exv4w1






Exhibit 4.1




EXECUTION VERSION




 






DIGITAL RIVER, INC.,




as Issuer



AND



WELLS FARGO BANK, NATIONAL ASSOCIATION,



as Trustee



INDENTURE



Dated as of November 1, 2010



2.00% Convertible Senior Notes due 2030



 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 1

	Definitions; Interpretations

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	1.01.	 	 	Definitions
	 	 	1	 
	Section

	 	 	1.02.	 	 	References to Interest
	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 2

	Issue, Description, Execution, Registration and Exchange of Notes

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	2.01.	 	 	Designation and Amount
	 	 	13	 
	Section

	 	 	2.02.	 	 	Form of Notes
	 	 	13	 
	Section

	 	 	2.03.	 	 	Date and Denomination of Notes; Payments of Interest.
	 	 	14	 
	Section

	 	 	2.04.	 	 	Execution, Authentication and Delivery of Notes
	 	 	15	 
	Section

	 	 	2.05.	 	 	Exchange and Registration of Transfer of Notes; Restrictions
on Transfer; Depositary
	 	 	16	 
	Section

	 	 	2.06.	 	 	Mutilated, Destroyed, Lost or Stolen Notes
	 	 	22	 
	Section

	 	 	2.07.	 	 	Temporary Notes
	 	 	23	 
	Section

	 	 	2.08.	 	 	Cancellation of Notes Paid, Etc.
	 	 	24	 
	Section

	 	 	2.09.	 	 	CUSIP and ISIN Numbers
	 	 	24	 
	Section

	 	 	2.10.	 	 	Additional Notes; Purchases
	 	 	24	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 3

	Satisfaction and Discharge

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	3.01.	 	 	Satisfaction and Discharge
	 	 	25	 
	Section

	 	 	3.02.	 	 	Deposited Monies To Be Held In Trust
	 	 	25	 
	Section

	 	 	3.03.	 	 	Return Of Unclaimed Monies
	 	 	25	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 4

	Particular Covenants of the Company

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	4.01.	 	 	Payment of Principal and Interest
	 	 	26	 
	Section

	 	 	4.02.	 	 	Corporate Existence
	 	 	26	 
	Section

	 	 	4.03.	 	 	Rule 144A Information Requirement and Reports
	 	 	27	 
	Section

	 	 	4.04.	 	 	Compliance Certificate
	 	 	27	 
	Section

	 	 	4.05.	 	 	Maintenance of Office or Agency
	 	 	27	 
	Section

	 	 	4.06.	 	 	Paying Agents
	 	 	28	 
	Section

	 	 	4.07.	 	 	Appointment to Fill Vacancy in Office of Trustee
	 	 	29	 






i









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 5

	Holders’ Lists and Reports by the Company and the Trustee

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	5.01.	 	 	Company to Furnish Trustee Names and Addresses of Holders
	 	 	29	 
	Section

	 	 	5.02.	 	 	Preservation Of Information; Communications With Holders
	 	 	29	 
	Section

	 	 	5.03.	 	 	Reports by the Trustee
	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 6

	Default and Remedies

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	6.01.	 	 	Events of Default
	 	 	30	 
	Section

	 	 	6.02.	 	 	Acceleration of Maturity; Rescission and Annulment
	 	 	32	 
	Section

	 	 	6.03.	 	 	Other Remedies
	 	 	34	 
	Section

	 	 	6.04.	 	 	Waiver of Past Defaults
	 	 	34	 
	Section

	 	 	6.05.	 	 	Control by Majority
	 	 	34	 
	Section

	 	 	6.06.	 	 	Limitation On Suit
	 	 	35	 
	Section

	 	 	6.07.	 	 	Unconditional Rights of Holders to Receive Payment and to
Convert
	 	 	35	 
	Section

	 	 	6.08.	 	 	Collection of Indebtedness and Suits For Enforcement By
the Trustee
	 	 	36	 
	Section

	 	 	6.09.	 	 	Trustee May File Proofs of Claim
	 	 	36	 
	Section

	 	 	6.10.	 	 	Restoration of Rights and Remedies
	 	 	37	 
	Section

	 	 	6.11.	 	 	Rights and Remedies Cumulative
	 	 	37	 
	Section

	 	 	6.12.	 	 	Delay or Omission Not Waiver
	 	 	38	 
	Section

	 	 	6.13.	 	 	Application of Money Collected
	 	 	38	 
	Section

	 	 	6.14.	 	 	Undertaking For Costs
	 	 	38	 
	Section

	 	 	6.15.	 	 	Waiver of Stay or Extension Laws
	 	 	39	 
	Section

	 	 	6.16.	 	 	Notice of Default
	 	 	39	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 7

	Concerning the Trustee

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	7.01.	 	 	Certain Duties and Responsibilities of Trustee
	 	 	39	 
	Section

	 	 	7.02.	 	 	Certain Rights of Trustee
	 	 	41	 
	Section

	 	 	7.03.	 	 	Trustee Not Responsible for Recitals or Issuance or Notes
	 	 	43	 
	Section

	 	 	7.04.	 	 	May Hold Notes
	 	 	43	 
	Section

	 	 	7.05.	 	 	Moneys Held in Trust
	 	 	43	 
	Section

	 	 	7.06.	 	 	Compensation and Reimbursement
	 	 	43	 
	Section

	 	 	7.07.	 	 	Reliance on Officers’ Certificate and Opinions
	 	 	44	 
	Section

	 	 	7.08.	 	 	Corporate Trustee Required; Eligibility
	 	 	45	 
	Section

	 	 	7.09.	 	 	Resignation and Removal; Appointment of Successor
	 	 	45	 
	Section

	 	 	7.10.	 	 	Acceptance of Appointment By Successor
	 	 	47	 
	Section

	 	 	7.11.	 	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	48	 
	Section

	 	 	7.12.	 	 	Preferential Collection of Claims Against the Company
	 	 	48	 






ii









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 8

	Concerning the Holders

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	8.01.	 	 	Evidence of Action by Holders
	 	 	49	 
	Section

	 	 	8.02.	 	 	Proof of Execution by Holders
	 	 	49	 
	Section

	 	 	8.03.	 	 	Who May be Deemed Owners
	 	 	50	 
	Section

	 	 	8.04.	 	 	Certain Notes Owned by Company Disregarded
	 	 	50	 
	Section

	 	 	8.05.	 	 	Actions Binding on Future Holders
	 	 	50	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 9

	Amendments; Supplements And Waivers

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	9.01.	 	 	Without Consent of Holders
	 	 	51	 
	Section

	 	 	9.02.	 	 	With Consent of Holders
	 	 	52	 
	Section

	 	 	9.03.	 	 	Effect of Supplemental Indentures
	 	 	53	 
	Section

	 	 	9.04.	 	 	Notes Affected by Supplemental Indentures
	 	 	53	 
	Section

	 	 	9.05.	 	 	Execution of Supplemental Indentures
	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 10

	Consolidation; Merger; Conveyance; Transfer Or Lease

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	10.01.	 	 	Company May Consolidate, Etc., Only on Certain Terms
	 	 	54	 
	Section

	 	 	10.02.	 	 	Successor Substituted
	 	 	55	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 11

	Immunity of Incorporators, Stockholders, Officers and Directors

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	11.01.	 	 	No Recourse
	 	 	55	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 12

	Additional Interest

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	12.01.	 	 	Additional Interest
	 	 	56	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 13

	Conversion of Notes

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	13.01.	 	 	Conversion Privilege and Conversion Rate
	 	 	57	 
	Section

	 	 	13.02.	 	 	Make-Whole Fundamental Change Premium
	 	 	58	 
	Section

	 	 	13.03.	 	 	Conversion Procedure
	 	 	61	 
	Section

	 	 	13.04.	 	 	Fractional Shares
	 	 	62	 
	Section

	 	 	13.05.	 	 	Taxes on Conversion
	 	 	63	 
	Section

	 	 	13.06.	 	 	Company to Provide Common Stock
	 	 	63	 
	Section

	 	 	13.07.	 	 	Adjustment of Conversion Rate
	 	 	63	 
	Section

	 	 	13.08.	 	 	When No Adjustment is Required
	 	 	72	 
	Section

	 	 	13.09.	 	 	Notice of Adjustment
	 	 	72	 






iii









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	13.10.	 	 	Notice of Certain Transactions
	 	 	73	 
	Section

	 	 	13.11.	 	 	Effect of Reclassification, Consolidation,
Merger or Sale On Conversion Privilege
	 	 	73	 
	Section

	 	 	13.12.	 	 	Trustee’s Disclaimer
	 	 	74	 
	Section

	 	 	13.13.	 	 	Voluntary Increase; NASDAQ Compliance
	 	 	74	 
	Section

	 	 	13.14.	 	 	Rights Plan
	 	 	75	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 14

	Repurchase of Notes at Option of Holders

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	14.01.	 	 	Repurchase at Option of Holders
	 	 	75	 
	Section

	 	 	14.02.	 	 	Withdrawal of Repurchase Notice
	 	 	77	 
	Section

	 	 	14.03.	 	 	Deposit of Repurchase Price
	 	 	78	 
	Section

	 	 	14.04.	 	 	Repayment To The Company
	 	 	79	 
	Section

	 	 	14.05.	 	 	Notes Repurchased In Part
	 	 	79	 
	Section

	 	 	14.06.	 	 	Covenant to Comply with Applicable Laws Upon Repurchase of Notes
	 	 	79	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 15

	Optional Redemption

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	15.01.	 	 	Optional Redemption
	 	 	79	 
	Section

	 	 	15.02.	 	 	Notice of Optional Redemption; Selection of Notes
	 	 	80	 
	Section

	 	 	15.03.	 	 	Payment of Notes Called for Redemption
	 	 	81	 
	Section

	 	 	15.04.	 	 	Restrictions on Redemption
	 	 	82	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 16

	Repurchase Of Notes Upon a Fundamental Change

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	16.01.	 	 	Repurchase of Notes at Option of the Holder Upon a Fundamental Change
	 	 	82	 
	Section

	 	 	16.02.	 	 	Withdrawal of Fundamental Change Repurchase Notice
	 	 	85	 
	Section

	 	 	16.03.	 	 	Deposit of Fundamental Change Repurchase Price
	 	 	85	 
	Section

	 	 	16.04.	 	 	Repayment to the Company
	 	 	86	 
	Section

	 	 	16.05.	 	 	Notes Repurchased In Part
	 	 	86	 
	Section

	 	 	16.06.	 	 	Covenant to Comply with Applicable Laws Upon Repurchase of Notes
	 	 	86	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 17

	Meeting Of Holders Of Notes

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	17.01.	 	 	Purposes For Which Meetings May Be Called
	 	 	87	 
	Section

	 	 	17.02.	 	 	Call Notice and Place of Meetings
	 	 	87	 
	Section

	 	 	17.03.	 	 	Persons Entitled to Vote at Meetings
	 	 	88	 
	Section

	 	 	17.04.	 	 	Quorum; Action
	 	 	88	 






iv









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	17.05.	 	 	Determination of Voting Rights; Conduct and Adjournment
of Meetings
	 	 	88	 
	Section

	 	 	17.06.	 	 	Counting Votes and Recording Action of Meetings
	 	 	89	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 18

	Miscellaneous Provisions

	 
	 	 	 	 	 	 	 	 	 	 
	Section

	 	 	18.01.	 	 	Provisions Binding on Company’s Successors
	 	 	90	 
	Section

	 	 	18.02.	 	 	Official Acts by Successor
	 	 	90	 
	Section

	 	 	18.03.	 	 	Notices
	 	 	90	 
	Section

	 	 	18.04.	 	 	Governing Law
	 	 	90	 
	Section

	 	 	18.05.	 	 	Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee
	 	 	90	 
	Section

	 	 	18.06.	 	 	Legal Holidays
	 	 	91	 
	Section

	 	 	18.07.	 	 	No Security Interest Created
	 	 	91	 
	Section

	 	 	18.08.	 	 	Benefits of Indenture
	 	 	91	 
	Section

	 	 	18.09.	 	 	Table of Contents, Headings, Etc.
	 	 	91	 
	Section

	 	 	18.10.	 	 	Execution in Counterparts
	 	 	92	 
	Section

	 	 	18.11.	 	 	Severability
	 	 	92	 
	Section

	 	 	18.12.	 	 	Waiver of Jury Trial
	 	 	92	 
	Section

	 	 	18.13.	 	 	Consent to Jurisdiction
	 	 	92	 
	Section

	 	 	18.14.	 	 	Force Majeure
	 	 	93	 
	Section

	 	 	18.15.	 	 	Calculations
	 	 	93	 
	Section

	 	 	18.16.	 	 	U.S.A. Patriot Act
	 	 	93	 





Exhibit A — Form of Note





v











 





     INDENTURE dated as of November 1, 2010 between Digital River, Inc., a Delaware
corporation, as issuer (the “Company”) and Wells Fargo Bank, National Association, a national
banking association, as trustee (the “Trustee”).



WITNESSETH:




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
2.00% Convertible Senior Notes due 2030 (the “Notes”), initially in an aggregate principal amount
not to exceed $345,000,000, 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;



     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, the Form of
Repurchase Date Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes
are to be substantially in the forms hereinafter provided; 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, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and to constitute
these presents 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; Interpretations



     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



1









 




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 the 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. Unless otherwise noted, references to “U.S. Dollars” or “$” shall mean the currency of
the United States.




     “Additional Interest” shall have the meaning specified in Section 12.01(a).



     “Additional Interest Event” shall have the meaning specified in Section 12.01(a).



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



     “Agent Members” shall have the meaning specified in Section 2.05(b).



     “Applicable Procedures” means, with respect to any conversion, repurchase, transfer or
exchange of beneficial ownership interests in a Global Note, the rules and procedures of the
Depositary, to the extent applicable to such conversion, transfer or exchange.



     “Bankruptcy Law” shall have the meaning specified in Section 6.01.



     “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee of such Board.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full
force and effect on the date of such certification.



     “Business Day” means any day other than a Saturday, a Sunday or a day on which the Paying
Agent or the Federal Reserve Bank of New York is authorized or required by law or executive order
to close or be closed.



2









 





     “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated) the
equity of such Person, but excluding any debt securities convertible into such equity.



     “Cash” or “cash” means such coin or currency of the United States as at any time of payment is
legal tender for the payment of public and private debts.



     “Change of Control” means the occurrence of any of the following events from and after the
Issue Date:



     (i) the acquisition by any “person”, including any syndicate or group deemed to be a “person”
under Section 13(d)(3) of the Exchange Act of beneficial ownership (determined in accordance with
the definition of “beneficial owner” in Rule 13d-3 under the Exchange Act), directly or indirectly,
through a purchase, merger or other acquisition transaction or series of transactions of shares of
the Company’s Capital Stock entitling that person to exercise 50% or more of the total voting power
of all shares of the Company’s Voting Stock, other than any acquisition by the Company, any
Subsidiary of the Company or any of the Company’s employee benefit plans;



     (ii) any (A) recapitalization, reclassification or change of the Common Stock (other than
changes resulting from a subdivision or combination) as a result of which the Common Stock would be
converted into, or exchanged for, stock, other securities, other property or assets or (B) share
exchange with, consolidation with, or merger with or into, another Person or another Person
exchanges its shares of common stock with, consolidates with or merges with or into, the Company,
or (C) conveyance, transfer, sale, lease or other disposition of all or substantially all of the
Company’s and its Subsidiaries’ properties and assets to another Person; provided that any
transaction pursuant to which holders of the Company’s Capital Stock immediately prior to the
transaction that is a share exchange, consolidation or merger have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting power of all shares of the Voting Stock of
the continuing or surviving Person immediately after such transaction in substantially the same
proportions as such entitlement immediately prior to such transaction shall not be a Change of
Control pursuant to this clause (ii);



     (iii) the Company’s stockholders pass a resolution approving a plan of liquidation or
dissolution; or



     (iv) Continuing Directors cease to constitute at least a majority of the Board of Directors.



     Notwithstanding anything to the contrary set forth herein, a Change of Control shall be deemed
not to have occurred if, in the case of a merger or consolidation, 100% of the consideration
(excluding cash payments for fractional



3









 




shares and cash payments pursuant to dissenters’ appraisal
rights) received or to be received in connection with such merger or consolidation constituting a
Change of Control consists of shares of common stock traded or quoted on any of The New York Stock
Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective
successors), or which shall be so traded or quoted when issued or exchanged in connection with such
Change in Control, and as a result of the transaction or transactions the Notes become convertible
solely into such consideration, excluding cash payments for fractional shares and cash payments
pursuant to dissenters’ appraisal rights.




     “Clause A Distribution” shall have the meaning specified in Section 13.07(c).



     “Clause B Distribution” shall have the meaning specified in Section 13.07(c).



     “Clause C Distribution” shall have the meaning specified in Section 13.07(c).



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



     “Commission” means the Securities and Exchange Commission.



     “Common Stock” means the shares of common stock of the Company, par value $0.01 per share, as
it exists on the date of this Indenture or any other shares of Capital Stock of the Company into
which the Common Stock shall be reclassified or changed.



     “Company” means Digital River, Inc., a corporation duly organized and existing under the laws
of the State of Delaware, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Notice” shall have the meaning specified in Section 14.01.



     “Company Order” means a written order of the Company, delivered to the Trustee and signed by
(a) two Officers of the Company or (b) one Officer of the Company and one of the Treasurer, any
Assistant Treasurer, the Secretary, any Assistant Secretary or the Controller of the Company.



     “Continuing Director” means a director who either was a member of the Board of Directors on
October 25, 2010 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



4









 




the Company on behalf of the entire Board of Directors in which such individual is named as nominee for director.
Solely for purposes of this definition, the phrase “or a committee of such board duly authorized to
act for it hereunder” of the definition of Board of Directors shall be disregarded.




     “Conversion Agent” means the office or agency designated by the Company pursuant to Section
4.05 where Notes may be presented for conversion.



     “Conversion Date” shall have the meaning specified in Section 13.03(a).



     “Conversion Price” per share of Common Stock as of any day means the result obtained by
dividing (i) $1,000 by (ii) the then applicable Conversion Rate.



     “Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon
conversion, which rate shall be initially 20.3537 shares of Common Stock for each $1,000 principal
amount of Notes, as adjusted from time to time pursuant to the provisions of this Indenture.



