provided that in respect of any conversion within the 10 Trading Days immediately
following, and including, the effective date of any Spin-Off, references in this subsection (c)
with respect to the Spin-Off to 10 Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the effective date of such Spin-Off and the Conversion Date
in determining the applicable Conversion Rate.




     If any such dividend or distribution described in this subsection (c) is declared but not
paid or made, the Conversion Rate shall be readjusted 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 paid to all or substantially all holders of Common
Stock, the Conversion Rate will be adjusted based on the following formula:



57









 










where,




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the day preceding the
Ex-Date for such distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately as of
the opening of business on the Ex-Date for such
distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the Last Reported Sale Price of the Common Stock
on the Trading Day immediately preceding the
Ex-Date for such distribution; and
	 
	 	 	 	 
	C

	 	=
	 	the amount in cash per share the Company
distributes to holders of Common Stock.






     Such adjustment shall become effective immediately after the opening of business on the
Ex-Date for such dividend or distribution. If any such dividend or distribution is declared but not
so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.



     (e) If the Company or any of its Subsidiaries make a payment in respect of a tender or
exchange offer for Common Stock, to the extent that the cash and value of any other consideration
included in the payment per share of Common Stock exceeds the Last Reported Sale Price 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 will be increased based on the
following formula:








where,




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect on the date such
tender or exchange offer expires;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately after
the closing of trading on the Trading Day next
succeeding the date such tender or exchange offer
expires;






58









 






	 	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other
consideration as determined by the Board of
Directors paid or payable for shares purchased in
such tender or exchange offer;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the date such tender or
exchange offer expires;
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding
immediately after the date such tender or exchange
offer expires (after giving effect to such tender
or exchange offer); and
	 
	 	 	 	 
	SP’

	 	=
	 	the average of the Last Reported Sale Prices of
Common Stock over the 10 consecutive Trading Day
period beginning on the Trading Day next
succeeding the date such tender or exchange offer
expires.





Such adjustment to the Conversion Rate shall occur at the close of business on the tenth Trading
Day from, and including, the Trading Day next succeeding the date such tender or exchange offer
expires; provided that in respect of any conversion within 10 Trading Days immediately following,
and including, the expiration date of any tender or exchange offer, references in this subsection
(e) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have
elapsed between the expiration date of such tender or exchange offer and the Conversion Date in
determining the applicable Conversion Rate. If the Company is obligated to purchase shares
pursuant to any such tender or exchange offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Date that would then be in effect if
such tender or exchange offer had not been made.




     (f) In the event of an increase in the Conversion Rate pursuant to clauses (b) through (e)
of this Section 6.02 or Section 6.03, that would result in the Securities, in the aggregate,
becoming convertible into shares of Common Stock in excess of limitation set forth in NASDAQ Rule
4350, or a successor to such rule, as may then be in effect and interpreted by NASDAQ, the Company
shall, at its option, either obtain stockholder approval of such issuances or deliver cash in lieu
of any shares otherwise deliverable upon conversions in excess of such limitations (based on the
Daily VWAP on the last VWAP Trading Day of the applicable Observation Period).



     (g) Notwithstanding the foregoing provisions of this Section 6.02, (i) no adjustment shall be
made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any
distribution described therein if the Holder will otherwise participate in such distribution as a
result of holding their Securities and at the same time as holders of the Common Stock participate,
without conversion of such Holder’s Securities as if such Holders held a number of shares of Common
Stock equal to (x) the applicable Conversion Rate multiplied by the principal amount of Securities
held by such Holders (y) divided



59









 




by one thousand and (ii) no adjustment shall be made hereunder if the application of the
foregoing formulas would result in a decline in the Conversion Rate (other than as a result of a
share split or share combination pursuant to Section 6.02(a)), unless such application is a result
of a readjustment to the Conversion Rate specifically contemplated by this Indenture.




     (h) In addition to any increases to the Conversion Rate required by subsections(a), (b),
(c), (d), and (e) of this Section 6.02, and to the extent permitted by applicable law and the
rules of the Nasdaq Global Select Stock Market or any other securities exchange on which the Common
Stock is then listed, the Company from time to time may increase the Conversion Rate by any amount
for a period of at least 20 calendar days if the Board of Directors determines that such increase
would be in the Company’s best interest. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Holder of each Security at his last address
appearing on the register provided for in Section 10.01 and the Trustee a notice of the increase
at least 15 calendar days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it will be in effect.
In addition, the Company may also (but is not required to) increase the Conversion Rate to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection
with any dividend or distribution of shares (or rights to acquire shares) or similar event.



     (i) Except as set forth in this Section 6.02 or Section 6.03, no adjustment to the
Conversion Rate will be made. Without limiting the foregoing, the Conversion Rate will not be
adjusted:




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




     (ii) upon the issuance of any shares of Common Stock or options or rights to purchase
or acquire such shares of Common Stock pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries;




     (iii) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security not described in
clause (ii) above and outstanding prior to the Issue Date;




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




     (v) for accrued and unpaid interest.



60









 





     (j) All calculations under this Section 6.02 shall be made by the Company and shall be made
to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be.



