exv4w1






Exhibit 4.1




 

 






INSULET CORPORATION




AND




WELLS FARGO BANK, N.A.,




as Trustee




INDENTURE




Dated as of June 16, 2008




5.375% Convertible Senior Notes due 2013




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 1 DEFINITIONS	 	 	1	 
	 
	 	Section 1.01.	 	Definitions	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES	 	 	11	 
	 
	 	Section 2.01.	 	Designation and Amount	 	 	11	 
	 
	 	Section 2.02.	 	Form of Notes	 	 	11	 
	 
	 	Section 2.03.	 	Date and Denomination of Notes; Payments of Interest	 	 	12	 
	 
	 	Section 2.04.	 	Payments of Additional Interest	 	 	14	 
	 
	 	Section 2.05.	 	Execution, Authentication and Delivery of Notes	 	 	14	 
	 
	 	Section 2.06.	 	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	 	 	14	 
	 
	 	Section 2.07.	 	Mutilated, Destroyed, Lost or Stolen Notes	 	 	21	 
	 
	 	Section 2.08.	 	Temporary Notes	 	 	22	 
	 
	 	Section 2.09.	 	Cancellation of Notes Paid, Etc.	 	 	22	 
	 
	 	Section 2.10.	 	CUSIP Numbers	 	 	22	 
	 
	 	Section 2.11.	 	Additional Notes; Repurchases	 	 	22	 
	 
	 	Section 2.12.	 	Automatic Exchange From Restricted Global Note to Unrestricted Global Note	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 3 [INTENTIONALLY OMITTED]	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 4 SATISFACTION AND DISCHARGE	 	 	24	 
	 
	 	Section 4.01.	 	Satisfaction and Discharge	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 5 PARTICULAR COVENANTS OF THE COMPANY	 	 	24	 
	 
	 	Section 5.01.	 	Payment of Principal, Interest and Additional Interest	 	 	24	 
	 
	 	Section 5.02.	 	Maintenance of Office or Agency	 	 	25	 
	 
	 	Section 5.03.	 	Appointments to Fill Vacancies in Trustee’s Office	 	 	25	 
	 
	 	Section 5.04.	 	Provisions as to Paying Agent	 	 	25	 
	 
	 	Section 5.05.	 	Existence	 	 	26	 
	 
	 	Section 5.06.	 	Rule 144A Information Requirement and Annual Reports	 	 	26	 
	 
	 	Section 5.07.	 	Stay, Extension and Usury Laws	 	 	27	 
	 
	 	Section 5.08.	 	Compliance Certificate; Statements as to Defaults	 	 	27	 
	 
	 	Section 5.09.	 	Additional Interest and Supplementary Interest	 	 	28	 
	 
	 	Section 5.10.	 	Further Instruments and Acts	 	 	28	 






 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 6 LISTS OF NOTEHOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE	 	 	28	 
	 
	 	Section 6.01.	 	Lists of Noteholders	 	 	28	 
	 
	 	Section 6.02.	 	Preservation and Disclosure of Lists	 	 	28	 
	 
	 	Section 6.03.	 	Reports by Trustee	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 7 DEFAULTS AND REMEDIES	 	 	29	 
	 
	 	Section 7.01.	 	Events of Default	 	 	29	 
	 
	 	Section 7.02.	 	Payments of Notes on Default; Suit Therefor	 	 	32	 
	 
	 	Section 7.03.	 	Application of Monies Collected by Trustee	 	 	34	 
	 
	 	Section 7.04.	 	Proceedings by Noteholders	 	 	34	 
	 
	 	Section 7.05.	 	Proceedings by Trustee	 	 	35	 
	 
	 	Section 7.06.	 	Remedies Cumulative and Continuing	 	 	35	 
	 
	 	Section 7.07.	 	Direction of Proceedings and Waiver of Defaults by Majority of Noteholders	 	 	36	 
	 
	 	Section 7.08.	 	Notice of Defaults	 	 	36	 
	 
	 	Section 7.09.	 	Undertaking to Pay Costs	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 8 CONCERNING THE TRUSTEE	 	 	37	 
	 
	 	Section 8.01.	 	Duties and Responsibilities of Trustee	 	 	37	 
	 
	 	Section 8.02.	 	Reliance on Documents, Opinions, Etc.	 	 	38	 
	 
	 	Section 8.03.	 	No Responsibility for Recitals, Etc.	 	 	39	 
	 
	 	Section 8.04.	 	Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes	 	 	40	 
	 
	 	Section 8.05.	 	Monies to Be Held in Trust	 	 	40	 
	 
	 	Section 8.06.	 	Compensation and Expenses of Trustee	 	 	40	 
	 
	 	Section 8.07.	 	Officers’ Certificate as Evidence	 	 	41	 
	 
	 	Section 8.08.	 	Conflicting Interests of Trustee	 	 	41	 
	 
	 	Section 8.09.	 	Eligibility of Trustee	 	 	41	 
	 
	 	Section 8.10.	 	Resignation or Removal of Trustee	 	 	41	 
	 
	 	Section 8.11.	 	Acceptance by Successor Trustee	 	 	43	 
	 
	 	Section 8.12.	 	Succession by Merger, Etc.	 	 	43	 
	 
	 	Section 8.13.	 	Limitation on Rights of Trustee as Creditor	 	 	44	 






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(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 9 CONCERNING THE NOTEHOLDERS	 	 	44	 
	 
	 	Section 9.01.	 	Action by Noteholders	 	 	44	 
	 
	 	Section 9.02.	 	Proof of Execution by Noteholders	 	 	44	 
	 
	 	Section 9.03.	 	Who Are Deemed Absolute Owners	 	 	44	 
	 
	 	Section 9.04.	 	Company-Owned Notes Disregarded	 	 	45	 
	 
	 	Section 9.05.	 	Revocation of Consents; Future Holders Bound	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 10 NOTEHOLDERS’ MEETINGS	 	 	45	 
	 
	 	Section 10.01.	 	Purpose of Meetings	 	 	46	 
	 
	 	Section 10.02.	 	Call of Meetings by Trustee	 	 	46	 
	 
	 	Section 10.03.	 	Call of Meetings by Company or Noteholders	 	 	46	 
	 
	 	Section 10.04.	 	Qualifications for Voting	 	 	46	 
	 
	 	Section 10.05.	 	Regulations	 	 	47	 
	 
	 	Section 10.06.	 	Voting	 	 	47	 
	 
	 	Section 10.07.	 	No Delay of Rights by Meeting	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 11 SUPPLEMENTAL INDENTURES	 	 	48	 
	 
	 	Section 11.01.	 	Supplemental Indentures Without Consent of Noteholders	 	 	48	 
	 
	 	Section 11.02.	 	Supplemental Indentures With Consent of Noteholders	 	 	48	 
	 
	 	Section 11.03.	 	Effect of Supplemental Indentures	 	 	50	 
	 
	 	Section 11.04.	 	Notation on Notes	 	 	50	 
	 
	 	Section 11.05.	 	Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	 	 	50	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 12 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE	 	 	50	 
	 
	 	Section 12.01.	 	Company May Consolidate, Etc.	 	 	50	 
	 
	 	Section 12.02.	 	Successor Corporation to Be Substituted	 	 	51	 
	 
	 	Section 12.03.	 	Opinion of Counsel to Be Given Trustee	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 13 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS	 	 	52	 
	 
	 	Section 13.01.	 	Indenture and Notes Solely Corporate Obligations	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 14 [INTENTIONALLY OMITTED]	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 15 CONVERSION OF NOTES	 	 	52	 
	 
	 	Section 15.01.	 	Conversion Privilege	 	 	52	 





iii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 15.02. 	 	Conversion Procedure	 	 	54	 
	 
	 	Section 15.03.	 	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes	 	 	57	 
	 
	 	Section 15.04.	 	Adjustment of Conversion Rate	 	 	59	 
	 
	 	Section 15.05.	 	Shares to Be Fully Paid	 	 	68	 
	 
	 	Section 15.06.	 	Effect of Reclassification, Consolidation, Merger or Sale	 	 	68	 
	 
	 	Section 15.07.	 	Certain Covenants	 	 	71	 
	 
	 	Section 15.08.	 	Responsibility of Trustee	 	 	71	 
	 
	 	Section 15.09.	 	Notice to Holders Prior to Certain Actions	 	 	72	 
	 
	 	Section 15.10.	 	Stockholder Rights Plans	 	 	72	 
	 
	 	Section 15.11.	 	Exchange in Lieu of Conversion	 	 	73	 
	 
	 	Section 15.12.	 	Limit on Issuance of Shares of Common Stock upon Conversion	 	 	73	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 16 REPURCHASE OF NOTES AT OPTION OF HOLDERS	 	 	73	 
	 
	 	Section 16.01.	 	Repurchase at Option of Holders upon a Fundamental Change	 	 	74	 
	 
	 	Section 16.02.	 	Withdrawal of Fundamental Change Repurchase Notice	 	 	76	 
	 
	 	Section 16.03.	 	Deposit of Fundamental Change Repurchase Price	 	 	77	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 17 MISCELLANEOUS PROVISIONS	 	 	77	 
	 
	 	Section 17.01.	 	Provisions Binding on Company’s Successors	 	 	77	 
	 
	 	Section 17.02.	 	Official Acts by Successor Corporation	 	 	78	 
	 
	 	Section 17.03.	 	Addresses for Notices, Etc.	 	 	78	 
	 
	 	Section 17.04.	 	Governing Law	 	 	78	 
	 
	 	Section 17.05.	 	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	 	 	79	 
	 
	 	Section 17.06.	 	Legal Holidays	 	 	79	 
	 
	 	Section 17.07.	 	No Security Interest Created	 	 	79	 
	 
	 	Section 17.08.	 	Trust Indenture Act	 	 	79	 
	 
	 	Section 17.09.	 	Benefits of Indenture	 	 	79	 
	 
	 	Section 17.10.	 	Table of Contents, Headings, Etc.	 	 	80	 
	 
	 	Section 17.11.	 	Authenticating Agent	 	 	80	 





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(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 17.12.	 	Execution in Counterparts	 	 	81	 
	 
	 	Section 17.13.	 	Severability	 	 	81	 
	 
	 	Section 17.14.	 	Waiver of Jury Trial	 	 	81	 
	 
	 	Section 17.15.	 	Force Majeure	 	 	81	 
	 
	 	 	 	 	 	 	 	 
	EXHIBITS	 	 	 	 
	 
	 	Exhibit A	 	Form of Note	 	 	A-1	 
	 
	 	Exhibit B	 	Form of Notice of Conversion	 	 	B-1	 
	 
	 	Exhibit C	 	Form of Fundamental Change Repurchase Notice	 	 	C-1	 
	 
	 	Exhibit D	 	Form of Assignment and Transfer	 	 	D-1	 






v









 






CROSS-REFERENCE TABLE




	 	 	 	 	 
	  TIA	 	Indenture
	  Section	 	Section
	310
	(a)(1)	 	8.09
	 
	 	(a)(2)	 	8.09
	 
	 	(a)(3)	 	N.A.
	 
	 	(a)(4)	 	N.A.
	 
	 	(a)(5)	 	8.09
	 
	 	(b)	 	8.08
	 
	 	(c)	 	N.A.
	311
	(a)	 	8.13
	 
	 	(b)	 	8.13
	 
	 	(c)	 	N.A.
	312
	(a)	 	6.01
	 
	 	(b)	 	6.02(b)
	 
	 	(c)	 	6.02(c)
	313
	(a)	 	6.03
	 
	 	(b)(1)	 	N.A.
	 
	 	(b)(2)	 	6.03
	 
	 	(c)	 	6.03; 17.03
	 
	 	(d)	 	6.03(b)
	314
	(a)	 	5.06; 5.08
	 
	 	(b)	 	N.A.
	 
	 	(c)(1)	 	17.05
	 
	 	(c)(2)	 	17.05
	 
	 	(c)(3)	 	N.A.
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	17.05
	 
	 	(f)	 	N.A.
	315
	(a)	 	8.01; 8.02
	 
	 	(b)	 	7.08; 17.03
	 
	 	(c)	 	8.01
	 
	 	(d)	 	8.01
	 
	 	(e)	 	7.09
	316
	(a)(last sentence)	 	9.04
	 
	 	(a)(1)(A)	 	7.07
	 
	 	(a)(1)(B)	 	7.07
	 
	 	(a)(2)	 	N.A.
	 
	 	(b)	 	7.04
	 
	 	(c)	 	9.01
	317
	(a)(1)	 	7.02; 7.05
	 
	 	(a)(2)	 	7.02
	 
	 	(b)	 	5.04
	318
	(a)	 	17.08








 




			
	N.A.	means not applicable
	 
	Note:  	This Cross-Reference table shall not, for any purpose, be deemed to be part of this
Indenture.






vi











 





          INDENTURE dated as of June 16, 2008 between Insulet Corporation, a Delaware corporation, as
issuer (the “Company”) and Wells Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”).




WITNESSETH:




          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
5.375% Convertible Senior Notes due 2013 (hereinafter sometimes called the “Notes”), initially in
an aggregate principal amount not to exceed $75,000,000 (or $85,000,000 if the Initial Purchasers
exercise their option to purchase additional Notes in full as set forth in the Purchase Agreement),
and in order to provide the terms and conditions upon which the Notes are to be authenticated,
issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;
and




          WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the
Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the Form of
Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter
provided for; and




          WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, the valid,
binding and legal obligations of the Company, and to constitute a valid agreement according to its
terms, have been done and performed, and the execution of this Indenture and the issue hereunder of
the Notes have in all respects been duly authorized.




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




          That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:




ARTICLE 1

DEFINITIONS




          Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture that are defined in the Trust Indenture Act or that
are by reference therein defined in the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of
this Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.




          “Additional Interest” has the meaning specified for Additional Interest in



1









 






Section 2(d) of the Registration Rights Agreement.




          “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.




          “Automatic Exchange” shall have the meaning specified in Section 2.12.




          “Automatic Exchange Notice” shall have the meaning specified in Section 2.12.




          “Board of Directors” means the board of directors of the Company or a committee of such board
duly authorized to act for it hereunder.




          “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 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 that is not (i) a
day on which the banking institutions in The City of New York are authorized or obligated by law or
executive order to close or be closed or (ii) a day on which the Corporate Trust Office is
authorized or obligated by law or executive order to close or be closed.




          “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.




          “Cash Settlement Averaging Period” means, with respect to any Note surrendered for conversion,
the 25 consecutive Trading Day period beginning on, and including, the third Trading Day
immediately following the Conversion Date for such Note; provided that with respect to any
Conversion Date occurring during the period beginning on, and including, March 15, 2013, and ending
at close of business on the Business Day immediately prior to the Maturity Date, the “Cash
Settlement Averaging Period” means the 25 consecutive Trading Days beginning on and including the
27th Scheduled Trading Day prior to the Maturity Date.




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




          “Commission” means the Securities and Exchange Commission.




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




          “Common Stock” means, subject to Section 15.06, shares of common stock of



2









 






the Company, par value $0.001 per share, at the date of this Indenture or shares of any class
or classes resulting from any reclassification or reclassifications thereof and that have no
preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and that are not subject to
redemption by the Company; provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be substantially in the proportion that
the total number of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such reclassifications.




          “Company” means Insulet Corporation, a Delaware corporation, and subject to the provisions of
Article 12, shall include its successors and assigns.




          “Company Order” means a written order of the Company, signed by (a) an Officer of the Company
and (b) another Officer of the Company, other than the Officer designated in clause (a) of this
definition, or the Company’s Assistant Treasurer or any Assistant Secretary, and delivered to the
Trustee.




          “Continuing Director” means a director who either was a member of the Board of Directors on
June 10, 2008 or who becomes a member of the Board of Directors subsequent to that date and whose
election, appointment or nomination for election by the stockholders of the Company, is duly
approved by a majority of the continuing directors on the Board of Directors at the time of such
approval, either by a specific vote or by approval of the proxy statement issued by the Company on
behalf of the entire Board of Directors in which such individual is named as nominee for director.




          “Conversion Agent” shall have the meaning specified in Section 5.02.




          “Conversion Date” shall have the meaning specified in Section 15.02(c).




          “Conversion Obligation” shall have the meaning specified in Section 15.01(a).




          “Conversion Price” means as of any date, $1,000, divided by the Conversion Rate as of such
date.




          “Conversion Rate” shall have the meaning specified in Section 15.01(a).




          “Conversion Trigger Price” shall have the meaning specified in Section 15.01(b)(iv).




          “Corporate Trust Office” means the office of the Trustee at which at any time its corporate
trust business shall be administered, which office at the dated hereof is located at Wells Fargo
Bank, N.A., Corporate Trust Services, MAC N9311-110, 625 Marquette Ave. South, Minneapolis, MN
55479, Attention: Insulet Corporation Account Manager, or such other address as the Trustee may
designate from time to time by notice to the Noteholders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Noteholders and the Company).




3









 





          “Custodian” means Wells Fargo Bank, N.A., as custodian for The Depository Trust Company, with
respect to the Global Notes, or any successor entity thereto.




          “Daily Conversion Value” means, for each of the 25 consecutive Trading Days during the Cash
Settlement Averaging Period, one-twenty-fifth (1/25th) of the product of (a) the then-applicable
Conversion Rate on such Trading Day and (b) the Daily VWAP of the Common Stock on such Trading Day.




          “Daily Settlement Amount,” for each of the 25 consecutive Trading Days during the Cash
Settlement Averaging Period, shall consist of:





     (a) cash equal to the lesser of (i) $40 and (ii) the Daily Conversion Value for
such Trading Day; and




     (b) to the extent the Daily Conversion Value for such Trading Day exceeds $40,
a number of shares of Common Stock equal to the Daily Share Amount.



          “Daily Share Amount” means, to the extent the Daily Conversion Value exceeds $40, (i) the
difference between the Daily Conversion Value and $40, divided by (ii) the Daily VWAP of the Common
Stock for such Trading Day.




          “Daily VWAP” for the Common Stock means the per share volume-weighted average price on The
NASDAQ Global Market as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PODD.UQ
<equity> AQR” (or its equivalent successor if such page is not available) in respect of the
period from the scheduled open of trading until the scheduled close of trading of the primary
trading session on such Trading Day (or if such volume-weighted average price is unavailable, the
market value of one share of the Common Stock on such Trading Day as determined in a commercially
reasonable manner by the Board of Directors using a volume-weighted method) and will be determined
without regard to after hours trading or any other trading outside of the regular trading session
trading hours.




          “Default” means any event that is, or after notice or passage of time, or both, would be, an
Event of Default.




          “Defaulted Interest” means any interest on any Note that is payable, but is not punctually
paid or duly provided for, on any June 15 or December 15.




          “Depositary” means, with respect to the Global Notes the Person specified in Section 2.06 as
the Depositary with respect to such Notes, until a successor shall have been appointed and become
such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall
mean or include such successor.




          “Designated Institution” shall have the meaning specified in Section 15.11(a).




          “Distributed Property” shall have the meaning specified in Section 15.04(c).




          “Effective Date” shall have the meaning specified in Section 15.03(a).




4









 








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




          “Ex-Dividend Date” means, with respect to any issuance, dividend or distribution in which the
holders of Common Stock (or other security) have the right to receive any cash, securities or other
property, the first date on which the shares of the Common Stock (or other security) trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.