     “Corporate Trust Office” means the office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered, which office at the date hereof is
located at Wells Fargo Bank, National Association, N9311-110, 625 Marquette Avenue, Minneapolis, MN
55479.



     “Custodian” means the Trustee, as custodian for DTC, with respect to the Global Notes, or any
successor entity thereto.



     “Default” means any event, act or condition that with notice or lapse of time, or both, would
constitute 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 May 1 or November 1.



     “Depositary” means, with respect to the Global Notes, the Person specified in Section 2.05(c)
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.



     “DTC” shall have the meaning specified in Section 2.05(c).



     “Event of Default” shall have the meaning specified in Section 6.01.



     “Ex-Dividend Date” means, in respect of an issuance, a dividend or distribution to holders of
Common Stock, the first date on which shares of Common Stock trade on the applicable exchange or in
the applicable market,



5









 




regular way, without the right to receive such 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 13.07(e).



     “Expiration Time” shall have the meaning specified in Section 13.07(e).



     “Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as
Attachment 4 to the Form of Note attached hereto as Exhibit A.



     “Form of Fundamental Change Repurchase Notice” shall mean the “Form of Fundamental Change
Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.



     “Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A.



     “Form of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached as
Attachment 1 to the Form of Note attached hereto as Exhibit A.



     “Form of Repurchase Date Repurchase Notice” shall mean the “Form of Repurchase Date Repurchase
Notice” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.



     “Fundamental Change” means the occurrence of either a Change of Control or a Termination of
Trading.



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



     “Fundamental Change Effective Date” means the date on which any Fundamental Change becomes
effective.



     “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(c)(i).



     “Fundamental Change Repurchase Price” of any Note, means 100% of the principal amount of the
Note to be repurchased plus unpaid interest, if any,



6









 




accrued and unpaid to, but excluding, the
Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date is
after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the
Fundamental Change Repurchase Price shall not include any accrued and unpaid interest.




     “Global Note” shall have the meaning specified in Section 2.05(b).



     “Holder” or “Holder of a Note” means the person in whose name a Note is registered on the Note
Registrar’s books.



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



     “Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley
& Co. Incorporated and Piper Jaffray & Co.



     “Interest Payment Date” means each May 1 and November 1 of each year, beginning on May 1,
2011; provided, however, that if any Interest Payment Date falls on a date that is not a Business
Day, such payment of interest shall be postponed until the next succeeding Business Day, and no
interest or other amount shall be paid as a result of such postponement.



     “Issue Date” of any Note means the date on which the Note was originally issued or deemed
issued as set forth on the face of the Note.



     “Last Reported Sale Price” of the Common Stock on any date means the closing sale price per
share of the Common Stock (or if no closing sale price is reported, the average of the bid and ask
prices per share or, if more than one in either case, the average of the average bid and the
average ask prices per share) on such date reported in composite transactions for the primary
exchange or quotation system on which the Common Stock is then traded or quoted. If the Common
Stock is not so traded or quoted on such date, the “Last Reported Sale Price” shall be the last
quoted bid price for the Common Stock in the over-the-counter market on the relevant date as
reported by Pink OTC Markets Inc. or a similar organization. If the Common Stock is not so quoted,
the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices
for the Common Stock on such date from each of at least three nationally recognized independent
investment banking firms selected by the Company for this purpose.



     “Make-Whole Fundamental Change” means any Fundamental Change as described in the definition
thereof, and determined after giving effect to any exceptions or exclusions to such definition or
any other definition incorporated in such definition, but without regard to the proviso in clause
(ii) of the definition of Change of Control.



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     “Make-Whole Fundamental Change Effective Date” means the date on which any Make-Whole
Fundamental Change becomes effective.



     “Make-Whole Fundamental Change Notice” shall have the meaning specified in Section 13.01(h).



     “Make-Whole Fundamental Change Premium” shall have the meaning specified in Section 13.02.



     “Market Disruption Event” means (a) a failure by the primary exchange or quotation system on
which the Common Stock trades or is quoted 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 for
the Common Stock, of an aggregate one half-hour period of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the
Common Stock or in any options, contracts or future contracts relating to the Common Stock.



     “Maturity Date” means November 1, 2030.



     “Note” or “Notes” shall have the meaning specified in the first “Whereas” clause of this
Indenture.



     “Note Register” shall have the meaning specified in Section 2.05(a).



     “Note Registrar” shall have the meaning specified in Section 2.05(a).



     “Offering Memorandum” means the final offering memorandum dated October 26, 2010, relating to
the offering and sale of the Notes pursuant to the Purchase Agreement.



     “Officer” means, with respect to the Company, the President, the Chief Executive Officer, the
Chief Financial Officer, the Secretary, any Executive or Senior Vice President or any Vice
President (whether or not designated by a number or numbers or word or words added before or after
the title “Vice President”).



     “Officers’ Certificate,” when used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed by (a) two Officers of the Company or (b) one Officer
of the Company and one of the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company. Each such certificate shall include the statements
provided for in Section 18.05 if and to the extent required by the provisions of such Section. One
of the Officers giving an Officers’ Certificate pursuant to Section 4.04 shall be the principal
executive, financial or accounting officer of the Company.



8









 





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



     “Opinion of Counsel” means a written opinion, subject to customary exceptions, from legal
counsel who is reasonably acceptable to the Trustee that is delivered to the Trustee in accordance
with the terms hereof. The counsel may be an employee of or counsel to the Company or the Trustee.
Each such opinion shall include the statements provided for in Section 18.05 if and to the extent
required by the provisions thereof.



     “Optional Redemption” shall have the meaning specified in Section 15.01.



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




     (i) Notes theretofore canceled by the Trustee or accepted by the Trustee for
cancellation;




     (ii) Notes, or portions thereof, that have become due and payable and in respect 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);




     (iii) Notes that have been paid pursuant to Section 2.08 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 2.06 unless proof satisfactory to the Trustee is
presented that any such Notes are held by protected purchasers in due course;




     (iv) Notes converted pursuant to Article 13 and required to be canceled pursuant to
Section 2.08; and




     (v) Notes repurchased by the Company pursuant to the penultimate sentence of Section
2.10.



     “Paying Agent” means the office or agency designated by the Company pursuant to Section 4.05
where Notes may be presented for payment.



     “Person” or “person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act or any other entity.



9









 





     “Physical Notes” means certificated Notes in registered form issued in denominations of $2,000
principal amount and greater integral multiples of $1,000.



     “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 2.06 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.



     “Purchase Agreement” means that certain Purchase Agreement, dated as of October 26, 2010,
among the Company and the Initial Purchasers.



     “Record Date” means, with respect to any dividend, distribution or other transaction or event
in which the holders of Common Stock (or other applicable 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 holders of the Common Stock (or other applicable security) entitled to receive
such cash, securities or other property (whether such date is fixed by the Board of Directors, by
statute, by contract or otherwise).



     “Receiver” shall have the meaning specified in Section 6.01.



     “Redemption Date” shall have the meaning specified in Section 15.02.



     “Redemption Notice” shall have the meaning specified in Section 15.02 .



     “Redemption Price” shall have the meaning specified in Section 15.01.



     “Reference Property” shall have the meaning specified in Section 13.11.



     “Regular Record Date” means, with respect to any Interest Payment Date, the April 15 or
October 15 (whether or not such day is a Business Day) immediately preceding such Interest Payment
Date.



     “Repurchase Date” shall have the meaning specified in Section 14.01(a).



     “Repurchase Notice” shall have the meaning specified in Section 14.01(a).



     “Repurchase Price” shall have the meaning specified in Section 14.01(a).



     “Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).



10









 





     “Responsible Officer” means 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.



     “Restricted Securities” shall have the meaning specified in Section 2.05(c).



     “Rights” means any common stock or preferred stock purchase right or warrant, as the case may
be, that all or substantially all shares of Common Stock may be entitled to receive under a Rights
Plan.



     “Rights Plan” means any common stock or preferred stock rights plan or any similar plan
adopted by the Company after the date hereof.



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



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



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



     “Special Interest” shall have the meaning specified in Section 6.02.



     “Spin-Off” shall have the meaning specified in Section 13.07(c).



     “Stock Price” means the price paid or deemed to be paid per share of the Common Stock in
connection with a Make-Whole Fundamental Change, subject to adjustment and as determined pursuant
to Section 13.02.



     “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.



     “Termination of Trading” means the Common Stock (or other common stock into which the Notes
are convertible) ceases to be listed or quoted on any of



11









 




The New York Stock Exchange, The NASDAQ
Global Select Market or The NASDAQ Global Market (or any of their respective successors).




     “Trading Day” means a day during which trading in the Common Stock generally occurs on the
primary exchange or quotation system on which the Common Stock is then traded or quoted and there
is no Market Disruption Event or, if the Common Stock is not then so traded or quoted, on the
principal other market on which the Common Stock is then traded. If the Common Stock is not so
traded, “Trading Day” means a Business Day.



     “transfer” shall have the meaning specified in Section 2.05(c).



     “Trigger Event” shall have the meaning specified in Section 13.07(c).



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as 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.



     “United States” means the United States of America.



     “Valuation Period” shall have the meaning specified in Section 13.07(c).



     “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding
and entitled (without regard to the occurrence of any contingency within the control of such person
to satisfy) to vote generally in the election of directors, managers or trustees thereof.



     Section 1.02. References to Interest. Any reference to the payment of interest on, or in
respect of, any Note in this Indenture shall be deemed to include mention of the payment of Special
Interest (if applicable) and Additional Interest (if applicable) if, in such context, Special
Interest and Additional Interest, as applicable, was, or would be, payable pursuant to Section 6.02
and Section 12.01, respectively. An express mention of the payment of Special Interest (if
applicable) or Additional Interest (if applicable) in any provision hereof shall not be construed
as excluding Additional Interest or Special Interest, as applicable, in those provisions hereof
where such express mention is not made.



12









 





ARTICLE 2




Issue, Description, Execution, Registration and Exchange of Notes



     Section 2.01. Designation and Amount. The Notes shall be designated as the “2.00%
Convertible Senior Notes due 2030.” The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is initially limited to $345,000,000, subject to
Section 2.10 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 2.05, Section 2.06 and Section 2.07.



     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 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 as may be required by the
Custodian or the Depositary, 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, redemptions, transfers, exchanges or issuances of additional Notes
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 written instructions given by
the Holder of such Notes in accordance with this Indenture. Payment of principal (including any
Redemption Price, Repurchase Price or Fundamental Change Repurchase Price, as applicable) of, and
accrued and unpaid 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



13









 




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 denominations of $2,000 principal amount and greater
integral multiples of $1,000. 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 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 Regular Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest payable on such Interest Payment Date. Interest shall be
payable at the office of the Paying Agent, which shall initially be the Corporate Trust Office of
the Trustee as the Company’s Paying Agent and Note Registrar. The Company shall pay interest on any
Notes in certificated form (i) to the Person entitled thereto having an aggregate principal amount
of $2,000,000 or less, by check mailed to such Person at the address set forth in the Note Register
and (ii) to the Person entitled thereto having an aggregate principal amount of more than
$2,000,000, either by check mailed to such Person or, upon application by such Person to the Note
Registrar not later than the relevant Regular Record Date, by wire transfer in immediately
available funds to such Person’s account within the United States, which application and wire
transfer instructions shall remain in effect until such Person notifies, in writing, the Note
Registrar to the contrary.



     Any Defaulted Interest shall forthwith cease to be payable to the Holder of such Note on the
relevant Regular Record Date by virtue of its having been such Holder, 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 proposed to be paid on each Note and the date of the proposed payment (which shall be not
less than 20 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 or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed
payment, 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.



14









 




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. The Company shall promptly
notify the Trustee in writing 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 or mailed, first-class postage prepaid, 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 mailed, 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, if, after written notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.



     Section 2.04. 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 any Officer.



     At any time and from time to time after the date of the execution and delivery of this
Indenture, the Company may, in accordance with the terms of this
Indenture, deliver additional 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 a Responsible
Officer of the Trustee (or an authorized officer of an authenticating agent appointed by the
Trustee), shall be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate of authentication executed 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.



15









 





     All Notes shall be dated that date of their authentication.



     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 Person as, at the actual date
of the execution of such Note, shall be an Officer of the Company, although at the date of the
execution of this Indenture any such person was not such an Officer.



     The Trustee shall have the right to decline to authenticate and deliver any Notes under this
Indenture if the Trustee, being advised by counsel, determines that such action may not lawfully be
taken or if the Trustee in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.



     Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the
register maintained in such office or in any other office or agency of the Company 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. The Note Register shall be in written form or in any form capable of being
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 a new Note Registrar without prior notice to Holders. The Company may
appoint one or more co-registrars.



     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
2.05, 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 4.05. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes



16









 




that the Holder 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, purchase 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 or instruments of
transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its
attorney-in-fact duly authorized in writing.



     No service charge shall be charged by the Company, the Trustee or the Notes Registrar to the
Holder for any exchange or registration of transfer of Notes, but the Holder may be required by the
Company, the Trustee, the Notes Registrar or otherwise to pay 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 Holder of the new Notes issued upon such exchange or registration of transfer of
Notes being different from the name of the Holder 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 any Notes surrendered for conversion, redemption or repurchase
except for any portion of that Note that is not being repurchased, redeemed or converted, as the
case may be.



     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. For greater certainty, all Notes issued upon any registration of transfer
or exchange of Notes shall be issued as evidence of the same continuing indebtedness of the Company
under this Indenture and in no circumstances is the Company obligated under the Indenture to repay
the principal amount of the exchanged Notes by virtue of the registration of a transfer or
exchange.



     (b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law or except as provided in Section 2.05(c), 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 Note in certificated form shall be effected
through the Depositary (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. Beneficial interests in the Global Note shall be held only in minimum denominations of
$2,000 and greater integral multiples of $1,000. Members of, or participants in, the Depositary
(“Agent Members”)



17









 




shall have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of any Holder.




     (c) Every Note that bears or is required under this Section 2.05(c) to bear the legend set
forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes
and required to bear a similar legend, the “Restricted Securities”) shall be subject to the
restrictions on transfer set forth in this Section 2.05(c) (including the legend set forth below),
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 2.05(c), the term “transfer”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.



     Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date
that is one year after the last date of original issuance of the Notes (including, if applicable,
through exercise by the Initial Purchasers of their option to purchase additional Notes pursuant to
the Purchase Agreement) 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, and all shares of Common Stock, if any, issued upon conversion thereof, if applicable)
shall bear a legend in substantially the following form (unless such Notes or shares of Common
Stock, if any, 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
written notice thereof to the Trustee):



     THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, OR
OF A BENEFICIAL OWNERSHIP HEREIN, THE ACQUIRER: (I) 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



18









 




SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
AND (II) AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) ONE YEAR AFTER THE LAST DATE OF
ORIGINAL ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL
NOTES) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, OFFER, RESELL, PLEDGE OR OTHERWISE
TRANSFER THE NOTES EVIDENCED HEREBY, THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTES OR ANY
BENEFICIAL OWNERSHIP HEREIN, EXCEPT: (A) TO DIGITAL RIVER, INC. (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF; (B) UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT; (C)
TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144,
IF AVAILABLE; AND (2) THAT, PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (1)(D)
ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, AND THAT IT WILL DELIVER ANY SUCH CERTIFICATION, LEGAL OPINIONS OR OTHER INFORMATION TO THE
COMPANY AND THE TRUSTEE. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS NOTE OTHER THAN
UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A TRANSACTION THAT RESULTS IN SUCH NOTE NO
LONGER BEING “RESTRICTED SECURITIES” (AS DEFINED UNDER RULE 144). NO REPRESENTATION IS MADE AS TO
THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH
PURCHASER AND TRANSFEREE OF A NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF A NOTE WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND





19









 







HOLDING OF THE NOTE AND THE COMMON STOCK ISSUABLE
UPON CONVERSION OF THE NOTE THAT (A) ITS PURCHASE AND HOLDING OF THE NOTE AND THE COMMON STOCK
ISSUABLE UPON CONVERSION OF THE NOTE IS NOT MADE ON BEHALF OF OR WITH “PLAN ASSETS” OF ANY PLAN
SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW OR (B) ITS PURCHASE AND
HOLDING OF THE NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTE WILL NOT RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW.




     Any Common Stock issued upon conversion of the Notes prior to the Resale Restriction
Termination Date shall bear a similar legend.



     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 Form of Assignment and Transfer has been
checked.



     Notwithstanding anything to the contrary contained in this Indenture or the Note, such 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 2.05, 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 2.05(c).



     Notwithstanding any other provisions of this Indenture (other than the provisions set forth in
this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except 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.



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



     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 with
respect to the Notes has occurred and is continuing, in each case, upon the request of the



20









 




beneficial owner of the Notes, the Company shall execute, and the Trustee, upon receipt of an
Officers’ Certificate and a Company Order for the authentication and delivery of Notes, shall
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.




     Notes in certificated form issued in exchange for all or a part of the Global Note pursuant to
this Section 2.05(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 in writing. Upon execution and authentication, the Trustee shall deliver such
Notes in certificated form to the Persons in whose names such Notes are so registered.



     At such time as all interests in a Global Note have been converted, canceled, redeemed,
repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in a Global Note is
exchanged for Notes in certificated form, converted, canceled, redeemed, repurchased or transferred
to a transferee who receives Notes in certificated form therefor or any Note in certificated form
is exchanged or transferred for part of such Global Note, the principal amount of such Global Note
shall, in accordance with the standing procedures and instructions existing between the Depositary
and the Custodian, 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.



     None of the Company, the Trustee, nor any agent of the Company or the Trustee shall 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.



     (d) The Company may cause the removal of the legends required by Section 2.05(c) from any
Global Note at any time on or after the Resale Restriction Termination Date by: (i) instructing
the Trustee in writing to remove such legends from such Global Note; (ii) providing to the Trustee
and the Depositary written notice to change the CUSIP number for the Notes to the applicable
unrestricted CUSIP number; and (iii) complying with any Applicable
Procedures for delegending or otherwise exchanging such Global Note for a Global Note not
bearing the restrictive legend (including DTC’s mandatory exchange process, if applicable);
whereupon any legends otherwise required by



21









 




Section 2.05(c) shall be deemed removed from any Global
Notes without any further action on the part of the Holders.