     (k) For purposes of this Section 6.02, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
If the Company pays any dividend or makes any distribution on, or issues any rights, options or
warrants in respect of, shares of Common Stock held in treasury by the Company, the Company shall
not issue, transfer or convey such shares of Common Stock in a manner that would have the effect of
circumventing the provisions of this Section 6.02.



     (l) Whenever any provision of this Article 6 requires a calculation of the Last Reported Sale
Prices or Daily VWAP over a span of multiple days, the Company will make appropriate adjustments
(determined in good faith by the Board of Directors) to account for any adjustment or multiple
simultaneous adjustments to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the Ex-Date of the event occurs, at any time during the
period from which such prices are to be calculated.



     (m) Notwithstanding the foregoing, no adjustment to the Conversion Rate will be required
unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate.
However, the Company will carry forward any adjustments that are less than 1% of the Conversion
Rate that the Company elects not to make and take them into account upon the earlier of (i) any
conversion of Securities and (ii) such time as all adjustments that have not been made prior
thereto would have the effect of adjusting the Conversion Rate by at least 1%.



     Section 6.03. Adjustment Upon Fundamental Changes.



     (a) If a Fundamental Change occurs, the Company shall notify each of the Holders and the
Trustee of the occurrence of any such event or transaction on the Effective Date of such
Fundamental Change.



     (b) If a Holder elects to convert Securities in connection with a Fundamental Change (after
giving effect to any exception or exclusion in such definition) that occurs prior to the Maturity
Date, the Conversion Rate applicable to each $1,000 principal amount of Securities so converted
shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as
described below. A conversion shall be deemed to be in connection with a Fundamental Change if
such conversion occurs on or after the Effective Date of a Fundamental Change and prior to the
close of business on the Business Day immediately preceding the related Fundamental Change
Repurchase Date. The Company shall notify the Holders and the Trustee of the Effective Date of a
Fundamental Change on the Effective Date of such transaction.



61









 






     (i) The number of Additional Shares by which the Conversion Rate will be increased
shall be determined by the Company by reference to the table attached as Schedule A
hereto, based on the earliest of date on which the Fundamental Change is publicly
announced, occurs or becomes effective (the “Make-Whole Reference Date”) and the Stock
Price; provided that if the actual Stock Price is between two Stock Price amounts in the
table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the
table, the number of Additional Shares shall be determined by a straight-line
interpolation between the number of Additional Shares set forth for the next higher and
next lower Stock Price amounts and the two nearest Effective Dates, as applicable, based
on a 365-day year; provided further that if (A) the Stock Price is greater than $150.00
per share of Common Stock (subject to adjustment in the same manner as set forth in
Section 6.02), no Additional Shares shall be added to the Conversion Rate, and (B) the
Stock Price is less than $23.59 per share (subject to adjustment in the same manner as set
forth in Section 6.02), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 42.3908 shares
of common stock per $1,000 principal amount of Securities (subject to adjustment in the
same manner as set forth in Section 6.02).




     (ii) The Stock Prices set forth in the first column of the table in Schedule A hereto
(i.e., the row headers) shall be adjusted by the Company as of any date on which the
Conversion Rate of the Securities is adjusted. The adjusted Stock Prices shall equal the
Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction,
the numerator of which is the applicable Conversion Rate in effect immediately prior to
the adjustment giving rise to the Stock Price adjustment and the denominator of which is
the Conversion Rate as so adjusted. The number of Additional Shares within the table shall
be adjusted in the same manner as the Conversion Rate as set forth in Section 6.02.



     (c) Settlement of Securities tendered for conversion as to which the Conversion Rate will be
increased by Additional Shares pursuant to this Section 6.03 shall occur on the third Business Day
immediately following the later of (i) last day of the Observation Period for such Security or (ii)
the date the Stock Price relating to the relevant Make-Whole Reference Date becomes known.



     (d) For the avoidance of doubt, if a Holder converts Securities prior to the Effective Date of
a Fundamental Change, and the Fundamental Change does not occur, the Holder shall not be entitled
to Additional Shares in connection with such conversion.



     Section 6.04. Notice of Adjustments of Conversion Rate.



62









 





     Whenever the Conversion Rate is adjusted as herein provided:



     (a) the Company shall compute the adjusted Conversion Rate in accordance with Section 6.02
and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth
the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall promptly be filed with the Trustee and with each Conversion
Agent (if other than the Trustee); and



     (b) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall be required, such notice shall be provided by the
Company to all Holders in accordance with Section 1.06.



     Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with
respect to any such certificate or the information and calculations contained therein, except to
exhibit the same to any Holder of Securities desiring inspection thereof at its office during
normal business hours.



     Section 6.05. Company to Reserve Common Stock.



     The Company shall at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the conversion of all
Outstanding Securities.



     Section 6.06. Taxes on Conversions.



     Except as provided in the next sentence, the Company shall pay all documentary, stamp or
similar issue or transfer tax due that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any tax or duty that may be payable in respect of (i) income of the Holder, or (ii)
any transfer involved in the issue and delivery of shares of Common Stock in a name other than that
of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the Company the amount of any
such tax or duty, or has established to the satisfaction of the Company that such tax or duty has
been paid.



     Section 6.07. Certain Covenants.