          “Expiration Date” shall have the meaning specified in Section 15.04(e).




          “Expiration Time” shall have the meaning specified in Section 15.04(e).




          “FINRA” means the Financial Industry Regulatory Authority, Inc.




          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




          “Fiscal Year” means a fiscal year of the Company ending on December 31 of each calendar year.




          “Fundamental Change” means the occurrence after the original issuance of the Notes of any of
the following events:





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




     (b) consummation of any share exchange, exchange offer, tender offer,
consolidation or merger of the Company pursuant to which all or substantially all of
the Common Stock is converted into cash, securities or other property or any sale,
lease or other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Company and its Subsidiaries,
taken as a whole, to any Person other than one of the Company’s Subsidiaries;
provided, however, that any such transaction where the holders of more than 50% of
shares of Common Stock immediately prior to such transaction that is a share
exchange, consolidation or merger own, directly or indirectly, more than 50% of all
classes of common equity of the continuing or surviving corporation or transferee or
the parent thereof immediately after such event shall not be a Fundamental Change;




     (c) Continuing Directors cease to constitute at least a majority of the Board
of Directors;



5









 






     (d) the stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or




     (e) the Common Stock (or other common stock into which the Notes are then
convertible) ceases to be quoted or listed for trading on a United States national
securities exchange,


provided, however, in the case of a transaction or event described in clause (a) or (b) above, if
at least 90% of the consideration received or to be received by the holders of Common Stock,
excluding cash payments for fractional shares or pursuant to statutory appraisal rights, in
connection with the transaction or transactions constituting the Fundamental Change consists of
shares of Publicly Traded Securities, and as a result of such transaction or transactions, the
Notes become convertible into such Publicly Traded Securities, excluding cash payments for
fractional shares (subject to the provisions of Section 15.02(a)), such event shall not be a
Fundamental Change.



For purposes of this definition, whether a “person” is a “beneficial owner” shall be determined in
accordance with Rule 13d-3 under the Exchange Act and “person” includes any syndicate or group that
would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.




          “Fundamental Change Company Notice” shall have the meaning specified in Section 16.01(b).




          “Fundamental Change Expiration Time” shall have the meaning specified in Section 16.01(b)(ix).




          “Fundamental Change Repurchase Date” shall have the meaning specified in Section 16.01(a).




          “Fundamental Change Repurchase Notice” shall have the meaning specified in Section
16.01(a)(i).




          “Fundamental Change Repurchase Price” shall have the meaning specified in Section 16.01(a).




          “Global Note” shall have the meaning specified in Section 2.06(b).




          “Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.




          “Initial Purchasers” means J.P. Morgan Securities Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.




          “Interest Payment Date” means each June 15 and December 15 of each year, beginning on December
15, 2008; provided, however, that if any Interest Payment Date falls on a date that is not a
Business Day, such payment of interest (or principal in the case of the Maturity Date) will be
postponed until the next succeeding Business Day, and no interest or other amount will be paid as a
result of such postponement.




6









 





          “Interest Record Date,” with respect to any Interest Payment Date, shall mean the June 1 or
December 1 (whether or not such day is a Business Day) immediately preceding the relevant Interest
Payment Date, respectively.




          “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 bid and ask prices or, if more
than one in either case, the average of the average bid and the average ask prices) on that date as
reported in composite transactions for the principal U.S. national or regional securities exchange
on which the Common Stock is listed for trading. If the Common Stock is not listed for trading on
a U.S. national or regional securities exchange on the relevant date, then the “Last Reported Sale
Price” will be the last quoted bid price for the Common Stock in the over-the-counter market on the
relevant date as reported by the Pink Sheets LLC or similar organization. If the Common Stock is
not so quoted, the “Last Reported Sale Price” will be the average of the mid-point of the last bid
and ask prices for the Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for this purpose.




          “Make-Whole Conversion Rate Adjustment” shall have the meaning specified in Section 15.03(a).




          “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change as described in clause (a) or (b) of the definition thereof (in the case of any Fundamental
Change described in clause (b) of the definition thereof, determined without regarding to the
proviso in such clause (b)), and subject to the proviso to such definition.




          “Make-Whole Fundamental Change Period” shall have the meaning specified in Section 15.03(a).




          “Market Disruption Event” means (a) a failure by the primary exchange or quotation system on
which the Common Stock trades or is quoted, as the case may be, to open for trading during its
regular trading session or (b) the occurrence or existence prior to 1:00 p.m. New York City time,
on any Trading Day 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 future contracts relating to the Common Stock for an aggregate one-half hour
period.




          “Maturity Date” means June 15, 2013.




          “Measurement Period” shall have the meaning specified in Section 15.01(b)(i).




          “Merger Event” shall have the meaning specified in Section 15.06.




          “Note” or “Notes” shall mean any note or notes, as the case may be, authenticated and
delivered under this Indenture.




          “Noteholder” or “holder,” as applied to any Note, or other similar terms (but excluding the
term “beneficial holder”), shall mean any person in whose name at the time a particular Note is
registered on the Note Register.




7









 





          “Note Register” shall have the meaning specified in Section 2.06(a).




          “Note Registrar” shall have the meaning specified in Section 2.06(a).




          “Notice of Conversion” shall have the meaning specified in Section 15.02(b).




          “Offering Memorandum” means the final offering memorandum dated June 10, 2008 relating to the
offering and sale of the Notes.




          “Officer” means, with respect to the Company, the Chairman of the Board of Directors,
President, the Chief Executive Officer, the Treasurer, the Secretary, any Executive or Senior Vice
President, Managing Director or any Vice President (whether or not designated by a number or
numbers or word added before or after the title “Vice President”).




          “Officers’ Certificate,” when used with respect to the Company, means a certificate signed by
(a) one Officer of the Company and (b) another Officer of the Company or any Assistant Treasurer,
any Assistant Secretary or Controller of the Company that is delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 17.05 if and to the extent
required by the provisions of such Section. One of the officers giving an Officers’ Certificate
pursuant to Section 5.08 shall be the principal executive, financial or accounting officer of the
Company.




          “opening of business” means 9:00 a.m. (New York City time).




          “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is
delivered to the Trustee. Each such opinion shall include the statements provided for in Section
17.05 if and to the extent required by the provisions of such Section.




          “outstanding,” when used with reference to Notes, shall, subject to the provisions of Section
9.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:





     (a) Notes theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;




     (b) Notes, or portions thereof, for the payment or repurchase of which monies
in the necessary amount shall have been deposited in trust with the Trustee or with
any Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent); provided that, if any such Note is repurchased, the holder thereof shall
have delivered a Fundamental Change Repurchase Notice in accordance with Section
16.01(a)(i);




     (c) Notes that have been paid pursuant to Section 2.07 or Notes in lieu of
which, or in substitution for which, other Notes shall have been authenticated and
delivered pursuant to the terms of Section 2.07 unless proof satisfactory to the
Trustee is presented that any such Notes are held by protected purchasers in due



8









 





          course; and





     (d) Notes that have been discharged in accordance with Section 4.01;




     (e) Notes converted pursuant to Article 15.



          “Paying Agent” shall have the meaning specified in Section 5.02.




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




          “Portal Market” means The Portal Market operated by FINRA or any successor thereto.




          “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.07 in lieu of or in exchange for a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note that it replaces.




          “Publicly Traded Securities” means shares of common stock that are quoted or listed for
trading on a U.S. national securities exchange or that will be so quoted or listed when issued or
exchanged in connection with a Fundamental Change described in clause (a) or (b) of the definition
thereof.




          “Purchase Agreement” means that certain Purchase Agreement, dated as of June 10, 2008, among
the Company and the Initial Purchasers.




          “Record Date” shall have the meaning specified in Section 15.04(f).




          “Reference Property” shall have the meaning specified in Section 15.06(b).




          “Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of
June 16, 2008, among the Company and the Initial Purchasers, as amended from time to time.




          “Resale Restriction Termination Date” shall have the meaning specified in Section 2.06(c).




          “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.




9









 





          “Restricted Global Note” shall have the meaning specified in Section 2.12.




          “Restricted Securities” shall have the meaning specified in Section 2.06(c).




          “Rule 144A” means Rule 144A as promulgated under the Securities Act.




          “Scheduled Trading Day” means any day that is scheduled to be a Trading Day.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.




          “Spin-Off” shall have the meaning specified in Section 15.04(c).




          “Stock Price” means (a) in the case of a Make-Whole Fundamental Change described in clause (b)
of the definition of Fundamental Change in which holders of Common Stock receive solely cash
consideration in connection with such Make-Whole Fundamental Change, the amount of cash paid per
share of the Common Stock and (b) in the case of all other Make-Whole Fundamental Changes, the
average of the Last Reported Sale Prices per share of Common Stock over the period of five
consecutive Trading Days ending on, and including, the Trading Day immediately preceding the
Effective Date of such Make-Whole Fundamental Change. The Board of Directors will make appropriate
adjustments, in its good faith determination, to account for any adjustment to the Conversion Rate
that becomes effective, or any event requiring an adjustment to the Conversion Rate where the
Ex-Dividend Date of the event occurs, during such five consecutive Trading Day period.




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




          “Successor Company” shall have the meaning specified in Section 12.01(a).




          “Supplementary Interest” shall have the meaning specified in Section 7.01.




          “Trading Day” means a day on which (i) trading in securities generally occurs on The NASDAQ
Global Market or, if the Common Stock is not then listed on The NASDAQ Global Market, on the
principal other U.S. national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, in the principal other market on which the Common Stock is then traded and (ii) there is
no Market Disruption Event. If the Common Stock (or other security for which a last reported sale
price or Daily VWAP must be determined) is not so listed or traded, “Trading Day” means a “Business
Day.”




          “Trading Price” per $1,000 principal amount of Notes on any date of determination means the
average of the secondary market bid quotations obtained by the Trustee



10









 






for $1.0 million principal amount of Notes at approximately 3:30 p.m., New York City time, on
such determination date from three independent U.S. nationally recognized securities dealers
selected by the Company; provided that if three such bids cannot reasonably be obtained by the
Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the
Trustee cannot reasonably obtain at least one bid for $1.0 million principal amount of Notes from
any such nationally recognized securities dealer, then the Trading Price per $1,000 principal
amount of Notes 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 on such Trading Day.




          “transfer” shall have the meaning specified in Section 2.06(c).




          “Trigger Event” shall have the meaning specified in Section 15.04(c).




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture, except as provided in Section 11.03 and Section 15.06;
provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date
hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939, as so amended.




          “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 or include each Person who is then a Trustee
hereunder.




          “Unrestricted Global Note” shall have the meaning specified in Section 2.12.




          “Weighted Average Consideration” shall have the meaning specified in Section 15.06(c)(iv).




ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION

AND EXCHANGE OF NOTES




          Section 2.01. Designation and Amount . The Notes shall be designated as the “5.375%
Convertible Senior Notes due 2013.” The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is initially limited to $75,000,000 (or
$85,000,000 if the Initial Purchasers exercise their option to purchase additional Notes in full as
set forth in the Purchase Agreement), subject to Section 2.11 and except for Notes authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes
pursuant to Section 2.06, Section 2.07, Section 2.12, Section 11.04, Section 15.02, and Section
16.03 hereof.




          Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which
are incorporated in and made a part of this Indenture.




          Any Global Note may be endorsed with or have incorporated in the text thereof



11









 






such legends or recitals or changes not inconsistent with the provisions of this Indenture as
may be required by the Custodian, the Depositary or by FINRA in order for the Notes to be tradable
on The Portal Market or as may be required for the Notes to be tradable on any other market
developed for trading of securities pursuant to Rule 144A or required to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any securities exchange or
automated quotation system upon which the Notes may be listed or traded or designated for issuance
or to conform with any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Notes are subject.




          Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the Officer executing the same may approve (execution thereof
to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Notes are subject.




          The Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal (including any Fundamental Change Repurchase Price), accrued and
unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on the Global
Note shall be made to the holder of such Note on the date of payment, unless a record date or other
means of determining holders eligible to receive payment is provided for herein.




          The terms and provisions contained in the form of Note attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.




          Section 2.03. Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in minimum denominations of $1,000 principal amount and
in integral multiples of $1,000 in excess thereof. Each Note shall be dated the date of its
authentication and shall bear interest from the date specified on the face of the form of Note
attached as Exhibit A hereto. Interest (including Additional Interest, if any, and Supplementary
Interest, if any) on the Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months.




          The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at the close of business on any Interest Record Date with respect to any Interest



12









 






Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.
Interest (including Additional Interest, if any, and Supplementary Interest, if any) shall be
payable at the office or agency of the Company maintained by the Company for such purposes, which
shall initially be the office of the Paying Agent at Corporate Trust Office of the Trustee. The
Company shall pay interest (including Additional Interest, if any, and Supplementary Interest, if
any) (a) (1) to holders holding Notes in certificated form and having an aggregate principal amount
of $2,000,000 or less, by check mailed to the holders of such Notes and (2) to holders holding
Notes in certificated form and having an aggregate principal amount of more than $2,000,000, either
by check mailed to such holder or, upon application by a holder to the Note Registrar not later
than on the relevant Interest 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 Note Registrar to the contrary or (b) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its nominee.




          Any Defaulted Interest shall forthwith cease to be payable to the Noteholder on the relevant
Interest Record Date by virtue of its having been such Noteholder, and such Defaulted Interest
shall be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:




          (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest to be paid on each Note and the date of the proposed payment (which shall be not less than
twenty-five days after the receipt by the Trustee of such notice, unless the Trustee shall consent
to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount to be paid in respect of such Defaulted Interest, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Company shall fix a special record date for the
payment of such Defaulted Interest which shall be not more than fifteen days and not less than ten
days prior to the date of the proposed payment, and not less than ten days after the receipt by the
Trustee of the notice of the proposed payment (unless the Trustee shall consent to an earlier
date). The Company shall promptly notify the Trustee of such special record date and the Trustee,
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 sent to each holder at its address as
it appears in the Note Register, not less than ten days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record date therefor having been
so sent, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on such special record date
and shall no longer be payable pursuant to the following clause (2) of this Section 2.03.




          (2) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated quotation system on
which the Notes may be listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system.




13









 





          Section 2.04. Payments of Additional Interest. If required by the Registration Rights
Agreement, the Company shall pay Additional Interest in the manner and to the Persons set forth in
the Registration Rights Agreement. Whenever in this Indenture there is mentioned, in any context,
the payment of interest on, or in respect of, any Note, such mention shall be deemed to include
mention of the payment of “Additional Interest” provided for in the Registration Rights Agreement
to the extent that, in such context, Additional Interest is, was or would be payable in respect
thereof pursuant to the provisions of the Registration Rights Agreement and express mention of the
payment of Additional Interest (if applicable) in any provisions hereof shall not be construed as
excluding Additional Interest in those provisions hereof where such express mention is not made.




          Section 2.05. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive
Officer, President, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes, without any further action by
the Company hereunder.




          Only such Notes as shall bear thereon a certificate of authentication substantially in the
form set forth on the form of Note attached as Exhibit A hereto, executed manually by an authorized
officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section
17.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed
by the Company shall be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture.




          In case any officer of the Company who shall have signed any of the Notes shall cease to be
such officer before the Notes so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Note, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.




          Section 2.06. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary. (a) The Company shall cause to be kept at the office of the Note Registrar and the
Note Registrar agrees to keep a register (the register maintained in such office or in any other
office or agency of the Company designated pursuant to Section 5.02 being herein sometimes
collectively referred to as the “Note Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Notes and of transfers of
Notes. Such register shall be in written form or in any form capable of being




14









 







converted into written form within a reasonable period of time. The Trustee is hereby
appointed “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-registrars in accordance with Section 5.02.




          Upon surrender for registration of transfer of any Note to the Note Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.




          Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 5.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that
the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.




          All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument of transfer duly executed
by the Noteholder thereof or its attorney-in-fact duly authorized in writing.




          No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any transfer tax, assessments or other similar governmental charges that may be imposed in
connection therewith as a result of the name of the Noteholder of the new Notes issued upon such
exchange or registration of transfer of Notes being different from the name of the Noteholder of
the old Notes presented or surrendered for such exchange or registration of transfer.




          None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to
exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any
Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article 16 hereof.




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




          (b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note that does not involve the
issuance of a definitive Note, shall be effected through the Depositary



15









 






(but not the Trustee or the Custodian) in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary therefor.




          (c) Every Note that bears or is required under this Section 2.06(c) to bear the legend set
forth in this Section 2.06(c) (together with any Common Stock issued upon conversion of the Notes
and required to bear the legend set forth in Section 2.06(d), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.06(c)
(including the legend set forth below), unless such restrictions on transfer shall be eliminated
or otherwise waived by written consent of the Company, and the holder of each such Restricted
Security, by such holder’s acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 2.06(c) and in Section 2.06(d), the term “transfer” encompasses
any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.




          Until the date (the “Resale Restriction Termination Date”) the later of (1) the date that is
one year after the last date of original issuance of the Notes (or such later date as permitted by
Rule 144 under the Securities Act or any successor provision thereto), and (2) such later date, if
any, as may be required by applicable laws, any certificate evidencing such Note (and all
securities issued in exchange therefor or substitution thereof, other than Common Stock, if any,
issued upon conversion thereof which shall bear the legend set forth in Section 2.06(d), if
applicable) shall bear a legend in substantially the following form (unless such Notes have been
transferred pursuant to a registration statement that has become or been declared effective under
the Securities Act and that continues to be effective at the time of such transfer, pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the
Securities Act, or unless otherwise agreed by the Company in writing, with notice in writing
thereof to the Trustee):





THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:




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




(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE
THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR



16









 






PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW, EXCEPT:




(A) TO INSULET CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, OR




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




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



          No transfer of any Note prior to the Resale Restriction Termination Date will be registered by
the Note Registrar unless the applicable box on the completed Form of Assignment and Transfer
(Exhibit D hereto) has been checked.




          Any Note (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may, upon surrender of
such Note for exchange to the Note Registrar in accordance with the provisions of this Section
2.06(c), be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.06(c). The Company shall notify
the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly
after a Registration Statement with respect to the Notes or any Common Stock issued upon conversion
of the Notes has been declared effective under the Securities Act.




          Notwithstanding any other provisions of this Indenture (other than the provisions set forth in
this Section 2.06(c)), a Global Note may not be transferred as a whole or in part except (i) by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global
Note in certificated form made upon request of a member of, or a participant in, the Depositary
(for itself or on behalf of a beneficial owner) by written notice given to the



17









 






Trustee by or on behalf of the Depositary in accordance with customary procedures of the
Depositary and in compliance with this Section.




          The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company to act as Depositary with respect to the Global
Note. Initially, the Global Note shall be issued to the Depositary, registered in the name of Cede
& Co., as the nominee of the Depositary, and initially deposited with the Trustee as custodian for
Cede & Co.




          If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or
unable to continue as depositary for the Global Notes and a successor depositary is not appointed
within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange
Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default in
respect of the Notes has occurred and is continuing, upon the request of the beneficial owner of
the Notes, the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate and
a Company Order for the authentication and delivery of Notes, will authenticate and deliver Notes
in definitive form to each such beneficial owner of the related Notes (or a portion thereof) in an
aggregate principal amount equal to the principal amount of such Global Note, in exchange for such
Global Note, and upon delivery of the Global Note to the Trustee such Global Note shall be
canceled.