     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 form with the express requirements hereof.



     Section 2.06. 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
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 the 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 the
authenticating agent, evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.



     The Trustee or the authenticating agent, if applicable, may authenticate any such substituted
Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the
Company and, if applicable, the 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 redemption, repurchase on a Repurchase Date or
repurchase upon a Fundamental Change or is about to be converted 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 the
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



22









 




of destruction, loss or theft, evidence satisfactory to the Company, 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 2.06 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, payment,
conversion, redemption 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
hereafter enacted to the contrary with respect to the replacement, payment or conversion of
negotiable instruments or other securities without their surrender.



     For greater certainty, every substitute Note issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Note is mutilated, destroyed, lost or stolen shall be issued as
evidence of the same continuing indebtedness of the Company under this Indenture and in no
circumstances is the Company obligated under the Indenture to repay the principal amount of the
substituted Note by virtue of such mutilation, destruction or loss.



     Section 2.07. 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
written request of the Company, 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 shall 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 4.05 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



23









 




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.




     For greater certainty, each Note issued pursuant to the provisions of this Section 2.07 in
exchange for a temporary Note shall be issued as evidence of the same continuing indebtedness of
the Company under this Indenture and in no circumstances is the Company obligated under the
Indenture to repay the principal amount of the temporary Note by virtue of the exchange.



     Section 2.08. Cancellation of Notes Paid, Etc. All Notes surrendered for the purpose of
payment, repurchase, redemption, 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 cancellation, shall deliver a written
confirmation of such cancellation 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 2.09. CUSIP and ISIN Numbers. The Company in issuing the Notes may use “CUSIP” and
“ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” and “ISIN”
numbers in all notices issued to Holders of the Notes as a convenience to such Holders; 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 shall promptly notify the Trustee in
writing of any change in the “CUSIP” or “ISIN” numbers.



     Section 2.10. Additional Notes; Purchases. The Company may, without the consent of the
Holders of the Notes and notwithstanding Section 2.01, issue additional Notes hereunder with the
same terms and with the same CUSIP and ISIN number as the Notes initially issued hereunder in an
unlimited aggregate principal amount, which shall form the same series with the Notes initially
issued hereunder; provided that no such additional Notes may be issued unless they are fungible
with the Notes initially issued hereunder for U.S. federal income tax purposes. Prior to the
issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an
Opinion of Counsel (with respect to the enforceability of such additional notes) and an Officers’
Certificate to the effect that such issuance of additional Notes complies with the provisions of
the



24









 




Indenture (including this Section 2.10). In addition, the Company may, to the extent permitted
by law, directly or indirectly (regardless of whether such Notes are surrendered to the Company),
from time to time purchase the Notes in open
market purchases or negotiated transactions without prior notice to Holders. The Company
shall cause any Notes so repurchased (other than Notes purchased pursuant to cash-settled swaps or
other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section
2.08 and any Notes so repurchased by the Company shall be deemed to be no longer Outstanding under
this Indenture.




ARTICLE 3




Satisfaction and Discharge



     Section 3.01. 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) the Company delivers to the Trustee all Outstanding Notes (other
than Notes replaced pursuant to Section 2.06) for cancellation; or (ii) the Company has deposited
with the Trustee or delivered to Holders of Notes, as applicable, after the Notes have become due
and payable, whether at the Maturity Date, or any Repurchase Date, any Fundamental Change
Repurchase Date, or upon redemption, conversion or otherwise, cash and/or (in the case of
conversion) shares of Common Stock (together with cash in lieu of fractional shares), as
applicable, sufficient to pay all of the Outstanding Notes and all other sums 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 7.06 shall survive such satisfaction and discharge.



     Section 3.02. Deposited Monies To Be Held In Trust. Subject to Section 3.03 hereof, all
monies deposited with the Trustee pursuant to Section 3.01 hereof shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent (including the Company if
acting as its own Paying Agent), to the Holders for the payment of which such monies have been
deposited with the Trustee, of all sums due and to become due thereon for principal and interest.
All monies deposited with the Trustee pursuant to Section 3.01 hereof (and held by it or any Paying
Agent) for the payment of Notes subsequently converted shall be returned to the Company upon
written request of the Company.



     Section 3.03. Return Of Unclaimed Monies. The Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for



25









 




the payment of principal of or accrued and
unpaid interest on the Notes that remains unclaimed for two years after the date upon which such
payment shall have become due. Notwithstanding the foregoing, the Trustee and Paying Agent shall
have the right to withhold payment of such money to the Company until the Trustee or Paying Agent
at the expense of the Company publishes in a newspaper
of general circulation in New York City, or mails to each Holder, a notice stating that such
money shall be repaid to the Company if unclaimed after a date no less than 30 days from the
publication of such press release or mailing. After payment to the Company by the Trustee or Paying
Agent, all liability of the Trustee and the Paying Agent with respect to such money shall cease,
and Holders entitled to the money must look to the Company for payment as general creditors,
subject to applicable law.




ARTICLE 4




Particular Covenants of the Company



     Section 4.01. Payment of Principal and Interest. (a) The Company shall promptly make all
payments in respect of the Notes on the dates and in the manner provided in the Notes and this
Indenture. A payment of principal or interest shall be considered paid on the date it is due if the
Paying Agent holds by 11:00 a.m. (New York City time) on that date money or securities, deposited
by or on behalf of the Company sufficient to make the payment. The Company shall, to the fullest
extent permitted by law, pay interest in immediately available funds on any overdue principal
amount and interest at the annual rate borne by the Notes compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such interest shall be
payable on demand.



     (b) Payment of the principal of and interest, if any, on the Notes shall be made at the office
or agency of the Company maintained for that purpose, which shall initially be at the Trustee’s
Corporate Trust Office, in such immediately available coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts;
provided, however, that, subject to Section 2.03, the Company may pay principal and interest in
respect of any Note in certificated form by check or wire transfer payable in such money.
Notwithstanding the foregoing, so long as the Notes are registered in the name of a Depositary or
its nominee, all payments thereon shall be made by wire transfer of immediately available funds to
the account of the Depositary or its nominee.



     Section 4.02. Corporate Existence. Subject to Article 10 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence and rights (charter and statutory);



26









 




provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company determines that the preservation
thereof is no longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.




     Section 4.03. Rule 144A Information Requirement and 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) under the Securities Act, upon written request, provide to any Holder, beneficial
owner 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.



     (b) The Company shall furnish to the Trustee within 15 calendar days after the Company is
required to file any documents or reports with the Commission pursuant to Sections 13 or 15(d) of
the Exchange Act (giving effect to all applicable grace periods provided under the Exchange Act
including that provided by Rule 12b-25 under the Exchange Act) copies of such documents or reports.
Any such document or report that the Company files with the Commission through the Commission’s
EDGAR system shall be deemed furnished to the Trustee for purposes of this Section 4.03(b) at the
time such documents are filed or furnished via the Commission’s EDGAR system; provided that the
Trustee shall have no responsibility for determining whether such filing has taken place, nor shall
the Trustee have any liability for the timeliness or content of any filing or report hereunder.



     Section 4.04. Compliance Certificate. 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
December 31, 2010) an Officers’ Certificate stating whether or not, to the knowledge of such
officer, the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have knowledge. Within five
Business Days of an Officer of the Company coming to have actual knowledge of a Default or Event of
Default, regardless of the date, the Company shall deliver an Officers’ Certificate to the Trustee
specifying such Default or Event of Default and the nature and status thereof.



     Section 4.05. Maintenance of Office or Agency. So long as any Notes remain Outstanding, the
Company agrees to maintain an office or agency with respect to such Notes and at such other
location or locations as may be designated as provided in this Section 4.05, where (i) Notes may be
presented for conversion



27









 




(“Conversion Agent”), (ii) Notes may be presented for payment (whether
upon repurchase, redemption, at the Maturity Date, upon acceleration or otherwise) (“Paying
Agent”), (iii) Notes may be presented as herein above authorized for registration of transfer and
exchange and (iv) notices and demands to or upon the Company in respect of the Notes and this
Indenture may be given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by any two officers authorized to sign an
Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. 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, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands. The Company initially appoints the Corporate Trust Office of
the Trustee as Conversion Agent and Paying Agent with respect to the Notes.




     Section 4.06. Paying Agents. (a) If the Company shall appoint one or more paying agents for
the Notes, other than the Trustee, the Company shall cause each 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 4.06:




     (i) that it shall hold all sums held by it as such agent for the payment of the
principal of or interest on the Notes (whether such sums have been paid to it by the
Company or by any other obligor of such Notes) in trust for the benefit of the Persons
entitled thereto;




     (ii) that it shall give the Trustee written notice of any failure by the Company to
make any payment of the principal of or interest on the Notes when the same shall be due
and payable;




     (iii) that it shall, at any time during the continuance of any failure referred to in
the preceding paragraph (a)(ii) above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent; and




     (iv) that it shall perform all other duties of a paying agent as set forth in this
Indenture.



     (b) If the Company shall act as its own paying agent with respect to any Notes, it shall on or
before each due date of the principal of or interest on the Notes, set aside, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay such principal or
interest so becoming due on Notes until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee in writing of such action, or



28









 




any failure to take such action.
The Trustee shall have no liability or responsibility for the
action or inaction of any Paying Agent (that is not the Trustee).




     (c) Notwithstanding anything in this Section 4.06 to the contrary, (i) the agreement to hold
sums in trust as provided in this Section 4.06 is subject to the provisions of Section 3.02 and
Section 3.03 and (ii) the Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; 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 money.



     Section 4.07. Appointment to Fill Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, shall appoint, in the manner
provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.



ARTICLE 5




Holders’ Lists and Reports by the Company and the Trustee



     Section 5.01. Company to Furnish Trustee Names and Addresses of Holders. The Company shall
furnish or cause to be furnished to the Trustee (a) within ten days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders as of such regular record date, provided that the Company shall not be obligated to furnish
or cause to furnish such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee
may request in writing within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that, in either case, no such list need be furnished for any Notes
for which the Trustee shall be the Note Registrar.



     Section 5.02. Preservation Of Information; Communications With Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Notes contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and addresses of Holders of Notes
received by the Trustee in its capacity as Note Registrar (if acting in such capacity).




29












 





     (b) The Trustee may destroy any list furnished to it as provided in Section 5.01 upon
receipt of a new list so furnished.



     (c) The rights of Holders to communicate with other Holders with 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.



     (d) Every Holder, by receiving and holding a Note, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders made pursuant
hereto or otherwise in accordance with the Trust Indenture Act.



     Section 5.03. Reports by the Trustee.



     (a) On or before July 1 in each year, commencing July 1, 2011, in which any of the Notes are
Outstanding, the Trustee shall transmit by mail, first-class postage prepaid, to the Holders, as
their names and addresses appear upon the Note Register, a brief report dated as of the preceding
May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.



     (b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.



     (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with the Company, with each securities exchange upon which any Notes are listed (if so
listed) and also with the Securities and Exchange Commission. The Company agrees to promptly notify
the Trustee in writing when any Notes become listed on any securities exchange and of any delisting
thereof.



ARTICLE 6




Default and Remedies



     Section 6.01. Events of Default. An “Event of Default” shall occur when any of the following
occurs:



     (a) the Company fails to pay when due the principal of any of the Notes at the Maturity Date,
upon redemption, upon exercise of a repurchase right hereunder or otherwise;



     (b) the Company fails to pay an installment of interest on any of the Notes for 30 days or
more after the date when due;



30









 





     (c) the Company fails to deliver when due all shares of Common Stock, together with cash
instead of fractional shares, and/or other property, if applicable, deliverable or payable, as the case may be, upon conversion of the Notes pursuant to Article
13, which failure continues for a period of five Business Days;



     (d) the Company fails to provide a Fundamental Change Company Notice when due pursuant to
Section 16.01;



     (e) the Company fails to comply with its obligations under Section 10.01;



     (f) the Company fails to perform or observe any other term, covenant or agreement contained in
the Notes or this Indenture for a period of 60 days after written notice of such failure, requiring
the Company to remedy the same, shall have been given 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
then-Outstanding Notes;



     (g) default by the Company or any Subsidiary of the Company with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $10.0 million in the
aggregate of the Company and/or any such Subsidiary, whether such indebtedness now exists or shall
hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable
or (ii) constituting a failure to pay the principal or interest of any such debt when due and
payable at its stated maturity, upon required repurchase, upon declaration of acceleration or
otherwise; provided, however, that if such default ceases or is cured, waived, rescinded or
annulled, then the related Event of Default under this Indenture shall be deemed no longer to be
continuing;



     (h) an involuntary case or other proceeding shall be commenced against the Company seeking
liquidation, reorganization or other relief with respect to the Company 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
substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 30 consecutive days; or



     (i) the Company pursuant to or within the meaning of any Bankruptcy Law:




     (i) commences as a debtor a voluntary case or proceeding;




     (ii) consents to the entry of an order for relief against it in an involuntary case
or proceeding or the commencement of any case against it;



31









 






     (iii) consents to the appointment of a Receiver of it or for all or substantially all
of its property;




     (iv) makes a general assignment for the benefit of its creditors;




     (v) files a petition in bankruptcy or answer or consent seeking reorganization or
relief; or




     (vi) consents to the filing of such a petition or the appointment of or taking
possession by a Receiver.



     The term “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto)
or any similar federal or state law for the relief of debtors. The term “Receiver” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.



     Section 6.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default
with respect to Outstanding Notes (other than an Event of Default specified Section 6.01(h) or
Section 6.01(i) hereof in respect of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then-Outstanding Notes, by written
notice to the Trustee, may declare the Notes due and payable at their principal amount plus any
accrued and unpaid interest, and thereupon the Trustee may, at its discretion, proceed to protect
and enforce the rights of the Holders by the appropriate judicial proceedings. Such declaration
may be rescinded and annulled with the written consent of the Holders of a majority in aggregate
principal amount of the then-Outstanding Notes, subject to the provisions of this Indenture.



     If an Event of Default specified in Section 6.01(h) or Section 6.01(i) hereof occurs and is
continuing, then all unpaid principal of and accrued and unpaid interest on the Outstanding Notes
shall become immediately due and payable, without any declaration or other act on the part of the
Trustee or any Holder.



     Notwithstanding the foregoing, at the election of the Company, the sole remedy for an Event of
Default specified in Section 6.01(f) relating to the failure by the Company to comply with its
reporting obligations under Section 4.03 and for any failure to comply with the requirements of
Section 314(a)(1) of the Trust Indenture Act, shall (i) for the first 90 days after the occurrence
of such an Event of Default, consist exclusively of the right to receive special interest on Notes
(the “Special Interest”) at an annual rate equal to 0.25% per annum of the principal amount of the
Outstanding Notes, and (ii) for the next 90 days after the expiration of such 90-day period,
consist exclusively of the right to receive Special Interest on the Notes at an annual rate equal
to 0.50% per annum of the principal amount of the Outstanding Notes.



32









 





     The Special Interest shall be paid semiannually in arrears, with the first semiannual payment
due on the first Interest Payment Date following the date on which the Special Interest began to
accrue on any Notes. The Special Interest shall accrue on all Outstanding Notes from, and
including, the date on which an Event of Default relating to a failure to comply with the reporting obligations under Section
4.03 or a failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act
first occurs to, but not including, the 180th day thereafter (or such earlier date on which the
Event of Default relating to such reporting obligations shall have been cured or waived). On such
180th day (or earlier, if such Event of Default is cured or waived pursuant to Section 6.04 prior
to such 180th day), such Special Interest will cease to accrue and, if such Event of Default
relating to such reporting obligations has not been cured or waived prior to such 180th day the
Notes shall be subject to acceleration as provided above in this Section 6.02. The provisions
described in this paragraph shall not affect the rights of the Holders in the event of the
occurrence of any other Event of Default. In the event the Company does not elect to pay Special
Interest upon an Event of Default in accordance with this paragraph, the Notes will be subject to
acceleration as provided in this Section 6.02. If the Company elects to pay Special Interest as
the sole remedy for an Event of Default specified in Section 6.01(d) relating to the failure by the
Company to comply with its obligations under Section 4.03 or any failure to comply with the
requirements of Section 314(a)(1) of the Trust Indenture Act, the Company shall notify in writing,
in the manner provided for in Section 18.03, the Holders and the Trustee of such election at any
time on or before the close of business on the date on which such Event of Default first occurs. If
the Company fails to timely give such notice, the Notes shall be subject to acceleration as
provided in this Section 6.02.



     The Holders of a majority in aggregate principal amount of the then-Outstanding Notes by
written notice to the Trustee may rescind and annul an acceleration and its consequences if:



     (1) all existing Events of Default, other than the nonpayment of principal (including the
Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable)
of or interest on the Notes which has become due solely because of the acceleration, have been
remedied, cured or waived; and



     (2) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction;


provided, however, that in the event such declaration of acceleration has been made based on the
existence of an Event of Default under Section 6.01(g) hereof and such Event of Default has been
remedied, cured or waived in accordance with Section 6.01(g) hereof, then, without any further
action by the Holders, such declaration of acceleration shall be rescinded automatically and the
consequences


33









 






of such declaration shall be annulled. No such rescission or annulment shall affect
any subsequent Default or impair any right consequent thereon.




     Section 6.03. Other Remedies. If an Event of Default with respect to Outstanding Notes
occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or interest on
the Notes or to enforce the performance of any provision of the Notes.



     Section 6.04. Waiver of Past Defaults. The Holders, either (a) through the written consent of
not less than a majority in aggregate principal amount of the Notes then Outstanding or (b) by the
adoption of a resolution, at a meeting of Holders of the Notes then Outstanding at which a quorum
is present, by the Holders of at least a majority in aggregate principal amount of the Outstanding
Notes represented at such meeting, may, on behalf of the Holders of all of the Notes, waive an
existing Default or Event of Default, except a Default or Event of Default:



     (1) in the payment of the principal of (including the Redemption Price, the Repurchase Price
or the Fundamental Change Repurchase Price, if applicable) or interest on any Note;



     (2) in respect of the right to convert any Note in accordance with Article 13; or



     (3) in respect of the covenants or provisions hereof which, under Section 9.02 hereof, cannot
be modified or amended without the consent of the Holder of each Outstanding Note affected.



