exv4w1






EXHIBIT
4.1




 


 





JEFFERIES GROUP, INC.




and




THE BANK OF NEW YORK MELLON




as Trustee




 






FIRST SUPPLEMENTAL INDENTURE




Dated as of October 26, 2009




to




INDENTURE




Dated as of October 26, 2009




 






$345,000,000 Principal Amount




3.875% Convertible Senior Debentures due 2029




 


 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	I.	 	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 	 	 
	 	 	 	 
	 	 	1.01 Definitions
	 	 	1	 
	 	 	1.02 Other Definitions
	 	 	7	 
	 	 	1.03 Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	 	 	1.04 Rules of Construction
	 	 	8	 
	 	 	 
	 	 	 	 
	II.	 	THE SECURITIES
	 	 	9	 
	 	 	 
	 	 	 	 
	 	 	2.01 Form and Dating
	 	 	9	 
	 	 	2.02 Execution and Authentication of Securities
	 	 	9	 
	 	 	2.03 Security Agent, Paying Agent, Conversion Agent and Bid Solicitation Agent
	 	 	10	 
	 	 	2.04 Transfer and Exchange
	 	 	10	 
	 	 	2.05 Outstanding Securities
	 	 	10	 
	 	 	2.06 Interest Payment and Record Dates
	 	 	11	 
	 	 	2.07 No Sinking Fund
	 	 	11	 
	 	 	2.08 Deposit of Moneys
	 	 	11	 
	 	 	2.09 Book-Entry Provisions for Global Securities
	 	 	12	 
	 	 	2.10 Ranking
	 	 	13	 
	 	 	2.11 Additional Securities
	 	 	13	 
	 	 	 
	 	 	 	 
	III.	 	REDEMPTION AND REPURCHASE
	 	 	13	 
	 	 	 
	 	 	 	 
	 	 	3.01 Right of Redemption and Repurchase
	 	 	13	 
	 	 	3.02 No Redemption Prior to November 1, 2012
	 	 	14	 
	 	 	3.03 Provisional Redemption
	 	 	14	 
	 	 	3.04 Optional Redemption
	 	 	14	 
	 	 	3.05 Redemption Date; Payment of Accrued and Unpaid Interest
	 	 	14	 
	 	 	3.06 Notice of Redemption
	 	 	14	 
	 	 	3.07 Notices to Trustee
	 	 	16	 
	 	 	3.08 Selection of Securities to Be Redeemed
	 	 	16	 
	 	 	3.09 Effect of Notice of Redemption
	 	 	17	 
	 	 	3.10 Deposit of Redemption Price
	 	 	17	 
	 	 	3.11 Securities Redeemed in Part
	 	 	17	 
	 	 	3.12 Purchase of Securities at Option of the Holder
	 	 	18	 
	 	 	3.13 Repurchase at Option of Holder Upon a Fundamental Change
	 	 	22	 
	 	 	 
	 	 	 	 
	IV.	 	COVENANTS
	 	 	27	 
	 	 	 
	 	 	 	 
	 	 	4.01 Payment of Securities
	 	 	27	 
	 	 	4.02 SEC Reports
	 	 	27	 
	 	 	4.03 Payment of Taxes and Other Claims
	 	 	27	 
	 	 	4.04 Further Instruments and Acts
	 	 	28	 






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	 	 	 	 	Page	 
	V.	 	SUCCESSORS
	 	 	28	 
	 	 	 
	 	 	 	 
	 	 	5.01 When Company May Merge, etc.
	 	 	28	 
	 	 	5.02 Successor Substituted
	 	 	28	 
	 	 	 
	 	 	 	 
	VI.	 	DEFAULTS AND REMEDIES
	 	 	28	 
	 	 	 
	 	 	 	 
	 	 	6.01 Events of Default
	 	 	28	 
	 	 	6.02 Acceleration
	 	 	30	 
	 	 	6.03 Other Remedies
	 	 	31	 
	 	 	6.04 Waiver of Past Defaults
	 	 	31	 
	 	 	6.05 Control by Majority
	 	 	32	 
	 	 	6.06 Limitation on Suits
	 	 	32	 
	 	 	6.07 Rights of Holders to Receive Payment
	 	 	32	 
	 	 	6.08 Collection Suit by Trustee
	 	 	33	 
	 	 	6.09 Trustee May File Proofs of Claim
	 	 	33	 
	 	 	6.10 Priorities
	 	 	33	 
	 	 	6.11 Undertaking for Costs
	 	 	34	 
	 	 	6.12 Failure to Comply with Section 4.02
	 	 	34	 
	 	 	 
	 	 	 	 
	VII.	 	TRUSTEE
	 	 	35	 
	 	 	 
	 	 	 	 
	VIII.	 	DISCHARGE OF SUPPLEMENTAL INDENTURE
	 	 	35	 
	 	 	 
	 	 	 	 
	 	 	8.01 Termination of the Obligations of the Company
	 	 	35	 
	 	 	8.02 Application of Trust Money
	 	 	36	 
	 	 	8.03 Reinstatement
	 	 	36	 
	 	 	 
	 	 	 	 
	IX.	 	AMENDMENTS
	 	 	36	 
	 	 	 
	 	 	 	 
	 	 	9.01 Without Consent of Holders
	 	 	37	 
	 	 	9.02 With Consent of Holders
	 	 	37	 
	 	 	9.03 Compliance with Trust Indenture Act
	 	 	39	 
	 	 	9.04 Revocation and Effect of Consents
	 	 	39	 
	 	 	9.05 Notation on or Exchange of Securities
	 	 	39	 
	 	 	9.06 Trustee Protected
	 	 	39	 
	 	 	 
	 	 	 	 
	X.	 	CONVERSION
	 	 	40	 
	 	 	 
	 	 	 	 
	 	 	10.01 Conversion Privilege
	 	 	40	 
	 	 	10.02 Conversion Procedure and Payment Upon Conversion
	 	 	42	 
	 	 	10.03 Taxes on Conversion
	 	 	46	 
	 	 	10.04 Company to Provide Stock
	 	 	46	 
	 	 	10.05 Adjustment of Conversion Rate
	 	 	47	 
	 	 	10.06 No Adjustment
	 	 	53	 
	 	 	10.07 Other Adjustments
	 	 	54	 
	 	 	10.08 Notice of Adjustment
	 	 	54	 






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	 	 	 	 	Page	 
	 	 	10.09 Equitable Adjustments
	 	 	54	 
	 	 	10.10 Effect of Reclassifications, Consolidations, Mergers, Binding Share
Exchanges or Sales on Conversion Privilege
	 	 	54	 
	 	 	10.11 Trustee’s Disclaimer
	 	 	56	 
	 	 	10.12 Rights Distributions Pursuant to Stockholders’ Rights Plans
	 	 	56	 
	 	 	10.13 Increased Conversion Rate Applicable to Certain Securities Surrendered
in Connection With Make-Whole
	 	 	 	 
	 	 	
 Fundamental Changes
	 	 	56	 
	 	 	10.14 Exchange In Lieu of Conversion
	 	 	59	 
	 	 	 
	 	 	 	 
	XI.	 	TAX TREATMENT
	 	 	60	 
	 	 	 
	 	 	 	 
	 	 	11.01 Tax Treatment
	 	 	60	 
	 	 	11.02 Comparable Yield And Projected Payment Schedule
	 	 	60	 
	 	 	 
	 	 	 	 
	XII.	 	MISCELLANEOUS
	 	 	61	 
	 	 	 
	 	 	 	 
	 	 	12.01 Trust Indenture Act Controls
	 	 	61	 
	 	 	12.02 Legal Holidays
	 	 	61	 
	 	 	12.03 Holder Lists
	 	 	61	 
	 	 	12.04 Notices to Holders
	 	 	62	 
	 	 	12.05 Adjustments to Last Reported Sales Prices and VWAPs
	 	 	62	 
	 	 	12.06 Contingent Interest
	 	 	62	 
	 	 	12.07 Acts of Holders
	 	 	62	 
	 	 	12.08 Duplicate Originals
	 	 	62	 
	 	 	12.09 Governing Law
	 	 	62	 
	 	 	12.10 No Adverse Interpretation of Other Agreements
	 	 	63	 
	 	 	12.11 Successors
	 	 	63	 
	 	 	12.12 Separability
	 	 	63	 
	 	 	12.13 Table of Contents, Headings, etc.
	 	 	63	 
	 	 	12.14 Calculations in Respect of the Securities
	 	 	63	 
	 	 	 
	 	 	 	 





Exhibit A      -      Form of Global Security




Exhibit B      -      Form of Legend for Global Security





-iii-











 





     FIRST SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of October 26, 2009,
between Jefferies Group, Inc., a Delaware corporation (the “Company”), and The Bank of New York
Mellon, a New York banking corporation, as trustee (the “Trustee”).



WITNESSETH THAT:




     WHEREAS, the Company and the Trustee have executed and delivered a base indenture, dated as of
October 26, 2009 (as amended, supplemented or otherwise modified from time to time, the “Base
Indenture,” and, together with this Supplemental Indenture, as amended, supplemented or otherwise
modified from time to time, the “Indenture”) to provide for the future issuance of the Company’s
unsecured debentures, notes or other evidences of indebtedness to be issued from time to time in
one or more series; and



     WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the
establishment of a series of its securities, to be titled as its 3.875% Convertible Senior
Debentures due 2029 (the “Securities”), the form and substance of such Securities and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture.



NOW, THEREFORE:




     Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s Securities.



          I. DEFINITIONS AND INCORPORATION BY REFERENCE




1.01 Definitions.




     Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Base Indenture. The following definitions (and each other definition in this
Supplemental Indenture) supplement, and, to the extent inconsistent therewith, replace the
definitions in the Base Indenture:



     “Bid Solicitation Agent” means a Company-appointed agent that determines the Trading Price and
performs calculations as set forth in Article X of this Supplemental Indenture and paragraphs 1
and 9 of the Securities.



     “Business Day” means, with respect to any Security, any day other than a Saturday, a Sunday or
a day on which the Federal Reserve Bank of New York is closed.



     “Capital Stock” of any Person means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of such Person and all warrants or options to
acquire such capital stock.



     “Change of Control” means the occurrence, after the original issuance of the Securities, of
any of the following:



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



     (B) the consummation of (i) any recapitalization, reclassification or change of the Common
Stock (other than changes resulting from a subdivision or combination or a change in par value) as
a result of which the Common Stock would be converted into, or exchanged for, or would constitute
solely the right to receive, stock, other securities or other property or assets or (ii) any share
exchange, consolidation or merger of the Company pursuant to which the Common
Stock will be converted into cash, securities or other property or any sale, lease or other
transfer in one transaction or a series of transactions of the consolidated assets of the Company
and its Subsidiaries substantially as an entirety to any “person” or “group” within the meaning of
Section 13(d) of the Exchange Act, other than one of the Company’s Subsidiaries; provided, however,
that not such share exchange, consolidation or merger shall constitute a Change of Control if
holders of the Company’s common equity immediately prior to such transaction collectively own,
directly or indirectly, more than fifty percent (50%) of all classes of common equity of the
continuing or surviving corporation or transferee or the parent thereof immediately after such
transaction in substantially the same proportion as such ownership immediately prior to such share
exchange, consolidation or merger;


provided, however, that a Change of Control will not be deemed to have occurred as a result of
clause (B) above, and no transaction or event described in clause (B) above shall constitute a
Make-Whole Fundamental Change, in each case, if at least ninety percent (90%) of the consideration
received or to be received by the Company’s common shareholders, excluding cash payments for
fractional shares and cash payments in respect of statutory dissenters’ rights, in connection with
such transaction or event consists of shares of common stock (or depositary receipts or shares
evidencing common stock) traded or quoted on the New York Stock Exchange, the NASDAQ Global Select
Market or the NASDAQ Global Market (or their respective successors) or which will be so traded or
quoted when issued or exchanged in connection with such transaction or event and, as a result of
such transaction or event, the Securities become, pursuant to Section 10.10, convertible into such
shares of common stock (or depositary receipts or shares evidencing common stock), excluding cash
payments for fractional shares and cash payments in respect of statutory dissenters’ rights
(subject to the provisions of Section 10.10).




     The phrase “close of business” means 5:00 p.m., New York City time.



     “Common Stock” means the common stock, $0.0001 par value, of the Company, or such other
Capital Stock of the Company into which the Company’s common stock is reclassified or changed.