          Definitive Notes issued in exchange for all or a part of the Global Note pursuant to this
Section 2.06(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such definitive
Notes to the Persons in whose names such definitive Notes are so registered.




          At such time as all interests in a Global Note have been converted, canceled, repurchased or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance
with its standing procedures. At any time prior to such cancellation, if any interest in a Global
Note is exchanged for definitive Notes, converted, canceled, repurchased or transferred to a
transferee who receives definitive Notes therefor or any definitive Note is exchanged or
transferred for part of such Global Note, the principal amount of such Global Note shall be
appropriately reduced or increased, as the case may be, and an endorsement shall be made on such
Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction or increase.




18









 





          None of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.




          The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of this Indenture, and to examine the same to determine
substantial compliance as to the form with the express requirements hereof.




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





THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE ACQUIRER:




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




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



19









 






(A) TO INSULET CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR




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




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



          Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.06(d).




          (e) Any Note or Common Stock issued upon the conversion or exchange of a Note that is
purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or
such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from
the registration requirements of the Securities Act in a transaction that results in such Notes or
Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule
144).




          (f) Notwithstanding any provision of Section 2.06 to the contrary, in the event Rule 144 as
promulgated under the Securities Act (or any successor rule) is amended to change the one-year
holding period thereunder (or the corresponding period under any successor rule), from and after
receipt by the Trustee of the Officers’ Certificate and Opinion of Counsel provided for in this
Section 2.06(f), (i) each reference in Section 2.06(c) to “one year” and in the restrictive legend
set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes hereof to be references
to such changed period, (ii) each reference in Section 2.06(d) to “one year” and in the
restrictive legend set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes
hereof to be references to such changed period and (iii) all corresponding references in the Notes
(including the definition of Resale Restriction Termination Date) and the restrictive legends
thereon shall be deemed for all purposes hereof to be references to such changed period, provided
that such changes shall not become effective



20









 






if they are otherwise prohibited by, or would otherwise cause a violation of, the
then-applicable federal securities laws. The provisions of this Section 2.06(f) will not be
effective until such time as the Opinion of Counsel and Officers’ Certificate have been received
by the Trustee hereunder. This Section 2.06(f) shall apply to successive amendments to Rule 144
(or any successor rule) changing the holding period thereunder.




          Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon a
receipt of a Company Order the Trustee or an authenticating agent appointed by the Trustee shall
authenticate and deliver, a new Note, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity
as may be required by them to save each of them harmless from any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.




          The Trustee or such authenticating agent may authenticate any such substituted Note and
deliver the same upon the receipt of such security or indemnity as the Trustee, and, if applicable,
such authenticating agent may require. Upon the issuance of any substitute Note, the Company or
the Trustee may require the payment by the holder of a sum sufficient to cover any tax, assessment
or other governmental charge that may be imposed in relation thereto and any other expenses
connected therewith. In case any Note that has matured or is about to mature or has been tendered
for repurchase upon a Fundamental Change or is about to be converted into cash, shares of Common
Stock or a combination of cash and shares of Common Stock, as applicable, shall become mutilated or
be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a
substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same
(without surrender thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be required by them to
save each of them harmless for any loss, liability, cost or expense caused by or connected with
such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the
Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.




          Every substitute Note issued pursuant to the provisions of this Section 2.07 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment or
conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or



21









 






hereafter enacted to the contrary with respect to the replacement or payment or conversion of
negotiable instruments or other securities without their surrender.




          Section 2.08. Temporary Notes. Pending the preparation of Notes in certificated form, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Notes in certificated form but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent
upon the same conditions and in substantially the same manner, and with the same effect, as the
Notes in certificated form. Without unreasonable delay the Company will execute and deliver to the
Trustee or such authenticating agent Notes in certificated form (other than any Global Note) and
thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange
therefor, at each office or agency maintained by the Company pursuant to Section 5.02 and the
Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary
Notes an equal aggregate principal amount of Notes in certificated form. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Notes in certificated form authenticated and delivered
hereunder.




          Section 2.09. Cancellation of Notes Paid, Etc. All Notes surrendered for the purpose of
payment, repurchase, conversion, exchange or registration of transfer, shall, if surrendered to the
Company or any Paying Agent or any Note Registrar or any Conversion Agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly canceled
by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its
customary procedures and, after such disposition, shall deliver a certificate of such disposition
to the Company, at the Company’s written request. If the Company shall acquire any of the Notes,
such acquisition shall not operate as satisfaction of the indebtedness represented by such Notes
unless and until the same are delivered to the Trustee for cancellation.




          Section 2.10. CUSIP Numbers . The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to
Noteholders as a convenience to holders of the Notes; provided, that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Notes or
on such notice and that reliance may be placed only on the other identification numbers printed on
the Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.




          Section 2.11. Additional Notes; Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, reopen this Indenture and increase the principal
amount of the Notes by issuing additional Notes in the future pursuant to this Indenture with the
same terms and with the same CUSIP number as the Notes initially issued



22









 






hereunder in an unlimited aggregate principal amount, which will form the same series with the
Notes initially issued hereunder, provided that no such additional Notes may be issued unless they
will be fungible with the original Notes for U.S. federal income tax and securities law purposes.
Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a
Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and
Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the
Trustee shall reasonably request. The Company may also from time to time repurchase the Notes in
open market purchases or negotiated transactions without prior notice to Noteholders.




          Section 2.12. Automatic Exchange From Restricted Global Note to Unrestricted Global Note.
Beneficial interests in a Global Note that is subject to restrictions set out in Section 2.06(c)
(including the legend set forth in Section 2.06(c)) (the “Restricted Global Note”) will be
automatically exchanged into beneficial interests in an unrestricted Global Note that is no longer
subject to the restrictions set out in Section 2.06(c) (including removal of the legend set forth
in Section 2.06(c)) (the “Unrestricted Global Note”) without any action required by or on behalf of
the Noteholder (the “Automatic Exchange”). In order to effect such exchange, the Company shall at
least 15 days but not more than 30 days prior to the automatic exchange date, deliver a notice of
Automatic Exchange (an “Automatic Exchange Notice”) to each Noteholder at such Noteholder’s address
appearing in the Note Register, with a copy to the Trustee. The Automatic Exchange Notice shall
identify the Notes subject to the Automatic Exchange and shall state: (1) the date of the Automatic
Exchange; (2) the section of this Indenture pursuant to which the Automatic Exchange shall occur;
(3) the “CUSIP” number of the Restricted Global Note from which such Noteholders’ beneficial
interests will be transferred and (4) the “CUSIP” number of the Unrestricted Global Note into which
such Holders’ beneficial interests will be transferred. At the Company’s request on no less than 5
days’ prior notice, the Trustee shall deliver, in the Company’s name and at its expense, the
Automatic Exchange Notice to each Noteholder at such Noteholder’s address appearing in the Note
Register; provided, however, that the Company shall have delivered to the Trustee an Officers’
Certificate requesting that the Trustee give the Automatic Exchange Notice (in the name and at the
expense of the Company) and setting forth the information to be stated in the Automatic Exchange
Notice as provided in the preceding sentence. As a condition to any such exchange pursuant to this
Section 2.12, the Trustee shall be entitled to receive from the Company, and rely conclusively
without any liability, upon an Officer’s Certificate and an Opinion of Counsel to the Company, in
form and in substance reasonably satisfactory to the Trustee, to the effect that such transfer of
beneficial interests to the Unrestricted Global Note shall be effected in compliance with the
Securities Act. Upon such exchange of beneficial interests pursuant to this Section 2.12, the
Registrar shall endorse the Schedule of Increases and Decreases in Global Note to the relevant
Notes and reflect on its books and records the date of such transfer and a decrease and increase,
respectively, in the principal amount of the applicable Restricted Global Note(s) and the
Unrestricted Global Note, respectively, equal to the principal amount of beneficial interests
transferred. If an Unrestricted Global Note is not then outstanding at the time of the Automatic
Exchange, the Company shall execute and the Trustee shall authenticate and deliver an Unrestricted
Global Note to the Depositary. Following any such transfer pursuant to this Section 2.12, the
relevant Restricted Global Note shall be cancelled.





23











 





ARTICLE 3

[INTENTIONALLY OMITTED]




ARTICLE 4

SATISFACTION AND DISCHARGE




          Section 4.01. Satisfaction and Discharge. This Indenture shall upon request of the Company
contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than (x)
Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.07 and (y) Notes 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 5.04(d)) have been delivered to the Note Registrar for
cancellation; and (ii) the Company has deposited with the Trustee or delivered to Noteholders, as
applicable, after the Notes have become due and payable, whether at the Maturity Date, any
Fundamental Change Repurchase Date, upon conversion or otherwise, cash or cash and shares of Common
Stock, if any (solely to satisfy the Company’s Conversion Obligation, if applicable), sufficient to
pay all of the outstanding Notes and all other sums due payable under this Indenture by the
Company; and (b) 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 8.06 shall survive.




ARTICLE 5

PARTICULAR COVENANTS OF THE COMPANY




          Section 5.01. Payment of Principal, Interest and Additional Interest. The Company covenants
and agrees that it will cause to be paid the principal of (including the Fundamental Change
Repurchase Price), and accrued and unpaid interest, Additional Interest, if any, and Supplementary
Interest, if any, on each of the Notes at the places, at the respective times and in the manner
provided herein and in the Notes. Each installment of accrued and unpaid interest, Additional
Interest, if any, and Supplementary Interest, if any, on the Notes due on any Additional Interest
Payment Date (as defined in the Registration Rights Agreement), may be paid by mailing checks for
the amount payable to Noteholders entitled thereto as they shall appear on the Note Register;
provided that, (1) with respect to any Noteholder holding Notes in certificated form and having an
aggregate principal amount of $2,000,000 or less, by check mailed to the holders of such Notes and
(2) with respect to any Noteholder holding Notes in certificated form and having an aggregate
principal amount of more than $2,000,000, either by check mailed to such holder or, upon
application by a holder to the Note Registrar not later than on the relevant Interest 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 Note Registrar
to the contrary; provided further that payment of accrued and unpaid interest, Additional Interest,
if any, and Supplementary Interest, if any, made to the Depositary shall be paid by wire transfer
in immediately available funds in accordance with such wire transfer instructions and other
procedures provided by the Depositary from time




24









 







to time.




          Section 5.02. Maintenance of Office or Agency. The Company will maintain in the United States
an office or agency where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”)
and where notices and demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the location, and 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 or the office or agency of the Trustee.




          The Company may also from time to time designate co-registrars one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the United
States for such purposes. 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.
The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or
agencies, as applicable.




          The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar and
Conversion Agent and the Corporate Trust Office shall be considered as one such office or agency of
the Company for each of the aforesaid purposes.




          Section 5.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder.




          Section 5.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent
other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section 5.04:





     (i) that it will hold all sums held by it as such agent for the payment of the
principal of and accrued and unpaid interest, Additional Interest, if any, and Supplementary
Interest, if any, on the Notes in trust for the benefit of the holders of the Notes;




     (ii) that it will give the Trustee prompt notice of any failure by the Company to make
any payment of the principal of and accrued and unpaid interest, Additional Interest, if
any, and Supplementary Interest, if any, on the Notes when the same shall be due and
payable; and




     (iii) that at any time during the continuance of an Event of Default, upon request of
the Trustee, it will forthwith pay to the Trustee all sums so held in trust.



25









 





          The Company shall, on or before each due date of the principal of (including the Fundamental
Change Repurchase Price) or accrued and unpaid interest, Additional Interest, if any, or
Supplementary Interest, if any, on the Notes, deposit with the Paying Agent a sum sufficient to pay
such principal (including the Fundamental Change Repurchase Price) or accrued and unpaid interest,
Additional Interest, if any, or Supplementary Interest, if any, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of any failure to take such action,
provided that if such deposit is made on the due date, such deposit must be received by the Paying
Agent by 11:00 a.m., New York City time, on such date.




          (b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal of (including the Fundamental Change Repurchase Price) accrued and unpaid interest,
Additional Interest, if any, and Supplementary Interest, if any, on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum sufficient to pay
such principal (including the Fundamental Change Repurchase Price) accrued and unpaid interest,
Additional Interest, if any, and Supplementary Interest, if any, so becoming due and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company
to make any payment of the principal of (including the Fundamental Change Repurchase Price)
accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on
the Notes when the same shall become due and payable.




          (c) Anything in this Section 5.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any
Paying Agent hereunder as required by this Section 5.04, such sums to be held by the Trustee upon
the trusts herein contained and upon such payment by the Company or any Paying Agent to the
Trustee, the Company or such Paying Agent shall be released from all further liability with
respect to such sums.




          (d) 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 (including the Fundamental Change Repurchase Price)
accrued and unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, on
any Note and remaining unclaimed for two years after such principal (including the Fundamental
Change Repurchase Price), interest, Additional Interest, if any, or Supplementary Interest, if
any, has become due and payable shall be paid to the Company on request of the Company contained
in an Officers’ Certificate, or (if then held by the Company) shall be discharged from such trust;
and the holder of such Note 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.




          Section 5.05. Existence. Subject to Article 12, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.




          Section 5.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the
Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall, so long as
any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such
time, constitute “restricted securities” within the meaning of Rule 144(a)(3)




26









 







under the Securities Act, promptly provide to the Trustee and shall, upon written request,
provide to the Trustee, any holder, or prospective purchaser of such Notes or any shares of Common
Stock issued upon conversion of such Notes, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common
Stock pursuant to Rule 144A under the Securities Act. The Company shall take such further action
as any holder of such Notes or such Common Stock may reasonably request to the extent required from
time to time to enable such holder or beneficial holder to sell such Notes or shares of Common
Stock in accordance with Rule 144A under the Securities Act, as such rule may be amended from time
to time.




          (b) The Company shall deliver to the Trustee within three Business Days after the same is
required to be filed with the Commission, copies of the quarterly and annual reports and of the
information, documents and other reports, if any, that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, and, to the extent required by
Section 17.08, the Company shall otherwise comply with the requirements of Trust Indenture Act
section 314(a). Any such report, information or document that the Company files with the
Commission through the Commission’s EDGAR database shall be deemed delivered to the Trustee for
purposes of this Section 5.06(b) at the time of such filing through the EDGAR database.




          (c) Delivery of the reports, information and documents described in clause (b) above 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).




          Section 5.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the principal of or interest on
the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that
may affect the covenants or the performance of this Indenture; and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, 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.




          Section 5.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the
fiscal year ending on December 31, 2008) an Officers’ Certificate stating whether or not the signer
thereof has knowledge of any failure by the Company to comply with all conditions and covenants
then required to be performed under this Indenture and, if so, specifying each such failure and the
nature thereof.




          In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event
within ten days after the Company becomes aware of the occurrence of any Event of




27









 







Default or Default, an Officers’ Certificate setting forth the details of such Event of
Default or Default, its status and the action that the Company proposes to take with respect
thereto.




          Section 5.09. Additional Interest and Supplementary Interest. (a) If Additional Interest is
payable by the Company pursuant to the Registration Rights Agreement, the Company shall deliver to
the Trustee an Officers’ Certificate to that effect stating (a) the amount of such Additional
Interest that is payable and (b) the date on which such interest is payable. 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 no such Additional Interest is payable. If the Company has
paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the particulars of such payment.




     (b) If Supplementary Interest is payable by the Company, the Company shall deliver to the
Trustee an Officers’ Certificate to that effect stating (a) the amount of such Supplementary
Interest that is payable and (b) the date on which such interest is payable. 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 no such Supplementary Interest is payable. If the Company
has paid Supplementary Interest directly to the Persons entitled to it, the Company shall deliver
to the Trustee an Officers’ Certificate setting forth the particulars of such payment.



          Section 5.10. Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.




ARTICLE 6

LISTS OF NOTEHOLDERS AND REPORTS BY

THE COMPANY AND THE TRUSTEE




          Section 6.01. Lists of Noteholders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than five days after each June 1 and
December 1 in each year beginning with December 1, 2008, and at such other times as the Trustee may
request in writing, within ten days after receipt by the Company of any such request (or such
lesser time as the Trustee may reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require
of the names and addresses of the Noteholders as of a date not more than fifteen days (or such
other date as the Trustee may reasonably request in order to so provide any such notices) prior to
the time such information is furnished, except that no such list need be furnished so long as the
Trustee is acting as Note Registrar.




          Section 6.02. Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and addresses of the
Noteholders contained in the most recent list furnished to it as provided in Section 6.01 or
maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished.




          (b) The rights of Noteholders to communicate with other Noteholders with




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respect to their rights under this Indenture or under the Notes and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust Indenture Act.




          (c) Every Noteholder, 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 Noteholders
made pursuant to the Trust Indenture Act.




          Section 6.03. 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. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15,
beginning with May 15, 2009, deliver to holders a brief report, dated as of such May 15, that
complies with the provisions of such Section 313(a).




          (b) A copy of each such report shall, at the time of such transmission to Noteholders, be
filed by the Trustee with each stock exchange and automated quotation system upon which the Notes
are listed and with the Company. The Company will notify the Trustee in writing within a
reasonable time when the Notes are listed on any stock exchange or automated quotation system and
when any such listing is discontinued.




ARTICLE 7

DEFAULTS AND REMEDIES




          Section 7.01. Events of Default. The following events shall be “Events of Default” with
respect to the Notes:




          (a) default in any payment of interest, including any Additional Interest or Supplementary
Interest, on any Note when due and payable, and the default continues for a period of thirty days;




          (b) default in the payment of principal of any Note when due and payable on the Maturity
Date, upon required repurchase, upon declaration of acceleration or otherwise;




          (c) failure by the Company to comply with its obligation to convert the Notes into cash or a
combination of cash and shares of Common Stock, as applicable, upon exercise of a holder’s
conversion right and such failure continues for a period of five days;




          (d) failure by the Company to comply with its obligations under Article 12;




          (e) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 16.01(b);




          (f) failure by the Company for sixty days after written notice from the Trustee or the
holders of at least 25% in principal amount of the Notes then outstanding (a copy of which notice,
if given by holders, also to be given to the Trustee) has been received by the Company to comply
with any of its other agreements contained in the Notes or this Indenture, which notice shall
state that it is a “Notice of Default” hereunder;




29









 








          (g) default by the Company or any Subsidiary of the Company in the payment of the principal
or interest on any mortgage, agreement or other instrument under which there may be outstanding,
or by which there may be secured or evidenced, any debt for money borrowed in excess of $10
million in the aggregate of the Company and/or any such Subsidiary, whether such debt now exists
or shall hereafter be created, resulting in such debt becoming or being declared due and payable,
and such acceleration shall not have been rescinded or annulled within thirty days after written
notice to the Company by the Trustee or to the Company and the Trustee by the holders of at least
25% in aggregate principal amount of the Notes then outstanding;




          (h) a final judgment for the payment of $10 million or more (excluding any amounts covered by
insurance or indemnity) rendered against the Company or any Subsidiary of the Company that is not
discharged or stayed within thirty days after (i) the date on which the right to appeal thereof
has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have
been extinguished;




          (i) the Company or any Subsidiary of the Company that is a “significant subsidiary” (as
defined in Regulation S-X under the Exchange Act) or any group of Subsidiaries of the Company that
in the aggregate would constitute a “significant subsidiary” shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to the Company
or any such Subsidiary or group of Subsidiaries 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 such Subsidiary or group of
Subsidiaries or any substantial part of its 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




          (j) an involuntary case or other proceeding shall be commenced against the Company or any
Subsidiary of the Company that is a “significant subsidiary” (as defined in Regulation S-X under
the Exchange Act) or any group of Subsidiaries of the Company that in the aggregate would
constitute a “significant subsidiary” seeking liquidation, reorganization or other relief with
respect to the Company or such Subsidiary or group of Subsidiaries 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 such
Subsidiary or group of Subsidiaries or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of thirty consecutive
days.