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



     Section 6.05. Control by Majority. The Holders, either (a) through the written consent of not
less than a majority in aggregate principal amount of the Notes then Outstanding, or (b) by the
adoption of a resolution, at a meeting of Holders of the Notes then Outstanding at which a quorum
is present, by the Holders of at least a majority in aggregate principal amount of the Outstanding
Notes represented at such meeting, 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, subject to the provisions of this Indenture. However, the Trustee may
refuse to follow any direction that:



     (a) conflicts with any law or with this Indenture;



34









 





     (b) the Trustee determines may be unduly prejudicial to the rights of the Holders not joining
therein; or



     (c) in the Trustee’s reasonable judgment may expose the Trustee to personal liability.



     The Trustee may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.



     Section 6.06. Limitation On Suit. No Holder of any Note may pursue any remedy with respect
to this Indenture or the Notes (including instituting any proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver or trustee), except, in the case of
a Default or Event of Default in the payment of the principal of (including the Redemption Price,
the Repurchase Price or the Fundamental Change Repurchase Price, if applicable) or interest on the
Notes or Default in the delivery of the shares of Common Stock and payment of cash in lieu of
fractional shares due upon conversion of Notes, unless:



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



     (b) the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding
shall have made a written request to the Trustee to pursue the remedy;



     (c) such Holder or Holders have offered the Trustee security or indemnity reasonably
satisfactory to the Trustee against any costs, liabilities or expenses incurred in complying with
such request;



     (d) the Trustee does not, within 60 days after receipt of the request and offer of indemnity,
receive an inconsistent direction from the Holders of a majority in principal amount of the Notes;
and



     (e) the Trustee has failed to comply with the request for 60 days after the receipt of such
request and an offer of indemnity.



     A Holder of Notes may not use this Indenture to prejudice the rights of another Holder of
Notes or to obtain a preference or priority over another Holder of Notes (it being understood that
the Trustee does not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders).



     Section 6.07. Unconditional Rights of Holders to Receive Payment and to Convert. In addition
to the other rights and remedies set forth in this Article 6, the following shall apply with
respect to the Notes under this Indenture.



35









 





     Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal amount (including
the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if
applicable), interest and the Make-Whole Fundamental Change Premium, if any, in respect of the
Notes held by such Holder, on or after the respective due dates expressed in the Notes and this
Indenture, and to convert such Note in accordance with Article 13, and to bring suit for the enforcement of any such payment on or after such respective due dates or
for the right to convert in accordance with Article 13, and shall not be impaired or affected
without the consent of such Holder.



     Section 6.08. Collection of Indebtedness and Suits For Enforcement By the Trustee. The
Company covenants that if an Event of Default occurs under Section 6.01(a) or Section 6.01(b), then
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Notes, the whole amount then due and payable (as expressed therein or as a result of any
acceleration effected pursuant to Section 6.02 hereof) on such Notes for principal (including the
Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price, if applicable) and on any overdue interest, in each case at the rate borne
by the Notes from the required payment date, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.



     If the Company fails 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 and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever situated.



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



     Section 6.09. Trustee May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the



36









 




Company or the property of the Company or its creditors, the
Trustee (irrespective of whether the principal of the Notes (including the Redemption Price, the
Repurchase Price or the Fundamental Change Repurchase Price, if applicable) 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 on the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise, (1) to file and prove a
claim for the whole amount of principal (including the Redemption Price, the Repurchase Price and
the Fundamental Change Repurchase Price, if applicable) and interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be 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 any other amounts due to the Trustee hereunder) and of the
Holders of Notes allowed in such judicial proceeding, and (2) to collect and receive any moneys or
other property payable or deliverable on any such claim and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceedings is hereby authorized by each Holder of Notes to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders of Notes, to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts
due the Trustee under this Indenture.




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



     Section 6.10. Restoration of Rights and Remedies. If the Trustee or any Holder of a Note has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders of Notes shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.



     Section 6.11. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.06, no right
or remedy conferred in this Indenture upon or reserved to the Trustee or to the Holders of Notes is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the



37









 




extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.




     Section 6.12. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence
therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders
of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders of Notes, as the case may be.



     Section 6.13. Application of Money Collected. Any money and property collected by the
Trustee pursuant to this Article 6 shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money and property on account of
principal (including the Redemption Price, the Repurchase Price and the Fundamental Change
Repurchase Price, if applicable) or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee, including its agents and counsel;



     SECOND: To the payment of the amounts then due and unpaid for principal (including the
Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable)
of and interest on the Notes in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and
payable on such Notes for principal (including the Redemption Price, the Repurchase Price and the
Fundamental Change Repurchase Price, if applicable) and interest, respectively; and



     THIRD: Any remaining amounts shall be repaid to the Company.



     Section 6.14. Undertaking For Costs. All parties to this Indenture agree, and each Holder of
any Note by such Holder’s 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, suffered or omitted by it as
Trustee with respect to the Notes, 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



38









 




defenses made by such party litigant; but
the provisions of this Section 6.14 shall not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in aggregate principal amount of the Notes then Outstanding, or to
any suit instituted by any Holder of any Note for the enforcement of the payment of the principal
(including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price,
if applicable) of or interest on any Note on or after the stated maturity expressed in such Note,
on or after the Redemption Date (in the case of Notes called for redemption), on or after the
Repurchase Date (in the case of Notes the Company is required to repurchase pursuant to Article
14), or on or after the Fundamental Change Repurchase Date (in the case of Notes the Company is
required to repurchase pursuant to Article 16) or for the enforcement of the right to convert any Note in accordance
with Article 13.




     Section 6.15. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.



     Section 6.16. Notice of Default. If any Default or any Event of Default occurs and is
continuing and if such Default or Event of Default is actually known to a Responsible Officer of
the Trustee, the Trustee shall within 90 days of the occurrence of a Default or Event of Default,
mail to each Holder notice of all uncured Defaults or Events of Default known to the Trustee,
unless such Default or Event of Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of (including the Redemption Price, the Repurchase
Price and the Fundamental Change Repurchase Price, if applicable) or interest on any Note, the
Trustee shall be protected in withholding such notice if the Trustee in good faith determines that
the withholding of such notice is in the interest of such Holders.



ARTICLE 7




Concerning the Trustee



     Section 7.01. Certain Duties and Responsibilities of Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform with respect



39









 




to the Notes such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to the Notes such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or her own affairs.




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




     (i) prior to the occurrence of an Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:




     (A) the duties and obligations of the Trustee shall with respect to the
Notes be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable with respect to the Notes except for
the performance of such duties and obligations as are specifically set forth in
this Indenture and subject to the terms of this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and




     (B) in the absence of bad faith on the part of the Trustee, the Trustee may
with respect to the Notes 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
provision 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 mathematical calculations or other facts stated
therein);




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




     (iii) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of not less
than a majority in principal amount of



40









 







the Notes at the time Outstanding 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
with respect to the Notes; and




     (iv) 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 if
there is reasonable ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.



     Section 7.02. Certain Rights of Trustee. Except as otherwise provided in Section 7.01:



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



     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company by
any authorized officer of the Company (unless other evidence in respect thereof is specifically
prescribed herein);



     (c) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection in respect
of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;



     (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 Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and liabilities that may be
incurred therein or thereby;



     (e) the Trustee shall not be liable for any action taken or omitted to be taken by it in good
faith and believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents, unless requested in writing so to do
by the Holders of not less than a



41









 




majority in principal amount of the Outstanding Notes affected
thereby (determined as provided in Section 8.04) but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney; provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require indemnity reasonably satisfactory to the Trustee against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;




     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys or other professionals or consultants and may retain such parties in furtherance of its
administration hereunder and the Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent, attorney or other professional appointed with due care by it
hereunder;



     (h) in no event shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;



     (i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;



     (j) the Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder; and



     (k) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.



     In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (1) any Event of Default occurring pursuant to Section 6.01(a) and 6.01(b) or (2)
any Default or Event of Default of which the Trustee shall have received written notification in
the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained
actual



42









 




knowledge. Delivery of reports, information and documents to the Trustee under Section 4.03
is for informational purposes only and the information and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein, or determinable from
information contained therein including the Company’s compliance with any of their covenants
thereunder (as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).




     Section 7.03. Trustee Not Responsible for Recitals or Issuance or Notes.



     (a) The recitals contained herein and in the Notes shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the same.



     (b) The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Notes.



     (c) The Trustee shall not be accountable for the use or application by the Company of any of
the Notes or of the proceeds of such Notes, or for the use or application of any moneys paid over
by the Trustee in accordance with any provision of this Indenture, or for the use or application of any moneys received by any
Paying Agent other than the Trustee, acting in such capacity.



     Section 7.04. May Hold Notes. The Trustee or any Paying 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 Trustee, Paying Agent or Note Registrar.



     Section 7.05. Moneys Held in Trust. Subject to the provisions of Section 3.03, all moneys
received by the Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but 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 moneys received
by it hereunder except such as it may agree to in writing with the Company to pay thereon.



     Section 7.06. Compensation and Reimbursement.



     (a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall receive,
such compensation (which shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as
otherwise expressly provided herein, the Company shall pay or reimburse the Trustee upon its
request for all reasonable expenses,



43









 




disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its counsel and of all Persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from its negligence, willful
misconduct or bad faith and except as the Company and Trustee may from time to time agree in
writing. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any loss, liability or expense incurred
without negligence, willful misconduct or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim (whether asserted by the Company, any
Holder or any other Person) of liability in the premises.




     (b) The obligations of the Company under this Section 7.06 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Notes upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders.



     (c) The Company covenants and agrees to indemnify the Trustee for, and hold it harmless from
and against, any loss, liability or expense reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder except to the extent any such loss, liability or expense may be
attributable to its negligence, willful misconduct or bad faith.



     (d) In addition and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01(h) or Section 6.01(i), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable federal and state
bankruptcy, insolvency or other similar law.



     (e) The Company’s obligations under this Section 7.06 and the lien referred to in Section
7.06(b) shall survive the resignation or removal of the Trustee, the discharge of the Company’s
obligations under Article 3 of this Indenture and/or the termination of this Indenture.



     Section 7.07. Reliance on Officers’ Certificate and Opinions. Except as otherwise provided
in Section 7.01, whenever in the administration of the



44









 




provisions of this Indenture the Trustee
shall deem it reasonably necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of negligence, willful
misconduct or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate and Opinion of Counsel delivered to the Trustee and such
certificate or opinion, in the absence of negligence, willful misconduct or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the faith thereof.




     Section 7.08. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
with respect to the Notes issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or
of the District of Columbia, or a corporation or other Person that is eligible to act as such under
the Trust Indenture Act and permitted to act as trustee by the Securities and Exchange Commission,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia authority.



     If such corporation or other Person publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 7.08, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.08, the
Trustee shall resign immediately in the manner and with the effect specified in Section 7.09.



     Section 7.09. Resignation and Removal; Appointment of Successor.



     (a) The Trustee or any successor hereafter appointed may at any time resign with respect to
the Notes by giving written notice thereof to the Company. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with respect to the Notes 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 30 days after
the mailing of such notice of resignation, the resigning Trustee, at the expense of the Company,
may petition any court of competent jurisdiction for the appointment of a successor trustee with
respect to the Notes, or



45









 




any Holder who has been a bona fide Holder of Notes for at least six
months may 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 may
deem proper and prescribe, appoint a successor trustee.




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




     (i) the Trustee shall fail to comply with the provisions of Section 7.08 after
written request therefor by the Company or by any Holder who has been a bona fide Holder
of Notes for at least six months;




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.08 and shall fail to resign after written request therefor by the Company or by
any such Holder; or




     (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, 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 remove the Trustee with respect to the Notes 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 any Holder who has been a bona fide
Holder of Notes for at least six months may, on behalf of that Holder 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 may at any time remove the Trustee by so notifying the Trustee and the Company in
writing and may 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, at the expense of the Company, or any Holder, upon the terms
and conditions and otherwise as in Section 7.09(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 with
respect to the Notes pursuant to any of the provisions of this Section 7.09 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section 7.10.



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     Section 7.10. Acceptance of Appointment By Successor.



     (a) In case of the appointment hereunder of a successor trustee with respect to all Notes,
every such successor trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the written request of the Company or the successor trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor trustee all property and money held by such retiring
Trustee hereunder. The trustee shall have no liability or responsibility for the action or
inaction of any successor Trustee.



     (b) In case of the appointment hereunder of a successor trustee with respect to some, but not
all of the Notes, the Company, the retiring Trustee and each successor trustee with respect to such
Notes shall execute and deliver an indenture supplemental hereto wherein each successor trustee
shall accept such appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Notes to which the
appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and (iii) shall add to
or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee
shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall
with respect to the Notes to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the performance of the duties
and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes to which the appointment of
such successor trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor



47









 




trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Notes to which the appointment of such successor trustee relates.




     (c) Upon request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 7.10, as the
case may be.



     (d) No successor trustee shall accept its appointment unless at the time of such acceptance
such successor trustee shall be qualified and eligible under this Article 7.



     (e) Upon acceptance of appointment by a successor trustee as provided in this Section 7.10,
the Company shall transmit notice of the succession of such trustee hereunder by mail, first-class
postage prepaid, to the Holders, as their names and addresses appear upon the Note Register. If the
Company fails to transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be transmitted at the expense
of the Company.



     Section 7.11. Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall
be qualified under the provisions of Section 7.08 and eligible under the provisions of Section
7.08, without the execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Notes so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.



     Section 7.12. Preferential Collection of Claims Against the Company. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.



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ARTICLE 8




Concerning the Holders



     Section 8.01. Evidence of Action by Holders. Whenever in this Indenture it is provided that
the Holders of a majority or 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 majority or specified percentage of such Notes have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor executed by such Holders
of such Notes in person or by agent or proxy appointed in writing.



     If the Company shall solicit from the Holders any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at its option, as evidenced by an
Officers’ Certificate, fix in advance a record date for such Notes for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Notes shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Holders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.



     Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 8.01,
proof of the execution of any instrument by a Holder (such proof will not require notarization) or
his agent or proxy and proof of the holding by any Person of any of the Notes shall be sufficient
if made in the following manner:



     (a) The fact and date of the execution by any such Person of any instrument may be proved in
any reasonable manner acceptable to the Trustee.



     (b) The ownership of Notes shall be proved by the Note Register or by a certificate of the
Note Registrar thereof.



     The Trustee may require such additional proof of any matter referred to in this Section 8.02
as it shall deem necessary.




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     Section 8.03. Who May be Deemed Owners. Prior to the due presentment for registration
of transfer of any Note, the Company, the Trustee, any paying agent and any Note Registrar may deem
and treat the Person in whose name such Note shall be registered upon the books of the Note
Registrar as the absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other than the Note
Registrar) for the purpose of receiving payment of or on account of the principal of (including the
Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable)
and (subject to Section 2.03) interest on such Note and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Note Registrar shall be affected by any notice
to the contrary.



     Section 8.04. Certain Notes Owned by Company Disregarded. In determining whether the Holders
of the requisite aggregate principal amount of Notes have concurred in any direction, consent or
waiver under this Indenture, the Notes that are owned by the Company or any other obligor on the
Notes or by any Affiliate of the Company or any other obligor on the Notes shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except that for the purpose
of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be
so disregarded. The Notes so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 8.04, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the
pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In 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.



     Section 8.05. Actions Binding on Future Holders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders
of the majority or 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, and upon proof of holding as provided in Section 8.02, 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 Note issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made upon such Note. Any
action taken by the Holders of the majority or percentage in aggregate principal amount of the
Notes specified in this Indenture in connection with such



50









 




action shall be conclusively binding upon
the Company, the Trustee and the Holders.




ARTICLE 9

Amendments; Supplements And Waivers




     Section 9.01. Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Notes without notice to or consent of any Holder of a Note for any
of the following purposes:



     (a) to add to the covenants of the Company for the benefit of the Holders of Notes;



     (b) to surrender any right or power herein conferred upon the Company;



     (c) to make provision with respect to the conversion rights of Holders of Notes pursuant to
Section 13.11 hereof;



     (d) to provide for the assumption of the Company’s obligations to the Holders of Notes in the
case of a merger, consolidation, conveyance, transfer or lease pursuant to Article 10 hereof;



     (e) to increase the Conversion Rate; provided, however, that such increase in the Conversion
Rate shall not adversely affect the interests of the Holders of Notes in any material respect;



     (f) to comply with the requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;



     (g) to cure any ambiguity or correct or supplement any provision herein which may be
inconsistent with any other provision herein or which is otherwise defective; provided that such
action pursuant to this clause (g) does not adversely affect the interests of the Holders of Notes
in any material respect; provided further that any amendment made solely to conform the provisions
of this Indenture to the description thereof set forth under the caption “Description of Notes” in
the Offering Memorandum shall be deemed not to adversely affect the interest of the Holders if the
Company delivers an Officers’ Certificate to the Trustee certifying that such amendment is made
solely to so conform the provisions of this Indenture;



     (h) to add or modify any other provisions which the Company and the Trustee may deem necessary
or desirable and which shall not adversely affect the interests of the Holders of Notes in any
material respect; or



51









 





     (i) conform as necessary the Indenture and the form or terms of the Notes to the description
thereof set forth under the caption “Description of Notes” in the Offering Memorandum.



     After an amendment, supplement or waiver under this Section 9.01 becomes effective, the
Company or, at the written request of the Company, the Trustee shall mail to the Holders affected
thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.



     Section 9.02. With Consent of Holders. Except as provided below in this Section 9.02, this
Indenture or the Notes may be amended or supplemented, and noncompliance by the Company in any
particular instance with any provision of this Indenture or the Notes may be waived, in each case
(i) with the written consent of the Holders of at least a majority in aggregate principal amount of
the Notes then Outstanding or (ii) by the adoption of a resolution, at a meeting of Holders of the
Notes then Outstanding at which a quorum is present, by the Holders of a majority in aggregate
principal amount of the Outstanding Notes represented at such meeting.