     Before taking any action which would cause an adjustment reducing the Conversion Rate below
the then par value, if any, of the shares of Common Stock issuable upon conversion of the
Securities, the Company shall take all corporate action which it reasonably determines may be
necessary in order that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Rate.



63









 





     The Company covenants that all shares of Common Stock issued upon conversion of Securities
shall be fully paid and non-assessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.



     The Company further covenants that if at any time the Common Stock shall be listed for trading
on any other national securities exchange the Company shall, if permitted and required by the rules
of such exchange, list and keep listed, so long as the Common Stock shall be so listed on such
exchange, all Common Stock issuable upon conversion of the Securities.



     Section 6.08. Cancellation of Converted Securities.



     All Securities surrendered for the purpose of payment, repurchase, conversion or registration
of transfer, shall, if surrendered to the Company or any Paying Agent or any Security Registrar, be
surrendered to the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall dispose of canceled
Securities in accordance with its customary procedures and shall promptly provide copies of all
cancelled certificates to the Company. If the Company shall acquire any of the Securities, such
acquisition shall not operate as satisfaction of the debt represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.



     Section 6.09. Provision in Case of Effect of Reclassification, Consolidation, Merger or Sale.



     In the event of (i) any Fundamental Change described in clause (2) of the definition of
Fundamental Change, (ii) any reclassification or change of the outstanding shares of Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (iii) any consolidation, binding
share exchange, recapitalization, reclassification, merger, combination or other similar event of
the Company with another Person or (iv) any sale, transfer or conveyance of all or substantially
all of the property and assets of the Company to any other Person, in each case as a result of
which holders of Common Stock shall be entitled to receive cash, securities or other property or
assets with respect to or in exchange for such Common Stock (any such event described in clauses
(i) through (iv) a “Merger Event”), then:



     (a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force
at the date of execution of such supplemental indenture if such supplemental indenture is then
required to so comply) permitted under Section 12.01(d) providing for the conversion and
settlement of the Securities as set forth in this Indenture. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may



64









 




be practicable to the adjustments provided for in this Article and the Trustee may
conclusively rely on the determination by the Company of the equivalency of such adjustments. If,
in the case of any Merger Event, the Reference Property includes shares of stock or other
securities and assets of a company other than the successor or purchasing company, as the case may
be, in such change of control, consolidation, binding share exchange, recapitalization,
reclassification, merger, combination, sale, transfer or conveyance or Fundamental Change described
in clause (2) of the definition of Fundamental Change, then such supplemental indenture shall also
be executed by such other company and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.




     In the event a supplemental indenture is executed pursuant to this Section 6.09, the Company
shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons
therefore, the kind or amount of cash, securities or property or assets that will constitute the
Reference Property after any such Merger Event, any adjustment to be made with respect thereto and
that all conditions precedent have been complied with, and shall promptly mail notice thereof to
all Holders.



     If any securities to be provided for the purpose of conversion of Securities hereunder require
registration with or approval of any governmental authority under any federal or state law before
such securities may be validly issued upon conversion, each supplemental indenture executed
pursuant to this Section shall provide that the Company or the successor or the purchasing Person,
as the case may be, or if the Reference Property includes shares of stock or other securities and
assets of a company other than the successor or purchasing company, as the case may be, then such
company, shall use all commercially reasonable efforts, to the extent then permitted by the rules
and interpretations of the SEC (or any successor thereto), to secure such registration or approval
in connection with the conversion of Securities.



     (b) Notwithstanding, and subject to the provisions of Section 6.01, at the effective time of
such Merger Event, the right to convert each $1,000 principal amount of Securities shall be changed
to a right to convert such Securities by reference to the kind and amount of cash, securities or
other property or assets 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”). For purposes of determining the constitution of Reference Property, the
type and amount of consideration that a holder of Common Stock would have been entitled to in the
case of consolidations, binding share exchanges, recapitalizations, reclassifications, mergers,
combinations, sales or transfers of assets or Fundamental Changes described in clause (2) of the
definition of Fundamental Change or other transactions that cause the Common Stock to be converted
into the right to receive more than a single type of consideration (determined, based in part upon
any form of stockholder election) shall be deemed to be the (i) weighted average of the types and
amounts of



65









 




consideration received by the holders of Common Stock that affirmatively make such an election
or (ii) if no holders of Common Stock affirmatively make such election, the types and amounts of
consideration actually received by such holders. None of the foregoing provisions shall affect any
right of a Holder of Securities to convert its Securities in accordance with the provisions of this
Article prior to the effective date.




     (c) Following the effective time of any such Merger Event, settlement of Securities converted
shall be in cash and units of Reference Property determined in accordance with Section 6.01(c)
above based on the Daily Conversion Value and Daily VWAP of such Reference Property. For the
purposes of determining such Daily Conversion Value and Daily VWAP, (i) if the Reference Property
includes securities for which the price can be determined in a manner contemplated by the
definition of Daily VWAP, then the value of such securities shall be determined in accordance with
the principles set forth in such definition, as determined in good faith by the Company (which
determination shall be conclusive and binding); (ii) if the Reference Property includes other
property (other than securities as to which clause (i) applies or cash), then the value of such
property shall be the Fair Market Value of such property as determined by the Company’s Board of
Directors in good faith; and (iii) if the Reference Property includes cash, then the value of such
cash shall be the amount thereof.