          In case one or more Events of Default shall have occurred and be continuing (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), then, and in each and every such case
(other than an Event of Default specified in Section 7.01(i) or Section 7.01(j) with respect to the
Company (and not solely with respect to a “significant subsidiary” (as defined in Regulation S-X
under the Exchange Act) of the Company, or a group of Subsidiaries of the Company that in aggregate
would constitute a “significant subsidiary” of the Company), unless




30









 







the principal of all of the Notes shall have already become due and payable, either the
Trustee or the holders of at least 25% in aggregate principal amount of the Notes then outstanding
determined in accordance with Section 9.04, by notice in writing to the Company (and to the Trustee
if given by Noteholders), may declare 100% of the principal of and accrued and unpaid interest and
accrued and unpaid Additional Interest and Supplementary Interest, if any, on all the Notes to be
due and payable immediately, and upon any such declaration the same shall become and shall
automatically be immediately due and payable, anything in this Indenture or in the Notes contained
to the contrary notwithstanding (other than the succeeding paragraph). If an Event of Default
specified in Section 7.01(i) or Section 7.01(j) with respect to the Company (and not solely with
respect to a “significant subsidiary” (as defined in Regulation S-X under the Exchange Act) of the
Company, or a group of Subsidiaries of the Company that in aggregate would constitute a
“significant subsidiary” of the Company) occurs and is continuing, the principal of all the Notes
and accrued and unpaid interest and accrued and unpaid Additional Interest and Supplementary
Interest, if any, shall be immediately due and payable. This provision, however, is subject to the
conditions that if, at any time after the principal of the Notes 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 and accrued and unpaid
Additional Interest and Supplementary Interest, if any, upon all Notes and the principal of on any
and all Notes that shall have become due otherwise than by acceleration (with interest on overdue
installments of accrued and unpaid interest and accrued and unpaid Additional Interest and
Supplementary Interest, if any, (to the extent that payment of such interest is enforceable under
applicable law) and on such principal, at the rate borne by the Notes at such time) and amounts due
to the Trustee pursuant to Section 8.06, and if (1) rescission would not conflict with any judgment
or decree of a court of competent jurisdiction and (2) any and all Events of Defaults under this
Indenture, other than the nonpayment of principal of and accrued and unpaid interest and accrued
and unpaid Additional Interest and Supplementary Interest, if any, on Notes that shall have become
due solely by such acceleration, shall have been cured or waived pursuant to Section 7.07, then and
in every such case the holders of a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events
of Default with respect to the Notes (other than a Default or an Event of Default resulting from a
failure to repurchase any Notes when required upon a Fundamental Change or a failure to deliver,
upon conversion, cash or a combination of cash and shares of Common Stock, as applicable, due upon
conversion) and rescind and annul such declaration and its consequences (other than a declaration
or consequences, as the case may be, resulting from a failure to repurchase any Notes when required
upon a Fundamental Change or a failure to deliver, upon conversion, cash or a combination of cash
and shares of Common Stock, as applicable, due upon conversion) and such Default (other than a
Default resulting from a failure to repurchase any Notes when required upon a Fundamental Change or
a failure to deliver, upon conversion, cash or a combination of cash and shares of Common Stock, as
applicable, due upon conversion) shall cease to exist, and any Event of Default arising therefrom
(other than a Default resulting from a failure to repurchase any Notes when required upon a
Fundamental Change or a failure to deliver, upon conversion, cash or a combination of cash and
shares of Common Stock, as applicable, due upon conversion) 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





31









 







consequent thereon.




          Notwithstanding anything in this Indenture or in the Notes to the contrary, for the first 180
days immediately following any violation of any obligations the Company may be deemed to have
pursuant to (1) Section 314(a)(1) of the Trust Indenture Act, or (2) Section 5.06(b), and the
continuation thereof, the sole remedy for any such violation shall be the accrual of additional
interest on the Notes at a rate per year equal to 0.50% of the outstanding principal amount of the
Notes (“Supplementary Interest”), payable semi-annually at the same time and in the same manner as
regular interest on the Notes pursuant to Section 2.03 and Section 5.01. In no event shall
Supplementary Interest accrue at a rate per year in excess of 0.50%, regardless of the number of
events or circumstances giving rise to the requirement to pay Supplementary Interest. In addition
to the accrual of Supplementary Interest, on and after the 180th day, any violation of any
obligations the Company may be deemed to have pursuant to (1) Section 314(a)(1) of the Trust
Indenture Act or (2) Section 5.06(b), either the Trustee or the Noteholders of not less than 25% in
aggregate principal amount of the Notes then outstanding may declare the principal amount of the
Notes and any accrued and unpaid interest, including any Additional Interest, through the date of
such declaration, to be immediately due and payable. Whenever in this Indenture there is
mentioned, in any context, the payment of interest on, or in respect of, any Note, such mention
shall be deemed to include mention of the payment of “Supplementary Interest” provided for in this
paragraph to the extent that, in such context, Supplementary Interest is, was or would be payable
in respect thereof pursuant to the provisions of this paragraph, and express mention of the payment
of Supplementary Interest (if applicable) in any provisions hereof shall not be construed as
excluding Supplementary Interest in those provisions hereof where such express mention is not made.




          In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the Noteholders, and the Trustee shall, subject to any
determination in such proceeding, be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Noteholders, and the Trustee
shall continue as though no such proceeding had been instituted.




          Section 7.02. Payments of Notes on Default; Suit Therefor. If an Event of Default described
in clause (a) or (b) of Section 7.01 shall have occurred, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the holders of the Notes, the whole amount then due and
payable on the Notes for principal and interest, Additional Interest, if any, and Supplementary
Interest, if any, with interest on any overdue principal, interest, Additional Interest, if any,
and Supplementary Interest, if any, at the rate borne by the Notes at such time, and, in addition
thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under
Section 8.06. If the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.




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          In the event there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Notes under title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
event of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and accrued and unpaid interest and accrued and unpaid Additional Interest and
Supplementary Interest, if any, in respect of the Notes, and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents and to take such other actions as it may
deem necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property, and to collect and
receive any monies or other property payable or deliverable on any such claims, and to distribute
the same after the deduction of any amounts due the Trustee under Section 8.06; and any receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such payments to the Trustee, as
administrative expenses, and, in the event that the Trustee shall consent to the making of such
payments directly to the Noteholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including agents and counsel fees, and
including any other amounts due to the Trustee under Section 8.06 hereof, incurred by it up to the
date of such distribution. To the extent that such payment of reasonable compensation, expenses,
advances and disbursements out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property that the holders of the Notes may
be entitled to receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.




          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment
or composition affecting the Noteholder or the rights of any Noteholder thereof, or to authorize
the Trustee to vote in respect of the claim of any Noteholder in any such proceeding.




          All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or 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 Notes.




33









 








          In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.




          Section 7.03. Application of Monies Collected by Trustee. Any monies collected by the Trustee
pursuant to this Article 7 with respect to the Notes shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of
the several Notes, and stamping thereon 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 8.06;




          Second, in case the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on the Notes, including Additional Interest and Supplementary
Interest, if any, in default in the order of the date due of the installments of such interest,
with interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Notes at such time, such payments to be made
ratably to the Persons entitled thereto;




          Third, in case the principal of the outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount including the payment of the
Fundamental Change Repurchase Price and the cash component of the Conversion Obligation, if any,
then owing and unpaid upon the Notes for principal and interest, including Additional Interest and
Supplementary Interest, if any, with interest on the overdue principal and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of interest at the rate borne
by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Notes, then to the payment of such principal and interest
without preference or priority of principal over interest, or of interest over principal or of any
installment of interest over any other installment of interest, or of any Note over any other Note,
ratably to the aggregate of such principal and accrued and unpaid interest; and




          Fourth, to the payment of the remainder, if any, to the Company.




          Section 7.04. Proceedings by Noteholders. No holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless
also the holders of not less than 25% in aggregate principal amount of the Notes then outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such security or indemnity
satisfactory to it against any loss, liability or expense to be incurred therein or thereby, and
the Trustee for sixty days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and no direction that,
in the




34









 







opinion of the Trustee, is inconsistent with such written request shall have been given to the
Trustee by the holders of a majority in principal amount of the Notes outstanding within such
sixty-day period pursuant to Section 7.07; it being understood and intended, and being expressly
covenanted by the taker and holder of every Note with every other taker and holder and the Trustee
that no one or more Noteholders 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
Noteholder, or to obtain or seek to obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Noteholders (except as otherwise provided herein). For the
protection and enforcement of this Section 7.04, each and every Noteholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.




          Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Noteholder to receive payment of the principal of (including the Fundamental Change
Repurchase Price upon repurchase pursuant to Section 16.01), and accrued and unpaid interest and
accrued and unpaid Additional Interest and Supplementary Interest, if any, on such Note, on or
after the respective due dates expressed or provided for in such Note or in this Indenture, or to
institute suit for the enforcement of any such payment on or after such respective dates against
the Company shall not be impaired or affected without the consent of such Noteholder.




          Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any
Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf
and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.




          Section 7.05. Proceedings by Trustee. In case of an Event of Default the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.




          Section 7.06. Remedies Cumulative and Continuing. Except as provided in the last paragraph of
Section 2.07, all powers and remedies given by this Article 7 to the Trustee or to the Noteholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the
Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any
such right or power, or shall be construed to be a waiver of any such Default or any acquiescence
therein; and, subject to the provisions of Section 7.04, every power and remedy given by this
Article 7 or by law to the Trustee or to the Noteholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Noteholders.




35









 








          Section 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The
holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 9.04 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 with respect to Notes; provided, however, 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 that is not inconsistent with such direction. The
Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights
of any other holder or that would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 9.04 may on behalf of the holders of all of the Notes waive any past
Default or Event of Default hereunder and its consequences except (i) a default in the payment of
principal, accrued and unpaid interest or accrued and unpaid Additional Interest and Supplementary
Interest, if any, on, or the principal (including any Fundamental Change Repurchase Price) of, the
Notes when due that has not been cured pursuant to the provisions of Section 7.01, (ii) a failure
by the Company to deliver cash or a combination of cash and shares of Common Stock, as applicable,
upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which
under Article 11 cannot be modified or amended without the consent of each holder of an outstanding
Note affected. Upon any such waiver the Company, the Trustee and the holders of the Notes shall be
restored to their former positions and rights hereunder; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever
any Default or Event of Default hereunder shall have been waived as permitted by this Section 7.07,
said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed
to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.




          Section 7.08. Notice of Defaults. The Trustee shall, within ninety days after the occurrence
and continuance of a Default of which a Responsible Officer has actual knowledge, mail to all
Noteholders as the names and addresses of such holders appear upon the Note Register, notice of all
Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived
before the giving of such notice; and provided that, except in the case of a Default in the payment
of the principal of, accrued and unpaid interest or accrued and unpaid Additional Interest or
Supplementary Interest, if any, on any of the Notes, including without limiting the generality of
the foregoing any Default in the payment of any Fundamental Change Repurchase Price, then in any
such event the Trustee shall be protected in withholding such notice if and so long as a committee
of Responsible Officers of the Trustee in good faith determine that the withholding of such notice
is in the interests of the Noteholders.




          Section 7.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder
of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, 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 or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of this Section




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7.09 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more
than 10% in principal amount of the Notes at the time outstanding determined in accordance with
Section 9.04, or to any suit instituted by any Noteholder for the enforcement of the payment of the
principal of, accrued and unpaid interest or accrued and unpaid Additional Interest and
Supplementary Interest, if any, on any Note (including, but not limited to, the Fundamental Change
Repurchase Price with respect to the Notes being repurchased as provided in this Indenture) on or
after the due date expressed or provided for in such Note or to any suit for the enforcement of the
right to convert any Note in accordance with the provisions of Article 15.




ARTICLE 8

CONCERNING THE TRUSTEE




          Section 8.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of
an Event of Default and after the curing or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. 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 such person’s own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the holders unless such holders
have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or direction.




          No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own grossly negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that




          (a) prior to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default that may have occurred the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and, after it has been qualified
thereunder (if ever), the Trust Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture and the Trust Indenture Act
against the Trustee;




          (b) in the absence of bad faith and willful misconduct on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of any such certificates or
opinions that by any provisions hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein);




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          (c) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;




          (d) the Trustee shall not be liable with respect to any action taken or omitted to be taken
by it in accordance with the direction of the holders of not less than a majority in principal
amount of the Notes at the time outstanding determined as provided in Section 9.04 relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;




          (e) whether or not therein 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 8.01;




          (f) the Trustee (in its capacity as Trustee but not Paying Agent) shall not be liable in
respect of any payment (as to the correctness of amount, entitlement to receive or any other
matters relating to payment) or notice effected by the Company or any Paying Agent nor shall the
Trustee be liable for any records maintained by any co-registrar with respect to the Notes;




          (g) if any party fails to deliver a notice relating to an event the fact of which, pursuant
to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on
its failure to receive such notice as reason to act as if no such event occurred, unless such
Responsible Officer of the Trustee had actual knowledge of such event;




          (h) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee
be liable for the selection of investments or for investment losses incurred thereon or for losses
incurred as a result of the liquidation of any such investment prior to its maturity date or the
failure of the party directing such investments prior to its maturity date or the failure of the
party directing such investment to provide timely written investment direction; and




          (i) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Conversion Agent or transfer agent hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 8 shall also be afforded to such Custodian, Note Registrar, Paying Agent,
Conversion Agent or transfer agent.




          None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.




          Section 8.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
8.01:




          (a) the Trustee may conclusively rely and shall be fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent,




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order, bond, Note or other paper or document believed by it in good faith to be genuine and
to have been signed or presented by the proper party or parties;




          (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the Company;




          (c) the Trustee may consult with counsel and require an opinion of counsel and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;




          (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Indenture at the request, order or direction of any of the Noteholders pursuant to
the provisions of this Indenture, unless such Noteholders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities that may be
incurred therein or thereby;




          (e) 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 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
reasonably 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 at the expense of the Company and shall incur no liability of
any kind by reason of such inquiry or investigation;




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




          (g) the permissive rights of the Trustee enumerated herein shall not be construed as duties.




          In no event shall the Trustee be liable for any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action other than any such loss or
damage caused by the Trustee’s willful misconduct or gross negligence. The Trustee shall not be
charged with knowledge of any Default or Event of Default with respect to the Notes, unless either
(1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the Trustee by the
Company or by any holder of the Notes.




          Section 8.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the




39









 







same. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in
conformity with the provisions of this Indenture.




          Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not the Trustee, Paying Agent, Conversion Agent or Note Registrar.




          Section 8.05. Monies to Be Held in Trust. All monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received.
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 may be agreed from time to time by the Company and the Trustee.




          Section 8.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder
(including the reasonable compensation and the expenses and disbursements of its agents and counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as
shall have been caused by its gross negligence, willful misconduct or bad faith. The Company also
covenants to indemnify the Trustee in any capacity under this Indenture and any other document or
transaction entered into in connection herewith and its agents and any authenticating agent for,
and to hold them harmless against, any loss, claim, damage, liability or expense incurred without
gross negligence, willful misconduct or bad faith on the part of the Trustee, its officers,
directors, agents or employees, or such agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the costs and expenses of defending themselves against any claim of
liability in the premises. The obligations of the Company under this Section 8.06 to compensate or
indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances
shall be secured by a senior lien or claim to which the Notes are hereby made subordinate on all
money or property held or collected by the Trustee, except, subject to the effect of Section 7.03,
funds held in trust herewith for the benefit of the holders of particular Notes. The Trustee’s
right to receive payment of any amounts due under this Section 8.06 shall not be subordinate to any
other liability or indebtedness of the Company (even though the Notes may be so subordinated). The
obligation of the Company under this Section 8.06 shall survive the satisfaction and discharge of
this Indenture and the earlier resignation or removal or the Trustee. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. The
indemnification provided in this Section 8.06 shall extend to the officers, directors, agents and
employees of the Trustee.




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          Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee and its agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 7.01(i) or Section 7.01(j) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.




          Section 8.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of gross
negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.




          Section 8.08. Conflicting Interests of Trustee. After qualification of this Indenture under
the Trust Indenture Act, if the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either (a) eliminate such interest within
ninety days, (b) apply to the Commission for permission to continue as Trustee or (c) resign, to
the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.




          Section 8.09. Eligibility of Trustee. 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 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 any 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 8.10. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof to the
Noteholders at their addresses as they shall appear on the Note Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within sixty days after the
mailing of such notice of resignation to the Noteholders, the resigning Trustee may, upon ten
Business Days’ notice to the Company and the Noteholders, petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months may, subject to the provisions of Section 7.09,
on behalf of himself and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as it




41









 







may deem proper and prescribe, appoint a successor trustee.




          (b) In case at any time any of the following shall occur:




     (i) the Trustee shall fail to comply with Section 8.08 within a reasonable time after written
request therefor by the Company or by any Noteholder who has been a bona fide holder of a Note or
Notes for at least six months, or



     (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.09
and shall fail to resign after written request therefor by the Company or by any such Noteholder,
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, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.09, any Noteholder who has been a
bona fide holder of a Note or Notes 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. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




          (c) The holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 9.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten
days after notice to the Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Noteholder, upon the terms and conditions and otherwise as in Section
8.10(a) provided, may petition any court of competent jurisdiction for an appointment of a
successor trustee.




          (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 8.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.11.




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          Section 8.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in
Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company
shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or
property held or collected by such trustee as such, except for funds held in trust for the benefit
of holders of particular Notes, to secure any amounts then due it pursuant to the provisions of
Section 8.06.




          No successor trustee shall accept appointment as provided in this Section 8.11 unless at the
time of such acceptance such successor trustee shall be qualified under the provisions of Section
8.08 and be eligible under the provisions of Section 8.09.




          Upon acceptance of appointment by a successor trustee as provided in this Section 8.11, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Noteholders at their addresses as they shall appear on the Note Register. If the Company fails to
mail such notice within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Company.




          Section 8.12. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be qualified under the provisions of Section 8.08 and eligible
under the provisions of Section 8.09.




          In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor trustee may
authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of




43









 







the successor trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.




          Section 8.13. Limitation on Rights of Trustee as Creditor. If and when the Trustee shall be
or become a creditor of the Company (or any other obligor upon the Notes), after qualification
under the Trust Indenture Act, the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any such other
obligor).




ARTICLE 9

CONCERNING THE NOTEHOLDERS




          Section 9.01. Action by Noteholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing, or (b) by the record of the Noteholders voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article 10, or (c) by a
combination of such instrument or instruments and any such record of such a meeting of Noteholders.
Whenever the Company or the Trustee solicits the taking of any action by the holders of the Notes,
the Company or the Trustee may fix, but shall not be required to, in advance of such solicitation,
a date as the record date for determining Noteholders entitled to take such action. The record
date if one is selected shall be not more than fifteen days prior to the date of commencement of
solicitation of such action.