     Without the written consent or the affirmative vote of each Holder of an affected Note, an
amendment, supplement or waiver to this Indenture or the Notes may not:



     (a) change the stated maturity of the principal of, or the time of payment of any installment
of interest on, any Note;



     (b) reduce the principal amount of any Note;



     (c) reduce the interest rate or interest on any Note;



     (d) change the currency of payment of principal of or interest on any Note;



     (e) change the ranking of the Notes;



     (f) impair the right receive, or institute suit for the enforcement of any payment with
respect to, or the conversion of, any Note;



     (g) except as otherwise permitted by Section 13.11 hereof, adversely affect the right to
convert any Note as provided in Article 13 hereof;



     (h) reduce the Redemption Price or otherwise adversely affect the right of Holders upon any
redemption of the Notes;



52









 





     (i) reduce the Repurchase Price, the Fundamental Change Repurchase Price or otherwise
adversely affect the right of Holders to require the Company to repurchase the Notes on a
Repurchase Date or in the event of a Fundamental Change;



     (j) modify any of the provisions of this Section 9.02, Section 6.04 or Section 6.12, except to
increase any percentage contained herein or therein or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of each Note affected
thereby; or



     (k) reduce the percentage in aggregate principal amount of the Outstanding Notes required for
the adoption of a resolution or the quorum required at any meeting of Holders of Notes at which a
resolution is adopted.



     It shall not be necessary for the consent of Holders of Notes under this Section 9.02 to
approve the particular form of any proposed modification, amendment or waiver, but it shall be
sufficient if such act shall approve the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company, or, at the written request of the Company, the Trustee, shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.



     Section 9.03. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 9 or Section 10.01 this Indenture shall be and
be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and
the Holders of Notes affected thereby 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 9.04. Notes Affected by Supplemental Indentures. Notes affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article 9 or Section 10.01, may bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture; provided such form meets the
requirements of any securities exchange upon which such Notes may be listed. If the Company shall
so determine, new securities so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained



53









 




in any such supplemental indenture may be prepared
by the Company, authenticated by the Trustee and delivered in exchange for the Notes then
Outstanding.




     Section 9.05. Execution of Supplemental Indentures. Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Holders required to consent
thereto as aforesaid (if such consent is required pursuant to this Article), 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. The Trustee, subject to the provisions of
Section 7.01, shall receive and will be fully protected in conclusively relying upon an Officers’
Certificate and an Opinion of Counsel stating that any supplemental indenture executed pursuant to
this Article is authorized or permitted by the terms of this Article 9 and constitutes a valid,
binding and legal obligation, enforceable against the Company (subject to customary
qualifications).



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Company shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to
the Holders of all Notes affected thereby as their names and addresses appear upon the Note
Register. Any failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture.



ARTICLE 10

Consolidation; Merger; Conveyance; Transfer Or Lease




     Section 10.01. Company May Consolidate, Etc., Only on Certain Terms. The Company may not,
without the consent of the Holders, consolidate with, merge into or convey, transfer or lease all
or substantially all of the property and assets of the Company and its Subsidiaries, taken as a
whole, to another Person unless:



     (a) either (1) the Company shall be the resulting or surviving corporation or (2) the Person
(if other than the Company) formed by such consolidation or into which the Company is merged, or
the Person which acquires by transfer or lease all or substantially all of the property and assets
of the Company, shall (i) be a corporation, limited liability company, partnership or trust
organized and existing under the laws of the United States of America or any



54









 




State thereof or the
District of Columbia, in each case, that is treated as a corporation for U.S. federal income tax
purposes, and the property into which the Notes are convertible shall be the stock or other equity
of an entity that is treated as a corporation for U.S. federal income tax purposes, and (ii)
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the obligations of the Company under the Notes and
this Indenture;




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



     (c) if the Company will not be the resulting or surviving corporation, the Company shall have,
at or prior to the effective date of such consolidation,
merger, conveyance, transfer or lease, delivered to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease
complies with this Article 10 and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article 10, and that all conditions
precedent herein provided for relating to such transaction have been complied with.



     Section 10.02. Successor Substituted. Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company and its Subsidiaries, taken as a whole, in
accordance with Section 10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, and except for obligations the predecessor Person may have under a
supplemental indenture, the predecessor Person shall be relieved of all obligations and covenants
under the Indenture and the Notes.



ARTICLE 11

Immunity of Incorporators, Stockholders, Officers and Directors




     Section 11.01. No Recourse. No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of the Notes, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either directly or through the
Company or any such predecessor or successor corporation, whether by virtue of



55









 




any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Notes or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Notes or implied therefrom, are 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 12

Additional Interest




     Section 12.01. Additional Interest. (a) If, at any time during the six-month period
beginning on, and including, the date that is six months after the last date of original issuance
of the Notes and ending on the date that is one year after the last date of the original issuance
of the Notes, the Company either (i) fails to timely file any periodic report that the Company is
required to file with the Commission under Section 13 or 15(d) of the Exchange Act, as applicable
(after giving effect to all applicable grace periods thereunder and other than reports on Form
8-K), or (ii) the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders of the
Notes other than the Company’s Affiliates, or under the terms of this Indenture or the Notes, then
in either case (an “Additional Interest Event”), the Company shall pay additional interest on the
Notes (the “Additional Interest”). Such Additional Interest will accrue on the Notes at the rate of
0.25% per annum of the principal amount of Notes Outstanding for each day during the first 90-day
period (or portion thereof) for which an Additional Interest Event has occurred and is continuing,
which rate shall increase by an additional 0.25% per annum of the principal amount of the Notes, up
to a maximum of 0.50% per annum of the principal amount of the Notes for each day thereafter for
which an Additional Interest Event has occurred and is continuing.



     (b) Unless:




     (i) the restrictive legend on the Notes has been removed; or



56









 






     (ii) the Notes are freely tradable pursuant to Rule 144 by Holders other than the
Company’s Affiliates (without restrictions pursuant to U.S. securities law or the terms of
this Indenture or the Notes),


on or after the 365th day after the last date of original issuance of the Notes, an Additional
Interest Event shall be deemed to have occurred and the Company shall pay Additional Interest on
the Notes at an annual rate equal to 0.50% of the aggregate principal amount of the Notes
Outstanding for each day until the Notes are freely tradable as described above.




     (c) Notwithstanding the foregoing, the Company shall not be required to pay Additional
Interest on any date if (i) the Company has filed a shelf registration statement for the resale of
the Notes and any shares of Common Stock issued upon conversion of the Notes, (ii) such shelf
registration statement is effective and usable by Holders of the Notes identified therein as
selling securityholders for the resale of the Notes and any shares of Common Stock issued upon
conversion of the Notes and (iii) the Holders may register the resale of their Notes under such
shelf registration statement on terms customary for the resale of convertible securities offered in
reliance on Rule 144A.



     (d) Under no circumstances will the combined rate of Additional Interest or Special Interest
exceed 1.00% per annum.



     (e) Additional Interest shall be payable in arrears on each Interest Payment Date following
accrual in the same manner as regular interest on the Notes.



     (f) The Company shall not, and shall not permit any of its “affiliates” within the meaning of
Rule 144, to resell any of the Notes that constitute “restricted securities” under Rule 144 that
have been reacquired by them.



     (g) The Company shall provide written notice to the Trustee prior to paying any Additional
Interest.



ARTICLE 13

Conversion of Notes




     Section 13.01. Conversion Privilege and Conversion Rate. (a) Subject to and upon compliance
with the provisions of this Article 13, each Holder of a Note shall have the right, at such
Holder’s option, to convert any or all of such Holder’s Notes at the Conversion Rate during the
periods set forth in Section 13.01(b).



     (b) The conversion rights pursuant to this Article 13 shall commence on the Issue Date of the
Notes and expire at the close of business on the Business



57









 




Day immediately preceding the Maturity
Date unless the Notes have been previously redeemed or repurchased, subject to the provisions of
this Indenture and, in the case of conversion of any Global Note, to any Applicable Procedures;
provided, however, that if the Company has elected to redeem the Notes pursuant to Article 15
hereof, Holders may convert their Notes only until the close of business on the Business Day prior
to the relevant Redemption Date unless the Company fails to pay the Redemption Price in which case
the conversion right shall terminate at the close of business on the Business Day prior to the date
such failure is cured and such Note is redeemed. If a Note is submitted or presented for purchase
pursuant to Article 14 or Article 16, subject to the last paragraph of Section 13.03(b), such
conversion right shall terminate at the close of business on the Business Day prior to the
Repurchase Date or the Fundamental Change Repurchase Date for such Note, as the case may be (unless
the Company shall fail to make the Repurchase Price payment or the Fundamental Change Repurchase
Price payment, as the case may be, when due in accordance with Article 14 or Article 16,
respectively, if applicable, in which case the conversion right shall terminate at the close of
business on the Business Day prior to the date such failure is cured and such Note is repurchased).




     (c) A Holder may convert fewer than all of such Holder’s Notes only if (i) the principal
amount of Notes converted is an integral multiple of $1,000 and (ii) the portion of such Holder’s
Notes not so converted is in a minimum principal
amount of $2,000. Provisions of this Indenture that apply to conversion of all of a Note also
apply to conversion of a portion of a Note.



     (d) A Holder of Notes is not entitled to any rights of a holder of Common Stock until such
Holder has converted its Notes into Common Stock, and only to the extent such Notes are deemed to
have been converted into Common Stock pursuant to this Article 13.



     (e) The Conversion Rate shall be adjusted in certain instances as provided in Section 13.02
and Section 13.07.



     (f) By delivering the number of shares of Common Stock issuable on conversion to the Trustee,
plus a cash payment for any fractional share, the Company shall be deemed to have satisfied its
obligation to pay the principal amount of the Notes so converted and its obligation to pay accrued
and unpaid interest attributable to the period from the most recent Interest Payment Date through
the Conversion Date (which amount will be deemed paid in full rather than canceled, extinguished or
forfeited).



     Section 13.02. Make-Whole Fundamental Change Premium. (a) If the Make-Whole Fundamental
Change Effective Date for any Make-Whole Fundamental Change shall have occurred on or before
November 1, 2015, then the Company shall calculate and pay a “Make-Whole Fundamental Change



58









 




Premium” to the Holders of the Notes who convert their Notes in connection with such Make-Whole
Fundamental Change by adding such Make-Whole Fundamental Change Premium to the Conversion Rate for
such Notes. A conversion of Notes shall be deemed for these purposes to be “in connection with”
such Make-Whole Fundamental Change if the relevant Notice of Conversion delivered pursuant to
Section 13.03(a) is received by the Conversion Agent on, or subsequent to, the relevant Make-Whole
Fundamental Change Effective Date but before the related Fundamental Change Purchase Date (or, in
the case of a Make-Whole Fundamental Change that is not a Fundamental Change, before the 45th
Trading Day immediately following such Make-Whole Fundamental Change Effective Date). The
Fundamental Make-Whole Change Premium shall be in addition to, and not in substitution for, any
cash, securities or other assets otherwise due to Holders of Notes upon conversion. The number of
additional shares of Common Stock per $1,000 principal amount of Notes constituting the Make-Whole
Fundamental Change Premium shall be determined by reference to the table set forth in Section
13.02(b), based on the Make-Whole Fundamental Change Effective Date and the Stock Price. If the
holders of Common Stock receive only cash in the Make-Whole Fundamental Change, the Stock Price
shall be the cash amount paid per share of Common Stock in connection with such Make-Whole
Fundamental Change. Otherwise, the Stock Price shall be equal to the average Last Reported Sale
Price of the Common Stock over the ten Trading Day period ending on the Trading Day immediately
preceding, and excluding, the applicable Make-Whole Fundamental Change Effective Date.




     (b) The following table sets forth the number of Additional Shares to be received per $1,000
principal amount of Notes pursuant to this Section 13.02(b) for each Stock Price and Make-Whole
Fundamental Change Effective Date set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$37.08	 	$40.00	 	$45.00	 	$50.00	 	$55.00	 	$60.00	 	$70.00	 	$80.00	 	$90.00	 	$100.00	 	$125.00	 	$150.00	 	$175.00
	 	 	 
	November 1, 2010
	 	 	6.6150	 	 	 	5.8369	 	 	 	4.5825	 	 	 	3.6750	 	 	 	3.0026	 	 	 	2.4935	 	 	 	1.7929	 	 	 	1.3498	 	 	 	1.0538	 	 	 	0.8465	 	 	 	0.5353	 	 	 	0.3880	 	 	 	0.2899	 
	November 1, 2011
	 	 	6.6150	 	 	 	5.8224	 	 	 	4.5236	 	 	 	3.5521	 	 	 	2.8431	 	 	 	2.3156	 	 	 	1.6075	 	 	 	1.1758	 	 	 	0.8973	 	 	 	0.7087	 	 	 	0.4364	 	 	 	0.2932	 	 	 	0.2131	 
	November 1, 2012
	 	 	6.6150	 	 	 	5.8078	 	 	 	4.3343	 	 	 	3.3007	 	 	 	2.5626	 	 	 	2.0263	 	 	 	1.3339	 	 	 	0.9341	 	 	 	0.6893	 	 	 	0.5314	 	 	 	0.3228	 	 	 	0.2245	 	 	 	0.1649	 
	November 1, 2013
	 	 	6.6150	 	 	 	5.5681	 	 	 	3.9666	 	 	 	2.8746	 	 	 	2.1221	 	 	 	1.5979	 	 	 	0.9647	 	 	 	0.6342	 	 	 	0.4501	 	 	 	0.3397	 	 	 	0.2113	 	 	 	0.1502	 	 	 	0.1120	 
	November 1, 2014
	 	 	6.6150	 	 	 	5.0390	 	 	 	3.2563	 	 	 	2.1084	 	 	 	1.3806	 	 	 	0.9236	 	 	 	0.4582	 	 	 	0.2700	 	 	 	0.1912	 	 	 	0.1527	 	 	 	0.1049	 	 	 	0.0786	 	 	 	0.0604	 
	November 1, 2015
	 	 	6.6150	 	 	 	4.6463	 	 	 	1.8685	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






     The exact Stock Prices and Make-Whole Fundamental Change Effective Dates may not be set
forth in the table above, in which case:




     (i) if the Stock Price is between two Stock Prices in the table above or the
Make-Whole Fundamental Change Effective Date is between two Make-Whole Fundamental Change
Effective Dates in the table above, the Make-Whole Fundamental Change Premiums shall be
determined by a



59









 







straight-line interpolation between the Make-Whole Fundamental Change
Premiums set forth for the higher and lower Stock Prices and the earlier and later
Make-Whole Fundamental Change Effective Dates, as applicable, based on a 365-day year;




     (ii) if the Stock Price is greater than $175.00 per share (subject to adjustment in
the same manner as the Stock Prices set forth in the column headings of the table above
pursuant to subsection (c) below), no Make-Whole Fundamental Change Premium shall be added
to the Conversion Rate; and




     (iii) if the Stock Price is less than $37.08 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above
pursuant to subsection (c) below), no Make-Whole Fundamental Change Premium shall be added
to the Conversion Rate.



     (c) The Stock Prices set forth in the first row of the table above in Section 13.02(b) shall
be adjusted, as of any date on which the Conversion Rate of the Notes is adjusted other than an
adjustment to the Conversion Rate by adding the Make-Whole Fundamental Change Premium. The adjusted
Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment
multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the
adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion
Rate as so adjusted. The Make-Whole Fundamental Change Premiums set forth in the table above shall
be adjusted in the same manner as the Conversion Rate as set forth in Section 13.07
hereof, other than as a result of an adjustment to the Conversion Rate by adding the
Make-Whole Fundamental Change Premium.



     (d) The Company, or, at the written request of the Company, the Trustee, shall mail written
notice of the anticipated Make-Whole Fundamental Change Effective Date of any Make-Whole
Fundamental Change to the Holders (with a copy to the Trustee if applicable) as promptly as
practicable following the date the Company publicly announces such Make-Whole Fundamental Change,
but in no event less than 20 days prior to the anticipated Make-Whole Fundamental Change Effective
Date (the “Make-Whole Fundamental Change Notice”).



     (e) Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 26.9687 per
$1,000 principal amount as a result of this Section 13.02, subject to proportional adjustment in
the same manner as the Conversion Rate as set forth in Section 13.07 hereof.



60









 





     (f) The Make-Whole Fundamental Change Premium shall be delivered upon the settlement date for
the conversion.



     Section 13.03. Conversion Procedure. (a) To convert a Note in certificated form, a Holder
must (1) complete and manually sign the Notice of Conversion on the back of the Note, or facsimile
of such Notice of Conversion, and deliver such Notice of Conversion to the Conversion Agent, which
shall become irrevocable upon receipt by the Conversion Agent, (2) surrender the Note to the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the
Note Registrar or the Conversion Agent, (4) pay an amount equal to the interest payable on the next
Interest Payment Date to which the Holder is not entitled as required by Section 13.03(c) and (5)
pay all transfer or similar taxes, if required pursuant to Section 13.05. Anything herein to the
contrary notwithstanding, in the case of Global Notes, Notices of Conversion may be delivered and
such Notes may be surrendered for conversion in accordance with clauses (3), (4) and (5) of this
Section 13.03(a) and the Applicable Procedures as in effect from time to time. The date on which
the Holder satisfies all the requirements set forth in this Section 13.03(a) is the “Conversion
Date.”



     (b) Each conversion shall be deemed to have been effected as to any Notes surrendered for
conversion on the Conversion Date and the person in whose name the shares of Common Stock shall be
issuable upon conversion shall be deemed to be the holder of record of such Common Stock as of the
close of business on such Conversion Date, and the Company shall deliver the consideration due in
respect of any conversion on the third Business Day immediately following the relevant Conversion
Date; provided, however, that no surrender of a Note on any Conversion Date when the stock transfer
books of the Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon conversion as the record holder or holders of
such shares of Common Stock on such date, but such
surrender 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
a Note, such person shall no longer be the Holder of such Note and (i) such Note will cease to be
Outstanding, (ii) interest will cease to accrue on such Note and (iii) all other rights of such
person in respect of such Note will terminate (other than the right to receive the consideration
due upon conversion of such Note). Except as set forth in this Indenture, no payment or adjustment
will be made for dividends or distributions declared or made on shares of Common Stock issued upon
conversion of a Note prior to the issuance of such shares.