     “Contingent Interest” has the meaning ascribed to it in paragraph 1 of the Securities.



     “Contingent Interest Measurement Period” has the meaning ascribed to it in paragraph 1 of the
Securities.



-2-









 





     “Contingent Interest Period” has the meaning ascribed to it in paragraph 1 of the Securities.



     “Contingent Interest Trading Price” has the meaning ascribed to it in paragraph 1 of the
Securities.



     “Conversion Consideration” means the consideration that is due, in accordance with this
Indenture, upon a conversion of a Security.



     “Conversion Date” means, with respect to a Security to be converted in accordance with Article
X, the date on which the Holder of such Security satisfies all the requirements for such
conversion set forth in Article X and in paragraph 9 of the Securities.



     “Conversion Notice” means the Conversion Notice set forth in the Securities.



     “Conversion Price” means, as of any date, the dollar amount derived by dividing one thousand
dollars ($1,000) by the Conversion Rate in effect on such date.



     “Conversion Rate” shall initially be 25.5076 shares of Common Stock per $1,000 principal
amount of Securities, subject to adjustment as provided in Article X.



     “Conversion Value” means an amount, per $1,000 principal amount of a Security to be converted,
equal to the sum of the Daily Conversion Values for each Trading Day in the Observation Period for
such conversion.



     “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.



     “Daily Conversion Value” means, as of any Trading Day, one-twentieth (1/20th) of the product
of (A) the Conversion Rate in effect on such Trading Day; and (B) the VWAP per share of Common
Stock on such Trading Day.



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



     “DTC” means The Depository Trust Company, its nominees and successors.



     “Ex-Dividend Date” means the first date on which shares of Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question.



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



     “Fundamental Change Repurchase Price” means, with respect to a Security to be purchased by the
Company on a Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change in
accordance with Section 3.13, one hundred percent (100%) of the outstanding principal amount of
such Security, plus accrued and unpaid interest on



-3-









 




such Security, if any, to, but excluding, such Fundamental Change Repurchase Date, except as otherwise provided in Section 3.13.




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



     The term “interest,” when used with reference to the Securities, means any interest payable
under the terms of the Securities, including Additional Interest and Contingent Interest, if any.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.



     “Last Reported Sale Price” of the Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and the average asked prices) on such date
as reported in composite transactions for the principal U.S. securities exchange on which the
Common Stock is traded; provided, however, that if the Common Stock is not listed for trading on a
U.S. national or regional securities exchange on the relevant date, then the “Last Reported Sale
Price” 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 Sheets LLC or a similar organization; provided further that
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 the relevant date from each of at
least three (3) nationally recognized independent investment banking firms selected by the Company
for this purpose.



     “Make-Whole Fundamental Change” means a Fundamental Change, other than a Change of Control as
defined in clause (A) of the definition thereof (determined after giving effect to any exceptions
or exclusions to such definition, but without regard to the proviso in clause (B) of such
definition of Change of Control).



     “Market Disruption Event” means (A) a failure by the primary U.S. national securities exchange
or market on which the Common Stock is listed or admitted to trading to open for trading during its
regular trading session; or (B) the occurrence or existence 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, 2029.



     “Observation Period” means, with respect to the conversion of a Security, (A) if the
Conversion Date of such conversion occurs during the period beginning on August 1, 2029, the twenty
(20) consecutive Trading Days beginning on, and including, the twenty second (22nd) Scheduled
Trading Day immediately preceding the Maturity Date; (B) if the Conversion Date for such conversion
occurs after the Company has given a notice of Redemption, the twenty (20) consecutive Trading Days
beginning on, and including, the twentieth (20th) Scheduled Trading Day immediately preceding the
applicable Redemption Date; and (C) in all other cases, the



-4-









 




twenty (20) consecutive Trading Days beginning on, and including, the third (3rd) Trading Day following the Conversion Date of such
conversion.




     The phrase “open of business” means 9:00 a.m., New York City time.



     “Option Purchase Price” means, with respect to a Security to be purchased by the Company on an
Option Purchase Date pursuant to a Purchase at Holder’s Option in accordance with Section 3.12,
one hundred percent (100%) of the outstanding principal amount of such Security, plus accrued and
unpaid interest on such Security, if any, to, but excluding, such Option Purchase Date, except as
otherwise provided in Section 3.12.



     “Purchase Agreement” means the Purchase Agreement dated October 21, 2009 between the Company
and the Underwriters.



     “Purchase Notice” means a Purchase Notice in the form set forth in the Securities.


     “Redemption” means a Provisional Redemption or an Optional Redemption.



     “Redemption Date” the date specified on which Securities shall be repurchased by the Company
pursuant to a Provisional Redemption or Optional Redemption in accordance with the terms of the
Securities and this Indenture.



     “Redemption Price” means, with respect to a Security to be redeemed on a Redemption Date by
the Company in accordance with Article III, one hundred percent (100%) of the outstanding
principal amount of such Security, plus accrued and unpaid interest on such Security, if any, to,
but excluding, such Redemption Date, except as otherwise provided in Section 3.05.



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



     “Securities” means the 3.875% Convertible Senior Debentures due 2029 established by this
Supplemental Indenture and issued by the Company pursuant to the Indenture.



     “Settlement Method” means Physical Settlement, Cash Settlement or Combination Settlement.



     “Significant Subsidiary” with respect to any person means any subsidiary of such person that
constitutes a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X under
the Securities Act, as such regulation is in effect on the date of this Supplemental Indenture.



     A “Termination of Trading” will be deemed to have occurred at such time as the Common Stock
(or other common stock or depositary shares or receipts in respect thereof into
which the Securities are then convertible) ceases to be listed or quoted on the New York Stock



-5-









 




Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective
successors) for a period of thirty (30) consecutive Scheduled Trading Days.




     “Trading Day” has the following meaning:



     (A) for purposes of Article X and the definitions of the terms used therein, any day during
which (I) trading in the Common Stock generally occurs on the primary exchange or market on which
the Common Stock is listed, quoted or admitted for trading; and (II) there is no Market Disruption
Event; provided, however, that that if on any Trading Day the Common Stock is not traded on any
market, then such Trading Day shall nevertheless be a “Trading Day” so long as the Company is able
to obtain the market value per share of the Common Stock on such Trading Day from a nationally
recognized independent investment banking firm retained for this purpose by the Company; and



     (B) for all other purposes, any day on which (I) trading in securities generally occurs on the
New York Stock Exchange or, if the Common Stock is not then listed on New York Stock Exchange, on
the principal other U.S. national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, in the principal other market on which the Common Stock is then traded, and (II) a Last
Reported Sale Price for the Common Stock is available on such securities exchange or market;
provided, however, that if the Common Stock (or other security for which a closing sale price must
be determined) is not so listed or traded, then “Trading Day” means a Business Day.



     “Trading Price” of a Security on any date of determination means the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for five million dollars ($5,000,000)
principal amount of the Securities at approximately 3:30 p.m., New York City time, on such
determination date from three (3) independent nationally recognized securities dealers the Company
selects; provided, however, that, if three (3) such bids cannot reasonably be obtained by the Bid
Solicitation Agent but two (2) such bids are obtained, then the average of the two bids shall be
used, and if only one (1) such bid can reasonably be obtained by the Bid Solicitation Agent, that
one (1) bid shall be used; provided further that if the Bid Solicitation Agent cannot reasonably
obtain at least one (1) bid for five million dollars ($5,000,000) principal amount of the
Securities from an independent nationally recognized securities dealer, then the Trading Price per
$1,000 principal amount of Securities will be deemed to be less than ninety five percent (95%) of
the product of the Last Reported Sale Price per share of the Common Stock and the applicable
Conversion Rate on such date of determination; provided further that if the Company does not
instruct the Bid Solicitation Agent to obtain such bids when required pursuant to this Indenture,
then the Trading Price per $1,000 principal amount of Securities will be deemed to be less than
ninety five percent (95%) of the product of the Last Reported Sale Price per share of the Common
Stock and the applicable Conversion Rate on each day the Company fails to do so.



     “Underwriters” has the meaning ascribed to it in the Purchase Agreement.



     “VWAP” per share of Common Stock means, with respect to any Trading Day, the per share
volume-weighted average price per share of Common Stock as displayed under the



-6-









 




heading “Bloomberg VWAP” on Bloomberg page JEF US Equity AQR or any successor page in respect of the period from 9:30
a.m. to 4:00 p.m., New York City time, on such Trading Day; provided, however, that if such
volume-weighted average price is unavailable, the market value per share of the Common Stock on
such Trading Day as determined by a nationally recognized independent investment banking firm retained for this purpose by the Company; provided further
that VWAP shall in all cases be determined without reference to
extended or after-hours trading.


1.02 Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section
	“Additional Interest”

	 	 	6.12	 
	“Cash Settlement”

	 	 	10.02	 
	“Combination Settlement”

	 	 	10.02	 
	“Effective Date”

	 	 	10.13	 
	“Fixed Cash Amount”

	 	 	10.02	 
	“Free Convertibility Period Settlement Method Election
Notice”

	 	 	10.02	 
	“Financial Institution”

	 	 	10.14	 
	“Fundamental Change Notice”

	 	 	3.13	 
	“Fundamental Change Repurchase Date”

	 	 	3.13	 
	“Fundamental Change Repurchase Right”

	 	 	3.13	 
	“Irrevocable Net Share Settlement Election”

	 	 	10.02	 
	“Irrevocable Net Share Settlement Election Date”

	 	 	10.02	 
	“Make-Whole Applicable Increase”

	 	 	10.13	 
	“Measurement Period”

	 	 	10.01	 
	“Notice of Default”

	 	 	6.01	 
	“Option Purchase Date”

	 	 	3.12	 
	“Option Purchase Notice”

	 	 	3.12	 
	“Optional Redemption”

	 	 	3.04	 
	“Participants”

	 	 	2.09	 
	“Physical Securities”

	 	 	2.01	 
	“Physical Settlement”

	 	 	10.02	 
	“Provisional Redemption”

	 	 	3.03	 
	“Purchase at Holder’s Option”

	 	 	3.01	 
	“Reference Property”

	 	 	10.10	 
	“relevant trading day”

	 	 	10.02	 
	“Reporting Event of Default”

	 	 	6.12	 
	“Reporting Event of Default Election Notice”

	 	 	6.12	 
	“Repurchase Upon Fundamental Change”

	 	 	3.01	 
	“Settlement Method Election Notice”

	 	 	10.01	 
	“Spin-Off”

	 	 	10.05	 
	“Stock Price”

	 	 	10.13	 
	“Successor Company”

	 	 	5.01	 
	“Trading Price Condition”

	 	 	10.01	 
	“Trigger Event”

	 	 	10.05	 






-7-









 






	 	 	 	 	 
	Term	 	Defined in Section
	“Valuation Period”

	 	 	10.05	 






1.03 Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.



     The following Trust Indenture Act terms used in this Indenture have the following meanings:


“Commission” means the Commission;

“indenture securities” means the Securities;

“indenture security holder” means a Holder;

“indenture to be qualified” means this Indenture;

“indenture trustee” or “institutional trustee” means the Trustee; and

“obligor” on the indenture securities means the Company or any successor thereto.




     All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
the Trust Indenture Act by reference to another statute or defined by Commission rule under the
Trust Indenture Act and not otherwise defined herein have the respective meanings so assigned to
them.



1.04 Rules of Construction.




     Unless the context otherwise requires:




     (i) a term has the meaning assigned to it;




     (ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles in effect from time to time;




     (iii) “or” is not exclusive;




     (iv) “including” means “including without limitation”;




     (v) words in the singular include the plural and in the plural include the singular;




     (vi) provisions apply to successive events and transactions;




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




     (viii) references to currency shall mean the lawful currency of the United States of
America, unless the context requires otherwise.



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     In addition, to the extent that the terms of this Supplemental Indenture are inconsistent or
conflict with the terms of the Base Indenture, then, for purposes of the Securities, the terms of
this Supplemental Indenture shall apply to the extent of such inconsistency or conflict.



II. THE SECURITIES




2.01 Form and Dating.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, the provisions in Article II of the Base Indenture prescribing the form of the
Securities, including the face and reverse thereof, any legends to be placed thereon and the
Trustee’s Certificate of Authentication, shall not apply to the Securities.



     The Securities and the Trustee’s certificate of authentication shall be substantially in the
form set forth in Exhibit A, which is incorporated in, and forms a part of, this Indenture. The
Securities may have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.