     (d) The Company shall cause notice of the execution of a supplemental indenture required by
this Section 6.09 to be mailed to each Holder, at his address appearing on the register provided
for in Section 10.01, or by such other means reasonably acceptable to such Holder, within 20
calendar days after execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.



     (e) The above provisions of this Section shall similarly apply to successive Merger Events.


     Section 6.10. Responsibility of Trustee for Conversion Provisions.



     The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility
to any Holder of Securities to determine whether any facts exist which may require any adjustment
of the Conversion Rate, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, herein or in any supplemental indenture provided to be
employed, in making the same, or whether a supplemental indenture need be entered into. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the validity or value (or the
kind or amount) of any Common Stock, or of any other securities or property or cash, which may at
any time be issued or delivered upon the conversion of any Securities; and it or they do not make
any representation with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make or



66









 




calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or
share certificates or other securities or property or cash upon the surrender of any Security for
the purpose of conversion; and the Trustee and any Conversion Agent shall not be responsible for
any failure of the Company to comply with any of the covenants of the Company contained in this
Article.




     Section 6.11. Stockholder Rights Plan. To the extent that the Company has a rights plan in
effect upon conversion of the Securities into Common Stock, the Holder will receive, in addition to
the Common Stock, the rights under the rights plan, unless prior to any conversion, the rights have
separated from the Common Stock, in which case, and only in such case, the Conversion Rate will be
adjusted at the time of separation as if the Company distributed to all holders of Common Stock
shares of the Company’s Capital Stock, evidences of indebtedness or assets as described in Section
6.02(c) above, subject to readjustment in the event of the expiration, termination or redemption of
such rights. In lieu of any such adjustment, the Company may amend such applicable stockholder
rights agreement to provide that upon conversion of the Securities the Holders will receive, in
addition to the Common Stock issuable upon such conversion, the rights which would have attached to
such Common Stock if the rights had not become separated from the Common Stock under such
applicable stockholder rights agreement. Any distribution of rights or warrants pursuant to a
rights plan that would allow a Holder to receive upon conversion, in addition to shares of Common
Stock, the rights described therein with respect to such Common Stock (unless such rights or
warrants have separated from the Common Stock) shall not constitute a distribution of rights or
warrants that would entitle the Holder to an adjustment to the Conversion Rate.



     Section 6.12. Right to Set-off Withholding Taxes.



     The Company may, at its option, set-off withholding taxes due with respect to Securities as a
result of an adjustment to the Conversion Rate against payments of cash and shares on the
Securities.



ARTICLE 7

Remedies




     Section 7.01. Events of Default.



     “Event of Default”, wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):



67









 





     (a) default in the payment of any interest (including Additional Interest) upon any Security
when it becomes due and payable, and continuance of such default for a period of 30 days; or



     (b) default in the payment of the principal of any Security when due and payable at its Stated
Maturity, upon required repurchase, upon acceleration or otherwise; or



     (c) failure by the Company to comply with its obligation to convert the Securities into cash
and, if applicable, shares of Common Stock or Reference Property (as defined in Section 12.11(b) of
this Indenture) upon exercise of a Holder’s conversion right; or;



     (d) failure by the Company to comply with its obligations under Article 8; or



     (e) failure by the Company to issue a Fundamental Change Repurchase Right Notice in accordance
with Section 5.01; or



     (f) failure by the Company for 60 days after written notice from the Trustee or the Holders of
at least 25% principal amount of the Outstanding Securities has been received by the Company to
comply with any of its other agreements contained in the Securities or this Indenture; or



     (g) default by the Company or any Significant Subsidiary of the Company with respect to any
debt for money borrowed in excess of $50,000,000 in the aggregate of the Company and/or any
Significant Subsidiary of the Company, whether such debt now exists or shall hereafter be created,
which default shall have resulted (i) in such debt in an amount exceeding $50,000,000 being
accelerated and not rescinded or (ii) from a failure to pay the principal of any such debt in an
amount exceeding $50,000,000 when due and payable at its Stated Maturity (and including any grace
period relating to such debt), upon required repurchase or declaration; or



     (h) the Company or any of its Significant Subsidiaries shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official of the
Company or any of its Significant Subsidiaries or any substantial part of its respective property,
or shall consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its debts as they become
due; or



     (i) an involuntary case or other proceeding shall be commenced against the Company or any of
its Significant Subsidiaries seeking liquidation,



68









 







reorganization or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any of its Significant
Subsidiaries or any substantial part of its respective property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive calendar
days.



     Section 7.02. Acceleration of Maturity; Rescission and Annulment.



     (a) If an Event of Default occurs and is continuing, then and in every such case except as
provided below, the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal shall become immediately due and payable. However, upon an
Event of Default arising out of Section 7.01(h) or Section 7.01(i) (except with respect to any
Significant Subsidiary) the principal of all the Securities, plus accrued and unpaid interest to
the acceleration date, shall be due and payable immediately without notice from the Trustee or
Holders.