     A Holder that has delivered a Repurchase Notice or a Fundamental Change Repurchase Notice
pursuant to Section 14.01 or Section 16.01, as the case may be, with respect to a Note may not
surrender such Note for conversion until



61









 




such Holder has withdrawn the Repurchase Notice in
accordance with Section 14.01 or the Fundamental Change Repurchase Notice in accordance with
Section 16.01, as the case may be.




     (c) Holders of Notes surrendered for conversion (in whole or in part) during the period from
the close of business on any Regular Record Date to the open of business on the next succeeding
Interest Payment Date will receive the semiannual interest payable on the principal amount of such
Notes being surrendered for conversion on the corresponding Interest Payment Date notwithstanding
the conversion. Upon surrender of any such Notes for conversion, such Notes shall also be
accompanied by payment in funds to the Conversion Agent acceptable to the Company of an amount
equal to the interest payable on such corresponding Interest Payment Date (but excluding any
overdue interest on the principal amount of such Note so converted if any overdue interest exists
at the time such Holder surrenders such Note for conversion); provided, however, that no such
payment need be made (i) if the Company has specified a Redemption Date that is after such Regular
Record Date and on or prior to the next succeeding Interest Payment Date, (ii) if the Company has
specified a Fundamental Change Repurchase Date that is after such Regular Record Date and on or
prior to the next succeeding Interest Payment Date, or (iii) if conversion occurs after the last
Regular Record Date prior to the Maturity Date. Except as otherwise provided in this Section
13.03(c) and Section 14.01(c), no payment or adjustment will be made for accrued interest on a
converted Note and any such accrued interest shall be deemed satisfied and extinguished.



     (d) Subject to Section 13.03(c), nothing in this Section 13.03 shall affect the right of a
Holder in whose name any Note is registered at the close of business on a Regular Record Date to
receive the interest payable on such Note on the related Interest Payment Date in accordance with
the terms of this Indenture and the Notes. If a Holder converts more than one Note at the same
time, the number of shares of Common Stock issuable upon the conversion (and the amount of any
cash in lieu of fractional shares pursuant to Section 13.04) shall be based on the aggregate
principal amount of all Notes so converted.



     (e) In the case of any Note which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without service
charge, a new Note or Notes of authorized denominations in an aggregate principal amount equal to,
and in exchange for, the unconverted portion of the principal amount of such Note.



     Section 13.04. Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of any Note or Notes. If more than one Note shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issued upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the Notes (or specified
portions thereof)



62









 




so surrendered. Instead of any fractional share of Common Stock which would
otherwise be issued upon conversion of any Note or Notes (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest
one-100th of a share) in an amount equal to the same fraction of the Last Reported Sale Price of
the Common Stock as of the Business Day preceding the Conversion Date.




     Section 13.05. Taxes on Conversion. Except as provided in the next sentence, the Company
shall pay any and all documentary, stamp or similar issue or transfer tax due and duties on the
issuance of shares of Common Stock upon conversion of Notes pursuant hereto. A Holder delivering a
Note for conversion shall be liable for and shall be required to pay any tax or duty which may be
payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in
a name other than that of the Holder of the Note or Notes to be converted, and no such issue or
delivery shall be made unless the Person requesting such issue has paid to the Company the amount
of any such tax or duty, or has established to the satisfaction of the Company that such tax or
duty has been paid.



     Section 13.06. Company to Provide Common Stock. (a) The Company shall, prior to issuance of
any Notes hereunder, and from time to time as may be necessary, reserve, out of its authorized but
unissued Common Stock, a sufficient number of shares of Common Stock to permit the conversion of
all Outstanding Notes into shares of Common Stock.



     (b) All shares of Common Stock delivered upon conversion of the Notes shall be newly issued
shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free
from preemptive or similar rights and free of any lien or adverse claim as the result of any action
by the Company.



     Section 13.07. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company shall
not make any adjustments to the
Conversion Rate if Holders of the Notes participate (other than in the case of a share split
or share combination), at the same time and upon the same terms as holders of the Common Stock and
solely as a result of holding the Notes, in any of the transactions described in this Section
13.07, without having to convert their Notes, as if they held a number of shares of Common Stock
equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes
held by such Holder.



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




63












 





	 	 	 	 	 

	CR1 = CR0 x

	 	OS1
	 	 
	 	 	 	 
	 	OS0	 	 






	 	 	 	 	 

	where,
	 	 	 	 
	 
	CR0

	 	=
	 	the applicable Conversion Rate in effect
immediately prior to the close of business on the
Record Date for such dividend or distribution, or
immediately prior to the open of business on the
effective date of such share split or share
combination, as the case may be;
	 
	CR1

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

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to such dividend, distribution,
share split or share combination, as the case may
be; and
	 
	OS1

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






     Any adjustments made pursuant to this Section 13.07(a) shall become effective immediately on
or after (x) the close of business on the Record Date for such dividend or distribution or (y) the
open of business on the effective date of such split or combination, as applicable. If any dividend
or distribution described in this Section 13.07(a) is declared but not so paid or made, the new
Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.



     (b) If the Company distributes to all or substantially all holders of Common Stock any rights,
options or warrants entitling them to purchase, for a period of not more than 45 days after the
Ex-Dividend Date for the distribution, shares of 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 the Trading Day immediately preceding the declaration date for such distribution,
the Conversion Rate shall be adjusted based on the following formula:



	 	 	 	 	 

	CR1 = CR0 x

	 	OS0 + X
	 	 
	 	 	 	 
	 	OS0 + Y	 	 






64









 






where,



	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect immediately prior
to the close of business on the Record Date for
such distribution;
	 
	CR1

	 	=
	 	the new Conversion Rate in effect immediately
after the close of business on the Record Date
for such distribution;
	 
	OS0

	 	=
	 	the number of shares of Common Stock
outstanding immediately prior to the close of
business on the Record Date for such
distribution;
	X

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

	 	=
	 	the number of shares of Common Stock equal to
the aggregate price payable to exercise such
rights, options or warrants divided by the
average of the Last Reported Sale Prices of the
Common Stock over the ten consecutive Trading
Day period ending on the Trading Day
immediately preceding the declaration date for
such distribution.






     For purposes of this Section 13.07(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of
the Last Reported Sale Prices of the Common Stock for the applicable ten consecutive Trading Day
period, there shall be taken into account any consideration received by the Company for such
rights, options or warrants and any amount payable on exercise thereof, with the value of such
consideration if other than cash, to be determined by the Board of Directors.



     Any adjustment made pursuant to this Section 13.07(b) shall be made successively whenever any
such rights, options or warrants are distributed and shall become effective immediately after the
close of business on the Record Date for such distribution. To the extent that shares of Common
Stock are not delivered after the expiration of such rights, options or warrants, the Conversion
Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with
respect to 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 be decreased to the Conversion Rate that would then be
in effect if such distribution had not occurred.



     (c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or
other assets or property of the Company or rights, options or



65









 







warrants to acquire its Capital Stock
or other securities, to all or substantially all holders of the Common Stock, excluding:




     (i) dividends, distributions (including share splits), rights, options or warrants as
to which an adjustment is effected in Section 13.07(a) or Section 13.07(b);




     (ii) dividends or distributions covered by Section 13.07(d);




     (iii) dividends or distributions that constitute Reference Property following an
event described in Section 13.11; and




     (iv) Spin-Offs to which the provisions set forth below in this Section 13.07(c) shall
apply,


then the applicable Conversion Rate shall be adjusted based on the following formula:




	 	 	 	 	 

	CR1 = CR0  x 

	 	SP0
	 	 
	 	 	 	 
	 	SP0 - FMV	 	 






where,




	 	 	 	 	 

	CR0

	 	=
	 	the applicable Conversion Rate in effect
immediately prior to the close of business on the
Record Date for such distribution;
	 
	CR1

	 	=
	 	the applicable Conversion Rate in effect
immediately after the close of business on the
Record 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 in good faith
by the Board of Directors) of the shares of
Capital Stock, evidences of indebtedness, assets,
property, rights, options or warrants distributed
with respect to each outstanding share of Common
Stock as of the open of business on the
Ex-Dividend Date for such distribution.






     Any adjustment made under the portion of this Section 13.07(c) above shall become effective
immediately after the close of business on the Record Date for such distribution. If such
distribution is not so paid or made, the Conversion



66









 







Rate shall be decreased to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.



     If the then fair market value of the portion of the shares of Capital Stock, evidences of
indebtedness or other assets, property, rights, options or warrants so distributed applicable to
one share of Common Stock is equal to or greater than
the average of the Last Reported Sales 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, in lieu of the foregoing adjustment, Holders of the Notes shall receive, in respect
of each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of
Common Stock, the amount and kind of the Company’s Capital Stock, evidences of its indebtedness,
other assets or property of the Company or rights, options or warrants to acquire the Company’s
Capital Stock or other securities that such Holder would have received if such Holder owned a
number of shares of Common Stock equal to the applicable Conversion Rate in effect immediately
prior to the close of business on the Record Date for the distribution.



     With respect to an adjustment pursuant to this Section 13.07(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of the Capital Stock of any class
or series, or similar equity interest, of or relating to a Subsidiary or other business unit that
are, or, when issued, will be, traded or quoted on any national or regional securities exchange or
other market (a “Spin-Off”), the applicable Conversion Rate shall instead be adjusted based on the
following formula:




	 	 	 	 	 

	CR1 = CR0  x  

	 	FMV0 + MP0
	 	 
	 	 	 	 
	 	MP0	 	 





where,




	 	 	 	 	 

	CR0

	 	=
	 	the applicable Conversion Rate in effect
immediately prior to the tenth Trading Day
immediately following the effective date for such
Spin-Off;
	 
	CR1

	 	=
	 	the applicable Conversion Rate in effect
immediately after the open of business on the
tenth Trading Day immediately following the
effective date for such Spin-Off;
	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of
the Capital Stock or similar equity interest
distributed to holders of Common Stock applicable
to one share of Common Stock (determined by
reference to the definition of Last Reported Sale
Price as set forth in Section 1.01 as if
references therein to Common Stock were to






67









 






	 	 	 	 	 

	 

	 	 	 	such
Capital Stock or similar equity interest) over
the first ten consecutive Trading Day period
immediately following the effective date for such
Spin-Off (such period, the “Valuation Period”);
and
	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of
Common Stock over the Valuation Period.






     Such adjustment shall occur immediately after the tenth Trading Day immediately following, and
including, the effective date of such Spin-Off; provided that, for purposes of determining the
Conversion Rate in respect of any conversion during the ten Trading Days following the effective
date of any Spin-Off, references within this Section 13.07(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
effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or
distribution described in the preceding paragraph of this Section 13.07(c) is declared but not paid
or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared.



     For purposes of this Section 13.07(c) (and subject in all respect to Section 13.14), rights,
options or warrants distributed by the Company to all holders of its Common Stock entitling them 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 13.07(c) (and no adjustment to the Conversion Rate under this Section 13.07(c) shall be
required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or
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 13.07(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 Record Date with respect to new rights, options or warrants with such rights
(in which case the existing rights, options or warrants shall be deemed to terminate and expire on
such date 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 immediately preceding sentence with respect thereto that was
counted for purposes of calculating a distribution amount for which an



68









 







adjustment to the Conversion
Rate under this Section 13.07(c) was made, (1) in the case of any such rights, options or warrants
that shall all have been redeemed or purchased without exercise by any holders thereof, upon such
final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options
or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give
effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or purchase 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, options or warrants), made to all holders of Common Stock


as of the date of such redemption or purchase, 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 Section 13.07(a), Section 13.07(b) and this Section 13.07(c), any dividend or
distribution to which this Section 13.07(c) is applicable that also includes one or both of:




     (A) a dividend or distribution of shares of Common Stock to which Section
13.07(a) is applicable (the “Clause A Distribution”); or




     (B) a dividend or distribution of rights, options or warrants to which
Section 13.07(b) is applicable (the “Clause B Distribution”),


then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 13.07(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this
Section 13.07(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause
A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C
Distribution and any Conversion Rate adjustment required by Section 13.07(a) and Section 13.07(b)
with respect thereto shall then be made, except that, if determined by the Company (I) the “Record
Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Record
Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A
Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to
such dividend, distribution, share split or share combination, as the case may be” within the
meaning of Section 13.07(a) or “outstanding immediately prior to the close of business on the
Record Date for such distribution” within the meaning of Section 13.07(b).




69









 








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



	 	 	 	 	 

	CR1 = CR0 x

	 	SP0
	 	 
	 	 	 	 
	 	SP0 - C	 	 





where,




	 	 	 	 	 
	CR0

	 	=
	 	the applicable Conversion Rate in effect
immediately prior to the close of business on the
Record Date for such dividend or distribution;
	 
	CR1

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

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






     An adjustment to the Conversion Rate made pursuant to this Section 13.07(d) shall become
effective immediately after the close of business on the Record Date for the applicable dividend or
distribution. If any dividend or distribution described in this Section 13.07(d) is declared but
not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.



     If the amount in cash per share of Common Stock so paid or distributed is equal to or greater
than the average of the Last Reported Sales 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
cash dividend or distribution, in lieu of the foregoing adjustment, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as
holders of shares of Common Stock, the amount of cash that such Holder would have received if such
Holder owned a number of shares of Common Stock equal to the applicable Conversion Rate in effect
immediately prior to the close of business on the Record Date for such cash dividend or
distribution.



70









 





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



	 	 	 	 	 

	CR1 = CR0 x

	 	AC + (SP1 x OS1)
	 	 
	 	 	 	 
	 	OS0 x SP1	 	 





where,




	 	 	 	 	 

	CR0

	 	=
	 	the applicable Conversion Rate in effect
immediately prior to the open of business on the
Trading Day next succeeding the Expiration Date;
	 
	CR1

	 	=
	 	the applicable Conversion Rate in effect
immediately after the open of business on the
Trading Day next succeeding the Expiration Date;
	 
	AC

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

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to time (the “Expiration Time”)
such tender or exchange offer expires (prior to
giving effect to such tender offer or exchange
offer);
	 
	OS1

	 	=
	 	the number of shares of Common Stock outstanding
immediately after the Expiration Time (after
giving effect to such tender offer or exchange
offer); and
	 
	SP1

	 	=
	 	the Last Reported Sale Price of the Common Stock
on the Trading Day next succeeding the Expiration
Date.






     The adjustment to the Conversion Rate under this Section 13.07(e) shall become effective
immediately following the close of business on the Trading Day next succeeding the Expiration Date.
If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any
such tender or exchange offer but is permanently prevented by applicable law from effecting any
such purchase or all such purchases are rescinded, the new Conversion Rate shall be



71









 







readjusted to
be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.



     Section 13.08. When No Adjustment is Required. (a) No adjustment in the Conversion Rate
shall be required unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Rate as last adjusted; provided, however, that any adjustments which would be
required to be made but for this Section 13.08(a) shall be carried forward and taken into account
in any subsequent adjustment and any carry forward amount shall be paid to the Holder upon
conversion regardless of the 1% threshold. All calculations under this Article 13 shall be made to
the nearest cent or to the nearest one-hundredth of a share.



     (b) If the application of the foregoing formulas in Section 13.07 would result in a decrease
in the Conversion Rate, no adjustment to the Conversion Rate shall be made (except on account of
share combinations).



     (c) No adjustment to the Conversion Rate shall be made unless as specifically set forth in
Section 13.07 and Section 13.02. Without limiting the foregoing, no adjustment to the Conversion
Rate need be made:




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




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




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




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




     (v) for accrued and unpaid interest (including any Special Interest and Additional
Interest, if applicable).



     Section 13.09. Notice of Adjustment. Whenever the Conversion Rate or conversion privilege is
required to be adjusted pursuant to this Indenture, the Company shall promptly mail to Holders a
notice of the adjustment and file with the Trustee an Officers’ Certificate briefly stating the
facts requiring the



72









 







adjustment, the adjusted Conversion Rate and the manner of computing it.
Failure to mail such notice or any defect therein shall not affect the validity of any such
adjustment. Unless and until the Trustee shall receive an Officers’ Certificate setting forth an
adjustment of the Conversion Rate, the Trustee may assume without inquiry that the Conversion Rate
has not been adjusted and that the last Conversion Rate of which it has knowledge remains in
effect.



     Section 13.10. Notice of Certain Transactions. In the event that there is a dissolution or
liquidation of the Company, the Company shall mail to Holders and file with the Trustee a written
notice stating the proposed effective date. The Company shall mail such notice at least 20 days
before such proposed effective date. Failure to mail such notice or any defect therein shall not
affect the validity of any transaction referred to in this Section 13.10.



     Section 13.11. Effect of Reclassification, Consolidation, Merger or Sale On Conversion
Privilege. If any of the following events occur:



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



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



     (c) any sale, conveyance or lease to any third party of all or substantially all of the
property and assets of the Company and its Subsidiaries; or



     (d) any statutory share exchange,


in each case as a result of which holders of Common Stock shall be entitled to receive stock, other
securities or other property or assets (including cash or any combination thereof) (the “Reference
Property”) with respect to or in exchange for such Common Stock, the Holders of the Notes then
Outstanding shall be entitled thereafter to convert those Notes into the kind and amount of shares
of stock, other securities or other property or assets (including cash or any combination thereof)
which they would have owned or been entitled to receive upon such transaction had such notes been
converted into Common Stock immediately prior to such transaction. In the event holders of Common
Stock have the opportunity to elect the form of consideration to be received in such transaction,
the Reference Property shall be deemed to be the weighted average of the types and amounts of
consideration received by the holders of Common Stock that affirmatively make such election. The
Company shall notify the Holders of the weighted average as soon as practicable after such
determination is made. The Company may not become a party to any such transaction unless its terms
are consistent with the preceding. None of the foregoing provisions shall affect the right of a
Holder of Notes to convert its Notes into shares of Common Stock prior to the effective date of
such transaction.





73












 





     The above provisions of this Section 13.11 shall similarly apply to successive
recapitalizations, reclassifications, mergers, consolidations, statutory share exchanges,
combinations, sales and conveyances.



     If this Section 13.11 applies to any event or occurrence, Section 13.07 hereof shall not
apply.