     The Securities shall be issued initially in the form of one or more Global Securities,
substantially in the form set forth in Exhibit A, deposited with the Trustee, as custodian for DTC
(who shall be the initial Depositary with respect to the Securities), duly executed by the Company
and authenticated by the Trustee and bearing the legend set forth in Exhibit B. The aggregate
principal amount of the Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary,
as hereinafter provided; provided, that, except as permitted by Section 2.11 and except for
Securities issued in substitution for destroyed, mutilated, lost or stolen Securities in accordance
with the Indenture, in no event shall the aggregate principal amount of the Global Security or
Securities exceed three hundred and forty five million dollars ($345,000,000).



     Securities issued in exchange for interests in a Global Security pursuant to Section 2.09 may
be issued in the form of permanent certificated Securities in registered form in substantially the
form set forth in Exhibit A (the “Physical Securities”) and, if applicable, bearing any legends
required hereby.



     The Securities shall be denominated in Dollars, and all cash payments due thereon shall be
made in Dollars. The Securities shall be issuable only in registered form without interest coupons
and only in denominations of $1,000 principal amount and any integral multiple thereof. The
Securities shall be denominated in U.S. dollars.



2.02 Execution and Authentication of Securities.




     Upon a Company Order and an Opinion of Counsel in accordance with Section 3.03 of the Base
Indenture, the Trustee shall authenticate Securities for original issue in the aggregate principal
amount of three hundred and forty five million dollars ($345,000,000).



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2.03 Security Agent, Paying Agent, Conversion Agent and Bid Solicitation Agent.




     Notwithstanding anything in the Base Indenture to the contrary, each of the Conversion Agent
and Paying Agent with respect to the Securities shall initially be the Trustee, or such other
Person as the Company may hereafter designate from time to time. The agency of the Trustee in The
City of New York shall initially act as the agency of the Conversion Agent and Paying Agent.



     The Company initially appoints the Trustee as the Bid Solicitation Agent with respect to the
Securities. However, the Company may hereafter, and from time to time, appoint a new Bid
Solicitation Agent, provided that no Bid Solicitation Agent shall be an Affiliate of the Company.



     The Company shall at all times when any Securities are outstanding maintain an office or
agency in The City of New York, which may be the office of the Trustee in such city, to act as
Paying Agent, Conversion Agent, Security Registrar and Bid Solicitation Agent with respect to the
Securities. If the Company fails to maintain a Security Registrar, Paying Agent, Conversion Agent
or Bid Solicitation Agent, then the Trustee, and its agency in The City of New York, shall act as
such.



     Notwithstanding anything in the Base Indenture to the contrary, the term “Security Registrar”
includes any co-Security Registrar; the term “Paying Agent” includes any additional paying agent;
and the term “Conversion Agent” includes any additional conversion agent.



2.04 Transfer and Exchange.




     The Company or the Trustee, as the case may be, shall not be required to register the transfer
of or exchange any Security for which a Purchase Notice has been delivered, and not withdrawn, in
accordance with this Indenture, except the unrepurchased portion of Securities being repurchased in
part. This paragraph shall replace the eighth (8th) paragraph of Section 3.5 of the Base Indenture
for purposes of the Securities.



     The Company shall not be required to transfer or exchange any Security surrendered for
conversion.



2.05 Outstanding Securities.




     If the Paying Agent (other than the Company) holds on an Option Purchase Date, Redemption
Date, Fundamental Change Repurchase Date or Maturity Date, money sufficient to pay the aggregate
Option Purchase Price, Redemption Price, Fundamental Change Repurchase Price or principal amount,
as the case may be, with respect to all Securities to be redeemed, purchased or paid upon Purchase
at Holder’s Option, Redemption, Repurchase Upon Fundamental Change or maturity, as the case may be,
in each case plus, if applicable, accrued and unpaid interest, if any, payable as herein provided
upon Purchase at Holder’s Option, Redemption, Repurchase Upon Fundamental Change or maturity, then
(unless there shall be a Default in the payment of such aggregate Option Purchase Price, Redemption
Price, Fundamental Change Repurchase Price or principal amount, or of such accrued and unpaid
interest), except as otherwise provided herein, on and after such date such Securities shall be



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deemed to be no longer outstanding, interest on such Securities shall cease to accrue, and such
Securities shall be deemed paid whether or not such Securities are delivered to the Paying Agent.
Thereafter, all rights of the Holders with respect to such Securities shall terminate with respect
to such Securities, other than the right to receive the Option Purchase Price, Redemption Price,
Fundamental Change Repurchase Price or principal amount, as the case may be, plus, if applicable,
such accrued and unpaid interest, in accordance with this Indenture.




     If a Security is converted in accordance with Article X, then, from and after the Conversion
Date for such conversion, such Security shall cease to be outstanding, and interest, if any, shall
cease to accrue on such Security unless there shall be a Default in the payment or delivery of the
Conversion Consideration payable hereunder upon such conversion; provided, however, that an
exchange in lieu of conversion in accordance with Section 10.14 shall not be deemed to be a
conversion for purposes of this paragraph.



     For purposes of the Securities, this Section 2.05 shall supersede and modify the definition
of “Outstanding” under the Base Indenture to the extent this Section 2.05 is inconsistent or
conflicts with such definition.



2.06 Interest Payment and Record Dates.




     The Interest Payment Dates for the Securities shall be May 1 and November 1 of each calendar
year, beginning with, and including, May 1, 2010. The Regular Record Date for an Interest Payment
Date that occurs on May 1 shall be the immediately preceding April 15, and the Regular Record Date
for an Interest Payment Date that occurs on November 1 shall be the immediately preceding October
15. Except as provided in Section 3.07 of the Base Indenture, Interest on each Security that is
payable on, or in respect of, any Interest Payment Date shall be paid to the Holder in whose name
such Security is registered, as shown on the Security Registrar’s books, at the close of business
on the Regular Record Date immediately preceding such Interest Payment Date. Notwithstanding
anything in this Supplemental Indenture, the Base Indenture or the Securities, the first paragraph
of Section 3.07 of the Base Indenture shall not apply to the Securities.



2.07 No Sinking Fund.




     There shall be no sinking fund with respect to the Securities, and, notwithstanding anything
in this Supplemental Indenture, the Base Indenture or the Securities, Article 12 of the Base
Indenture shall not apply to the Securities.



2.08 Deposit of Moneys.




     Prior to 10:00 A.M., New York City time, on each Interest Payment Date, Maturity Date,
Redemption Date, Option Purchase Date or Fundamental Change Repurchase Date, the
Company shall have deposited with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust in accordance with Section 10.03 of the Base Indenture)
money, in funds immediately available on such date, sufficient to make cash payments, if any, due
on such Interest Payment Date, Maturity Date, Redemption Date, Purchase Date or Fundamental Change
Repurchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date,



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 Maturity Date, Redemption Date, Option
Purchase Date or Fundamental Change Repurchase Date, as the case may be. For purposes of the
Securities, the terms “at or prior to 10:00 A.M., New York City time, on” shall be deemed to
replace the first instance of the words “on or before” in the first paragraph, and the words “on or
prior to” in the second paragraph, of Section 10.03 of the Base Indenture.




2.09 Book-Entry Provisions for Global Securities.




     (A) The Global Securities initially shall (i) be registered in the name of the Depositary for
the Securities or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as required by this Supplemental Indenture.



     Members of, or participants in, the Depositary for the Securities (“Participants”) shall have
no rights under this Indenture with respect to any Global Security held on their behalf by such
Depositary, or the Trustee as its custodian, or under the Global Security, and such 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 Security 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 such
Depositary or impair, as between such Depositary and Participants, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.



     (B) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
the Depositary for the Securities, its successors or their respective nominees. Notwithstanding
anything in this Supplemental Indenture, the Base Indenture or the Securities to the contrary, the
ninth (9th) paragraph of Section 3.05 of the Base Indenture shall not apply to the Securities.
Beneficial interests in a Global Security, as identified by such Depositary and the Participants,
may be exchanged for Physical Securities, in registered form, in exchange for their beneficial
interests in Global Securities only if (i) such Depositary notifies the Company that such
Depositary is unwilling or unable to continue as depositary for such Global Security and a
successor Depositary is not appointed by the Company within ninety (90) days after receiving such
notice; (ii) such Depositary ceases to be a “clearing agency” registered under Section 17A of the
Exchange Act and a successor Depositary is not appointed by the Company within ninety (90) days
after becoming aware that the Depositary has so ceased to be a “clearing agency” registered under
Section 17A of the Exchange Act; (iii) the Company, in its sole discretion, determines that such
Global Security shall be exchangeable for Physical Securities, in registered form, and the Company
notifies the Trustee of the same; or (iv) an Event of Default with respect to the Securities
represented by such Global Security shall have occurred and be continuing. This Section 2.09(B)
shall replace the ninth (9th) and tenth (10th) paragraphs of Section 3.05 of the Base Indenture for
purposes of the Securities.



     (C) In connection with the transfer of a Global Security in its entirety to beneficial owners
pursuant to Section 2.09(B), such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written instructions from the Company authenticate and deliver, to each beneficial owner, identified
by the Depositary or the Participants, of such Global Security, in exchange for its beneficial
interest



-12-









 




in such Global Security, an equal aggregate principal amount of Physical Securities of
authorized denominations.




     (D) The Holder of any Global Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants, to take any action
which a Holder is entitled to take under this Indenture or the Securities.



2.10 Ranking.




     The indebtedness of the Company arising under or in connection with this Supplemental
Indenture and every outstanding Security issued under this Supplemental Indenture from time to time
constitutes and will constitute a senior unsecured obligation of the Company, ranking equally with
other existing and future senior unsecured indebtedness of the Company and ranking senior to any
existing or future subordinated indebtedness of the Company.



2.11 Additional Securities.




     The Company may, without the consent of the Holders and notwithstanding Sections 2.01 and
2.02 hereof, reopen the Securities and issue, in an unlimited aggregate principal amount,
additional Securities hereunder with the same terms and conditions (except for any difference in
the issue price therefor and interest accrued prior to the date of issuance thereof) and with the
same CUSIP number as the Securities initially issued hereunder, which additional Securities will
form the same series with the Securities initially issued hereunder, provided that such additional
Securities constitute the same issue as the Securities initially issued hereunder for U.S. federal
income tax purposes. The Securities initially issued hereunder and any such additional Securities
will rank equally and ratably and would be treated as a single series of debt securities for all
purposes under the Indenture.



III. REDEMPTION AND REPURCHASE




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, Article XI of the Base Indenture shall not apply to the Securities.



3.01 Right of Redemption and Repurchase.




     (A) A redemption or repurchase of the Securities by the Company, as permitted by any provision
of this Indenture, shall be made:




     (i) with respect to a Redemption at the Company’s option, in accordance with
paragraph 6 of the Securities and with Section 3.03 or Section 3.04,




     (ii) with respect to a repurchase at the Holder’s option, in accordance with
paragraph 7 of the Securities and Section 3.12 (a “Purchase at Holder’s Option”) and



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     (iii) with respect to any repurchase upon a Fundamental Change, in accordance with
paragraph 8 of the Securities and Section 3.13 (a “Repurchase Upon Fundamental
Change”),



in each case in accordance with the applicable provisions of this Article III.




     (B) The Company will comply with all federal and state securities laws, and the applicable
laws of any foreign jurisdiction, in connection with any offer to sell or solicitations of offers
to buy Securities pursuant to this Article III.



3.02 No Redemption Prior to November 1, 2012.




     The Securities are not subject to redemption at the Company’s option at any time prior to
November 1, 2012.



3.03 Provisional Redemption.




     (A) The Company shall have the right, at the Company’s option, at any time, and from time to
time, on a Redemption Date on or after November 1, 2012 and before November 1, 2017, to redeem (a
“Provisional Redemption”) all or any part of the Securities at a price, payable in cash, equal to
the Redemption Price, if the Last Reported Sale Price per share of Common Stock for twenty (20) or
more Trading Days in a period of thirty (30) consecutive Trading Days ending on the Trading Day
prior to the date the Company provides the notice of Provisional Redemption pursuant to Section
3.06 exceeds one hundred and thirty percent (130%) of the Conversion Price in effect on the
applicable Trading Day.



3.04 Optional Redemption.




     The Company shall have the right, at the Company’s option, at any time, and from time to time,
on a Redemption Date on or after November 1, 2017, to redeem (an “Optional Redemption”) all or any
part of the Securities at a price payable in cash equal to the Redemption Price.