          Section 9.02. Proof of Execution by Noteholders. Subject to the provisions of Section 8.01,
Section 8.02 and Section 10.05, proof of the execution of any instrument by a Noteholder or its
agent or proxy shall be sufficient if made in a manner as shall be satisfactory to the Trustee.
The holding of Notes shall be proved by the Note Register or by a certificate of the Note
Registrar. The record of any Noteholders’ meeting shall be proved in the manner provided in
Section 10.06.




          Section 9.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and (subject to Section
2.03) accrued and unpaid interest and accrued and unpaid Additional Interest and Supplementary
Interest, if any, on such Note, for conversion of such Note and for all other purposes; and neither
the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar
shall be affected by any notice to the




44









 







contrary. All such payments so made to any holder for the time being, or upon its order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for monies payable upon any such Note. Notwithstanding anything to the contrary in
this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a
Global Note may directly enforce against the Company, without the consent, solicitation, proxy,
authorization or any other action of the Depositary or any other Person, such holder’s right to
exchange such beneficial interest for a Note in certificated form in accordance with the provisions
of this Indenture.




          Section 9.04. Company-Owned Notes Disregarded. In determining whether the holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are
so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 9.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the
pledgee is not the Company or a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by
or for the account of any of the above described Persons; and, subject to Section 8.01, the Trustee
shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any
such determination. The Trustee shall not be required at any time to request a list of
Company-owned Notes before taking any actions or making any calculations.




          Section 9.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by
the holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note that is shown by the evidence to be
included in the Notes the holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 9.02, revoke such action so far as concerns such Note. Except as aforesaid, any such
action taken by the holder of any Note shall be conclusive and binding upon such holder and upon
all future holders and owners of such Note and of any Notes issued in exchange or substitution
therefor or upon registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon
registration of transfer thereof.




ARTICLE 10

NOTEHOLDERS’ MEETINGS





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          Section 10.01. Purpose of Meetings. A meeting of Noteholders may be called at any time and
from time to time pursuant to the provisions of this Article 10 for any of the following purposes:




          (a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 7;




          (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 8;




          (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 11.02; or




          (d) to take any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or
under applicable law.




          Section 10.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Noteholders to take any action specified in Section 10.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of the Noteholders, setting forth
the time and the place of such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 9.01, shall be mailed to
holders of such Notes at their addresses as they shall appear on the Note Register. Such notice
shall also be mailed to the Company. Such notices shall be mailed not less than twenty nor more
than ninety days prior to the date fixed for the meeting.




          Any meeting of Noteholders shall be valid without notice if the holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.




          Section 10.03. Call of Meetings by Company or Noteholders. In case at any time the Company,
pursuant to a Board Resolution, or the holders of at least 10% in aggregate principal amount of the
Notes then outstanding (excluding those Notes identified in Section 9.04), shall have requested the
Trustee to call a meeting of Noteholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of
such meeting within twenty days after receipt of such request, then the Company or such Noteholders
may determine the time and the place for such meeting and may call such meeting to take any action
authorized in Section 10.01, by mailing notice thereof as provided in Section 10.02.




          Section 10.04. Qualifications for Voting. To be entitled to vote at any meeting of
Noteholders a Person shall (a) be a holder of one or more Notes on the record date pertaining to
such meeting or (b) be a Person appointed by an instrument in writing as proxy by a holder of one
or more Notes on the record date pertaining to such meeting. The only Persons who shall be
entitled to be present or to speak at any meeting of Noteholders shall be the Persons entitled to




46









 







vote at such meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.




          Section 10.05. Regulations. The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by the Company or by
Noteholders as provided in Section 10.03, in which case the Company or the Noteholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the holders of a
majority in principal amount of the Notes represented at the meeting and entitled to vote at the
meeting.




          Subject to the provisions of Section 9.04, at any meeting of Noteholders each Noteholder or
proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Noteholders. Any meeting of Noteholders duly called pursuant to the provisions of
Section 10.02 or Section 10.03 may be adjourned from time to time by the holders of a majority of
the aggregate principal amount of Notes represented at the meeting, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.




          Section 10.06. Voting. The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballot on which shall be subscribed the signatures of the Noteholders or of
their representatives by proxy and the outstanding principal amount of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of each meeting of Noteholders shall
be prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 10.02. The record shall show the
principal amount of the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.




          Any record so signed and verified shall be conclusive evidence of the matters therein stated.




          Section 10.07. No Delay of Rights by Meeting. Nothing contained in this Article 10 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Noteholders or
any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee




47









 







or to the Noteholders under any of the provisions of this Indenture or of the Notes.




ARTICLE 11

SUPPLEMENTAL INDENTURES




          Section 11.01. Supplemental Indentures Without Consent of Noteholders. The Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense,
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
one or more of the following purposes:




          (a) to cure any ambiguity, omission, defect or inconsistency in this Indenture in a manner
that does not individually or in the aggregate adversely affect the rights of any holder of the
Notes in any material respect;




          (b) to conform the terms of the Indenture or the Notes to the description thereof in the
Offering Memorandum;




          (c) to provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 12;




          (d) to add guarantees with respect to the Notes;




          (e) to secure the Notes;




          (f) to add to the covenants of the Company such further covenants, restrictions or conditions
for the benefit of the Noteholders or surrender any right or power conferred upon the Company;




          (g) to make any other change that does not adversely affect the rights of any holder;




          (h) to appoint a successor Trustee with respect to the Notes; or




          (i) to comply with any requirements of the Commission in connection with the qualification of
this Indenture under the Trust Indenture Act.




          Upon the written request of the Company, the Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.




          Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 11.02.




          Section 11.02. Supplemental Indentures With Consent of Noteholders. With the consent
(evidenced as provided in Article 9) of the holders of at least a majority in aggregate





48









 







principal amount of the Notes at the time outstanding (determined in accordance with Article 9
and including, without limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, Notes), the Company, when authorized by the resolutions of the Board
of Directors and the Trustee, at the Company’s expense, may from time to time and at any time 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 any supplemental
indenture or of modifying in any manner the rights of the holders of the Notes; provided, however,
that no such supplemental indenture shall:




          (a) reduce the percentage in aggregate principal amount of Notes outstanding necessary to
modify or amend this Indenture or to waive any past Default or Event of Default;




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




          (c) reduce the principal of, or extend the Maturity Date of, any Note;




          (d) make any change that impairs or adversely affects the conversion rights of any Notes;




          (e) reduce the Fundamental Change Repurchase Price of any Note, or amend or modify in any
manner adverse to the holders of the Notes the Company’s obligation to make such payments, whether
through an amendment or waiver of provisions in the covenants, definitions or otherwise;




          (f) make any Note payable in a currency other than that stated in the Note;




          (g) change the ranking of the Notes;




          (h) impair the right of any holder to receive payment of principal of and interest, including
Additional Interest and Supplementary Interest, if any, on such holder’s Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or with respect to such
holder’s Note; or




          (i) make any change in this Article 11 that requires each holder’s consent or in the waiver
provisions in Section 7.01 or Section 7.07;




          in each case without the consent of each holder of an outstanding Note affected.




          Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Noteholders as aforesaid and subject to Section 11.05, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.




          It shall not be necessary for the consent of the Noteholders under this Section 11.02 to
approve the particular form of any proposed supplemental indenture, but it shall be




49









 







sufficient if such consent shall approve the substance thereof. After an amendment under this
Indenture becomes effective, the Company shall mail to the holders a notice briefly describing such
amendment. However, the failure to give such notice to all the holders, or any defect in the
notice, will not impair or affect the validity of the amendment.




          Section 11.03. Effect of Supplemental Indentures. Any supplemental indenture executed
pursuant to the provisions of this Article 11 shall comply with the Trust Indenture Act, as then in
effect; provided that this Section 11.03 shall not require such supplemental indenture to be
qualified under the Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act or this Indenture has been qualified under the Trust
Indenture Act, nor shall any such qualification constitute any admission or acknowledgment by any
party to such supplemental indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or this Indenture has
been qualified under the Trust Indenture Act. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article 11, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitation of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Noteholders shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.




          Section 11.04. Notation on Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 11 may, at the Company’s
expense, bear a notation as to any matter provided for in such supplemental indenture. If the
Company determines, new Notes so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may, at the
Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 17.11) and delivered in
exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.




          Section 11.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In
addition to the documents required by Section 17.05, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 11 and is permitted or
authorized by the Indenture.




ARTICLE 12

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




          Section 12.01. Company May Consolidate, Etc. on Certain Terms.




          Subject to the provisions of Section 12.02, the Company shall not consolidate with, merge with
or into, or convey, transfer or lease all or substantially all of its consolidated properties and
assets to another Person, unless:




50









 








          (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company under the Notes, this
Indenture and, to the extent that it is otherwise still operative, the Registration Rights
Agreement; and




          (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing under this Indenture.




          Upon any such consolidation, merger, conveyance, transfer or lease the Successor Company (if
not the Company) shall succeed to, and may exercise every right and power of, the Company under
this Indenture.




          For purposes of this Section 12.01, the conveyance, transfer or lease of the properties and
assets of one or more Subsidiaries of the Company substantially as an entirety to another Person,
which properties and assets, if held by the Company instead of such Subsidiaries, would constitute
the properties and assets of the Company substantially as an entirety on a consolidated basis,
shall be deemed to be the transfer of the properties and assets of the Company substantially as an
entirety to another Person.




          Section 12.02. Successor Corporation to Be Substituted. In case of any such consolidation,
merger, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee, of the due and punctual payment of
the principal of, accrued and unpaid interest and accrued and unpaid Additional Interest and
Supplementary Interest, if any, on all of the Notes, the due and punctual delivery or payment, as
the case may be, of any consideration due upon conversion of the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the
Company, such Successor Company shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part. Such Successor Company
thereupon may cause to be signed, and may issue in its own name any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such Successor Company instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall
deliver, or cause to be authenticated and delivered, any Notes that such Successor Company
thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes
so issued shall in all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof. In the event of any such
consolidation, merger, conveyance or transfer (but not in the case of a lease), the Person named as
the “Company” in the first paragraph of this Indenture or any successor that shall thereafter have
become such in the manner prescribed in this Article 12 may be dissolved, wound up and liquidated
at any time thereafter and, except in the case of a lease, such Person shall be released from its
liabilities as obligor and maker of the Notes and from its obligations under this Indenture.




51









 








          In case of any such consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may
be appropriate.




          Section 12.03. Opinion of Counsel to Be Given Trustee. No merger, consolidation, conveyance,
transfer or lease shall be effective unless the Trustee shall receive an Officers’ Certificate and
an Opinion of Counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease and any such assumption and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, complies with the provisions of this
Article 12.




ARTICLE 13

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




          Section 13.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment
of the principal of or accrued and unpaid interest and accrued and unpaid Additional Interest and
Supplementary Interest, if any, on any Note, nor for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of
any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee,
agent, officer or director or Subsidiary, as such, past, present or future, of the Company or of
any successor corporation or entity, either directly or through the Company or any successor
corporation or entity, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issuance of the Notes.




ARTICLE 14

[INTENTIONALLY OMITTED]




ARTICLE 15

CONVERSION OF NOTES




          Section 15.01. Conversion Privilege. (a) Upon compliance with the provisions of this Article
15, a Noteholder shall have the right, at such holder’s option, to convert all or any portion (if
the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such
Note (i) subject to satisfaction of the conditions described in Section 15.01(b) below, at any time
prior to March 15, 2013 under the circumstances and during the periods set forth in Section
15.01(b) below, and (ii) irrespective of the conditions described in Section 15.01(b) below, on or
after March 15, 2013 and prior to the close of business on the Business Day immediately preceding
the Maturity Date, in each case, at an initial conversion rate (the “Conversion Rate”) of 46.8467
shares of Common Stock (subject to adjustment as provided in Section 15.04 of this Indenture) per
$1,000 principal amount of Notes (subject to the settlement provisions of Section 15.02, the
“Conversion Obligation”).




52









 








          (b) (i) Prior to the close of business on the Business Day immediately preceding the Maturity
Date, the Notes may be surrendered for conversion during the five Business Day period immediately
after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading
Price per $1,000 principal amount of Notes for each Trading Day of such Measurement Period was
less than 98% of the product of the then-applicable Conversion Rate on such Trading Day and the
Last Reported Sale Price of the Common Stock on such Trading Day. The Trading Prices shall be
determined by the Trustee pursuant to this clause and the definition of Trading Price set forth in
this Indenture. The Company shall provide written notice to the Trustee of the three independent
nationally recognized securities dealers selected by the Company pursuant to the definition of
Trading Price, along with appropriate contact information for each. The Trustee shall
have no obligation to determine the Trading Price of the Notes unless requested by the
Company in writing, and the Company shall have no obligation to make such request unless a
Noteholder provides the Company with reasonable evidence that the Trading Price per $1,000
principal amount of the Notes would be less than 98% of the product of the then-applicable
Conversion Rate and the Last Reported Sale Price of the Common Stock at such time, at which time
the Company shall instruct the Trustee to determine the Trading Price of the Notes beginning on
the next Trading Day, which will be the day the Measurement Period begins, and on each successive
Trading Day until the Trading Price per Note is greater than or equal to 98% of the product of the
then-applicable Conversion Rate and the Last Reported Sale Price of the Common Stock on such
Trading Day. If the Company does not, when obligated to, instruct the Trustee to determine the
Trading Price of the Notes as provided in the preceding sentence, or if the Company gives such
instruction to the Trustee, and the Trustee fails to make such determination, then the Trading
Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of
the Last Reported Sale Price of the Common Stock and the then-applicable Conversion Rate for each
Trading Day that the either the Company fails to instruct the Trustee to determine the Trading
Price or the Trustee fails to determine the Trading Price after it has been instructed by the
Company to determine the Trading Price. If the Trading Price condition set forth above has been
met, the Company shall so notify the Noteholders, the Trustee and the Conversion Agent. If, after
the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal
amount of Notes is greater than 98% of the product of the then-applicable Conversion Rate and the
Last Reported Sale Price of the Common Stock on such Trading Day, the Company shall so notify the
holders of the Notes, the Trustee and the Conversion Agent. In either case, the Company shall
promptly publish a notice indicating that the Trading Price condition set forth above has been met
or, at any time after the Trading Price condition set forth above has been met, that the Trading
Price per $1,000 principal amount of Notes is greater than 98% of the product of the
then-applicable Conversion Rate and the Last Reported Sale Price of the Common Stock on the
relevant Trading Day, as the case may be, in a newspaper of general circulation in The City of New
York or publish such information on its website or through such other public medium as the Company
may use at that time.




     (ii) In the event that the Company elects to:




     (A) distribute to all or substantially all holders of its Common Stock rights, options
or warrants entitling them, for a period of not more than sixty calendar days from the
declaration date of such distribution, to subscribe for or purchase its Common Stock,



53









 







at a price per share less than the average of the Last Reported Sale Prices of the
Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the declaration date for such distribution; or




     (B) distribute to all or substantially all holders of its Common Stock the Company’s
assets, debt securities, or rights to purchase securities of the Company, which distribution
has a per share value (as determined by the Board of Directors) exceeding 10% of the average
of the Last Reported Sale Prices of the Common Stock for the ten (10) consecutive Trading
Day period ending on, and including, the Trading Day immediately preceding the date of
declaration for such distribution, then, in each case, the Company shall notify all holders of the Notes, the Trustee and the
Conversion Agent in writing not less than thirty-five Business Days prior to the Ex-Dividend
Date for such distribution. Once the Company has given such notice, the Notes may be
surrendered for conversion at any time until the earlier of (1) the close of business on the
Business Day immediately prior to such Ex-Dividend Date and (2) the Company’s announcement
that such distribution will not take place, even if the Notes are not otherwise convertible
at such time.



     (iii) In the event of a Fundamental Change or a Make-Whole Fundamental Change, a Noteholder
may surrender Notes for conversion at any time from and after the thirty-fifth Business Day prior
to the anticipated effective date of such Fundamental Change or Make-Whole Fundamental Change, as
the case may be, until the Business Day immediately preceding the Fundamental Change Repurchase
Date corresponding to such Fundamental Change (or, in the case of a Make-Whole Fundamental Change
that does not constitute a Fundamental Change by virtue of the parenthetical in the definition of
Make-Whole Fundamental Change, the 35th Trading Day immediately following such effective date).
The Company shall give notice in writing of the anticipated effective date of any Fundamental
Change or Make-Whole Fundamental Change, as the case may be, as soon as practicable after the
Company first determines the anticipated effective date of such Fundamental Change or such
Make-Whole Fundamental Change, as the case may be; provided that the Company shall not be required
to give such notice more than 35 Business Days in advance of such anticipated effective date.



     (iv) Prior to the close of business on the Business Day immediately preceding the Maturity
Date, the Notes may be surrendered for conversion in any Fiscal Quarter after the Fiscal Quarter
ending September 30, 2008, but only during such Fiscal Quarter, if the Last Reported Sale Price of
the Common Stock for each of at least twenty Trading Days during the period of thirty consecutive
Trading Days ending on, and including, the last Trading Day of the immediately preceding Fiscal
Quarter is equal to or more than 120% of the then-applicable Conversion Price on the last day of
such preceding Fiscal Quarter (such price, the “Conversion Trigger Price”). The Conversion Agent,
on behalf of the Company, shall determine at the beginning of each Fiscal Quarter commencing after
September 30, 2008 whether the Notes may be surrendered for conversion in accordance with this
clause (iv) and shall notify the Company and the Trustee.



          Section 15.02. Conversion Procedure. (a) Subject to this Section 15.02, upon any conversion
of any Note, the Company shall pay or deliver, as the case may be, to converting Noteholders, in
respect of each $1,000 principal amount of Notes being converted an amount of




54









 







cash and a number of shares of Common Stock, if any, equal to the sum of the Daily Settlement
Amounts for each of the 25 consecutive Trading Days during the Cash Settlement Averaging Period
corresponding to such conversion. The Company shall also deliver to each converting Noteholder
cash in lieu of fractional shares of Common Stock as set forth pursuant to clause (j) below. The
Daily Settlement Amounts and the Daily Conversion Values for each conversion shall be determined by
the Company promptly following the last day of the relevant Cash Settlement Averaging Period.
Promptly after such determination of the Daily Settlement Amounts and the Daily Conversion Values
and the amount of cash deliverable in lieu of fractional shares (if any), the Company shall notify
the Trustee and the Conversion Agent in writing of the Daily Settlement Amounts and the Daily
Conversion Values and the amount of cash deliverable in lieu of fractional shares of Common Stock.
The Trustee and the Conversion Agents shall have no responsibility for any such determination.