     (b) Notwithstanding the foregoing, at the election of the Company, the sole remedy with
respect to an Event of Default for the failure by the Company to comply with its obligations under
Section 314(a)(1) of the Trust Indenture Act relating to the Company’s failure to file any
documents or reports that the Company is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act or of its covenants set forth in Section 10.04 (any such Event of
Default, a “Reporting Default”), shall for the first 180 calendar days after the occurrence of such
Reporting Default consist exclusively of the right to receive additional interest (the “Reporting
Interest”) on the Securities at an annual rate equal to (i) 0.25% of the principal amount of the
Securities for the first 90 calendar days after the occurrence of such Reporting Default and (ii)
0.50% of the principal amount of the Securities from the 91st day to, and including, the
180th day after the occurrence of such Reporting Default. If the Company so elects, the
Reporting Interest shall accrue on all Outstanding Securities from and including the date on which
such Reporting Default first occurs until such violation is cured or waived and shall be payable as
provided in Section 3.08. On the 181st day after such Reporting Default (if such
violation is not cured or waived prior to such 181st calendar day), then the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Securities may declare the
principal of and accrued and unpaid interest on all such Securities to be due and payable
immediately. Subject to Section 4.08, the payment of Reporting Interest as described in this
Section 7.02 shall also constitute the payment of Additional Interest during such period as it is
paid in connection with any requirement to pay Additional Interest under the Registration Rights
Agreement, and the payment of such Additional Interest shall likewise constitute the payment of
Reporting Interest during such period as it is paid in connection with any election by the



69









 







Company to pay Reporting Interest as the sole remedy for a Reporting Default as described in
this paragraph.



     (c) If the Company elects to pay the Reporting Interest as the sole remedy for the Reporting
Default, the Company shall notify in writing, by a certificate, the Holders, the Paying Agent and
the Trustee of such election at any time on or before the close of business on the first Business
Day following the date on which such Event of Default first occurs. Unless and until a Responsible
Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may
assume without inquiry that Reporting Interest is not payable. The Company shall pay the Reporting
Interest semi-annually in arrears, with the first semi-annual payment due on the first Interest
Payment Date following the date of such Reporting Default, in the same manner as described on the
face of the Security.



     This Section 7.02, however, is subject to the conditions that if, at any time after the
principal of the Securities shall have been so declared due and payable, and before any judgment or
decree for the payment of the monies due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
installments of accrued and unpaid interest upon all Securities and the principal of any and all
Securities that shall have become due otherwise than by acceleration (with interest on overdue
installments of accrued and unpaid interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal at the rate borne by the Securities during
the period of such Default), and if (a) rescission would not conflict with any judgment or decree
of a court of competent jurisdiction and (b) any and all Events of Default under this Indenture
with respect to such Securities, other than the nonpayment of principal of and accrued and unpaid
interest on such Securities or failure to deliver amounts due upon conversion that shall have
become due solely by such acceleration, shall have been cured or waived pursuant to Section 7.13,
then and in every such case the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and to the Trustee, may waive all Defaults
or Events of Default with respect to the Securities and rescind and annul such declaration and its
consequences and such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent Default or Event of
Default, or shall impair any right consequent thereon. No rescission or annulment referred to above
shall affect any subsequent Default or impair any right consequent thereon.



     Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if



70









 





     (a) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or



     (b) default is made in the payment of the principal of any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and interest,
and, to the extent that payment of such interest shall be legally enforceable, interest on any
overdue principal and on any overdue interest, at the rate borne by the Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.



     If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.



     Section 7.04. Trustee May File Proofs of Claim.



     In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 9.07.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.



71









 





     Section 7.05. Trustee May Enforce Claims Without Possession of Securities.



     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



     Section 7.06. Application of Money Collected.



     Subject to Article 6, any money or property money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee under Section 9.07;



     SECOND: To the payment of the amounts then due and unpaid for principal of and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and



     THIRD: The balance, if any, to the Company or an other Person or Persons entitled thereto.


     Section 7.07. Limitation on Suits.



     Subject to Section 7.08, no Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless



     (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default;



     (b) the Holders of not less than 25% in principal amount of the Outstanding Securities shall
have made written request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;



72









 





     (c) such Holder or Holders have offered to the Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities to be incurred in compliance with such request;



     (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and



     (e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities;



it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.



     Section 7.08. Unconditional Right of Holders to Receive Principal and Interest and to Convert.



     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and (subject
to Section 3.08) interest on such Security on the respective Stated Maturities expressed in such
Security and to convert such Security in accordance with Article 6 and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.



     Section 7.09. Restoration of Rights and Remedies.



     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.



     Section 7.10. Rights and Remedies Cumulative.



     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to



73









 







every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



     Section 7.11. Delay or Omission Not Waiver.



     No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee (subject to the limitations contained in this
Indenture) or by the Holders, as the case may be.



     Section 7.12. Control by Holders.



     The Holders of a majority in principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, provided that



     (a) such direction shall not be in conflict with any rule of law or with this Indenture, and



     (b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction or this Indenture.



     Section 7.13. Waiver of Past Defaults.



     The Holders of not less than a majority in principal amount of the Outstanding Securities may
on behalf of the Holders of all the Securities waive any past default hereunder and its
consequences, except a default



     (a) in the payment of the principal of or interest on any Security that remains uncured,



     (b) in respect of the failure to deliver the amounts due upon conversion of a Security in
accordance with Section 6.01 hereunder, or



     (c) in respect of a covenant or provision hereof which under Article 12 cannot be modified or
amended without the consent of the Holder of each Outstanding Security affected.



     Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



74









 





     Section 7.14. Undertaking for Costs.



     In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right to convert any Security
in accordance with Article 12.



     Section 7.15. Waiver of Stay or Extension Laws.



     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



ARTICLE 8

Consolidation, Merger, Conveyance, Transfer Or Lease




     Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.



     The Company shall not consolidate with or merge with or into any other Person or convey,
transfer or lease all or substantially all of its properties and assets to any Person, unless:



     (a) the Person (if other than the Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety (i) shall be a corporation,
partnership or trust, shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and (ii) such Person (if not the Company)
shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee,
all obligations of the Company under the Securities and this Indenture, and, to the extent that the
Company has ongoing obligations pursuant to the Registration Rights Agreement, the Registration
Rights Agreement;



75









 





     (b) immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing; and



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.



     Section 8.02. Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 8.01, the successor Person formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease of all or substantially all the properties or
assets of such predecessor Person, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities. If the Company is still in existence after the
transaction, it will be released from its obligations and covenants hereunder and the under the
Securities, except in the case of a lease of all or substantially all the properties or assets of
the Company.



ARTICLE 9

The Trustee




     Section 9.01. Certain Duties and Responsibilities.



     The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section. No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful misconduct, subject to
Section 9.03.



76









 





     In case an Event of Default has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. The Trustee, however, may refuse to follow any
direction that (i) conflicts with law or this Indenture, (ii) that the Trustee determines is unduly
prejudicial to the rights of any other Holder or (iii) that would involve the Trustee in personal
liability. Prior to taking any action under this Indenture, the Trustee will be entitled to
indemnification satisfactory to it in its sole discretion against all losses and expenses caused by
taking or not taking such action.



     Section 9.02. Notice of Defaults.



     The Trustee shall give the Holders notice of any default known to the Trustee that has
occurred and is continuing hereunder within 90 days after such default has occurred. Except in the
case of the default in the payment of principal of or interest on any Security or conversion
default, the Trustee need not deliver the notice if and so long as a committee of trust officers of
the Trustee in good faith determines that withholding the notice is in the interests of Holders. In
addition, the Trustee shall give the Holders of Securities notice of any default actually known to
it as and to the extent provided by the Trust Indenture Act. For the purpose of this Section, the
term “default” means any event which is, or after notice or lapse of time or both would become, an
Event of Default.



     Section 9.03. Certain Rights of Trustee.



     Subject to the provisions of Section 9.01:



     (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;



     (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers’ Certificate;



     (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and



77









 







protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and



     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.



     Section 9.04. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.



     Section 9.05. May Hold Securities.



     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Section 9.08 and Section 9.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.



     Section 9.06. Money Held in Trust.



     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.



78









 





     Section 9.07. Compensation and Reimbursement.



     The Company agrees



     (a) to pay to the Trustee from time to time reasonable compensation as shall be agreed in
writing between the Company and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);



     (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and



     (c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.



     Section 9.08. Disqualification; Conflicting Interests.



     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.



     Section 9.09. Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has (or, in the case of a subsidiary of a
bank holding company, its holding company parent shall have) a combined capital and surplus of at
least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.



     Section 9.10. Resignation and Removal; Appointment of Successor.



79









 





     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 9.11.



     (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense
of the Company, petition any court of competent jurisdiction for the appointment of a successor
Trustee.



     (c) The Trustee may be removed at any time by Act of the Holders of a majority in principal
amount of the Outstanding Securities, delivered to the Trustee and to the Company.



     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 9.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or




     (ii) the Trustee shall cease to be eligible under Section 9.09 and shall fail to
resign after written request therefor by the Company or by any such Holder, or




     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or (B)
subject to Section 7.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any Holder who has



80









 







been a bona fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee. Notwithstanding replacement of the Trustee pursuant to this Section 9.10, the
Company’s obligations under Section 9.07 hereof shall continue for the benefit of the retiring
Trustee.



     (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders in the manner provided in Section 1.06. Each
notice shall include the name of the successor Trustee and the address of its Corporate Trust
Office.



     Section 9.11. Acceptance of Appointment by Successor.



     In case of the appointment hereunder of a successor Trustee, such successor Trustee shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon the reasonable written
request of any such successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and
trusts.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.



     Section 9.12. Merger, Conversion, Consolidation or Succession to Business.



     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee (including the administration of the trust created by this
Indenture), shall be the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so



81









 







authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities.



     Section 9.13. Preferential Collection of Claims Against Company.



     If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).



     Section 9.14. Appointment of Authenticating Agent.



     The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer, partial conversion or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.



82









 





     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall deliver
written notice of such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register, or by such other means reasonably acceptable
to such Holders. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.



     The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 9.07.



     If an appointment is made pursuant to this Section, the Securities may have endorsed thereon,
in addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:



     This is one of the Securities described in the within-mentioned Indenture.



	 	 	 	 	 
	 	U.S. Bank National Association,

    as Trustee

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	as Authenticating Agent 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	Authorized Signatory 	 
	 



ARTICLE 10

Holders’ Lists And Reports By Trustee And Company





     Section 10.01. Company to Furnish Trustee Names and Addresses of Holders.