3.05 Redemption Date; Payment of Accrued and Unpaid Interest.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary: (A) in no event shall any Redemption Date be a day that is not a Business Day; (B)
if the Redemption Date with respect to a Security is after a Regular Record Date and on or before
the immediately following Interest Payment Date, then (i) accrued and unpaid interest on such
Security to, but excluding, such Interest Payment Date shall be paid, on such Interest Payment
Date, to the Holder of record of such Security at the close of business on such Regular Record Date
and (ii) the Redemption Price for such Security shall not include such accrued and unpaid interest.



3.06 Notice of Redemption.




     At least thirty (30) days but not more than sixty (60) days before a Redemption Date, the
Company shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each



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Holder whose Securities are to be redeemed, at the address of such Holder appearing on the Security
Registrar’s books.




     The notice shall identify the Securities and the aggregate principal amount thereof to be
redeemed pursuant to the Redemption and shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price;




     (iii) the Conversion Rate and the Conversion Price;




     (iv) the names and addresses of the Paying Agent and the Conversion Agent;




     (v) that Securities called for Redemption may be converted until the close of
business on the second (2nd) Business Day immediately preceding the Redemption Date,
unless there shall be a Default in the payment of the Redemption Price (including, where
the Redemption Date is after a Regular Record Date for the payment of an installment of
interest and on or before the immediately following Interest Payment Date, a Default in
the payment, on such Interest Payment Date, of accrued and unpaid interest on such
Securities to, but excluding, such Interest Payment Date to the Holder of record of such
Securities at the close of business on such Regular Record Date);




     (vi) that Holders who want to convert Securities must satisfy the requirements of
Article X;




     (vii) the paragraph of the Securities pursuant to which the Securities are to be
redeemed;




     (viii) that Securities called for Redemption must be surrendered to the Paying Agent
to collect the Redemption Price therefor;




     (ix) that, unless there shall be a Default in the payment of the Redemption Price of
the Securities called for Redemption (including, where the Redemption Date is after a
Regular Record Date for the payment of an installment of interest and on or before the
immediately following Interest Payment Date, a Default in the payment, on such Interest
Payment Date, of accrued and unpaid interest on such Securities to, but excluding, such
Interest Payment Date to the Holder of record of such Securities at the close of business
on such Regular Record Date), interest on such Securities ceases to accrue on and after
the Redemption Date, except as otherwise provided herein, such Securities will cease to be
convertible after the close of business on the second (2nd) Business Day immediately
preceding the Redemption Date, and all rights of the Holders with respect to such
Securities shall terminate on and after the Redemption Date, other than the right to
receive, upon surrender of such Securities and in accordance with this Indenture, the
amounts due hereunder on such Securities upon Redemption (and the rights of the Holder(s)
of record of such Securities to receive, on the applicable Interest Payment Date, accrued
and unpaid interest in accordance



-15-









 





herewith
in the event the Redemption Date is after a Regular Record Date for the payment of an installment of interest and on or before the
immediately following Interest Payment Date); and




     (x) the CUSIP number or numbers, as the case may be, of the Securities to be
redeemed.



     The right, pursuant to Article X, to convert Securities called for Redemption shall terminate
at the close of business on the second (2nd) Business Day immediately preceding the applicable
Redemption Date, unless there shall be a Default in the payment of the Redemption Price (including,
where the Redemption Date is after a Regular Record Date for the payment of an installment of
interest and on or before the immediately following Interest Payment Date, a Default in the
payment, on such Interest Payment Date, of accrued and unpaid interest on such Securities to, but
excluding, such Interest Payment Date to the Holder of record of such Securities at the close of
business on such Regular Record Date).



     At the Company’s request, upon reasonable prior notice, the Trustee shall mail the notice of
Redemption in the Company’s name and at the Company’s expense; provided, however, that the form and
content of such notice shall be prepared by the Company.



3.07 Notices to Trustee.




     If the Company elects to redeem Securities pursuant to paragraph 6 of the Securities, it
shall notify the Trustee of the Redemption Date, the applicable provision of this Indenture
pursuant to which the Redemption is to be made and the aggregate principal amount of Securities to
be redeemed, which notice shall be provided to the Trustee by the Company at least fifteen (15)
days prior to the mailing, in accordance with Section 3.06, of the notice of Redemption (unless a
shorter notice period shall be satisfactory to the Trustee).



3.08 Selection of Securities to Be Redeemed.




     If the Company has elected to redeem less than all the Securities pursuant to paragraph 6 of
the Securities, the Trustee shall, within five (5) Business Days after receiving the notice
specified in Section 3.07, select the Securities to be redeemed by lot, on a pro rata basis or in
accordance with any other method the Trustee considers fair and appropriate, provided such
method is not prohibited by the rules of any stock exchange or quotation association on which the
Securities or the Common Stock may then be traded or quoted. The Trustee shall make such selection
from Securities then outstanding and not already to be redeemed by virtue of having been previously
called for Redemption. Securities and portions of them the Trustee selects for Redemption shall be
in amounts of $1,000 principal amount or integral multiples of $1,000 principal amount. The
Trustee shall promptly notify the Company in writing of the Securities selected for Redemption and
the principal amount thereof to be redeemed.



     The Security Registrar need not register the transfer of or exchange any Securities that have
been selected for Redemption, except the unredeemed portion of the Securities being redeemed in
part. Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, the reference, in the eighth (8th) paragraph of Section 3.05 of



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the Base Indenture, to “Section 11.05” shall, for purposes of the Securities, be deemed to be replaced
with the phrase “Section 3.08 of the Supplemental Indenture”.




3.09 Effect of Notice of Redemption.




     Once notice of Redemption is mailed, Securities called for Redemption become due and payable
on the applicable Redemption Date at the consideration set forth herein, and, on and after such
Redemption Date (unless there shall be a Default in the payment of such consideration), except as
otherwise provided herein, such Securities shall cease to bear interest, and all rights of the
Holders with respect to such Securities shall terminate, other than the right to receive such
consideration upon surrender of such Securities to the Paying Agent (except that, if the Redemption
Date is after a Regular Record Date and on or before the immediately following Interest Payment
Date, then accrued and unpaid interest on such Securities to, but excluding, such Interest Payment
Date will be paid, on such Interest Payment Date, to the Holder(s) of record of such Securities at
the close of business on such Regular Record Date without any requirement to surrender such
Securities to the Paying Agent).



     If any Security shall not be fully and duly paid in accordance herewith upon Redemption, the
principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest at
the rate borne by such Security on the principal amount of such Security, and such Security shall
continue to be convertible pursuant to Article X.



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, there shall be no purchase of any Securities pursuant to a Redemption if the
principal amount of the Securities has been accelerated pursuant to Section 6.02 and such
acceleration shall not have been rescinded on or before the applicable Redemption Date. The Paying
Agent will promptly return to the respective Holders thereof any Securities tendered to it for
Redemption during the continuance of such an acceleration.



3.10 Deposit of Redemption Price.




     Prior to 10:00 A.M., New York City time on each Redemption Date, the Company shall deposit
with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in
trust in accordance with Section 10.03 of the Base Indenture) money, in funds immediately available
on the Redemption Date, sufficient to pay the consideration payable as herein provided upon
Redemption on all Securities to be redeemed on such Redemption Date. The Paying Agent shall return
to the Company, as soon as practicable, any money not required for that purpose.



3.11 Securities Redeemed in Part.




     Any Security to be submitted for Redemption only in part shall be delivered pursuant to
Section 3.09 (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as



-17-









 




requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security
not submitted for Redemption.




     If any Security selected for partial Redemption is converted in part, the principal of such
Security subject to Redemption shall be reduced by the principal amount of such Security that is
converted.



3.12 Purchase of Securities at Option of the Holder.




     (A) At the option of the Holder thereof, Securities (or portions thereof that are integral
multiples of $1,000 in principal amount) shall be purchased by the Company pursuant to paragraph 7
of the Securities on November 1, 2017, November 1, 2019 and November 1, 2024 (each, an “Option
Purchase Date”), at a purchase price, payable in cash, equal to the Option Purchase Price for such
Securities, upon:




     (i) delivery to the Trustee or any Paying Agent, by such Holder, at any time from
the opening of business on the date that is twenty (20) Business Days prior to the
applicable Option Purchase Date until the close of business on the Business Day
immediately preceding the applicable Option Purchase Date, of a Purchase Notice, in the
form set forth in the Securities or any other form of written notice substantially
similar thereto, in each case, duly completed and signed, with appropriate signature
guarantee, stating:




     (a) the certificate number(s) of the Securities which the Holder will deliver
to be purchased, if such Securities are in certificated form;




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




     (c) that such principal amount of Securities are to be purchased as of the
applicable Option Purchase Date pursuant to the terms and conditions specified in
paragraph 7 of the Securities and this Section 3.12; and




     (ii) delivery or book-entry transfer to the Trustee or a Paying Agent, at any time
after delivery of such Purchase Notice, of such Securities (together with all necessary
endorsements), such delivery or transfer being a condition to receipt by the Holder of
the Option Purchase Price therefor (except that, if the Option Purchase Date is after a
Regular Record Date and on or before the immediately following Interest Payment Date,
then accrued and unpaid interest on such Securities to, but excluding, such Interest
Payment Date will be paid, on such Interest Payment Date, to the Holder(s) of record of
such Securities at the close of business on such Regular Record Date without any
requirement to surrender such Securities to the Paying Agent).



     If such Securities are held in book-entry form through the Depositary, the Purchase Notice,
and each withdrawal of any Purchase Notice, shall comply with applicable procedures of the
Depositary.




-18-












 





     Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or
such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent,
as the case may be, a nontransferable receipt of deposit evidencing such delivery.



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section
3.12(A) to the Trustee or any Paying Agent shall have the right to withdraw such Purchase Notice
by delivery, at any time prior to the close of business on the Business Day immediately preceding
the applicable Option Purchase Date, of a written notice of withdrawal to the Trustee or any Paying
Agent, which notice shall contain the information specified in Section 3.12(B)(vii).



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



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, if the Option Purchase Date with respect to a Security to be purchased by the
Company pursuant to a Purchase at Holder’s Option is after a Regular Record Date and on or before
the immediately following Interest Payment Date, then (i) accrued and unpaid interest on such
Security to, but excluding, such Option Purchase Date shall be paid, on such Interest Payment Date,
to the Holder of record of such Security at the close of business on such Regular Record Date and
(ii) the Option Purchase Price for such Security shall not include such accrued and unpaid
interest.



     (B) The Company shall give notice (the “Option Purchase Notice”), on or before the twentieth
(20th) Business Days prior to each Option Purchase Date to the Trustee, each Paying Agent, each
Holder, at its address shown on the Security Registrar’s books, and each beneficial owner as
required by applicable law. Such notice shall state:




     (i) the Option Purchase Price and the Conversion Rate;




     (ii) the names and addresses of the Trustee, each Paying Agent and the Conversion
Agent;




     (iii) that Securities with respect to which a Purchase Notice is given by a Holder
may be converted pursuant to Article X, if otherwise convertible in accordance with
Article X, only if such Purchase Notice has been withdrawn in accordance with this
Section 3.12 or if there shall be a Default in the payment of the consideration payable
as herein provided upon a Purchase at Holder’s Option;




     (iv) that Securities must be surrendered, or transferred by book-entry transfer, to
the Paying Agent to collect payment of the Option Purchase Price (except that, if the
Option Purchase Date is after a Regular Record Date and on or before the immediately
following Interest Payment Date, then accrued and unpaid interest on such Securities to,
but excluding, such Interest Payment Date will be paid, on such Interest Payment Date, to
the Holder(s) of record of such Securities at the close of business on such Regular
Record Date without any requirement to surrender or transfer such Securities to the
Paying Agent);



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     (v) that the Option Purchase Price for any Security as to which a Purchase Notice
has been given and not withdrawn will be paid as promptly as practicable, but in no event
later than the later of such Option Purchase Date or the time of delivery of the Security
as described in clause (iv) above (except that, if the Option Purchase Date is after a
Regular Record Date and on or before the immediately following Interest Payment Date,
then accrued and unpaid interest on such Securities to, but excluding, such Interest
Payment Date will be paid, on such Interest Payment Date, to the Holder(s) of record of
such Securities at the close of business on such Regular Record Date and the Option
Purchase Price will not include such accrued and unpaid interest);




     (vi) the procedures the Holder must follow to exercise rights under this Section
3.12 and a brief description of those rights;




     (vii) that a Holder will be entitled to withdraw its election in the Purchase Notice
if the Trustee or any Paying Agent receives, at any time prior to the close of business
on the Business Day immediately preceding the applicable Option Purchase Date, a letter
or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly
followed by a letter) setting forth (I) the name of such Holder, (II) a statement that
such Holder is withdrawing its election to have Securities purchased by the Company on
such Option Purchase Date pursuant to a Purchase at Holder’s Option, (III) the
certificate number(s) of such Securities to be so withdrawn, if such Securities are in
certificated form, (IV) the principal amount of the Securities of such Holder to be so
withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the
principal amount, if any, of the Securities of such Holder that remain subject to the
Purchase Notice delivered by such Holder in accordance with this Section 3.12, which
amount must be $1,000 or an integral multiple thereof;




     (viii) that, except as otherwise provided herein, on and after the applicable Option
Purchase Date (unless there shall be a Default in the payment of the consideration
payable as herein provided upon a Purchase at Holder’s Option), interest on Securities
subject to Purchase at Holder’s Option will cease to accrue, and all rights of the
Holders with respect to such Securities shall terminate, other than the right to receive,
in accordance herewith, the consideration payable as herein provided upon a Purchase at
Holder’s Option; and




     (ix) the CUSIP number or numbers, as the case may be, of the Securities.