          (b) Before any holder of a Note shall be entitled to convert the same as set forth above,
such holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary
in effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such holder is not entitled as set forth in Section 15.02(h) and, if
required, all transfer or similar taxes, if any, and (ii) in the case of a Note issued in
certificated form, (1) complete and manually sign and deliver an irrevocable notice to the
Conversion Agent in the form on the reverse of such certificated Note (or a facsimile thereof)
(Exhibit B hereto) (a “Notice of Conversion”) at the office of the Conversion Agent and shall
state in writing therein the principal amount of Notes to be converted and the name or names (with
addresses) in which such holder wishes the certificate or certificates for any shares of Common
Stock, if any, to be delivered upon settlement of the Conversion Obligation to be registered, (2)
surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate
endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, pay
funds equal to interest payable on the next Interest Payment Date to which such holder is not
entitled as set forth in Section 15.02(h), (4) if required, furnish appropriate endorsements and
transfer documents, and (5) if required, pay all transfer or similar taxes, if any as set forth in
Section 15.02(e). The Trustee (and if different, the relevant Conversion Agent) shall notify the
Company of any conversion pursuant to this Article 15 on the date of such conversion. No Notice
of Conversion with respect to any Notes may be surrendered by a holder thereof if such holder has
also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and
not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 16.02,
unless the Company defaults in the payment of the Fundamental Change Repurchase Price.




          If more than one Note shall be surrendered for conversion at one time by the same holder, the
Conversion Obligation with respect to such Notes, if any, that shall be payable upon conversion
shall be computed on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted thereby) so surrendered.




          (c) A Note shall be deemed to have been converted immediately prior to the close of business
on the date (the “Conversion Date”) that the holder has complied with the requirements set forth
in clause (b) of this Section 15.02. The Company shall pay and deliver, as the case may be, the
cash and shares of Common Stock, if any, due upon conversion on the third Trading Day immediately
following the last Trading Day of the relevant Cash Settlement




55









 







Averaging Period. However, notwithstanding the foregoing, with respect to any conversion for
which the relevant Conversion Date occurs on or after the Effective Date of a Fundamental Change
in which the Reference Property into which the Common Stock is converted consists entirely of
cash, the Company shall deliver the amount due upon conversion on the third Trading Day
immediately following the relevant Conversion Date. If any shares of Common Stock are due to
converting Noteholders, the Company shall issue or cause to be issued, and deliver to the
Conversion Agent or to such Noteholder, or such Noteholder’s nominee or nominees, certificates or
a book-entry transfer through the Depositary for the number of full shares of Common Stock to
which such Noteholder shall be entitled in satisfaction of such Conversion Obligation.




          (d) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall upon receipt of a Company Order authenticate and deliver to or upon the
written order of the holder of the Note so surrendered, without charge to such holder, a new Note
or Notes in authorized denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Note.




          (e) If a holder submits a Note for conversion, the Company shall pay all stamp and other
duties, if any, that may be imposed by the United States or any political subdivision thereof or
taxing authority thereof or therein with respect to the issuance of shares of Common Stock, if
any, upon the conversion. However, the holder shall pay any such tax that is due because the
holder requests any shares of Common Stock to be issued in a name other than the holder’s name.
The Conversion Agent may refuse to deliver the certificates representing the shares of Common
Stock being issued in a name other than the holder’s name until the Trustee receives a sum
sufficient to pay any tax that will be due because the shares are to be issued in a name other
than the holder’s name. Nothing herein shall preclude any tax withholding required by law or
regulations.




          (f) Except as provided in Section 15.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Note as provided in this Article.




          (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Notes effected through any Conversion Agent other than the Trustee.




          (h) Upon conversion, a Noteholder shall not receive any separate cash payment for accrued and
unpaid interest, Additional Interest, if any, and Supplementary Interest, if any, except as set
forth below. The Company’s settlement of the Conversion Obligations as described above shall be
deemed to satisfy its obligation to pay the principal amount of the Note and accrued and unpaid
interest, Additional Interest, if any, and Supplementary Interest, if any, to, but not including,
the Conversion Date. As a result, accrued and unpaid interest, Additional Interest and
Supplementary Interest, if any, to, but not including, the Conversion Date shall be deemed to be
paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding
sentence, if Notes are converted after the close of business on an Interest Record Date and prior
to the open of business on the related Interest Payment Date,




56









 







holders of such Notes as of the close of business on such Interest Record Date will receive
the interest, Additional Interest, if any, and Supplementary Interest, if any, payable on such
Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes
surrendered for conversion during the period from the close of business on any Interest Record
Date to the opening of business on the corresponding Interest Payment Date must be accompanied by
payment of an amount equal to the interest, Additional Interest, if any, and Supplementary
Interest, if any, payable on the Notes so converted; provided, however, that no such payment shall
be required (1) if the Company has specified a Fundamental Change Repurchase Date that is after a
Interest Record Date and on or prior to the corresponding Interest Payment Date, (2) to the extent
of any Defaulted Interest, if any, existing at the time of conversion with respect to such Note or
(3) if the Notes are surrendered for conversion after the close of business on the Interest Record
Date immediately preceding the Maturity Date. Except as described above, no payment or adjustment
will be made for accrued and unpaid interest and Additional Interest, if any, on converted Notes.




          (i) The Person in whose name the certificate for any shares of Common Stock delivered upon
conversion is registered shall be treated as a stockholder of record as of the close of business
on the last Trading Day of the related Cash Settlement Averaging Period; provided, however, if
such last Trading Day of the Cash Settlement Averaging Period occurs on any date when the stock
transfer books of the Company shall be closed, such occurrence shall not be effective to
constitute the Person or Persons entitled to receive any such shares of Common Stock due upon
conversion as the record holder or holders of such shares of Common Stock on such date, but such
occurrence shall be effective to constitute the Person or Persons entitled to receive such shares
of Common Stock as the record holder or holders thereof for all purposes at the close of business
on the next succeeding day on which such stock transfer books are open. Upon conversion of Notes,
such Person shall no longer be a Noteholder.




          (j) For each Note surrendered for conversion the number of full shares that shall be issued
upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts
for the applicable Cash Settlement Averaging Period and any fractional shares remaining after such
computation shall be paid in cash. If more than one Note shall be surrendered for conversion at
one time by the same holder, the number of full shares that shall be issued upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof) so surrendered. The Company shall not issue fractional shares of
Common Stock upon conversion of Notes. Instead, the Company shall pay cash in lieu of fractional
shares based on the Daily VWAP on the last Trading Day of the relevant Cash Settlement Averaging
Period.




          Section 15.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection
with Make-Whole Fundamental Changes. (a) Notwithstanding anything herein to the contrary, the
Conversion Rate applicable to each Note that is surrendered for conversion, in accordance with this
Article 15, at any time from, and including, the Effective Date of a Make-Whole Fundamental Change
to, and including, the close of business on the Business Day immediately preceding the related
Fundamental Change Repurchase Date corresponding to such Make-Whole Fundamental Change or the 35th
Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change (in the
case of a Make-Whole Fundamental Change that does not constitute a Fundamental Change by virtue of
the




57









 







parenthetical in the definition of Make-Whole Fundamental Change) (such period, the
“Make-Whole Fundamental Change Period”), shall be increased to an amount equal to the Conversion
Rate that would, but for this Section 15.03, otherwise apply to such Note pursuant to this Article
15, plus an amount equal to the Make-Whole Conversion Rate Adjustment.




          As used herein, “Make-Whole Conversion Rate Adjustment” shall mean, with respect to a
Make-Whole Fundamental Change, the amount set forth in the following table that corresponds to the
effective date of such Make-Whole Fundamental Change (the “Effective Date”) and the Stock Price for
such Make-Whole Fundamental Change, all as determined by the Company:




Make-Whole Conversion Rate Adjustment

(per $1,000 principal amount of Notes)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stock Price
	Effective Date	 	$15.93	 	$20.00	 	$25.00	 	$30.00	 	$35.00	 	$40.00	 	$45.00	 	$50.00	 	$55.00	 	$60.00	 	$70.00	 	$80.00	 	$90.00	 	$100.00
	June 16, 2008
	 	 	15.9279	 	 	 	12.1358	 	 	 	8.4996	 	 	 	6.3551	 	 	 	4.9719	 	 	 	4.0188	 	 	 	3.3282	 	 	 	2.8077	 	 	 	2.4027	 	 	 	2.0794	 	 	 	1.5976	 	 	 	1.2573	 	 	 	1.0056	 	 	 	0.8131	 
	June 15, 2009
	 	 	15.9279	 	 	 	11.4622	 	 	 	7.7715	 	 	 	5.6718	 	 	 	4.3609	 	 	 	3.4825	 	 	 	2.8604	 	 	 	2.4000	 	 	 	2.0467	 	 	 	1.7678	 	 	 	1.3561	 	 	 	1.0675	 	 	 	0.8545	 	 	 	0.6916	 
	June 15, 2010
	 	 	15.9279	 	 	 	10.6984	 	 	 	6.8697	 	 	 	4.8053	 	 	 	3.5819	 	 	 	2.7996	 	 	 	2.2671	 	 	 	1.8853	 	 	 	1.5995	 	 	 	1.3778	 	 	 	1.0561	 	 	 	0.8330	 	 	 	0.6687	 	 	 	0.5425	 
	June 15, 2011
	 	 	15.9279	 	 	 	9.5282	 	 	 	5.5348	 	 	 	3.5646	 	 	 	2.5015	 	 	 	1.8790	 	 	 	1.4861	 	 	 	1.2208	 	 	 	1.0307	 	 	 	0.8876	 	 	 	0.6843	 	 	 	0.5444	 	 	 	0.4405	 	 	 	0.3597	 
	June 15, 2012
	 	 	15.9279	 	 	 	7.5971	 	 	 	3.4045	 	 	 	1.7147	 	 	 	1.0023	 	 	 	0.6787	 	 	 	0.5150	 	 	 	0.4206	 	 	 	0.3586	 	 	 	0.3132	 	 	 	0.2479	 	 	 	0.2011	 	 	 	0.1650	 	 	 	0.1363	 
	June 15, 2013
	 	 	15.9279	 	 	 	3.1533	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






     provided, however, that:



     (i) if the actual Stock Price of such Make-Whole Fundamental Change is between two Stock
Prices listed in the table above under the column titled “Stock Price,” or if the actual Effective
Date of such Make-Whole Fundamental Change is between two Effective Dates listed in the table above
in the row immediately below the title “Effective Date,” then the Make-Whole Conversion Rate
Adjustment for such Make-Whole Fundamental Change shall be determined by the Company by
straight-line interpolation between the Make-Whole Conversion Rate Adjustment set forth for such
higher and lower Stock Prices, or for such earlier and later Effective Dates based on a 365 day
year, as applicable;



     (ii) if the actual Stock Price of such Make-Whole Fundamental Change is greater than $100.00
per share (subject to adjustment in the same manner as the Stock Price as provided in clause (iii)
below), or if the actual Stock Price of such Make-Whole Fundamental Change is less than $15.93 per
share (subject to adjustment in the same manner as the Stock Price as provided in clause (iii)
below), then the Make-Whole Conversion Rate Adjustment shall be equal to zero and this Section
15.03 shall not require the Company to increase the Conversion Rate with respect to such Make-Whole
Fundamental Change;



     (iii) if an event occurs that requires, pursuant to this Article 15 (other than solely
pursuant to this Section 15.03), an adjustment to the Conversion Rate, then, on the date and at the
time such adjustment is so required to be made, each price set forth in the table above under the
column titled “Stock Price” shall be deemed to be adjusted so that such Stock Price, at and after
such time, shall be equal to the product of (1) such Stock Price as in effect immediately



58









 




before such adjustment to such Stock Price and (2) a fraction whose numerator is the
Conversion Rate in effect immediately before such adjustment to the Conversion Rate and whose
denominator is the Conversion Rate to be in effect, in accordance with this Article 15, immediately
after such adjustment to the Conversion Rate;




     (iv) each Make-Whole Conversion Rate Adjustment set forth in the table above shall be adjusted
in the same manner in which, at the same time and for the same events for which, the Conversion
Rate is to be adjusted pursuant to Section 15.04; and



     (v) in no event will the total number of shares of Common Stock issuable upon conversion of
the Notes exceed 62.7746 per $1,000 principal amount of Notes, subject to adjustment in the same
manner as the Conversion Rate pursuant to Section 15.04.



          (b) As soon as practicable after the Company determines the anticipated Effective Date of any
proposed Make-Whole Fundamental Change the Company shall mail to each Noteholder, the Trustee and
the Conversion Agent written notice of, and shall issue a press release indicating, and publicly
announce, through a public medium that is customary for such announcements, and publish on the
Company’s website, the anticipated effective date of such proposed Make-Whole Fundamental Change;
provided that the Company shall not be required to give such written notice or issue such press
release more than 35 Business Days in advance of such anticipated Effective Date. Each such press
release notice, announcement and publication shall also state that in connection with such
Make-Whole Fundamental Change, the Company shall increase, in accordance herewith, the Conversion
Rate applicable to Notes entitled as provided herein to such increase (along with a description of
how such increase shall be calculated and the time periods during which Notes must be surrendered
in order to be entitled to such increase). No later than five Business Days after the actual
Effective Date of each Make-Whole Fundamental Change, the Company shall mail to each Noteholder,
the Trustee and the Conversion Agent written notice of, and shall issue a press release
indicating, and publicly announce, through a public medium that is customary for such
announcements, and publish on the Company’s website, such Effective Date and the amount by which
the Conversion Rate has been so increased.




          Nothing in this Section 15.03 shall prevent an adjustment to the Conversion Rate pursuant to
Section 15.04 in respect of a Make-Whole Fundamental Change.




          Section 15.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time
to time by the Company as follows:




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










59









 








     where



	 	 	 	 	 
	CR0

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

	 	=
	 	the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution, or immediately after the open of
business on the effective date of such share split or share combination, as the case
may be;
	 
	 	 	 	 
	OS0

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

	 	=
	 	the number of shares of Common Stock outstanding immediately after such
dividend or distribution, or immediately after the effective date of such share split
or share combination, as the case may be.





Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend
Date for such dividend or distribution, or the effective date for such share split or share
combination. If any dividend or distribution of the type described in this Section 15.04(a) is
declared but not so paid or made, or the outstanding shares of Common Stock are not split or
combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of
the date the Board of Directors determines not to pay such dividend or distribution, or split or
combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that
would then be in effect if such dividend, distribution, share split or share combination had not
been declared or announced.




          (b) If the Company distributes to all or substantially all holders of its Common Stock any
rights, options or warrants entitling them for a period of not more than sixty days after the
declaration date of such distribution to subscribe for or purchase shares of the Common Stock, at
a price per share less than the average of the Last Reported Sale Prices of the Common Stock for
the ten consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the declaration date for such distribution, the Conversion Rate shall be increased based
on the following formula:









     where



	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such distribution;






60









 






	 	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of the Common Stock that are outstanding immediately
prior to the open of business on the Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	X

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

	 	=
	 	the number of shares of the Common Stock equal to the aggregate price payable
to exercise such rights, options or warrants, divided by the average of the Last
Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the Ex-Dividend Date relating
to such distribution of such rights, options or warrants.





Such adjustment shall be successively made whenever any such rights, options or warrants are
distributed and shall become effective immediately after the opening of business on the Ex-Dividend
Date for such distribution. To the extent that shares of the Common Stock are not delivered after
the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect had the adjustments made upon the issuance of such
rights, options or warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered. If such rights, options or warrants are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such Ex-Dividend Date for such distribution had not been fixed.




          In determining whether any rights, options or warrants entitle the holders to subscribe for or
purchase shares of the Common Stock at less than such average of the Last Reported Sale Price of
the Common Stock, and in determining the aggregate offering price of such shares of the Common
Stock, there shall be taken into account any consideration received by the Company for such rights,
options or warrants and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors. In no event shall
the Conversion Rate be decreased pursuant to this Section 15.04(b).




          (c) In case the Company shall distribute shares of its Capital Stock, evidences of its
indebtedness or other of its assets or property other than (i) dividends or distributions
(including share splits) covered by Section 15.04(a) and Section 15.04(b), (ii) dividends or
distributions paid in cash and covered by Section 15.04(d), and (iii) Spin-Offs to which the
provisions set forth below in this Section 15.04(c) shall apply (any of such shares of Capital
Stock, indebtedness, or other asset or property hereinafter in this Section 15.04(c) called the
“Distributed Property”), to all or substantially all holders of its Common Stock, then, in each
such case the Conversion Rate shall be increased based on the following formula:










61









 







where




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	SP0

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

	 	=
	 	the fair market value (as determined by the Board of Directors) of the
Distributed Property distributed with respect to each outstanding share of the Common
Stock as of the open of business on the Ex-Dividend Date for such distribution.





Such adjustment shall become effective immediately prior to the opening of business on the
Ex-Dividend Date for such distribution; provided that if “FMV” as set forth above is equal to or
greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall receive on the date on which the Distributed
Property is distributed to holders of Common Stock, for each $1,000 principal amount of Notes the
amount of Distributed Property such holder would have received had such holder owned a number of
shares of Common Stock equal to the Conversion Rate on the Record Date for such distribution. If
such distribution is 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. If the Board of Directors determines “FMV” for purposes of this Section 15.04(c) by
reference to the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the Last Reported Sale
Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution.




          With respect to an adjustment pursuant to this Section 15.04(c) where there has been a
dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company, which Capital Stock or similar equity interest will be quoted or listed for trading on a
U.S. national securities exchange or other established automated over-the-counter trading market in
the United States after its distribution (a “Spin-Off”), the Conversion Rate in effect immediately
before the close of business on the tenth Trading Day immediately following, and including, the
Ex-Dividend Date for the Spin-Off will be increased based on the following formula:








where




62









 








	 	 	 	 	 
	CR0

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

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

	 	=
	 	the average of the Last Reported Sale Prices of the Capital Stock or similar
equity interest distributed to holders of the Common Stock applicable to one share of
the Common Stock over the first ten consecutive Trading Day period immediately
following, and including, the Ex-Dividend Date for the Spin-Off; and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock over the
first ten consecutive Trading Day period immediately following and including the
Ex-Dividend Date for the Spin-Off.





The adjustment to the Conversion Rate under the preceding paragraph shall become effective at the
close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend
Date for the Spin-Off; provided that, for purposes of determining the Conversion Rate, in respect
of any conversion during the ten Trading Days immediately following, and including, the Ex-Dividend
Date for any Spin-Off, references in the portion of this Section 15.04(c) related to Spin-Offs to
ten Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed
between the Ex-Dividend Date for such Spin-Off and the Conversion Date for such conversion.




          Subject in all respect to Section 15.10, rights, options or warrants distributed by the
Company to all holders of its Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence of a specified
event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the
Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.04 (and
no adjustment to the Conversion Rate under this Section 15.04 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate
shall be made under this Section 15.04(c). If any such right, option or warrant, including any
such existing rights, options or warrants distributed prior to the date of this Indenture, are
subject to events, upon the occurrence of which such rights, options or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of distribution and
Ex-Dividend Date with respect to new rights, options or warrants with such rights (and a
termination or expiration of the existing rights, options or warrants without exercise by any of
the holders thereof). In addition, in the event of any distribution (or deemed distribution) of
rights, options or warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of




63









 







calculating a distribution amount for which an adjustment to the Conversion Rate under this
Section 15.04 was made, (1) in the case of any such rights, options or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights,
options or warrants (assuming such holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of
such rights, options or warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants
had not been issued.