     Section 13.12. Trustee’s Disclaimer. (a) The Trustee shall have no duty to determine, or
liability in connection therewith, when an adjustment under this Article 13 should be made, how it
should be made or what such adjustment should be, but may accept as conclusive evidence of that
fact or the correctness of any such adjustment, and shall be protected in conclusively relying
upon, an Officers’ Certificate, including the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 13.09. Unless and until the
Trustee receives such Officers’ Certificate delivered pursuant to Section 13.09, the Trustee may
assume without inquiry that no such adjustment has been made and the last Conversion Rate of which
the Trustee has knowledge remains in effect. The Trustee makes no representation as to the validity
or value of any securities or assets issued upon conversion of Notes, and the Trustee shall not be
responsible for the Company’s failure to comply with any provisions of this Article 13.



     (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 13.11, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in
conclusively relying upon, the Officers’ Certificate and Opinion of Counsel, with respect thereto
which the Company are obligated to file with the Trustee pursuant to Section 13.11 and Section
10.01, respectively.



     Section 13.13. Voluntary Increase; NASDAQ Compliance. (a) Subject to Section 9.01(e), the
Company from time to time may increase the Conversion Rate, to the extent permitted by law and
subject to any applicable stockholder approval requirements pursuant to the listing standards of
the NASDAQ Global Select Market or such other United States securities exchange on which the Common
Stock is traded, by any amount for any period of at least 20 days, if the Board of Directors
determines that such increase shall be in the Company’s best interests. The Company may (but is not
required to) make such increase in the Conversion Rate (in addition to others provided in this
Indenture) as the Board of Directors deems advisable to avoid or diminish any income tax to holders
of Common Stock resulting from a dividend or distribution of stock, or rights to acquire stock, or
similar event; provided, however, that in no event may the Company increase the Conversion Rate
such that it causes the Conversion Price to be less than the par value of a share of Common Stock.
The Company shall



74









 




provide at least 15 days’ written notice to Holders and the Trustee of any
increase under this Section 13.13.




     (b) The Company may not take any voluntary actions that would result in an adjustment to the
Conversion Rate pursuant to Section 13.07 without complying, if applicable, with the stockholder
approval rules of the NASDAQ Global Select Market and any similar rule of any stock exchange on
which the Common Stock is listed at the relevant time. In accordance with such listing standards,
this restriction shall apply at any time when the Notes are Outstanding, regardless of whether the
Company then has a class of securities listed on the NASDAQ Global Select Market.



     Section 13.14. Rights Plan. To the extent that the Company has a Rights Plan in effect upon
conversion of the Notes into Common Stock, the Holders shall receive upon conversion of the Notes,
the Rights under the Rights Plan, unless prior to conversion, the Rights have separated from the
Common Stock, in which case, and only in such case, the Conversion Rate shall be adjusted at the
time of separation as if the Company distributed to all or substantially all holders of Common
Stock shares of the Company’s Capital Stock, evidences of indebtedness or other assets or property
of ours or rights, options or warrants to acquire the Company’s Capital Stock or other securities
as described in Section 13.07(c) above, subject to readjustment in the event of the expiration,
termination or redemption of such Rights.



ARTICLE 14

Repurchase of Notes at Option of Holders




     Section 14.01. Repurchase at Option of Holders.



     (a) Each Holder shall have the right, at such Holder’s option, to require the Company to
repurchase for cash on each of November 1, 2015, November 1, 2020 and November 1, 2025 (each, a
“Repurchase Date”), any or all of such Holder’s Notes, at a repurchase price (the “Repurchase
Price”) that is equal to 100% of the principal amount of the Notes to be repurchased, together with
accrued and unpaid interest to, but excluding, such Repurchase Date; provided that any such accrued
and unpaid interest shall be paid not to the Holders submitting the Notes for repurchase on the
relevant Repurchase Date but instead to the Holders of such Notes at the close of business on the
Regular Record Date immediately preceding such Repurchase Date. A Holder may require the Company
to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be
repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be
repurchased is in a minimum principal amount of $2,000.



75









 





     (b) Not later than 20 Business Days prior to each Repurchase Date, the Company shall send or
mail by first class mail a written notice (the “Company Notice”) to the Trustee, to the Paying
Agent and to each Holder at its address shown in the Note Register of the Note Registrar (and to
beneficial owners as


required by applicable law). The Company Notice shall include a Form of Repurchase Date
Repurchase Notice to be completed by a Holder and shall state:





     (i) the last date on which a Holder may exercise its repurchase right pursuant to
this Article 14;




     (ii) the Repurchase Price;




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




     (iv) the procedures a Holder must follow to exercise its repurchase rights under this
Article 14 and a brief description of those rights.



     Simultaneously with providing the Company Notice, the Company shall publish a notice
containing the information included in the 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.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Article 14.



     (c) Repurchases of Notes under this Article 14 shall be made, at the option of the Holder
thereof, upon:




     (i) delivery to the Paying Agent by the Holder of a duly completed notice (the
“Repurchase Notice”) in the form set forth in the Form of Repurchase Date Repurchase
Notice in Attachment 3 to the Form of Note attached hereto as Exhibit A, if the Notes are
Physical Notes, or in compliance with the Depositary’s procedures for surrendering
interests in Global Notes, if the Notes are Global Notes, in each case during the period
beginning at any time from the open of business on the date that is 20 Business Days prior
to the relevant Repurchase Date until the close of business on the Business Day
immediately preceding the Repurchase Date; and




     (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at
any time after delivery of the Repurchase Notice (together with all necessary
endorsements) at the Corporate Trust Office



76









 






of the Paying Agent, or book-entry transfer of
the Notes, if the Notes are Global Notes, in compliance with the procedures of the
Depositary, in each case such delivery being a condition to receipt by the Holder of the
Repurchase Price therefor.


Each Repurchase Notice shall state:





     (A) in the case of Physical Notes, the certificate numbers of the Notes to
be delivered for repurchase;




     (B) the portion of the principal amount of the Notes to be repurchased,
which must be an integral multiple of $1,000 (provided that any portion of a
Holder’s Note not to be repurchased is in the minimum principal amount of
$2,000); and




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


provided, however, that if the Notes are Global Notes, the Repurchase Notice must comply with
appropriate Depositary procedures.




     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 14.01(c) shall have the right to withdraw, in whole
or in part, such Repurchase Notice at any time prior to the close of business on the Business Day
immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 14.02.



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



     (d) No Repurchase Notice with respect to any Notes may be submitted by a Holder thereof if
such Holder has also submitted a Fundamental Change Repurchase Notice and not validly withdrawn
such Repurchase Notice in accordance with Section 14.02.



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



     Section 14.02. Withdrawal of Repurchase Notice. (a) A Repurchase Notice may be withdrawn (in
whole or in part) by means of a written notice of



77









 




withdrawal delivered to the Corporate Trust
Office of the Paying Agent in accordance with this Section 14.02 at any time prior to the close of
business on the Business Day immediately preceding the Repurchase Date specifying:





     (i) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;




     (ii) if Physical Notes have been issued, the certificate number of the Note in
respect of which such notice of withdrawal is being submitted; and




     (iii) the principal amount, if any, of such Note that remains subject to the original
Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral
multiple of $1,000 (provided that any portion of a Holder’s Note not to be repurchased is
in the minimum principal amount of $2,000);


provided, however, that if the Notes are Global Notes, the notice must comply with appropriate
procedures of the Depositary.




     Section 14.03. Deposit of Repurchase Price. (a) The Company shall deposit with the Trustee
(or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying
Agent, set aside, segregate and hold in trust as provided in Section 4.06(b)) on or prior to 11:00
a.m., New York City time, on the Repurchase Date, as the case may be, an amount of money sufficient
to repurchase all of the Notes to be repurchased at the appropriate 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 will be made on the later of (i) the Repurchase Date
with respect to such Note (provided the Holder has satisfied the conditions in Section 14.01) 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 14.01, 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.



     (b) If by 11:00 a.m. New York City time, on the 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 on such Repurchase Date then (i) such Notes will cease to be
Outstanding, (ii) interest will cease to accrue on such 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) and
(iii) all other rights of the Holders of such Notes will terminate (other than the right to receive
the Repurchase Price).



78









 





     Section 14.04. Repayment To The Company. To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 14.03 exceeds the aggregate Repurchase Price of the
Notes or portions thereof that the Company is obligated to repurchase pursuant to this Article 14
on the relevant Repurchase Date, then promptly after the relevant Repurchase Date the Paying Agent
shall return any such excess cash to the Company.



     Section 14.05. Notes Repurchased In Part. Upon surrender of any Note that is to be
repurchased in part pursuant to Section 14.01 and promptly following the Repurchase Date, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note,
without service charge, a new Note or Notes, of such authorized denomination or denominations as
may be requested by such Holder (which must be equal to $2,000 principal amount or any greater
integral multiple of $1,000), in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Note so surrendered that is not repurchased.



     Section 14.06. Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In
connection with any repurchase offer, pursuant to this Article 14, the Company shall, if required:



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



     (b) file a Schedule TO or any successor or similar schedule; and



     (c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to repurchase the Notes;


in each case, so as to permit the rights and obligations under this Article 14 to be exercised in
the time and in the manner specified in this Article 14.




ARTICLE 15

Optional Redemption




     Section 15.01. Optional Redemption. No sinking fund is provided for the Notes. The Notes
shall not be redeemable by the Company prior to November 1, 2015. On or after November 1, 2015 and
prior to the Maturity Date, the Company may redeem (an “Optional Redemption”) all or part of the
Notes for cash, upon notice as set forth in Section 15.02, at a redemption price equal to 100% of
the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but
excluding, the Redemption Date (the “Redemption Price”) (unless the Redemption Date falls after a
Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which
case interest accrued



79









 




and unpaid to the Interest Payment Date will be paid to Holders of record of
such Notes on such Regular Record Date, and the Redemption Price shall be equal to 100% of the
principal amount of the Notes to be redeemed).




     Section 15.02. Notice of Optional Redemption; Selection of Notes. (a) In case the Company
exercises its Optional Redemption right to redeem all or, as the case may be, any part of the Notes
pursuant to Section 15.01, it shall fix a date for redemption (each, a “Redemption Date”) and it
or, at its written request received by the Trustee not less than 45 calendar days prior to the
Redemption Date (or such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of
and at the expense of the Company, shall send or mail or cause to be sent or mailed a notice of
such Optional Redemption (a “Redemption Notice”) not less than 30 nor more than 60 calendar days
prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or in part at its
last address as the same appears on the Note Register; provided, however, that if the Company shall
give such notice, it shall also give written notice of the Redemption Date to the Trustee. The
Redemption Date must be a Business Day.



     (b) The Redemption Notice, if sent or mailed in the manner herein provided, shall be
conclusively presumed to have been duly given, whether or not the Holder receives such notice. In
any case, failure to give such Redemption Notice by mail or any defect in the Redemption Notice to
the Holder of any Note designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note.



     (c) Each Redemption Notice shall specify:




     (i) the Redemption Date (which must be a Business Day);




     (ii) the Redemption Price;




     (iii) that on the Redemption Date, the Redemption Price will become due and payable
upon each such Note, and that interest thereon, if any, shall cease to accrue on and after
said date;




     (iv) the place or places where such Notes are to be surrendered for payment of the
Redemption Price;




     (v) that Holders may surrender their Notes for conversion at any time prior to the
close of business on the Business Day immediately preceding the Redemption Date;




     (vi) the procedures a converting Holder must follow to convert its Notes;




     (vii) the Conversion Rate;



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     (viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and




     (ix) in case any Note is to be redeemed in part only, the portion of the principal
amount thereof to be redeemed which must be an integral multiple of $1,000 (provided that
any portion of the Holder’s Notes not to be redeemed is in the minimum principal amount of
$2,000) and on and after the Redemption Date, upon surrender of such Note, a new Note in
principal amount equal to the unredeemed portion thereof shall be issued.


A Redemption Notice shall be revocable.




     (d) If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof of a Global Note or the Notes in certificated form to be redeemed (in
principal amounts of $1,000 or multiples thereof; provided that any portion of a Holder’s Note not
to be redeemed is in the minimum principal amount of $2,000) by lot, on a pro rata basis or by
another method the Trustee considers to be fair and appropriate (so long as such method is not
prohibited by the rules of the NASDAQ Global Select Market or any stock exchange on which the
Common Stock is traded). If any Note selected for partial redemption is submitted for conversion
in part after such selection, the portion of the Note submitted for conversion shall be deemed (so
far as may be possible) to be the portion selected for redemption. In such partial redemption
occurs, the Company shall not be required to (i) issue, register the transfer or exchange any Notes
during a period beginning at the open of business 15 days before the mailing of the Redemption
Notice and ending at the close of business on the day of such mailing or (ii) register the transfer
of or exchange any Notes so selected for redemption, in whole or in part, except the unredeemed
portion of any Notes being redeemed in part.



     Section 15.03. Payment of Notes Called for Redemption.



     (a) If any Redemption Notice has been given in respect of the Notes in accordance with Section
15.02, the Notes shall become due and payable on the Redemption Date at the place or places stated
in the Redemption Notice and at the applicable Redemption Price. On presentation and surrender of
the Notes at the place or places stated in the Redemption Notice, the Notes shall be paid and
redeemed by the Company at the applicable Redemption Price.



     (b) On or prior to 11:00 a.m., New York City time, on the Redemption Date, the Company shall
deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 4.06(b) an amount of cash
(in immediately available funds if deposited on the Redemption Date), sufficient to pay the
Redemption Price of all of the Notes to be redeemed on such Redemption Date.



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Subject to receipt of
funds by the Paying Agent, payment for the Notes to be redeemed shall be made promptly after the
later of:





     (i) the Redemption Date for such Notes; and




     (ii) the time of presentation of such Note to the Trustee (or other Paying Agent
appointed by the Company) by the Holder thereof in the manner required by this Section
15.03.


The Paying Agent shall, promptly after such payment and upon written demand by the Company, return
to the Company any funds in excess of the Redemption Price.




     (c) If by 11:00 a.m. New York City time, on the Redemption 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 redeemed on such Redemption Date, then (i) such Notes will cease to be
Outstanding, (ii) interest will cease to accrue on such Notes (whether or not the Notes have been
presented and surrendered for redemption in the manner required by this Section 15.03) and (iii)
all other rights of the Holders of such Notes will terminate (other than the right to receive the
Redemption Price).



     Section 15.04. Restrictions on Redemption. The Company may not redeem any Notes on any date
if the principal amount of the Notes has been accelerated in accordance with the terms of this
Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except
in the case of an acceleration resulting from a Default by the Company in the payment of the
Redemption Price with respect to such Notes).



ARTICLE 16

Repurchase Of Notes Upon a Fundamental Change




     Section 16.01. Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If
a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right,
at the option of the Holder, to require the Company to repurchase all or any of such Holder’s Notes
at the Fundamental Change Repurchase Price, on the date specified by the Company that is not less
than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice
pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change
Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record
at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price
shall be 100% of the



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principal amount of the Notes to be repurchased. A Holder may require the
Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of
Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s
Notes not to be repurchased is in a minimum principal amount of $2,000.




     (b) On or before the 15th day after the Fundamental Change Effective Date, the Company, or, at
the request of the Company, the Trustee, shall mail a written notice by first-class mail of the
occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the
Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note
Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company
Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall
publish a notice containing the information that is required in the Fundamental Change Company
Notice in a newspaper of
general circulation in The City of New York or publish information on a website of the Company
or through such other public medium the Company may use at that time. The Fundamental Change
Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and
specify:




     (i) the events causing such Fundamental Change;




     (ii) the date of such Fundamental Change;




     (iii) the last date by which the Fundamental Repurchase Notice must be delivered to
elect the repurchase option pursuant to this Section 16.01;




     (iv) the Fundamental Change Repurchase Price;




     (v) the Fundamental Change Repurchase Date;




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




     (vii) 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 this Indenture; and




     (viii) the procedures that the Holder must follow to require the Company to
repurchase its Notes under this Section 16.01.



     At the Company’s written request, the Trustee shall give such Fundamental Change Company
Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed
by the Trustee, the



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Company makes such request at least five Business Days prior to the date by
which such Fundamental Change Company Notice must be given to the Holders in accordance with this
Section 16.01; provided, further, that the text of such Fundamental Change Company Notice shall be
prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company
shall modify such notice to the extent necessary to accord with the Applicable Procedures relating
to the purchase of Global Notes.




     No failure of the Company to give the foregoing notices or defect therein shall limit any
Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes
pursuant to this Section 16.01.



     (c) Repurchases of Notes under this Article 16 shall be made, at the option of the Holder
thereof, upon:




     (i) delivery to the Paying Agent by the Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in
the form set forth in the Form of Fundamental Change Repurchase Notice in Attachment
2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in
compliance with the Depositary’s procedures for surrendering interests in Global Notes, if
the Notes are Global Notes, in each case before the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date; and




     (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at
any time after delivery of the Repurchase Notice (together with all necessary
endorsements) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of
the Notes, if the Notes are Global Notes, in compliance with the procedures of the
Depositary, in each case such delivery being a condition to receipt by the Holder of the
Repurchase Price therefor.


Each Fundamental Change Repurchase Notice shall state:





     (A) in the case of Physical Notes, the certificate numbers of the Notes to
be delivered for repurchase;




     (B) the portion of the principal amount of the Notes to be repurchased,
which must be $1,000 or an integral multiple thereof (provided that any portion
of a Holder’s Note not to be repurchased is in the minimum principal amount of
$2,000); and




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



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provided, however, that if the Notes are Global Notes, the Repurchase Notice must comply with
appropriate Depositary procedures.




     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.



     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.



     Section 16.02. Withdrawal of Fundamental Change Repurchase Notice.



     (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) 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 principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;




     (ii) if Physical Notes have been issued, the certificate number of the Note in
respect of which such notice of withdrawal is being submitted; 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 of $1,000 (provided that any portion of a Holder’s Note not to be
repurchased is in the minimum principal amount of $2,000);


provided, however, that if the Notes are Global Notes, the notice must comply with appropriate
procedures of the Depositary.




     Section 16.03. Deposit of Fundamental Change Repurchase Price. (a) The Company shall deposit
with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.06(b)) on or
prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, as the case may
be, an amount of money sufficient to repurchase all of the Notes to be repurchased at the
appropriate Fundamental Change Repurchase Price. Subject to



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receipt of funds and/or Notes by the
Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for
repurchase 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.