     At the Company’s request, upon reasonable prior notice, the Trustee shall mail such Option
Purchase Notice in the Company’s name and at the Company’s expense; provided, however, that the
form and content of such Option Purchase Notice shall be prepared by the Company.



     No failure of the Company to give an Option Purchase Notice shall limit any Holder’s right to
exercise its rights to require the Company to purchase such Holder’s Securities pursuant to a
Purchase at Holder’s Option.



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     (C) Subject to the provisions of this Section 3.12, the Company shall pay, or cause to be
paid, the Option Purchase Price with respect to each Security subject to Purchase at Holder’s
Option to the Holder thereof as promptly as practicable, but in no event later than the later of
the applicable Option Purchase Date and the time such Security (together with all necessary
endorsements) is surrendered or transferred, by book-entry, to the Trustee or the Paying Agent
(except that, if the Option Purchase Date is after a Regular Record Date and on or before the
immediately following Interest Payment Date, then accrued and unpaid interest on such Securities
to, but excluding, such Interest Payment Date will be paid, on such Interest Payment Date, to the
Holder(s) of record of such Securities at the close of business on such Regular Record Date without
any requirement to surrender or transfer such Securities to the Paying Agent).



     (D) Prior to 10:00 A.M., New York City time on the applicable Option Purchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust in accordance with Section 10.03 of the Base Indenture) money, in funds
immediately available on the applicable Option Purchase Date, sufficient to pay the consideration
payable as herein provided for all of the Securities that are to be purchased by the Company on
such Option Purchase Date pursuant to such Purchase at Holder’s Option. The Paying Agent shall
return to the Company, as soon as practicable, any money not required for that purpose.



     (E) Once the Purchase Notice has been duly delivered in accordance with this Section 3.12,
the Securities to be purchased pursuant to the Purchase at Holder’s Option shall, on the applicable
Option Purchase Date, become due and payable in accordance herewith, and, on and after such date
(unless there shall be a Default in the payment of the consideration payable as herein provided
upon a Purchase at Holder’s Option), except as otherwise herein provided, such Securities shall
cease to bear interest, and all rights of the Holders with respect to such Securities shall
terminate, other than the right to receive, in accordance herewith, the such consideration.



     (F) Securities with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.12 may be converted pursuant to Article X, if otherwise convertible in
accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this
Section 3.12 or if there shall be a Default in the payment of the consideration payable as herein
provided upon a Purchase at Holder’s Option.



     (G) If any Security subject to Purchase at Holder’s Option shall not be paid in accordance
herewith, the principal of, and accrued and unpaid interest on, such Security shall, until paid,
bear interest, payable in cash, at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to Article X.



     (H) Any Security which is to be submitted for Purchase at Holder’s Option only in part shall
be delivered pursuant to this Section 3.12 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities,



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of any authorized denomination as requested by such Holder, of the same tenor and in aggregate
principal amount equal to the portion of such Security not submitted for Purchase at Holder’s
Option.




     (I) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, there shall be no purchase of any Securities pursuant to this Section
 3.12 if the principal amount of the Securities has been accelerated pursuant to Section 6.02 and
such acceleration shall not have been rescinded on or before the applicable Option Purchase Date.
The Paying Agent will promptly return to the respective Holders thereof any Securities tendered to
it for Purchase at Holder’s Option during the continuance of such an acceleration.



     (J) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, if the option granted to Holders to require the purchase of the
Securities on the applicable Option Purchase Date is determined to constitute a tender offer, the
Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule
13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule
TO or any other schedules required under the Exchange Act or any other applicable laws.



3.13 Repurchase at Option of Holder Upon a Fundamental Change.




     (A) In the event any Fundamental Change shall occur, each Holder of Securities shall have the
right (the “Fundamental Change Repurchase Right”), at such Holder’s option, to require the Company
to repurchase all of such Holder’s Securities (or portions thereof that are integral multiples of
$1,000 in principal amount), on a date selected by the Company (the “Fundamental Change Repurchase
Date”), which Fundamental Change Repurchase Date shall be no later than thirty five (35) days, nor
earlier than twenty (20) Business Days, after the date the Fundamental Change Notice (as defined
below) is mailed in accordance with Section 3.13(B), at a price, payable in cash, equal to the
Fundamental Change Repurchase Price for such Securities, upon:




     (i) delivery to the Trustee or any Paying Agent, by such Holder, at any time prior
to the close of business on the Business Day immediately preceding the applicable
Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth in the
Securities or any other form of written notice substantially similar thereto, in each
case, duly completed and signed, with appropriate signature guarantee, stating:




     (a) the certificate number(s) of the Securities which the Holder will deliver
to be purchased, if such Securities are in certificated form;




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




     (c) that such principal amount of Securities are to be purchased as of the
applicable Fundamental Change Repurchase Date pursuant to the terms and conditions
specified in this Section 3.13; and



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     (ii) delivery or book-entry transfer to the Trustee or a Paying Agent, at any time
after delivery of such Purchase Notice, of such Securities (together with all necessary
endorsements), such delivery or transfer being a condition to receipt by the Holder of
the Fundamental Change Repurchase Price therefor (except that, if the Fundamental Change
Repurchase Date is after a Regular Record Date and on or before the immediately following
Interest Payment Date, then accrued and unpaid interest on such Securities to, but
excluding, such Interest Payment Date will be paid, on such Interest Payment Date, to the
Holder(s) of record of such Securities at the close of business on such Regular Record
Date without any requirement to surrender such Securities to the Paying Agent).



     If such Securities are held in book-entry form through the Depositary, the Purchase Notice,
and each withdrawal of any Purchase Notice, shall comply with applicable procedures of the
Depositary.



     Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or
such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent,
as the case may be, a nontransferable receipt of deposit evidencing such delivery.



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section
 3.13(A) to the Trustee or any Paying Agent shall have the right to withdraw such Purchase Notice
by delivery, at any time prior to the close of business on the Business Day immediately preceding
the applicable Fundamental Change Repurchase Date, of a written notice of withdrawal to the Trustee
or any Paying Agent, which notice shall contain the information specified in Section 3.13(B)(xi).



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



     (B) Within fifteen (15) Business Days after the occurrence of a Fundamental Change, the
Company shall mail, or cause to be mailed, to each Holder of the Securities, at its address shown
on the Security Registrar’s books, and to beneficial owners as required by applicable law, a notice
(the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and the Fundamental
Change Repurchase Right arising as a result thereof. The Company shall deliver a copy of the
Fundamental Change Notice to the Trustee and shall cause a copy to be published at the expense of
the Company in a press release disseminated through Dow Jones & Company, Inc. or Bloomberg Business
News or other similarly broad public medium that is customary for such press releases.



     Each Fundamental Change Notice shall state:




     (i) the events causing the Fundamental Change;




     (ii) the date of such Fundamental Change;




     (iii) the Fundamental Change Repurchase Date;



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     (iv) the date by which the Fundamental Change Repurchase Right must be exercised;




     (v) the Fundamental Change Repurchase Price;




     (vi) the names and addresses of the Paying Agent and the Conversion Agent;




     (vii) a description of the procedures which a Holder must follow to exercise the
Fundamental Change Repurchase Right;




     (viii) that Securities must be surrendered, or transferred by book-entry transfer, to
the Paying Agent to collect payment of the Fundamental Change Repurchase Price (except
that, if the Fundamental Change Repurchase Date is after a Regular Record Date and on or
before the immediately following Interest Payment Date, then accrued and unpaid interest
on such Securities to, but excluding, such Interest Payment Date will be paid, on such
Interest Payment Date, to the Holder(s) of record of such Securities at the close of
business on such Regular Record Date without any requirement to surrender or transfer such
Securities to the Paying Agent);




     (ix) that the Fundamental Change Repurchase Price for any Security as to which a
Purchase Notice has been given and not withdrawn will be paid as promptly as practicable,
but in no event later than the later of such Fundamental Change Repurchase Date or the
time of delivery of the Security as described in clause (viii) above (except that, if the
Fundamental Change Repurchase Date is after a Regular Record Date and on or before the
immediately following Interest Payment Date, then accrued and unpaid interest on such
Securities to, but excluding, such Interest Payment Date will be paid, on such Interest
Payment Date, to the Holder(s) of record of such Securities at the close of business on
such Regular Record Date and the Fundamental Change Repurchase Price will not include such
accrued and unpaid interest);




     (x) that, except as otherwise provided herein, on and after such Fundamental Change
Repurchase Date (unless there shall be a Default in the payment of the consideration
payable as herein provided upon Repurchase Upon Fundamental Change), interest on
Securities subject to Repurchase Upon Fundamental Change will cease to accrue, and all
rights of the Holders with respect to such Securities shall terminate, other than the
right to receive, in accordance herewith, the consideration payable as herein provided
upon Repurchase Upon Fundamental Change;




     (xi) that a Holder will be entitled to withdraw its election in the Purchase Notice
if the Trustee or any Paying Agent receives, at any time prior to the close of business on
the Business Day immediately preceding the applicable Fundamental Change Repurchase Date,
a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and
promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities purchased by the Company
on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental
Change, (III) the certificate number(s) of such



-24-









 






Securities to be so withdrawn, if such Securities are in certificated form, (IV) the
principal amount of the Securities of such Holder to be so withdrawn, which amount must be
$1,000 or an integral multiple thereof and (V) the principal amount, if any, of the
Securities of such Holder that remain subject to the Purchase Notice delivered by such
Holder in accordance with this Section 3.13, which amount must be $1,000 or an integral
multiple thereof;




     (xii) the Conversion Rate and any adjustments to the Conversion Rate that will result
from such Fundamental Change;




     (xiii) that Securities with respect to which a Purchase Notice is given by a Holder
may be converted pursuant to Article X, if otherwise convertible in accordance with
Article X, only if such Purchase Notice has been withdrawn in accordance with this
Section 3.13 or if there shall be a Default in the payment of the consideration payable
as herein provided upon a Repurchase Upon Fundamental Change; and




     (xiv) the CUSIP number or numbers, as the case may be, of the Securities.



     At the Company’s request, upon reasonable prior notice, the Trustee shall mail such
Fundamental Change Notice in the Company’s name and at the Company’s expense; provided, however,
that the form and content of such Fundamental Change Notice shall be prepared by the Company.



     No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right
to exercise a Fundamental Change Repurchase Right.



     (C) Subject to the provisions of this Section 3.13, the Company shall pay, or cause to be
paid, the Fundamental Change Repurchase Price with respect to each Security as to which the
Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as promptly as
practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the
time such Security (together with all necessary endorsements) is surrendered or transferred, by
book-entry, is surrendered to the Paying Agent (except that, if the Fundamental Change Repurchase
Date is after a Regular Record Date and on or before the immediately following Interest Payment
Date, then accrued and unpaid interest on such Securities to, but excluding, such Interest Payment
Date will be paid, on such Interest Payment Date, to the Holder(s) of record of such Securities at
the close of business on such Regular Record Date without any requirement to surrender or transfer
such Securities to the Paying Agent).