          For purposes of this Section 15.04(c), Section 15.04(a), and Section 15.04(b), any dividend or
distribution to which this Section 15.04(c) is applicable that also includes shares of Common
Stock, or rights, options or warrants to subscribe for or purchase shares of Common Stock to which
Section 15.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of
the evidences of indebtedness, assets or shares of capital stock other than such shares of Common
Stock or rights, options or warrants to which Section 15.04(c) applies (and any Conversion Rate
adjustment required by this Section 15.04(c) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock
or such rights, options or warrants (and any further Conversion Rate adjustment required by Section
15.04(a) and Section 15.04(b) with respect to such dividend or distribution shall then be made),
except (A) the Ex-Dividend Date of such dividend or distribution shall be substituted as “the
Ex-Dividend Date,” “the Ex-Dividend Date relating to such distribution of such rights, options or
warrants” and “the Ex-Dividend Date for such distribution” within the meaning of Section 15.04(a)
and Section 15.04(b) and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to the Ex-Dividend Date for such dividend or
distribution, or the effective date of such share split or share combination, as the case may be”
within the meaning of Section 15.04(a) or “outstanding immediately prior to the Ex-Dividend Date
for such dividend or distribution” within the meaning of Section 15.04(b).




          In no event shall the Conversion Rate be decreased pursuant to this Section 15.04(c).




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









     where



	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the open of
business on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately after the open
of business






64









 






	 	 	 	 	 
	 

	 	 	 	on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common
Stock over the ten consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the Ex-Dividend Date for such dividend or
distribution; and
	 
	 	 	 	 
	C

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





Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend
Date for such dividend or distribution; provided that if “C” as set forth above is equal to or
greater than “SP0” as set forth above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Noteholder shall have the right to receive on the
date on which the relevant cash dividend or distribution is distributed to holders of Common Stock,
for each $1,000 principal amount of Notes, the amount of cash such holder would have received had
such holder owned a number of shares equal to the Conversion Rate on the Record Date for such
distribution. If such dividend or distribution is 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.




          For the avoidance of doubt, for purposes of this Section 15.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become convertible into more
than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to
this Section 15.04(d), references in this Section to one share of Common Stock or Last Reported
Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a
unit consisting of the number of shares of each class of Common Stock into which the Notes are then
convertible equal to the numbers of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.




          In no event shall the Conversion Rate be decreased pursuant to this Section 15.04(d).




          (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for the Common Stock and the cash and value of any other consideration included in
the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of
the Common Stock over the ten consecutive Trading-Day period commencing on, and including, the
Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to
such tender or exchange offer (the “Expiration Date”), the Conversion Rate shall be increased
based on the following formula:









     where



65









 





	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect at the close of business on the last Trading
Day of the period of ten consecutive Trading Days commencing on, and including, the
Trading Day next succeeding the Expiration Date;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect at the open of business on first day following
the last Trading Day of the period of ten consecutive Trading Days commencing on, and
including, the Trading Day next succeeding the Expiration Date;
	 
	 	 	 	 
	FMV

	 	=
	 	the fair market value (as determined by the Board of Directors), on the
Expiration Date, of the aggregate value of all cash and any other consideration paid or
payable for shares validly tendered or exchanged as of the Expiration Date;
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding immediately after the time
(the “Expiration Time”) tender or exchange offer expires (after giving effect to such
tender offer or exchange offer);
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the
Expiration Time (prior to giving effect to such tender offer or exchange offer); and
	 
	 	 	 	 
	SP’

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





Such adjustment shall become effective at the close of business on the tenth Trading Day
immediately following the Expiration Date; provided that, for purposes of determining the
Conversion Rate, in respect of any conversion during the ten Trading Days following, and including,
the Trading Day next succeeding the Expiration Date, references in this Section 15.04(e) to ten
Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed
between the Trading Day next succeeding the date that such tender or exchange offer expires and the
Conversion Date for such conversion. 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 or all or any portion of such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made or had been made only in respect of the purchases
that had been effected. In no event shall the Conversion Rate be decreased pursuant to this
Section 15.04(e).




          (f) The term “Record Date” shall mean, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock (or other security) have the right to
receive any cash, securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is




66









 







fixed by the Board of Directors or by statute, contract or otherwise).




          (g) Except as stated herein, the Company shall not adjust the Conversion Rate for the
issuance of shares of its Common Stock or any securities convertible into or exchangeable for
shares of its Common Stock or the right, option or warrant to purchase shares of its Common Stock
or such convertible or exchangeable securities.




          (h) Notwithstanding this Section 15.04 or any other provision of this Indenture or the Notes,
if any Conversion Rate adjustment becomes effective, or any Ex-Dividend Date for any issuance,
dividend or distribution (relating to a required Conversion Rate adjustment) occurs, during the
period beginning on, and including, the open of business on a Conversion Date and ending on, and
including, the close of business on the last Trading Day of a related Cash Settlement Averaging
Period, the Board of Directors shall make adjustments to the Conversion Rate and the amount of
cash or number of shares of Common Stock issuable upon conversion of the Notes, as the case may
be, as is be necessary or appropriate to effect the intent of this Section 15.04 and the other
provisions of Article 15 and to avoid unjust or inequitable results, as determined in good faith
by the Board of Directors. Any adjustment made pursuant to this Section 15.04(h) shall apply in
lieu of the adjustment or other term that would otherwise be applicable.




          (i) In addition to those required by clauses (a), (b), (c), (d) and (e) of this Section
15.04, and to the extent permitted by applicable law and subject to the applicable rules of The
NASDAQ Global Market, the Company from time to time may increase the Conversion Rate by any amount
for a period of at least twenty Business Days if the Board of Directors determines that such
increase would be in the Company’s best interest. 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. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to the holder of each Note at its last
address appearing on the Note Register provided for in Section 2.06 a notice of the increase at
least fifteen 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.




          (j) The applicable Conversion Rate will not be adjusted:





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




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




     (iii) upon the issuance of any shares of the Common Stock pursuant to any



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option, warrant, right or exercisable, exchangeable or convertible security not
described in clause (ii) of this subsection and outstanding as of the date the Notes
were first issued;




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




     (v) for accrued and unpaid interest, including Additional Interest, if any; or




     (vi) for any transactions described in this Section 15.04 if Noteholders
participate (as a result of holding the Notes and contemporaneously with holders of
Common Stock) in such transactions as if such Noteholders held a number shares of
Common Stock equal to the Conversion Rate at the time such adjustment would be
required, multiplied by the principal amount (expressed in thousands) of Notes held
by such Noteholder, without having to convert their Notes.



          (k) All calculations and other determinations under this Article 15 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share. The Trustee
shall not be responsible for confirming the accuracy of any such calculation.




          (l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of
which it has knowledge is still in effect. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the
adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Rate to the holder of each Note at its last
address appearing on the Note Register provided for in Section 2.06 of this Indenture, within ten
days of the effective date of such adjustment. Failure to deliver such notice shall not affect
the legality or validity of any such adjustment.




          (m) For purposes of this Section 15.04, 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.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.




          Section 15.05. Shares to Be Fully Paid. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for conversion of the Notes from time to time as such Notes are presented
for conversion.




          Section 15.06. Effect of Reclassification, Consolidation, Merger or Sale. Upon the occurrence
of (i) any reclassification or change of the outstanding shares of Common Stock,




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(ii) any consolidation, merger or combination involving the Company, or (iii) any sale 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 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 11.01(g) providing for the conversion and
settlement of the Notes as set forth in this Indenture. Such supplemental indenture shall provide
for adjustments that shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 15. If, in the case of any Merger Event, the Reference Property
includes shares of stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification, change, consolidation,
merger, combination, sale or conveyance, then such supplemental indenture shall also be executed
by such other corporation and shall contain such additional provisions to protect the interests of
the holders of the Notes as the Board of Directors shall reasonably consider necessary by reason
of the foregoing, including to the extent required by the Board of Directors and practicable the
provisions providing for the repurchase rights set forth in Article 16 herein.




          In the event the Company shall execute a supplemental indenture pursuant to this Section
15.06, 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 asset that will
comprise 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 Noteholders. The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Noteholder, at its address appearing on the Note Register provided
for in this Indenture, within twenty days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.




          (b) Notwithstanding the provisions of Section 15.02(a), and subject to the provisions of
Section 15.01 and Section 15.03, at and after the effective time of such Merger Event, (i) the
right to convert each $1,000 principal amount of Notes into cash or a combination of cash and
shares of Common Stock, if any, will be changed to a right to convert each $1,000 principal amount
of such Note into cash, the kind and amount of shares of stock, securities or other property or
assets (including cash or any combination thereof) that a holder of a number of shares of Common
Stock equal to the applicable Conversion Rate immediately prior to such transaction would have
owned or been entitled to receive (the “Reference Property”) and (ii) the related Conversion
Obligation shall be settled as set forth under clause (c) below, it being understood and agreed
that for purposes of Section 15.01(b), references therein to “the Last Reported Sale Price of the
Common Stock” shall be deemed at and after the effective time of such Merger Event to be
references to “the Last Reported Sale Price of a unit of Reference Property comprised of the kind
and amount of shares of stock, securities or other property or assets (including cash or any
combination thereof) that a holder of one share of Common Stock immediately prior to such Merger
Event would have owned or been entitled




69









 







to receive based on the Weighted Average Consideration” and references therein to “the Daily
VWAP of the Common Stock” shall be deemed at and after the effective time of such Merger Event to
be references to “the Daily VWAP of a unit of Reference Property comprised of the kind and amount
of shares of stock, securities or other property or assets (including cash or any combination
thereof) that a holder of one share of Common Stock immediately prior to such Merger Event would
have owned or been entitled to receive based on the Weighted Average Consideration.” The Company
shall not become a party to any Merger Event unless its terms are consistent with this Section
15.06. None of the foregoing provisions shall affect the right of a holder of Notes to convert
its Notes into cash or a combination of cash and shares of Common Stock, if any, as set forth in
Section 15.01 and Section 15.02 prior to the effective date of such Merger Event.




          (c) With respect to each $1,000 principal amount of Notes surrendered for conversion at or
after the effective date of any such Merger Event, the Company’s Conversion Obligation shall be
settled in cash or combination of cash and units of Reference Property, as applicable, in
accordance with Section 15.02(a) as follows:




     (i) (A) the portion of each Daily Settlement Amount payable in cash shall continue to be
payable in cash; (B) the portion, if any, of each Daily Settlement Amount payable in shares of
Common Stock shall be payable in units of Reference Property; (C) the Daily Conversion Value shall
be calculated based on the value of a unit of Reference Property corresponding to the amount of
Reference Property that a holder of one share of Common Stock would have received in such Merger
Event based on the Weighted Average Consideration; and (D) the Daily VWAP and the Last Reported
Sale Price shall be calculated with respect to a unit of Reference Property corresponding to the
amount of Reference Property that a holder of one share of Common Stock would have received in such
Merger Event based on the Weighted Average Consideration.



     (ii) The Company will deliver the cash in lieu of fractional units of Reference Property as
set forth pursuant to Section 15.02(j) (provided that the amount of such cash shall be determined
as if references in such Section to “the Daily VWAP of the Common Stock” were instead a reference
to “the Daily VWAP of a unit of Reference Property composed of the kind and amount of shares of
stock, securities or other property or assets (including cash or any combination thereof) that a
holder of one share of Common Stock immediately prior to such Merger Event would have owned or been
entitled to receive based on the Weighted Average Consideration”).



     (iii) The Daily Settlement Amounts (if applicable) and Daily Conversion Values (if applicable)
shall be determined by the Company promptly following the last day of the Cash Settlement Averaging
Period.



     (iv) For purposes of this Section 15.06, the “Weighted Average Consideration” shall mean the
weighted average of the types and amounts of consideration received by the holders of the Common
Stock entitled to receive cash, securities or other property or assets with respect to or in
exchange for such Common Stock in any Merger Event who affirmatively make such an election.



     (v) The Company shall notify the holders in writing of the Weighted Average



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Consideration as soon as practicable after the Weighted Average Consideration is determined.




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




          Section 15.07. Certain Covenants. (a)The Company covenants that all shares of Common Stock
issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from
all taxes, liens and charges with respect to the issue thereof.




          (b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will, to the extent then permitted by the rules and interpretations of the Commission,
secure such registration or approval, as the case may be.




          (c) The Company further covenants that if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system the Company will list and keep listed,
so long as the Common Stock shall be so listed on such exchange or automated quotation system, any
Common Stock issuable upon conversion of the Notes.




          Section 15.08. Responsibility of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Noteholder to determine the Conversion
Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment
(including any increase) of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same. The Trustee and any
other Conversion Agent shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities, property or cash that may at any
time be issued or delivered upon the conversion of any Note; and the Trustee and any other
Conversion Agent make no representations with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article. Without limiting the
generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 15.06 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Noteholders upon the conversion of
their Notes after any event referred to in such Section 15.06 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 8.01, may accept (without any
independent investigation) as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether
any event contemplated by Section 15.01(b) has occurred that makes the Notes eligible for
conversion or no longer eligible therefor until the Company has delivered to the Trustee and the
Conversion Agent the notices referred to in




71









 







Section 15.01(b) with respect to the commencement or termination of such conversion rights, on
which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to
deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of
any such event or at such other times as shall be provided for in Section 15.01(b).




          Section 15.09. Notice to Holders Prior to Certain Actions. In case: (a) the Company shall
declare a dividend (or any other distribution) on its Common Stock that would require an adjustment
in the Conversion Rate pursuant to Section 15.04; or




          (b) the Company shall authorize the granting to all of the holders of its Common Stock of
rights, options or warrants to subscribe for or purchase any share of any class or any other
rights, options or warrants; or




          (c) of any reclassification of the Common Stock of the Company (other than a subdivision or
combination of its outstanding Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is required, or of the sale
or transfer of all or substantially all of the assets of the Company; or




          (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;




          the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at its
address appearing on the Note Register, provided for in Section 2.06 of this Indenture, as promptly
as possible but in any event at least twenty days prior to the applicable date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights, options or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such dividend, distribution or
rights are to be determined, or (ii) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or
occur, and the date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.
Failure to give such notice, or any defect therein, shall not affect the legality or validity of
such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.




          Section 15.10. Stockholder Rights Plans. To the extent that the Company has a stockholder
rights plan or other “poison pill” in effect upon conversion of the Notes, each share of Common
Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of
rights, if any, and the certificates representing the Common Stock issued upon such conversion
shall bear such legends, if any, in each case as may be provided by the terms of any such
stockholder rights plan or poison pill, as the same may be amended from time to time. If, however,
prior to the time of conversion, the rights have separated from the shares of Common Stock in
accordance with the provisions of the applicable stockholder rights agreement so that the holders
of the Notes would not be entitled to receive any rights in respect of Common Stock, if any,
issuable upon conversion of the Notes, the Conversion Rate will be adjusted at the




72









 







time of separation as if the Company has distributed to all holders of Common Stock, shares of
Capital Stock of the Company, evidence of indebtedness or assets as provided in Section 15.04(c),
subject to readjustment in the event of the expiration, termination or redemption of such rights.




          Section 15.11. Exchange in Lieu of Conversion. (a) When a holder surrenders its Notes for
conversion, the Company may, at its election, direct the Conversion Agent to surrender, on or prior
to the second Business Day following the relevant Conversion Date, such Notes to a financial
institution designated by the Company (the “Designated Institution”) for exchange in lieu of
conversion. In order to accept any Notes surrendered for conversion for exchange in lieu of
conversion, the Designated Institution must agree to timely deliver, in exchange for such Notes,
the cash and shares of Common Stock, if any, that would otherwise be due upon conversion as
described in Section 15.02 above and in respect of which the Company has notified to converting
Noteholders. If the Company makes the election described above, the Company shall, by the close of
business on the second Business Day following the relevant Conversion Date, notify the holder
surrendering its Notes for conversion that it has made such election. In addition, the Company
shall concurrently notify the Designated Institution of the relevant deadline for delivery of the
consideration due upon conversion. Any Notes exchanged by the Designated Institution will remain
outstanding.




          (b) If the Designated Institution agrees to accept any Notes for exchange but does not timely
deliver the related consideration due upon conversion to the Conversion Agent, or if the
Designated Institution does not accept such Notes for exchange, the Company shall, within the time
period specified in Section 15.02(c), convert such Notes into cash and shares of Common Stock, if
any, in accordance with the provisions of Section 15.02.




          (c) For the avoidance of doubt, in no event will the Company’s designation of a Designated
Institution pursuant to this Section 15.11 require the Designated Institution to accept any Notes
for exchange.




          Section 15.12. Limit on Issuance of Shares of Common Stock upon Conversion. Notwithstanding
anything contained elsewhere in this Indenture, if and to the extent required by the shareholder
approval rules or listing standards of any national or regional securities exchange that are
applicable to the Company at the time any Notes are converted hereunder, in no event will the
aggregate number of shares of Common Stock issuable upon conversion of the Notes exceed 19.99% of
the Common Stock outstanding immediately before the issuance of the Notes and if an event
(including an increase in the Daily VWAP of the Common Stock) occurs that would otherwise result in
the delivery of a number of shares of Common Stock in excess of such threshold, the Company will
either obtain stockholder approval of any such issuance of Common Stock or deliver cash in lieu of
any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations
(based on the Daily VWAP of the Company’s Common Stock for the Trading Day of the relevant Cash
Settlement Averaging Period in respect of which shares of Common Stock were to be delivered.




ARTICLE 16

REPURCHASE OF NOTES AT OPTION OF HOLDERS





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          Section 16.01. Repurchase at Option of Holders upon a Fundamental Change. (a) If there shall
occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have
the right, at such holder’s option, to require the Company to repurchase for cash all of such
holder’s Notes, or any portion thereof that is an integral multiple of $1,000 principal amount, on
the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than
twenty calendar days and not more than thirty five calendar days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest, including unpaid Additional Interest and
Supplementary Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date
(the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after
an Interest Record Date and on or prior to the related Interest Payment Date, in which case
interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the
immediately preceding Interest Record Date and the Fundamental Change Repurchase Price payable to
the holder surrendering the Note for repurchase pursuant to this Article 16 shall be equal to the
principal amount of Notes subject to repurchase. Repurchases of Notes under this Section 16.01
shall be made, at the option of the holder thereof, upon:




     (i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental
Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit C thereto on
or prior to the Business Day immediately preceding the Fundamental Change Repurchase Date; and



     (ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after
delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at
the Corporate Trust Office of the Paying Agent, 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 16.01 only if the Note so delivered to
the Paying Agent 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 Notes to be delivered for repurchase;




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




          (C) that the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and the Indenture;



provided, however, that if the Notes are not in certificated form, the Fundamental Change
Repurchase Notice must comply with appropriate Depositary procedures.




          Any repurchase by the Company contemplated pursuant to the provisions of this Section 16.01
shall be consummated by the payment of the Fundamental Change Repurchase Price on the later of the
Fundamental Change Repurchase Date and the time of the book-entry




74









 







transfer or delivery of the Note as described in Section 16.03(a)




          Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 16.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date
by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 16.02
below.




          The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Repurchase Notice or written notice of withdrawal thereof.