     (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 on such Fundamental Change Repurchase Date
then (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such 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) and (iii) all other rights of the
Holders of such Notes will terminate (other than the right to receive the Fundamental Change
Repurchase Price).



     Section 16.04. Repayment to the Company. To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 16.03 exceeds the aggregate Fundamental Change
Repurchase Price of the Notes or portions thereof that the Company is obligated to repurchase
pursuant to this Article 16, then promptly after the relevant Fundamental Change Repurchase Date
the Paying Agent shall return any such excess cash to the Company.



     Section 16.05. Notes Repurchased In Part. Upon surrender of any Note that is to be
repurchased only in part in accordance with Section 16.01, and promptly after the Fundamental
Change Repurchase Date, the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Note, without service charge, a new Note or Notes, of such authorized
denomination or denominations as may be requested by such Holder (which must be equal to $2,000
principal amount or greater integral multiples of $1,000), in aggregate principal amount equal to,
and in exchange for, the portion of the principal amount of the Note so surrendered that is not
repurchased.



     Section 16.06. Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In
connection with any repurchase offer pursuant to this Article 16, the Company shall, if required:



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



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     (b) file a Schedule TO or any successor or similar schedule; and



     (c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to repurchase the Notes;


in each case, so as to permit the rights and obligations under this Article 16 to be exercised in
the time and in the manner specified in this Article 16.




ARTICLE 17

Meeting Of Holders Of Notes




     Section 17.01. Purposes For Which Meetings May Be Called. A meeting of Holders of Notes may
be called at any time and from time to time pursuant to this Article 17 to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Notes.



     Notwithstanding anything contained in this Article 17, the Trustee may, during the pendency of
a Default or an Event of Default, call a meeting of Holders of Notes in accordance with its
standard practices.



     Section 17.02. Call Notice and Place of Meetings. (a) The Trustee may at any time call a
meeting of Holders of Notes for any purpose specified in Section 17.01 hereof, to be held at such
time and at such place in The City of New York. Notice of every meeting of Holders of Notes,
setting forth the time and the place of such meeting, in general terms the action proposed to be
taken at such meeting and the percentage of the principal amount of the then-Outstanding Notes
which shall constitute a quorum at such meeting, shall be given, in the manner provided in the
Indenture, not less than 21 nor more than 180 days prior to the date fixed for the meeting.



     (b) In case at any time the Company, pursuant to a resolution of the Board of Directors, or
the Holders of at least 10% in principal amount of the Notes then Outstanding shall have requested
the Trustee in writing to call a meeting of the Holders of Notes for any purpose specified in
Section 17.01 hereof, by written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of Notes in the amount
specified, as the case may be, may determine the time and the place in The City of New York for
such meeting and may call such meeting for such purposes by giving notice thereof as provided in
Section 17.02(a).



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     Section 17.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting
of Holders of Notes, a Person shall be (a) a Holder of one or more Outstanding Notes or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Notes by such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.



     Section 17.04. Quorum; Action. The Persons entitled to vote a majority in principal amount
of the then-Outstanding Notes shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Notes, be dissolved. In any other case, the meeting may be adjourned for a period of
not less than ten days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than ten days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 17.02(a) hereof, except
that such notice need be given only once and not less than five days prior to the date on
which the meeting is scheduled to be reconvened.



     At a meeting or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid, any resolution and all matters (except as limited by the third paragraph of Section 9.02
hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to
vote not less than a majority in principal amount of Notes then Outstanding represented and voting
at such meeting.



     Any resolution passed or decisions taken at any meeting of Holders of Notes duly held in
accordance with this Section 17.04 shall be binding on all the Holders of Notes, whether or not
present or represented at the meeting.



     Section 17.05. Determination of Voting Rights; Conduct and Adjournment of Meetings. (a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Notes in regard to proof of the
holding of Notes and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting as it shall deem
appropriate.



     (b) The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be
the Trustee) of the meeting, unless the meeting shall



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have been called by the Company or by Holders
of Notes as provided in Section 17.02 hereof, in which case the Company or the Holders of Notes
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 Persons
entitled to vote a majority in principal amount of the Outstanding Notes represented at the
meeting.




     (c) At any meeting, each Holder of a Note or proxy 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, except as a Holder of a Note or proxy.



     (d) Any meeting of Holders of Notes duly called pursuant to Section 17.02 hereof at which a
quorum is present may be adjourned from time to time by Persons entitled to vote a majority in
principal amount of the then-Outstanding Notes represented at the meeting, and the meeting may be
held as so adjourned without further notice.



     Section 17.06. Counting Votes and Recording Action of Meetings. The vote upon any resolution
submitted to any meeting of Holders of Notes shall be
by written ballots on which shall be subscribed the signatures of the Holders of Notes or of
their representatives by proxy and the principal amounts and serial numbers of the Outstanding
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, at least in duplicate, of the proceedings of
each meeting of Holders of Notes 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 given as provided in Section
17.02 hereof and, if applicable, Section 17.04 hereof. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company and another 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.



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ARTICLE 18

Miscellaneous Provisions




     Section 18.01. 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 18.02. Official Acts by Successor. 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 18.03. Notices. Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or
served by the Trustee or by the Holders or by any other Person pursuant to this Indenture to or on
the Company may be given or served by being deposited in first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the Trustee), as follows:
9625 West 76th Street, Eden Prairie, MN 55344. Any notice, election, request or demand by the
Company or any Holder or by any other Person pursuant to this Indenture to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee. Except as otherwise expressly provided
herein, any notice or communication to a Holder of a Note may be given or served by being
deposited in first-class mail, postage prepaid, or by electronic means, addressed at the
Holder’s address as it appears in the Note Register.



     Section 18.04. Governing Law. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR ANY NOTE, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF TO
THE EXTENT THAT SUCH PROVISIONS WOULD RESULT IN THE SELECTION OF THE LAW OF A DIFFERENT
JURISDICTION AS THE GOVERNING LAW OF THIS INDENTURE AND THE NOTES.



     Section 18.05. 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 and an Opinion of Counsel stating that all conditions precedent (including
any covenants compliance with which constitutes a condition precedent) which relate to such action,
if any, provided for in this Indenture have



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been complied with; provided that no such Opinion of
Counsel shall be required in connection with the issuance of Notes on the Issue Date.




     Each Officers’ Certificate and Opinion of Counsel provided for by or on behalf of the Company
in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than the Officers’ Certificates provided for in
Section 4.04) shall include (a) a statement that the Person making such certification or opinion
has read such covenant or condition; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement contained in such certificate or opinion 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 covenant or condition has been complied with; and (d) a statement as to whether or not, in
the judgment of such Person, such covenant or condition has been complied with.



     Notwithstanding anything to the contrary in this Section 18.05, 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 18.06. Legal Holidays. In any case where any Interest Payment Date, Redemption Date,
Repurchase Date, Fundamental Change Repurchase Date, Conversion Date or Maturity Date is not 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 18.07. 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 18.08. 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 hereunder and
the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



     Section 18.09. 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.




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     Section 18.10 . 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. The exchange of copies of this Indenture and of
signature pages by facsimile or PDF transmission shall constitute effective execution and delivery
of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for
all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to
be their original signatures for all purposes.



     Section 18.11 . 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 18.12 . 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 18.13 . Consent to Jurisdiction. (a) The Company hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New
York State court or federal court of the United States sitting in the State and City of New York,
County and Borough of Manhattan, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Indenture or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such state court sitting in the State and City of New York, County and Borough of Manhattan or, to
the extent permitted by law, in such federal court sitting in the State and City of New York,
County and Borough of Manhattan. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.



     (b) The Company hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Indenture or the Notes
in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.



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     Section 18.14 . 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.



     Section 18.15 . Calculations. Except as explicitly stated herein, the Company shall be
responsible for making all calculations required pursuant to this Indenture and the Notes,
including, without limitation, calculations with respect to determinations of the Conversion Price
and Conversion Rate applicable to the Notes. The Company shall make all such calculations in good
faith and, absent manifest error, the Company’s calculations shall be binding on the Holders. The
Company shall provide a written schedule of such calculations to the Trustee, and the Trustee shall
be entitled to conclusively rely upon the accuracy of the Company’s calculations without
responsibility for independent verification thereof. The Trustee shall forward a copy of such
calculations to any Holder upon such Holder’s written request.



     Section 18.16 . U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an
account with the Trustee. The parties to this Indenture agree that they will provide the Trustee
with such information as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. Patriot Act.



[SIGNATURE PAGE FOLLOWS]






93









 








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



	 	 	 	 	 
	 	DIGITAL RIVER, INC., as Issuer

 	 
	 	By:  	/s/ Kevin L. Crudden
 	 
	 	 	Name:  	Kevin L. Crudden 	 
	 	 	Title:  	VP/General Counsel 	 
	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as Trustee

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



[Indenture]






 









 








EXHIBIT A




[FORM OF FACE OF NOTE]




[INCLUDE IF A GLOBAL 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.]



[INCLUDE IF A RESTRICTED SECURITY]




     THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, OR
OF A BENEFICIAL OWNERSHIP HEREIN, THE ACQUIRER: (I) 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 (II) AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) ONE YEAR AFTER THE LAST DATE OF
ORIGINAL ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL
NOTES) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, OFFER, RESELL, PLEDGE OR OTHERWISE
TRANSFER THE NOTES EVIDENCED HEREBY, THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTES OR ANY
BENEFICIAL OWNERSHIP HEREIN, EXCEPT: (A) TO DIGITAL RIVER, INC. (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF; (B) UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT; (C)
TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL



 









 




BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D)
UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
INCLUDING RULE 144, IF AVAILABLE; AND (2) THAT, PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (1)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY
OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY REASONABLY BE REQUIRED IN ORDER
TO DETERMINE THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, AND THAT IT WILL DELIVER ANY SUCH CERTIFICATION, LEGAL OPINIONS OR OTHER INFORMATION TO THE
COMPANY AND THE TRUSTEE. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS NOTE OTHER THAN
UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A TRANSACTION THAT RESULTS IN
SUCH NOTE NO LONGER BEING “RESTRICTED SECURITIES” (AS DEFINED UNDER RULE 144). NO REPRESENTATION IS
MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. EACH PURCHASER AND TRANSFEREE OF A NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF A
NOTE WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING OF THE NOTE AND THE COMMON
STOCK ISSUABLE UPON CONVERSION OF THE NOTE THAT (A) ITS PURCHASE AND HOLDING OF THE NOTE AND THE
COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTE IS NOT MADE ON BEHALF OF OR WITH “PLAN ASSETS” OF
ANY PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW OR (B) ITS
PURCHASE AND HOLDING OF THE NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA, SECTION 4975 OF THE CODE
OR ANY SIMILAR LAW.







 









 








DIGITAL RIVER, INC.




2.00% Convertible Senior Note due 2030



			
	 	 	 
	No.
                    
	 	$               





CUSIP No. 25388B AC8



ISIN No. US25388BAC81




     Digital River, Inc., 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 registered assigns, the principal sum of $[               ] (which amount may from time to time be increased or decreased to such other principal amounts as
permitted by the Indenture by adjustments made on the records of the Trustee or the Custodian of
the Depositary as set forth in Schedule A hereto, in accordance with the rules and procedures of
the Depositary) on November 1, 2030, and interest thereon as set forth below.



     This Note shall bear interest at the rate of 2.00% per year from November 1, 2010, or from the
most recent date to which interest had been paid or provided for to, but excluding, the next
scheduled Interest Payment Date until November 1, 2030 or the Redemption Date, the Repurchase Date
or the Fundamental Change Repurchase Date, as applicable. Interest is payable semiannually in
arrears on each May 1 and November 1 (or if any such day is not a Business Day, the immediately
following Business Day), commencing May 1, 2011, to Holders of record at the close of business on
the preceding April 15 and October 15 (whether or not such day is a Business Day), respectively.



     Interest not paid when due and any interest on principal or interest not paid when due will be
paid to Holders on a special record date, which will be the 15th day preceding the day fixed by the
Company for the payment of such interest, whether or not such day is a Business Day. At least 15
days before a special record date, the Company will send to each Holder and to the Trustee a notice
that sets forth the special record date, the payment date and the amount of interest to be paid.



     Payment of the principal of, and accrued and unpaid interest 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 on any Notes in certificated form shall be paid (i) to the
Person entitled thereto having an aggregate principal amount of $2,000,000 or less, by check mailed
to such Person at the address set forth in the Note Register and (ii) to the



 









 




Person entitled thereto having an aggregate principal amount of more than
$2,000,000, either by check mailed to such Person or, upon application by such Person to the
Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately
available funds to such Person’s account within the United States, which application and wire
transfer instructions shall remain in effect until such Person notifies, in writing, the Note
Registrar to the contrary.




     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 shares of Common Stock (together with cash in lieu of fractional shares) 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 AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE SHALL BE
GOVERNED BY AND BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PROVISIONS THEREOF TO THE EXTENT THAT SUCH PROVISIONS WOULD RESULT IN THE SELECTION OF THE
LAW OF A DIFFERENT JURISDICTION AS THE GOVERNING LAW OF THIS NOTE.



     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]




 









 





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



	 	 	 	 	 
	 	DIGITAL RIVER, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:




	 	 	 	 	 
	TRUSTEE’S CERTIFICATE OF AUTHENTICATION
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.

 	 	 
	By:  	 	 	 
	 	Authorized Signatory 	 	 
	 	 	 	 



 









 






	 	 	 	 	 



[FORM OF REVERSE OF NOTE]




DIGITAL RIVER, INC.

2.00% Convertible Senior Note due 2030




     This Note is one of a duly authorized issue of the Notes of the Company, designated as its
2.00% Convertible Senior Notes due 2030 (herein called the “Notes”), limited to the aggregate
principal amount of $345,000,000, all issued or to be issued under and pursuant to an Indenture
dated as of November 1, 2010 (herein called the “Indenture”), between the Company and Wells Fargo
Bank, National Association (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 accrued and unpaid interest, if any, on all Notes may be declared,
by either the Trustee or Holders 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 Redemption Price, the Repurchase Price, 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 (including the Redemption Price, the
Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of and accrued and
unpaid interest, if any, on this Note at the place, at the respective times, at the rate and in the
lawful money herein prescribed or to satisfy its obligation to convert the Notes.




     The Notes are issuable in registered form without coupons in denominations of $2,000 principal
amount and greater integral multiples of $1,000. 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 Holders of the new Notes
issued upon such exchange of Notes being different from the name of the Holder of the old Notes
surrendered for such exchange.



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



     The Company may redeem the Notes in whole or in part for cash, subject to certain conditions
described in the Indenture, at any time prior to the Maturity Date. The Redemption Price will
equal 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest,
if any, to, but excluding, the Redemption Date.



     Upon the occurrence of a Fundamental Change, each Holder 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 on the Fundamental Change Repurchase Date at a price equal to the Fundamental
Change Repurchase Price. In addition, each Holder shall have the right, at such Holder’s option,
to require the Company to repurchase for cash all or any portion of such Holder’s Notes on any
Repurchase Date, in each case at a price equal to the Repurchase Price. However, a Holder may only
require the Company to repurchase fewer than all of such Holder’s Notes if (i) the principal amount
of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s
Notes not to be repurchased is in a minimum principal amount of $2,000.



     Subject to the provisions of the Indenture, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, the Holder hereof has the right, at its option,
prior to the close of business on the Business Day immediately preceding the Maturity Date, to
convert any Notes or portion thereof, into shares of Common Stock (together with cash in lieu of
fractional shares) at a Conversion Rate specified in the Indenture, as adjusted from time to time
as



2









 




provided in the Indenture; provided that a Holder may only convert fewer than all of such
Holder’s Notes if (i) the principal amount of Notes to be converted is an integral multiple of
$1,000 and (ii) the portion of such Holder’s Notes not to be converted is in a minimum principal
amount of $2,000.




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



3









 





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 = Uniform Gifts to Minors Act



CUST = Custodian



TEN ENT = as tenants by the entireties



JT TEN = joint tenants with right of survivorship and not as tenants in common




     Additional abbreviations may also be used though not in the above list.



4









 





SCHEDULE A




SCHEDULE OF EXCHANGES OF NOTES




DIGITAL RIVER, INC.

2.00% Convertible Senior Notes due 2030



     The initial principal amount of this Global Note is [               ]
($[               ]). The following increases or decreases in this Global Note have been made:



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





 









 






ATTACHMENT 1




[FORM OF NOTICE OF CONVERSION]

2.00% Convertible Senior Note due 2030




To: Digital River, Inc.




     The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (provided that (i) such portion is an integral multiple of $1,000
principal amount and (ii) the portion of this Note not to be converted is not less than $2,000 in
principal amount), below designated, and Digital River, Inc. (the “Company”), at its election, may
deliver shares of Common Stock (together with cash in lieu of fractional shares) 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, 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. 	 	 



 









 






	 	 	 	 	 



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





 









 





ATTACHMENT 2




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]

2.00% Convertible Senior Note due 2030




To: Digital River, Inc.




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Digital River, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to
the Company and specifying the Fundamental Change Repurchase Date. The undersigned registered owner
of this Note hereby instructs the Company to pay 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 (provided that (i) such portion is an integral multiple of
$1,000 principal amount and (ii) the portion of this Note not to be repurchased is not less than
$2,000 in principal amount), below designated, and (2) if such Fundamental Change Repurchase Date
does not fall during the period after a Regular Record Date and on or prior to the corresponding
Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such
Fundamental Change Repurchase Date.



     In the case of Physical 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.




 









 





ATTACHMENT 3




[FORM OF REPURCHASE DATE REPURCHASE NOTICE]



To: Digital River, Inc.




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Digital River, Inc. (the “Company”) regarding the right of Holders to elect to require the Company
to repurchase the entire principal amount of this Note, or the portion thereof (provided that (i)
such portion is an integral multiple of $1,000 principal amount and (ii) the portion of this Note
not to be repurchased is not less than $2,000 in principal amount), below designated, and hereby
instructs the Company to pay the Repurchase Price of this Note or the portion thereof so designated
in accordance with the applicable provisions of the Indenture referred to in this Note, to the
registered Holder hereof.



     In the case of Physical 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.




 









 





ATTACHMENT 4




[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 Digital River, Inc. 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.








 









 







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 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.