     (D) Prior to 10:00 A.M., New York City time on a Fundamental Change Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust in accordance with Section 10.03 of the Base Indenture) money, in funds
immediately available on the Fundamental Change Repurchase Date, sufficient to pay the
consideration payable as herein provided for all of the Securities that are to be repurchased by
the Company on such Fundamental Change Repurchase Date pursuant to the Repurchase Upon Fundamental
Change. The Paying Agent shall return to the Company, as soon as practicable, any money not
required for that purpose.



-25-









 





     (E) Once the Fundamental Change Notice and the Purchase Notice have been duly given in
accordance with this Section 3.13, the Securities to be repurchased pursuant to a Repurchase Upon
Fundamental Change shall, on the Fundamental Change Repurchase Date, become due and payable in
accordance herewith, and, on and after such date (unless there shall be a Default in the payment of
the consideration payable as herein provided upon Repurchase Upon Fundamental Change), except as
otherwise herein provided, such Securities shall cease to bear interest, and all rights of the
Holders with respect to such Securities shall terminate, other than the right to receive, in
accordance herewith, such consideration.



     (F) Securities with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.13 may be converted pursuant to Article X, if otherwise convertible in
accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this
Section 3.13 or if there shall be a Default in the payment of the consideration payable as herein
provided upon Repurchase Upon Fundamental Change.



     (G) If any Security shall not be paid upon surrender thereof for Repurchase Upon Fundamental
Change, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear
interest, payable in cash, at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to Article X.



     (H) Any Security which is to be submitted for Repurchase Upon Fundamental Change only in part
shall be delivered pursuant to this Section 3.13 (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not duly submitted for Repurchase Upon Fundamental Change.



     (I) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, there shall be no purchase of any Securities pursuant to this Section
 3.13 if the principal amount of the Securities has been accelerated pursuant to Section 6.02 and
such acceleration shall not have been rescinded on or before the applicable Fundamental Change
Repurchase Date. The Paying Agent will promptly return to the respective Holders thereof any
Securities tendered to it for Repurchase Upon Fundamental Change during the continuance of such an
acceleration.



     (J) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, if the option granted to Holders to require the repurchase of the
Securities upon the occurrence of a Fundamental Change is determined to constitute a tender offer,
the Company shall comply with all applicable tender offer rules under the Exchange Act, including
Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a
Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.



-26-









 





IV. COVENANTS




4.01 Payment of Securities.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, Section 10.01 of the Base Indenture shall not apply to the Securities.



     (A) The Company shall pay all amounts due with respect to the Securities on the dates and in
the manner provided in the Securities. All such amounts shall be considered paid on the date due
if the Paying Agent holds (or, if the Company is acting as Paying Agent, the Company has segregated
and holds in trust in accordance with Section 10.03 of the Base Indenture) on that date money
sufficient to pay the amount then due with respect to the Securities (unless there shall be a
Default in the payment of such amounts to the respective Holder(s)).



     (B) The Company shall pay, in cash, interest on any overdue amount (including, to the extent
permitted by applicable law, overdue interest) at the rate borne by the Securities, compounded
semiannually.



4.02 SEC Reports.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, Section 7.04 of the Base Indenture shall not apply to the Securities.



     The Company shall deliver to the Trustee copies of the Company’s annual and quarterly reports
and of the information, documents and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act within fifteen (15)
days after the Company is required to file such annual and quarterly reports, information,
documents and other reports with the Commission. Documents that are filed by the Company with the
Commission via the Commission’s EDGAR system (or any successor thereto) and which are publicly
available will be deemed to be delivered to the Trustee as of the time such documents are so filed.
The Company shall comply with the other provisions of Trust Indenture Act § 314(a). Delivery of
such reports, information and documents to the Trustee is for informational purposes only, and the
Trustee’s receipt thereof shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates). For the avoidance of doubt, the Company shall not be required to deliver
to the Trustee any material for which the Company has sought and received confidential treatment by
the Commission.



4.03 Payment of Taxes and Other Claims.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, section 10.05 of the Base Indenture shall not apply to the Securities.



-27-









 





4.04 Further Instruments and Acts.




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



V. SUCCESSORS



Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities to
the contrary, Article VIII of the Base Indenture shall not apply to the Securities.




5.01 When Company May Merge, etc.




     The Company shall not consolidate with, or merge with or into, any other person or sell, lease
or otherwise transfer the consolidated assets of the Company and its Subsidiaries substantially as
an entirety to another person, unless (i) the resulting, surviving or transferee person (if not the
Company) (the “Successor Company”) is a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia; (ii) the Successor Company
(if not the Company) expressly assumes, by a supplemental indenture, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all of the Company’s obligations under the
Securities and the Indenture; (iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and (iv) the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the
consolidation, merger, sale, lease or transfer and such supplemental indenture (if any) comply with
the Indenture.



5.02 Successor Substituted.




     Upon any consolidation, merger or any sale, lease or transfer referred to in Section 5.01,
the applicable Successor Company shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under the Indenture; provided, however, but in the case of a
conveyance, transfer or lease, the Company shall not be released from the obligation to pay the
principal of and interest on the Securities.



VI. DEFAULTS AND REMEDIES



Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities to
the contrary, Article V of the Base Indenture shall not apply to the Securities.




6.01 Events of Default.




     In lieu of the Events of Default enumerated in Section 5.01 of the Base Indenture, an “Event
of Default” is deemed to occur with respect to the Securities if and only if:



-28-









 






     (i) the Company fails to pay the principal of any Security when due and payable at
the Maturity Date, upon any Option Purchase Date, Fundamental Change Repurchase Date,
Redemption Date or redemption, or otherwise;




     (ii) the Company fails to pay any interest on the Securities when due and such
failure continues for a period of thirty (30) calendar days past the applicable due date;




     (iii) the Company fails to satisfy its conversion obligation upon exercise of a
Holder’s conversion right hereunder and such failure continues for a period of five (5)
calendar days following the scheduled settlement date for such conversion;




     (iv) the Company fails to timely provide a Fundamental Change Notice, as required by
the provisions of this Supplemental Indenture;




     (v) the Company fails to comply with Article V;




     (vi) the Company fails to perform or observe any of its other covenants or warranties
in the Base Indenture or this Supplemental Indenture or in the Securities for a period,
and such failure continues for the period, and after the notice, specified below;




     (vii) the default by the Company or any of its Subsidiaries in the payment of
principal or interest on any mortgage, agreement or other instrument under which there may
be outstanding, or by which there may be secured or evidenced, any Indebtedness for money
borrowed in excess of ten million dollars ($10,000,000) (or its foreign currency
equivalent) in the aggregate of the Company and/or any of its Subsidiaries, whether such
Indebtedness now exists or shall hereafter be created;




     (viii) the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the
Company, pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law, or
other similar law now or hereafter in effect or otherwise, either:




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




     (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or




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




     (ix) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (A) is for relief against the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that in the aggregate would constitute a



-29-









 






Significant Subsidiary of the Company in an involuntary case or proceeding, or
adjudicates the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the
Company insolvent or bankrupt,




     (B) appoints a Custodian of the Company or any of its Significant Subsidiaries
or any group of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company for all or substantially all of the property of the
Company or any such Significant Subsidiary or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company, as the case may
be, or




     (C) orders the winding up or liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that in the aggregate would
constitute a Significant Subsidiary of the Company,




and, in the case of each of the foregoing clauses (A), (B) and (C) of this Section
 6.01(ix), the order or decree remains unstayed and in effect for at least ninety (90)
consecutive days.



     Each of the foregoing events shall constitute an Event of Default regardless of the reason for
such event or whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.



     A Default under clause (vi) above is not an Event of Default until (I) the Trustee provides
written notice to the Company, or the Holders of at least twenty five percent (25%) in aggregate
principal amount of the Securities then outstanding provide written notice to the Company and the
Trustee, of the Default and (II) the Default is not cured within ninety (90) days after receipt of
such notice. Such notice must specify the Default, demand that it be remedied and state that the
notice is a “Notice of Default.” If the Holders of at least twenty five percent (25%) in aggregate
principal amount of the outstanding Securities request the Trustee to give such notice on their
behalf, the Trustee shall do so.



6.02 Acceleration.




     Except as provided in Section 6.12, if an Event of Default (excluding an Event of Default
specified in Section 6.01(viii) or  (ix) with respect to the Company (but including an Event of
Default specified in Section 6.01(viii) or  (ix) solely with respect to a Significant Subsidiary
of the Company or any group of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company)) occurs and is continuing, the Trustee by written notice to the Company,
or the Holders of at least twenty five percent (25%) in aggregate principal amount of the
Securities then outstanding by written notice to the Company and the Trustee, may declare the
Securities to be immediately due and payable in full. Upon such declaration, the principal of, and
any accrued and unpaid interest on, all Securities shall be due and payable immediately. If an
Event of Default specified in Section 6.01(viii) or  (ix) with respect to the Company (excluding,
for purposes of this sentence, an Event of Default specified in Section 6.01(viii) or



-30-









 




(ix) solely with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company)
occurs, the principal of, and accrued and unpaid interest on, all the Securities shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.




     The Holders of not less than a majority in principal amount of the outstanding Securities may
on behalf of the Holders of all the Securities waive any past default hereunder with respect to the
Securities and its consequences, except a default (1) in the payment of the principal of or
interest on any Security; or (2) in respect of a covenant or provision hereof which cannot, under
Article IX, be modified or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.



6.03 Other Remedies.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, if an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of amounts due with
respect to the Securities or to enforce the performance of any provision of the Securities or this
Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative.



6.04 Waiver of Past Defaults.




     Subject to Sections 6.07 and  9.02, the Holders of a majority in aggregate principal amount
of the Securities then outstanding may, by notice to the Trustee, waive any past Default or Event
of Default and its consequences, other than (A) a Default or Event of Default in the payment of the
principal of, or interest on, any Security (whether upon maturity, Repurchase Upon Fundamental
Change, Redemption or Purchase at Holder’s Option or upon the due date for an installment of
interest or otherwise), (B) a Default or Event of Default arising from a failure by the Company to
convert any Securities in accordance with this Indenture, (C) the Company’s failure to repurchase
any Securities when required pursuant to the terms of this Indenture or (D) any Default or Event of
Default in respect of any provision of this Indenture or the Securities which, under Section 9.02,
cannot be modified or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Supplemental
Indenture, the Base Indenture and the Securities, but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereto. This Section 6.04 shall be in lieu of
Trust Indenture Act § 316(a)(1)(B), and, as permitted by the Trust



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Indenture Act, Trust Indenture Act § 316(a)(1)(B) is hereby expressly excluded from this
Indenture.




6.05 Control by Majority.




     The Holders of a majority in aggregate principal amount of the Securities then outstanding may
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 it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, or that the Trustee determines is
unduly prejudicial to the rights of any other Holder or would involve the Trustee in personal
liability, unless the Trustee is offered indemnity satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking any action; provided, that the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such
direction. This Section 6.05 shall be in lieu of Trust Indenture Act § 316(a)(1)(A), and, as
permitted by the Trust Indenture Act, Trust Indenture Act § 316(a)(1)(A) is hereby expressly
excluded from this Indenture.



6.06 Limitation on Suits.




     Except as provided in Section 6.07, a Holder may not institute any proceeding under this
Indenture, or for the appointment of a receiver or a trustee, or for any other remedy under this
Indenture unless:




     (i) the Holder gives to the Trustee written notice of a continuing Event of Default;




     (ii) the Holders of at least twenty five percent (25%) in aggregate principal amount
of the Securities then outstanding make a written request to the Trustee to pursue the
remedy;




     (iii) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity reasonably satisfactory to the Trustee against all related losses or expenses;




     (iv) the Trustee does not comply with the request within sixty (60) days after
receipt of such notice, request and offer of indemnity; and




     (v) during such sixty (60) day period, the Holders of a majority in aggregate
principal amount of the Securities then outstanding do not give the Trustee a direction
inconsistent with the request.



     A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.



6.07 Rights of Holders to Receive Payment.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, the right of any Holder to receive payment of all amounts due with respect to the
Securities, on or after the respective due dates as provided herein, or to bring suit



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for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, the right of any Holder to convert the Security in accordance with this Indenture,
or to bring suit for the enforcement of such right, shall not be impaired or affected without the
consent of the Holder.