          (b) On or before the twentieth calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the
Notes a written notice (the “Fundamental Change Company Notice”) of the occurrence of the
effective date of the Fundamental Change and of the repurchase right at the option of the holders
arising as a result thereof. Such mailing shall be by first class mail. The Company shall also
deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the
Conversion Agent within five Business Days after the effective date of the Fundamental Change.
Simultaneously with the providing of such notice, the Company will also publish a notice
containing the information set forth in the Fundamental Change Company Notice in a newspaper of
general circulation in The City of New York or publish such information on the Company’s website
or through such other public medium as the Company may use at that time. Each Fundamental Change
Company Notice shall specify:




     (i) the events causing the Fundamental Change;



     (ii) the date the Fundamental Change occurred, and whether the Fundamental Change is a
Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole Fundamental
Change shall be given;



     (iii) the last date on which a holder may exercise the repurchase right pursuant to this
Article 16;



     (iv) the Fundamental Change Repurchase Price;



     (v) the Fundamental Change Repurchase Date;



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



     (vii) if applicable, the applicable Conversion Rate, any adjustments to the applicable
Conversion Rate made or to be made on account of such Fundamental Change;



     (viii) if applicable, that the Notes 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 the Indenture;



75









 





     (ix) that the holder must exercise the repurchase right on or prior to the close of business
on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental
Change Expiration Time”);



     (x) that the holder shall have the right to withdraw any Notes surrendered prior to the
Fundamental Change Expiration Time; and



     (xi) the procedures that holders must follow to require the Company to repurchase their Notes.



          No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 16.01.




          (c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option
of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated
(except in the case of an acceleration resulting from a Default by the Company in the payment of
the Fundamental Change Repurchase Price with respect to such Notes), and such acceleration has not
been rescinded, on or prior to the Fundamental Change Repurchase Date.




          (d) In connection with any purchase offer pursuant to a Fundamental Change Purchase Notice,
the Company will, to the extent required:




     (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act, if required under the Exchange Act,



     (ii) file a Schedule TO or any successor or similar schedule under the Exchange Act, and



     (iii) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to purchase the Notes.



     Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company
with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance
with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will
not, standing alone, constitute an Event of Default solely as a result of compliance by the Company
with such rules.



          Section 16.02. Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change
Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the
Corporate Trust Office of the Paying Agent in accordance with this Section 16.02 at any time prior
to the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, specifying:




     (i) the certificate number, if any, of the Note in respect of which such notice of withdrawal
is being submitted,



76









 





     (ii) the principal amount of the Note with respect to which such notice of withdrawal is being
submitted, which must be $1,000 or an integral multiple thereof, and



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


provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.




          Section 16.03. Deposit of Fundamental Change Repurchase Price. (a) The Company will 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 5.04) on or
prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of
cash sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental
Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying
Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn
prior to the Fundamental Change Expiration Time) will be made on the later of (i) the Fundamental
Change Repurchase Date with respect to such Note (provided the holder has satisfied the conditions
in Section 16.01) and (ii) the time of book-entry transfer or the delivery of such Note to the
Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner
required by Section 16.01 by mailing checks for the amount payable to the holders of such Notes
entitled thereto as they shall appear in the Note Register, provided, however, that 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.




          (b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the
Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on
all the Notes or portions thereof that are to be repurchased as a result of the corresponding
Fundamental Change, then (i) such Notes will cease to be outstanding, (ii) interest, including
Additional Interest and Supplementary Interest, if any, will cease to accrue on such Notes, and
(iii) all other rights of the holders of such Notes will terminate (other than the right to
receive the Fundamental Change Repurchase Price, and previously accrued but unpaid interest,
including Additional Interest, if any, upon delivery of the Notes), whether or not book-entry
transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying
Agent.




          (c) Upon surrender of a Note that is to be repurchased in part pursuant to 16.02, the Company
shall execute and the Trustee shall authenticate and deliver to the holder a new Note in an
authorized denomination equal in principal amount to the unrepurchased portion of the Note
surrendered.




ARTICLE 17

MISCELLANEOUS PROVISIONS




77









 








          Section 17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.




          Section 17.02. Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the like board,
committee or officer of any corporation or other entity that shall at the time be the lawful sole
successor of the Company.




          Section 17.03. Addresses for Notices, Etc.Any notice or demand that by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by the Noteholders on
the Company shall be deemed to have been sufficiently given or made, for all purposes if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee) to Insulet
Corporation, 9 Oak Park Drive, Bedford, Massachusetts 01730, Attention: R. Anthony Diehl, Esq.,
with a copy to Raymond C. Zemlin, Esq., Goodwin Procter LLP, Exchange Place, Boston, Massachusetts
02109 (Fax: (617) 523-12131). Any notice, direction, request or demand hereunder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed to the Corporate Trust Office.




          The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.




          Any notice or communication mailed to a Noteholder shall be mailed to it by first class mail,
postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given
to it if so mailed within the time prescribed.




          Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.




          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 to holders by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.




          Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any
Note provides for notice of any event to a holder of a Global Note (whether by mail or otherwise),
such notice shall be sufficiently given if given to the Depositary for such Note (or its designee),
pursuant to customary procedures of such Depositary.




          Section 17.04. Governing Law. THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).




78









 








          Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent to such action have been satisfied and
such action is permitted by the terms of this Indenture.




          Each certificate provided for by or on behalf of the Company in this Indenture and delivered
to the Trustee with respect to compliance with this Indenture (other than the Officers’
Certificates provided for in Section 5.08) shall include (a) a statement that the Person making
such certificate is familiar with the requested action and this Indenture; (b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement contained in
such certificate is based; (c) a statement that, in the judgment of such person, he or she has made
such examination or investigation as is necessary to enable him or her to express an informed
judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to
whether or not, in the judgment of such Person, all conditions precedent to such action have been
satisfied and such action is permitted by this Indenture.




          Notwithstanding anything to the contrary in this Section 17.05, if any provision in this
Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in
connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall
be entitled to, or entitled to request, such Opinion of Counsel.




          Section 17.06. Legal Holidays. In any case where any Interest Payment Date, Fundamental
Change Repurchase Date, Conversion Date or Maturity Date is not be a Business Day, then any action
to be taken on such date need not be taken on such date, but may be taken on the next succeeding
Business Day with the same force and effect as if taken on such date, and no interest shall accrue
for the period from and after such date.




          Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.




          Section 17.08. Trust Indenture Act. This Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act upon such qualification; provided that this
Section 17.08 shall not require that this Indenture or the Trustee be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any party hereto that any
such qualification is required prior to the time such qualification is in fact required under the
terms of the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in an indenture qualified under the Trust
Indenture Act, such required provision shall control.




          Section 17.09. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Conversion
Agent, any authenticating agent, any Note Registrar and their successors



79









 






hereunder or the Noteholders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.




          Section 17.10. Table of Contents, Headings, Etc.. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.




          Section 17.11. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.05, Section 2.06, Section 2.07, Section 2.08, Section
11.04 and Section 16.03 as fully to all intents and purposes as though the authenticating agent had
been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes.
For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be
deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of
authentication. Such authenticating agent shall at all times be a Person eligible to serve as
trustee hereunder pursuant to Section 8.09.




          Any corporation or other entity into which any authenticating agent may be merged or converted
or with which it may be consolidated, or any corporation or other entity resulting from any merger,
consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to the corporate trust business of any authenticating agent, shall be
the successor of the authenticating agent hereunder, if such successor corporation or other entity
is otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.




          Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination 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 any
authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a
successor authenticating agent (which may be the Trustee), shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all Noteholders as the
names and addresses of such holders appear on the Note Register.




          The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.




          The provisions of Section 8.02, Section 8.03, Section 8.04, Section 9.03 and this Section
17.11 shall be applicable to any authenticating agent.




80









 








          If an authenticating agent is appointed pursuant to this Section, the Notes may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:





 ,

as Authenticating Agent, certifies that this is one of the Notes described

in the within-named Indenture.



	 	 	 	 	 
	 	 	 
	By:  	
 	 	 
	 	Authorized Officer 	 	 
	 	 	 	 
	 



          Section 17.12. Execution 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
but one and the same instrument.




          Section 17.13. Severability. In the event any provision of this Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or
impaired.




          Section 17.14. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.




          Section 17.15. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.






81









 








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




	 	 	 	 	 
	 	INSULET CORPORATION

 	 
	 	By:  	/s/ R. Anthony Diehl
 	 
	 	 	Name:  	R. Anthony Diehl 	 
	 	 	Title:  	General Counsel and Secretary 	 
	 
	 	WELLS FARGO BANK, N.A., as Trustee

 	 
	 	By:  	/s/ Lynn M. Steiner
 	 
	 	 	Name:  	Lynn M. Steiner 	 
	 	 	Title:  	Vice President 	 
	 














 








EXHIBIT A




[FORM OF FACE OF NOTE]



[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]



THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:






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




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




(A) TO INSULET CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES
ACT, OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, OR




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



A-1









 






SECURITIES ACT.


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




A-2









 








INSULET CORPORATION

5.375% Convertible Senior Note due 2013




	 	 	 
	No. [_____]
	 	$[_______]






CUSIP No. [                 ]




     Insulet Corporation, a corporation duly organized and validly existing under the laws of the
State of Delaware (herein called the “Company,” which term includes any successor corporation or
other entity under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to [CEDE & CO., or its registered assigns,]1 the principal sum of [     ]
Dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached
hereto,]2 on June 15, 2013, and interest thereon as set forth below, Additional Interest
in the manner, at the rates and to the Persons set forth in the Registration Rights Agreement and
Supplementary Interest in the manner, at the rates and to the Persons set forth in Section 7.01 of
the Indenture.



     The Company promises to pay interest on the principal amount of this Note at the rate of
5.375% per annum (subject to increase pursuant to Section 7.01 of the Indenture). The Company will
pay interest semi-annually on June 15 and December 15 of each year commencing on December 15, 2008,
to holders of record at the close of business on the preceding June 1 and December 1 (whether or
not such day is a Business Day), respectively. Interest on the Note will accrue from the most
recent date to which interest has been paid, or, if no interest has been paid on the Note, from
[       ], 20[   ].



     Payment of the principal of and accrued and unpaid interest, Additional Interest, if any, and
Supplementary Interest, if any, on this Note shall be made at the office or agency of the Company
maintained for that purpose, in such lawful money of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts; provided that, interest,
including Additional Interest and Supplementary Interest, if any, may be paid (1) with respect to
any Noteholder holding Notes in certificated form and having an aggregate principal amount of
$2,000,000 or less, by check mailed to the holders of such Notes and (2) with respect to any
Noteholder holding Notes in certificated form and having an aggregate principal amount of more than
$2,000,000, either by check mailed to such holder or, upon application by a holder to the Note
Registrar not later than on the relevant Interest 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 Note Registrar to the contrary; and provided
further, that any payment of interest, including Additional Interest and Supplementary Interest, if
any, to the Depositary or its nominee shall be paid by wire transfer in immediately available funds
in accordance with the wire transfer instruction supplied by the Depositary or its nominee from
time to time to the Trustee and Paying Agent (if different from Trustee).





 




			
	1	 	Use bracketed language for a Global Note.
	 
	2	 	Use bracketed language for a Global Note.




A-3









 










     Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the holder of this Note the right to convert this
Note into cash or a combination of cash and shares of Common Stock, if any, on the terms and
subject to the limitations set forth in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.



     This Note shall be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be construed in accordance with and governed by the laws of said State
(without regard to the conflicts of laws provisions thereof).



     This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.



[Remainder of page intentionally left blank]





A-4









 








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




	 	 	 	 	 
	 	INSULET CORPORATION

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

WELLS FARGO BANK, N.A.

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture.



	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Authorized Officer 	 	 
	 	 	 	 
	 




A-5











 





[FORM OF REVERSE OF NOTE]




INSULET CORPORATION

5.375% Convertible Senior Note due 2013




     This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.375%
Convertible Senior Notes due 2013 (herein called the “Notes”), limited to the aggregate principal
amount of $75,000,000 (or $85,000,000 if the Initial Purchasers exercise their option to purchase
additional Notes in full as set forth in the Purchase Agreement) all issued or to be issued under
and pursuant to an Indenture dated as of June 16, 2008 (herein called the “Indenture”), between the
Company and Wells Fargo Bank, N.A. (herein called the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal
amount, subject to certain conditions specified in the Indenture.



     In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest, including Additional Interest and Supplementary
Interest, if any, on all Notes may be declared, by either the Trustee or Noteholders of not less
than 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject to the conditions and certain
exceptions set forth in the Indenture.



     Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price and the principal amount on the
Maturity Date, as the case may be, to the holder who surrenders a Note to a Paying Agent to collect
such payments in respect of the Note. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and private debts.



     The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the holders of the Notes, and in other circumstances, with
the consent of the holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
modifying the terms of the Indenture and the Notes as described therein. It is also provided in
the Indenture that, subject to certain exceptions, the holders of a majority in aggregate principal
amount of the Notes at the time outstanding may on behalf of the holders of all of the Notes waive
any past Default or Event of Default under the Indenture and its consequences.



     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and accrued and unpaid interest, Additional Interest, if any, and Supplementary
Interest, if any, on this Note at the place, at the respective times, at the rate and in the lawful
money herein prescribed.



     The Notes are issuable in registered form without coupons in denominations of $1,000



A-6









 




principal amount and integral multiples thereof. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the limitations provided in the
Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations, without payment of any service charge but, if required by the Company or
Trustee, with payment of a sum sufficient to cover any tax, assessments or other governmental
charges that may be imposed in connection therewith as a result of the name of the Noteholder of
the new Notes issued upon such exchange of Notes being different from the name of the Noteholder of
the old Notes surrendered for such exchange.




     The Notes are not subject to redemption through the operation of any sinking fund or
otherwise.



     Upon the occurrence of a Fundamental Change and subject to certain exceptions, the holder has
the right, at such holder’s option, to require the Company to repurchase for cash all of such
holder’s Notes 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 the Fundamental Change
Repurchase Price.



     Subject to the provisions of the Indenture, the holder hereof has the right, at its option,
during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the close of business on the Business Day immediately preceding the Maturity Date, to
convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash, or
a combination of cash and shares of Common Stock, if any, at a Conversion Rate specified in the
Indenture, as adjusted from time to time as provided in the Indenture.



     Terms used in this Note and defined in the Indenture are used herein as therein defined.



A-7









 





ABBREVIATIONS



The following abbreviations, when used in the inscription of the face of this Note, shall be
construed as though they were written out in full according to applicable laws or regulations:




	 	 	 	 	 
	TEN COM — as tenants in common

	 	UNIF GIFT MIN ACT	 	 
	 
	 

	 	 	 	Custodian
	 

	 	 

	 	 
	 

	 	(Cust)	 	 






	 	 	 	 	 
	TEN ENT — as tenants by the entireties

	 	 	 	 
	 

	 	 

	 	 
	 
	 	(Minor)	 	 





JT TEN  — as joint tenants with right of

survivorship and not as tenants in common   Uniform Gifts to Minors Act ______ (State)




Additional abbreviations may also be used

though not in the above list.




A-8









 








SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE3




INSULET CORPORATION

5.375% Convertible Senior Notes due 2013




     The following increases or decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Signature of	 
	 	 	Amount of decrease in	 	 	Amount of increase in	 	 	Principal Amount of this	 	 	authorized signatory	 
	 	 	Principal Amount of this	 	 	Principal Amount of this	 	 	Global Note following such	 	 	of Trustee or	 
	Date	 	Global Note	 	 	Global Note	 	 	decrease or increase	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	3	 	For Global Notes only.




A-9









 










EXHIBIT B




[FORM OF NOTICE OF CONVERSION]




To: INSULET CORPORATION




     The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, into cash or a combination of cash and shares of Common Stock, as applicable, in
accordance with the terms of the Indenture referred to in this Note, and directs that any shares of
Common Stock issuable and deliverable upon such conversion, together with any cash comprising the
Daily Conversion Values or a portion of the Daily Settlement Amounts for each of the twenty five
Trading Days during the Cash Settlement Averaging Period and for any fractional shares, and any
Notes representing any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If any shares of Common
Stock or any portion of this Note not converted are to be issued in the name of a Person other than
the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Any
amount required to be paid to the undersigned on account of interest accompanies this Note.



	 	 	 	 	 
	 	 	 	 
	Dated:
	 	
 	 
	 	 	 	 
	 	 	 	 
	 	 	Signature(s)
 	 
	 	 	 	 
	 	 	 	 
	
	 	 	 	 
	Signature Guarantee	 	 	 	 
	 	 	 	 
	
Signature(s) must be guaranteed
by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions)
with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes to be delivered, other than
to and in the name of the registered holder.	 	 	 






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Fill in for registration of shares if to be issued,
and Notes if 
to be delivered, other than to and in the
name of the registered
 holder:




___________

(Name)



___________

(Street Address)




________________________

(City, State and Zip Code)

Please print name and address




	 	 	 	 	 
	 

	 	Principal amount to be converted (if less than all):
$_____,000
	 	 
	 
	 	 	 	 
	 

	 	NOTICE: The above signature(s) of the holder(s)
hereof must correspond with the name as written upon
the face of the Note in every particular without
alteration or enlargement or any change whatever.	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Social Security or Other Taxpayer Identification

Number	 	 







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EXHIBIT C




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]




To: INSULET CORPORATION



The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Insulet
Corporation (the “Company”) as to the occurrence of a Fundamental Change with respect to the
Company and specifying the Fundamental Change Repurchase Date and requests and instructs the
Company to repay to the registered holder hereof in accordance with the applicable provisions of
the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion
thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2)
if such Fundamental Change Repurchase Date does not fall during the period after an Interest Record
Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest,
including Additional Interest, if any, thereon to, but excluding, such Fundamental Change
Repurchase Date.



In the case of certificated Notes, the certificate numbers of the Notes to be repurchased are as
set forth below:




	 	 	 	 	 
	 	 	 
	Dated:

	 	 	 
	 	 	Signature(s)
 	 
	 	 	 
	 
	 	 	
	 
	 	 	Social Security or Other Taxpayer Identification Number
	 
	 	 	 	 
	 	 	Principal amount to be repaid (if less than all):
$_______,000	 
	 
	 	 	NOTICE: The above signature(s) of the holder(s) hereof
must correspond with the name as written upon the face
of the Note in every particular without alteration or
enlargement or any change whatever.	 









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EXHIBIT D




[FORM OF ASSIGNMENT AND TRANSFER]




For value received __________________ hereby sell(s), assign(s) and transfer(s) unto
______ (Please insert social security or Taxpayer Identification Number of assignee) the
within Note, and hereby irrevocably constitutes and appoints ______ attorney to
transfer the said Note on the books of the Company, with full power of substitution in the
premises.



In connection with any transfer of the within Note occurring prior to the Resale Restriction
Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that
such Note is being transferred:




	o	 	To Insulet Corporation or a subsidiary thereof; or
	 
	o	 	Pursuant to the registration statement that has become or been
declared effective under the Securities Act of 1933, as amended; or
	 
	o	 	Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
	 
	o	 	Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended; or
	 
	o	 	Pursuant to another available exemption from registration under the
Securities Act of 1933, as amended.




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Dated: __________________




	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	Signature(s)
 	 	 
	 
	 	 	 
	Signature Guarantee
 	 	 
	 	 	 
	 	 	 
	Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and
credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission
Rule 17Ad-15 Notes are to be delivered, other than to and in the name of the registered holder.
	 	 




NOTICE: The signature on the assignment must correspond with the name as written upon the face of
the Note in every particular without alteration or enlargement or any change whatever.





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