     The Company will furnish or cause to be furnished to the Trustee



83









 





     (a) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular
Record Date, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;



excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.



     Section 10.02. Preservation of Information; Communications to Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 10.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 10.01
upon receipt of a new list so furnished.



     (b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.



     Section 10.03. Reports by Trustee.



     (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.



     (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when the Securities are listed on any stock
exchange.



     Section 10.04. Reports by Company.



     The Company shall file with the Commission information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
and shall file with the Trustee within 15



84









 







days after the same is so required to be filed with the Commission and shall otherwise comply
with the requirements of Trust Indenture Act Section 314(a); provided that any such information,
documents or reports filed or furnished with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed to be filed with the Trustee as
of the time such information, documents or reports are filed or furnished via EDGAR.



     If at any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, during the first 12 months following the latest issue date of the Securities, use
commercially reasonable efforts to provide to the Trustee, each Holder, beneficial owner or
prospective purchaser of such Securities or the Common Stock issuable upon conversion thereof, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to
facilitate the resale of such Securities pursuant to Rule 144A under the Securities Act and to take
such other actions as any such Person may reasonably request, all to the extent required from time
to time to enable such Person to sell its Securities or Common Stock issuable upon conversion
thereof in accordance with Rule 144A under the Securities Act, as such rule may be amended from
time to time.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officers’ Certificate).



ARTICLE 11

Satisfaction And Discharge




     Section 11.01. Satisfaction and Discharge of Indenture.



     This Indenture shall cease to be of further effect (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities herein expressly provided for), and
the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when



     (a) either




     (i) all Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.07 and (B) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 4.03) have been delivered
to the Trustee for cancellation; or



85









 






     (ii) all such Securities not theretofore delivered to the Trustee for cancellation




     (A) have become due and payable, or




     (B) at their Stated Maturity, and




     (C) the Company, in the case of (A) or (B) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose, shares
of Common Stock, lawful money of the United States or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide lawful money not later than
the due dates of principal or interest, or any combination thereof in an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Fundamental Change Repurchase Date, as the case may be;



     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.



Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 9.07, the obligations of the Trustee to any Authenticating Agent under
Section 9.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii)
of Clause (a) of this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 4.03 shall survive.



     Section 11.02. Application of Trust Money.



     Subject to the provisions of the last paragraph of Section 4.03, all funds or U.S. Government
Obligations deposited with the Trustee pursuant to Section 11.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such funds or U.S. Government Obligations have been deposited with the
Trustee. Upon termination of the trust established pursuant to Section 11.01, all funds and/or
U.S. Government Obligations deposited with the



86









 







Trustee pursuant to Section 11.01 (and held by it or any Paying Agent) for the payment of
Securities subsequently converted shall promptly be returned to the Company upon Company Request.



ARTICLE 12

Modification And Amendment




     Section 12.01. Supplemental Indentures Without Consent of Holders.



     Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, for any of the following purposes:



     (a) to cure any ambiguity, manifest error, defect or omission or inconsistency; provided that
in the case of any omission or inconsistency the rights of the Holders are not adversely affected
in any material respect; or



     (b) to provide for the assumption by a successor corporation of our obligations under this
Indenture; or



     (c) to add guarantees with respect to the Securities; or



     (d) to provide for a successor Trustee in accordance with the terms of this Indenture or to
otherwise comply with any requirement of this Indenture; or



     (e) to provide for the issuance of additional Securities, to the extent that the Company deems
such amendment necessary or advisable in connection with such issuance; provided that no such
amendment or supplement may impair the rights or interests of any Holder; or



     (f) to increase the Conversion Rate; or



     (g) to secure the Securities; or



     (h) to add to the Company’s covenants for the benefit of the Holders or to surrender any right
or power conferred upon the Company; or



     (i) to provide for the conversion of Securities in accordance with the terms of this Indenture; or



     (j) to conform the terms of this Indenture or the Securities to the “Description of Notes”
section of the Company’s final offering memorandum dated June 4, 2008 relating to the offering of
the Securities; or



     (k) to comply with any requirement of the SEC in connection with the qualification of this
Indenture under the Trust Indenture Act.



87









 





     Section 12.02. Supplemental Indentures with Consent of Holders.



     With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby,



     (a) reduce the percentage in principal amount of the Outstanding Securities, the consent of
whose Holders is required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture; or



     (b) reduce the rate, or extend the stated time for payment, of interest (including Additional
Interest and Reporting Interest) on any Security; or



     (c) reduce the principal, or extend the Stated Maturity, of any Security; or

     (d) adversely affect the right to convert any Security as provided in Article 6; or



     (e) reduce the Fundamental Change Repurchase Price of any Security or amend or modify in any
manner adverse to any Holder the Company’s obligation to make such payments, whether through an
amendment or waiver of provisions in this Indenture (including the covenants or definitions
contained herein); or



     (f) change the place of payment where, or the coin or currency in which, any the principal of,
interest on, or Additional Interest or Reporting Interest, in respect of any Security is payable;
or



     (g) impair the right of any Holder to receive payment of principal of and interest on such
Holder’s Securities on or after the due dates therefore or to institute suit for the enforcement of
any payment on or with respect to such Holder’s Securities; or



     (h) adversely affect the ranking of the Securities as our senior unsecured indebtedness; or



     (i) modify any of the provisions of this Section or Section 7.13, except to increase (i) the
percentage in principal amount of the Outstanding Securities, the consent or waiver of whose
Holders is required thereunder or (ii) to provide



88









 







that certain other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.