6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(viii) or  (ix) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust against the Company
for the whole amount due with respect to the Securities, including any unpaid and accrued interest.



6.09 Trustee May File Proofs of Claim.




     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee, any predecessor Trustee and the Holders
allowed in any judicial proceedings relative to the Company or its creditors or properties.



     The Trustee may collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07 of the Base Indenture.



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



6.10 Priorities.




     If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in
the following order:



	 	 	 	 	 
	 

	 	First :
	 	to the Trustee for amounts due under Section 6.07 of the Base Indenture;
	 
	 	 	 	 
	 

	 	Second :
	 	to Holders for all amounts due and unpaid on the Securities, without preference or
priority of any kind, according to the amounts due and payable on the Securities; and
	 
	 	 	 	 
	 

	 	Third :
	 	to the Company.






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     The Trustee, upon prior written notice to the Company, may fix a record date and payment date
for any payment by it to Holders pursuant to this Section 6.10. At least fifteen (15) days before
each such record date, the Trustee shall mail to each Holder and the Company a written notice that
states such record date and payment date and the amount of such payment.



6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit other than the Trustee of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders
of more than ten percent (10%) in aggregate principal amount of the outstanding Securities.



6.12 Failure to Comply with Section  4.02.




     (A) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, if:




     (i) an Event of Default occurs pursuant to Section 6.01(vi) solely as a result of
the Company failure to comply with Section 4.02 (such Event of Default, a “Reporting
Event of Default”); and




     (ii) on or before the close of business on the date on which such Reporting Event of
Default first occurs, the Company notifies, in writing, each Holder and the Trustee and
Paying Agent that it elects the provisions of this Section 6.12 to apply with respect to
such Reporting Event of Default (such notice, the “Reporting Event of Default Election
Notice”),



then:





     (I) the sole remedy for such Reporting Event of Default during the period consisting
of the three hundred and sixty five (365) calendar days after the date such Reporting
Event of Default occurs shall consist exclusively of the payment of additional interest
(“Additional Interest”) on each Security, payable semiannually in arrears at a rate of
0.50% per annum on the principal amount of each Security;




     (II) such Additional Interest shall accrue and be payable in the same manner, and on
the same dates, as the stated interest payable on the Securities; and




     (III) the Securities shall be subject to acceleration on account of such Reporting
Event of Default as provided in Section 6.02 only if (A) such Reporting Event of Default
is not cured by the calendar day following the first three hundred and sixty five (365)
calendar days after the date such Reporting Event of Default occurs or (B) the Company
shall fail to pay when due, in accordance with this Indenture, any unpaid Additional
Interest that has accrued on account of such Reporting Event of Default.



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     (B) For avoidance of doubt, if the Company fails to provide, in accordance with Section
 6.12(A)(ii), the Reporting Event of Default Election Notice in respect of a Reporting Event of
Default, then the Securities shall be subject to acceleration on account of such Reporting Event of
Default as provided in Section 6.02.



     (C) Each references in this Supplemental Indenture, the Base Indenture or the Securities to
interest shall be deemed to include any and all Additional Interest to the extent provided for
pursuant to this Section 6.12; provided, however, that Additional Interest shall accrue in
addition to, and in no event shall this Section 6.12(C) be deemed to reduce the Company’s
obligation to pay, the stated interest and Contingent Interest, if any, on any Security.



     (D) For the avoidance of doubt, this Section 6.12 shall not affect the rights of Holders in
the event of the occurrence of any Event of Default other than a Reporting Event of Default.



VII.  TRUSTEE



Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities to
the contrary, Section 6.05 of the Base Indenture shall be deemed to be replaced in its entirety
with the following paragraph:





Section 6.05 Notice of Default. If a Default or Event of Default occurs and
is continuing and is known to the Trustee, then the Trustee shall mail to each
Holder a notice of the Default or Event of Default within fifteen (15) days after it
occurs; provided, however, that, except in the case of a Default or Event of Default
in payment of the principal of, or interest on, any Security when due, or in the
payment of any conversion, redemption or repurchase obligation under this Indenture
with respect to any Security, the Trustee may withhold such notice if it believes
doing so is in the interests of the Holders.


Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, for all purposes with respect to the Securities, (A) the clause
“and filed with the Commission and each stock exchange, if any, on which the Securities are
listed” in the third (3rd) paragraph of Section 6.06 of the Base Indenture shall be deemed
to be deleted; and (B) the clause “Section 5.01(6) or (7)” in the penultimate paragraph of
Section 6.07 of the Base Indenture shall be deemed to be replaced with the clause “Section
Section 6.01(viii) or  (ix) of the Supplemental Indenture.”




VIII. DISCHARGE OF SUPPLEMENTAL INDENTURE



Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities to
the contrary, Article IV of the Base Indenture shall not apply to the Securities.




8.01 Termination of the Obligations of the Company.




     This Supplemental Indenture shall cease to be of further effect if (a) either (i) all
outstanding Securities (other than Securities replaced pursuant to Section 3.06 of the Base



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Indenture) have been delivered to the Trustee for cancellation or (ii) all outstanding
Securities have become due and payable at their scheduled maturity or upon Purchase at Holder’s
Option, Repurchase Upon Fundamental Change, Redemption or conversion, and in either case the
Company irrevocably deposits, prior to the applicable due date, with the Trustee or the Paying
Agent cash (and, if applicable in accordance with Article X with respect to such Securities that
have become due upon conversion, shares of Common Stock) sufficient to pay all amounts due and
owing on all outstanding Securities (other than Securities replaced pursuant to Section 3.06 of the
Base Indenture) on the Maturity Date, Option Purchase Date, Fundamental Change Repurchase Date,
Redemption Date or the date on which the consideration due upon conversion is, in accordance with
Article X, due, as the case may be; (b) the Company pays to the Trustee all other sums payable
hereunder by the Company; (c) no Default or Event of Default with respect to the Securities shall
exist on the date of such deposit; (d) such deposit will not result in a breach or violation of, or
constitute a Default or Event of Default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound; and (e) the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this Supplemental
Indenture have been complied with; provided, however, that Sections 2.02,  2.03,  2.04,  2.05,
 2.09,  3.13,  4.01 and Articles VIII and  X of this Supplemental Indenture, and Sections 3.06,
5.15, 6.07 and 10.03 of the Base Indenture, shall survive any discharge of this Supplemental
Indenture until such time as the Securities have been paid in full and there are no Securities
outstanding.




8.02 Application of Trust Money.




     The Trustee shall hold in trust all money deposited with it pursuant to Section 8.01 and
shall apply such deposited money through the Paying Agent and in accordance with this Indenture to
the payment of amounts due on the Securities.



8.03 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any money in accordance with Sections 8.01
and  8.02 by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to Sections 8.01 and  8.02; provided, however, that if
the Company has made any payment of amounts due with respect to any Securities because of the
reinstatement of its obligations, then the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee or Paying Agent.



IX. AMENDMENTS



Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities to
the contrary, Article IX of the Base Indenture (excluding Section 9.01(7) of the Base Indenture,
which shall continue to apply to the Base Indenture) shall not apply to the Securities.




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9.01 Without Consent of Holders.




     The Company and the Trustee may amend or supplement this Indenture or the Securities without
notice to or the consent of any Holder:




     (i) to comply with Article V and Section 10.10;




     (ii) to add guarantees, or to secure the obligations of the Company, with respect to
the Securities;




     (iii) to surrender any of the Company’s rights or powers under the Indenture
(including, but not limited to, conversion settlement options, in accordance with Article
 X);




     (iv) to add to the covenants of the Company in this Indenture, or to add any Event of
Default, for the benefit of Holders;




     (v) to cure any ambiguity or correct any inconsistency in the Indenture;




     (vi) as permitted by Sections 2.01 and 3.01 of the Base Indenture;




     (vii) to evidence the acceptance of appointment by a successor trustee in accordance
with Article VI of the Base Indenture;




     (viii) to provide for uncertificated Securities in addition to or in place of
certificated Securities; provided, however, that the uncertificated Securities are issued
in registered form for purposes of Section 163(f) of the Internal Revenue Code, or in a
manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of
the Internal Revenue Code;




     (ix) to conform, as necessary, the Indenture and the form or terms of the Securities
to the description thereof contained under the caption “Description of the Debentures” in
the prospectus supplement, dated October 21, 2009, of the Company in the form filed with
the Commission on October 23, 2009 (File No. 333-160214); and




     (x) to make other changes to the Indenture or forms or terms of the Securities,
provided that no such change, individually or in the aggregate with all other such
changes, has or will have a material adverse effect on the interests of the Holders.



9.02 With Consent of Holders.




     The Company may amend or supplement this Indenture or the Securities with the written consent
of the Holders of at least a majority in aggregate principal amount of the outstanding Securities
(voting as a single class). Subject to Sections 6.04 and 6.07, the Holders of a majority in
aggregate principal amount of the outstanding Securities may, by notice to the Trustee, waive
compliance by the Company with any provision of this Indenture or the Securities without notice to
any other Holder.



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     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, without the consent of each Holder of each outstanding Security affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:




     (a) reduce the principal amount of or change the Maturity Date of any Security;




     (b) reduce the rate or extend the time for payment of interest on any Security;




     (c) reduce any amount payable upon repurchase or redemption of any Security or
change the time at which or circumstances under which the Securities may or shall be
repurchased or redeemed;




     (d) impair the right of any Holder to institute suit for the enforcement of any
payment on, or with respect to, or of the conversion of, any Security;




     (e) change the currency in which any Security is payable;




     (f) impair the right of any Holder to convert any Security in accordance with
Article X or reduce the number of shares of Common Stock or any other property
receivable upon conversion in accordance with Article X;




     (g) modify the Redemption provisions of this Indenture in a manner adverse to
the Holders;




     (h) reduce the quorum or voting requirements under this Indenture (including
reducing the percentage in aggregate principal amount of outstanding Securities
whose holders must consent to a waiver of compliance with any provision of this
Indenture or the Securities or a waiver of any Default or Event of Default);




     (i) change the Company’s obligation to maintain an office or agency in the
places and for the purposes specified in Section 2.03;




     (j) modify the provisions of this Indenture with respect to amendments,
modifications or waivers (including waiver of a Default or an Event of Default),
except to increase the percentage required for an amendment, modification or waiver
or to provide for the consent of each affected Holder;




     (k) modify the provisions of Section 2.10; or




     (l) reduce the percentage of the aggregate principal amount of the outstanding
Securities whose Holders must consent to a modification to or amendment of any
provision of this Indenture or the Securities.



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     Promptly after an amendment, supplement or waiver under Section 9.01 or this Section 9.02
becomes effective, the Company shall mail, or cause to be mailed, to Holders a notice briefly
describing such amendment, supplement or waiver. Any failure of the Company to mail such notice
shall not in any way impair or affect the validity of such amendment, supplement or waiver.



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



9.03 Compliance with Trust Indenture Act.




     Every amendment, waiver or supplement to this Indenture or the Securities shall comply with
the Trust Indenture Act as then in effect.



9.04 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to its Security or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder.



     After an amendment, supplement or waiver becomes effective with respect to the Securities, it
shall bind every Holder unless such amendment, supplement or waiver makes a change that requires,
pursuant to Section 9.02, the consent of each Holder affected. In that case, the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to it and, provided
that notice of such amendment, supplement or waiver is reflected on a Security that evidences the
same debt as the consenting Holder’s Security, every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder’s Security.



9.05 Notation on or Exchange of Securities.




     If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security as directed and prepared by the Company about the changed terms and return
it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that reflects the changed
terms.



9.06 Trustee Protected.




     The Trustee shall sign any amendment, supplemental indenture or waiver authorized pursuant to
this Article IX; provided, however, that the Trustee need not sign any amendment,



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supplement or waiver authorized pursuant to this Article IX that adversely affects the
Trustee’s rights, duties, liabilities or immunities. The Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel as to legal matters and an Officers’ Certificate as to
factual matters that any supplemental indenture, amendment or waiver is permitted or authorized
pursuant to this Indenture.




X. CONVERSION



Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities to
the contrary, Article XIII shall not apply to the Securities.