     It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.



     Section 12.03. Execution of Supplemental Indentures.



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 9.01) shall be fully protected in
relying upon, an Opinion of Counsel and an Officers’ Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.



     Section 12.04. Effect of Supplemental Indentures; Notices.



     Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



     After an amendment, supplement or waiver under this Article 12 becomes effective, the Company
will send to the Holders a notice briefly describing the amendment, supplement or waiver.  The
Company will send supplemental indentures to Holders upon request.  Any failure of the Company to
send such notice, or any defect therein, will not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.



     Section 12.05. Conformity with Trust Indenture Act.



     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.



     Section 12.06. Reference in Securities to Supplemental Indentures.



     Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed by



89









 







the Company and authenticated and delivered by the Trustee in exchange for Outstanding
Securities.



90









 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.



	 	 	 	 	 
	 	NETAPP, INC.

 	 
	 	By:  	/s/ Steven J. Gomo	 
	 	 	Name:  	Steven J. Gomo	 
	 	 	Title:  	Executive Vice President, Finance and Chief Financial Officer	 
	 



[Signature Page to the Indenture — Trustee Signature Follows]
















 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

     As Trustee

 	 
	 	By:  	/s/ Paula Oswald	 
	 	 	Name:  	Paula Oswald	 
	 	 	Title:  	Vice President	 
	 



[Signature Page to the Indenture]














 





Schedule A




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Make-Whole Reference Date
	 	 	 	 	 	 	June 10,	 	June 1,	 	June 1,	 	June 1,	 	June 1,	 	June 1,
	 	 	Stock Price	 	2008	 	2009	 	2010	 	2011	 	2012	 	2013
	 
	 	$	23.59	 	 	 	10.9902	 	 	 	10.9902	 	 	 	10.9902	 	 	 	10.9902	 	 	 	10.9902	 	 	 	10.9902	 
	 
	 	$	25.00	 	 	 	9.7689	 	 	 	9.3772	 	 	 	9.0269	 	 	 	8.7245	 	 	 	8.5994	 	 	 	8.5994	 
	 
	 	$	26.00	 	 	 	8.9899	 	 	 	8.5711	 	 	 	8.1725	 	 	 	7.7860	 	 	 	7.2766	 	 	 	7.0609	 
	 
	 	$	28.00	 	 	 	7.6642	 	 	 	7.2082	 	 	 	6.7394	 	 	 	6.2277	 	 	 	5.4821	 	 	 	4.3137	 
	 
	 	$	30.00	 	 	 	6.5885	 	 	 	6.1126	 	 	 	5.6016	 	 	 	5.0116	 	 	 	4.1219	 	 	 	1.9327	 
	 
	 	$	32.00	 	 	 	5.7072	 	 	 	5.2243	 	 	 	4.6920	 	 	 	4.0597	 	 	 	3.1002	 	 	 	0.0000	 
	 
	 	$	35.00	 	 	 	4.6621	 	 	 	4.1851	 	 	 	3.6483	 	 	 	3.0004	 	 	 	2.0358	 	 	 	0.0000	 
	 
	 	$	37.50	 	 	 	3.9825	 	 	 	3.5202	 	 	 	2.9963	 	 	 	2.3640	 	 	 	1.4523	 	 	 	0.0000	 
	 
	 	$	40.00	 	 	 	3.4332	 	 	 	2.9908	 	 	 	2.4889	 	 	 	1.8876	 	 	 	1.0552	 	 	 	0.0000	 
	 
	 	$	45.00	 	 	 	2.6148	 	 	 	2.2196	 	 	 	1.7745	 	 	 	1.2558	 	 	 	0.6019	 	 	 	0.0000	 
	 
	 	$	50.00	 	 	 	2.0493	 	 	 	1.7029	 	 	 	1.3184	 	 	 	0.8854	 	 	 	0.3888	 	 	 	0.0000	 
	 
	 	$	60.00	 	 	 	1.3493	 	 	 	1.0887	 	 	 	0.8096	 	 	 	0.5165	 	 	 	0.2254	 	 	 	0.0000	 
	 
	 	$	75.00	 	 	 	0.8174	 	 	 	0.6471	 	 	 	0.4735	 	 	 	0.3041	 	 	 	0.1472	 	 	 	0.0000	 
	 
	 	$	90.00	 	 	 	0.5448	 	 	 	0.4301	 	 	 	0.3171	 	 	 	0.2102	 	 	 	0.1081	 	 	 	0.0000	 
	 
	 	$	120.00	 	 	 	0.2788	 	 	 	0.2212	 	 	 	0.1664	 	 	 	0.1147	 	 	 	0.0615	 	 	 	0.0000	 
	 
	 	$	150.00	 	 	 	0.1523	 	 	 	0.1204	 	 	 	0.0907	 	 	 	0.0627	 	 	 	0.0339	 	 	 	0.0000	 







1