10.01 Conversion Privilege.




     (A) Subject to the provisions of Article III and this Article X, the Securities shall be
convertible, in integral multiples of $1,000 principal amount, into cash, shares of Common Stock or
a combination of cash and shares of Common Stock in accordance with this Article X and as set
forth below if any of the following conditions are satisfied:




     (i) Conversion Based on Satisfaction of Sale Price Condition. Prior to August 1,
2029, the Securities may be surrendered for conversion during any fiscal quarter (and
only during such fiscal quarter) commencing after December 31, 2009 if the Last Reported
Sale Price per share of the Common Stock for at least twenty (20) Trading Days during the
period of thirty (30) consecutive Trading Days ending on the last Trading Day of the
preceding fiscal quarter is greater than or equal to one hundred and thirty percent
(130%) of the Conversion Price on each such Trading Day.




     (ii) Conversion Upon Satisfaction of Trading Price Condition. Prior to August 1,
2029, the Securities may be surrendered for conversion during the five (5) Business Day
period after any ten (10) consecutive Trading Day period (such ten (10) consecutive
Trading Day period, the “Measurement Period”) in which the Trading Price per $1,000
principal amount of Securities, as determined following a request by a Holder of
Securities in accordance with the procedures set forth in the immediately following
paragraph, for each Trading Day of such Measurement Period was less than ninety five
percent (95%) of the product of the Last Reported Sale Price per share of the Common
Stock and the Conversion Rate on each such Trading Day (such condition, the “Trading
Price Condition”).




          The Bid Solicitation Agent shall have no obligation to determine the Trading Price
of the Securities unless the Company has requested such determination; and the Company
shall have no obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price per $1,000 principal amount of Securities
would be less than ninety five percent (95%) of the product of the Last Reported Sale
Price per share of the Common Stock and the applicable Conversion Rate.




          At such time, the Company shall instruct the Bid Solicitation Agent to determine the
Trading Price of the Securities beginning on the next Trading Day and



-40-









 






on each successive Trading Day until the Trading Price per $1,000 principal amount
of Securities is greater than or equal to ninety five percent (95%) of the product of the
Last Reported Sale Price per share of the Common Stock and the applicable Conversion
Rate. If the Trading Price Condition has been satisfied, the Company shall so notify
Holders. If, at any time after the Trading Price Condition has been satisfied, the
Trading Price per $1,000 principal amount of Securities on a Trading Day is equal to or
greater than ninety five percent (95%) of the product of the Last Reported Sale Price per
share of the Common Stock and the applicable Conversion Rate for such Trading Day, then
the Company shall so notify Holders.




     (iii) Conversion Upon Certain Distributions. If, prior to August 1, 2029, the
Company elects to:




     (a) issue to all or substantially all holders of the Common Stock rights
entitling them to purchase, for a period expiring within sixty (60) days after the
date of the distribution, shares of Common Stock at less than the average of the
Last Reported Sale Prices per share of the Common Stock for the ten (10) consecutive
Trading Day period ending on, and including, the Trading Day immediately preceding
the announcement of such issuance; or




     (b) distribute to all or substantially all holders of Common Stock assets or
debt securities of the Company or rights to purchase securities of the Company,




then, in each case, (I) the Company must notify Holders at least thirty (30)
Scheduled Trading Days prior to the Ex-Dividend Date for such distribution; and (II)
the Securities may be surrendered for conversion at any time from the time the
Company has given such notice until the earlier of (x) 5:00 p.m., New York City
time, on the Business Day immediately prior to the Ex-Dividend Date of such issuance
or distribution and (y) the Company’s announcement that such issuance or
distribution will not take place.




     (iv) Conversion Upon Occurrence of Certain Corporate Events. If, prior to the close
of business on the Business Day immediately preceding August 1, 2029:




     (a) a Fundamental Change or a Make-Whole Fundamental Change occurs; or




     (b) the Company is a party to a consolidation, merger, binding share exchange,
or transfer or lease of all or substantially all of its assets, pursuant to which
the Common Stock would be converted into or exchanged for, or would constitute
solely the right to receive, cash, securities or other assets,




then, in each case, (I) the Company shall notify Holders and the Trustee as promptly as
practicable following (x) the date the Company publicly announces such transaction, but
in no event fewer than thirty (30) Scheduled Trading Days prior to the anticipated
effective date of such transaction, and (y) the effective date of such transaction, but
in any event, within five (5) days after the effective date of such transaction; and (II)
the



-41-









 






Securities may be surrendered for conversion at any time from, and including, the
thirtieth (30th) Scheduled Trading Day prior to the anticipated effective date of such
transaction to, and including, the thirty fifth (35th) Trading Day following such
effective date or, if such transaction also constitutes a Fundamental Change, the
Fundamental Change Repurchase Date for such Fundamental Change; provided, however, that
if the Company announces a transaction that causes the Securities to become convertible
pursuant to this Section 10.01(A)(iv), but the transaction is not consummated, then on
the date the Company announces that the transaction will not occur, the Securities will
cease to be convertible pursuant to this Section 10.01(A)(iv) on account of such
transaction.




     (v) Conversion Based upon Notice of Redemption. If the Company calls any of the
Securities for Redemption, then the Securities may be surrendered for conversion at any
time prior to the close of business on the second (2nd) Business Day immediately
preceding the applicable Redemption Date.




     (vi) Conversion on or after August 1, 2029. The Securities may be surrendered for
conversion at any time from, and including, August 1, 2029 until the close of business of
the second (2nd) Business Day immediately preceding the Maturity Date.



     (B) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, no Securities may be surrendered for conversion after the close of
business on the second (2nd) Business Day immediately preceding the Maturity Date.



     (C) The initial Conversion Rate shall be 25.5076 shares of Common Stock per $1,000 principal
amount of Securities. The Conversion Rate shall be subject to adjustment in accordance with
Sections 10.05 through  10.13.



     (D) A Holder may convert a portion of the principal amount of a Security if such portion is
$1,000 principal amount or an integral multiple of $1,000 principal amount. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion of a portion of
such Security.



10.02 Conversion Procedure and Payment Upon Conversion.




     (A) To convert a Security, a Holder must satisfy the requirements of paragraph 9 of the
Securities. If a Security is tendered for conversion in accordance with this Article X, then:




     (i) the Company shall deliver, through the Conversion Agent, the following to the
Holder of such Security:




     (a) if Physical Settlement applies to such conversion, a number of shares of
Common Stock equal to the product of the principal amount of such Security
(expressed in thousands) and the Conversion Rate in effect on the Conversion Date of
such conversion; provided, however, that if such product is not a whole number, then
the Company will pay a cash amount in lieu of issuing



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any fractional share, which cash amount shall be based on the VWAP per share of
Common Stock on such Conversion Date;




     (b) if Cash Settlement applies to such conversion, a cash amount equal to the
product of the principal amount of such Security (expressed in thousands) and the
Conversion Value applicable to such conversion; and




     (c) if Combination Settlement applies to such conversion,




     (I) a cash amount equal to the lower of (x) the Fixed Cash Amount
applicable to such conversion and (y) the Conversion Value applicable to
such conversion; and




     (II) a number of shares of Common Stock, if any, equal to the sum, for
each Trading Day in the Observation Period applicable to such conversion, of
one-twentieth (1/20th) of a fraction (a) whose numerator is the excess, if
any, of (1) the product of the Conversion Rate in effect on such Trading Day
and the VWAP per share of Common Stock on such Trading Day over (2) the
Fixed Cash Amount applicable to such conversion and (b) whose denominator is
such VWAP per share of Common Stock; provided, however, that if such sum is
not a whole number, then the Company will pay a cash amount in lieu of
issuing any fractional share, which cash amount shall be based on the VWAP
per share of Common Stock on the final Trading Day of such Observation
Period;




     (ii) except as provided in Section 10.10 or Section 10.13(G), the Conversion
Consideration due upon such conversion shall be delivered by the Company as follows: (1)
if Physical Settlement applies to such conversion, on the third (3rd) Trading Day
following the Conversion Date of such conversion (or, if earlier, the Maturity Date); and
(2) in all other cases, on the third (3rd) Trading Day following the final Trading Day of
the Observation Period applicable to such conversion;




     (iii) if Physical Settlement applies to such conversion, then the person in whose
name the certificate representing the shares of Common Stock constituting the Conversion
Consideration due upon such conversion shall be treated as a stockholder of record of
such shares as of the close of business on the Conversion Date of such conversion;




     (iv) if Combination Settlement applies to such conversion, then the person in whose
name the certificate representing the shares of Common Stock, if any, constituting the
Conversion Consideration due upon such conversion shall be treated as a stockholder of
record of such shares, without duplication, as follows: as of the close of business on
each Trading Day (the “relevant trading day”) during the Observation Period applicable to
such conversion, such person shall be treated as a stockholder of record of a number of
 shares of Common Stock equal to the sum, for



-43-









 






each Trading Day in such Observation Period occurring on or before such relevant
trading day, of one-twentieth (1/20th) of a fraction (A) whose numerator is the excess,
if any, of (1) the product of the Conversion Rate in effect on such Trading Day and the
VWAP per share of Common Stock on such Trading Day over (2) the Fixed Cash Amount
applicable to such conversion and (B) whose denominator is such VWAP per share of Common
Stock (except that if such sum is not a whole number, then the fractional portion of such
sum shall be ignored); and




     (v) on and after the Conversion Date for such conversion, all rights of the
Holder(s) of such Security with respect to such Security shall terminate, other than the
right to receive the Conversion Consideration due upon such conversion in accordance with
this Indenture.



          The Settlement Method applicable to each conversion of a Security shall be determined in
accordance with Section 10.02(B).




     (B) If a Security is tendered for conversion in accordance with this Article X, then, unless
the Conversion Date of such conversion is on or after the Irrevocable Net Share Settlement Election
Date, if any, the Company shall, no later than the second (2nd) Scheduled Trading Day immediately
after such Conversion Date, provide notice (the “Settlement Method Election Notice”) to the Holder
of such Security and the Conversion Agent, through the Trustee, of whether the Conversion
Consideration due upon such conversion shall be determined pursuant to Section 10.02(A)(i)(a) (a
“Physical Settlement”), Section 10.02(A)(i)(b) (a “Cash Settlement”) or Section 10.02(A)(i)(c) (a
“Combination Settlement”), which notice shall also state, in the case of Combination Settlement,
the maximum amount of cash (excluding cash, if any, payable in lieu of any fractional share) due
upon such conversion per $1,000 principal amount of such Security (such maximum cash amount per
$1,000 principal amount, the “Fixed Cash Amount”); provided, however, that:




     (i) if the Company is required to provide a Settlement Method Election Notice for
such conversion pursuant to this Section 10.02(B) and fails to do so in accordance with
this Section 10.02(B), then Combination Settlement, with an Fixed Cash Amount equal to
one thousand dollars ($1,000), shall apply to such conversion;




     (ii) unless the Company shall have theretofore made an Irrevocable Net Share
Settlement Election, the Company may, prior to August 1, 2029, deliver a one-time notice
(the “Free Convertibility Period Settlement Method Election Notice”) to Holders, the
Trustee and the Conversion Agent, irrevocably designating the Settlement Method that
shall apply to each and every conversion of a Security whose Conversion Date occurs on or
after August 1, 2029; if the Company so provides a Free Convertibility Period Settlement
Method Election Notice, then (I) the Company cannot thereafter rescind such notice; and
(II) the Company need not, and may not, provide a Settlement Method Election Notice with
respect to any conversion of a Security whose Conversion Date occurs on or after August
1, 2029;




     (iii) if, on August 1, 2029, the Company has not theretofore made an Irrevocable Net
Share Settlement Election and has not theretofore provided a Free



-44-









 






Convertibility Period Settlement Method Election Notice in accordance with clause
(ii) above, then (I) Combination Settlement, with a Fixed Cash Amount equal to one
thousand dollars ($1,000), shall apply to each and every conversion of any Security whose
Conversion Date is on or after August 1, 2029; and (II) the Company need not, and may
not, provide a Settlement Method Election Notice with respect to any conversion of a
Security whose Conversion Date occurs on or after August 1, 2029; and




     (iv) the Company shall have the right, in its sole discretion and without the
consent of any Holder, to irrevocably elect (an “Irrevocable Net Share Settlement
Election”), by notice to Holders, the Trustee and the Conversion Agent, promptly at any
time prior to August 1, 2029, that Combination Settlement, with an Fixed Cash Amount
equal to one thousand dollars ($1,000), apply to each and every conversion of any
Security whose Conversion Date is on or after the date (the “Irrevocable Net Share
Settlement Election Date”) the Company provides such notice, which election, once given,
shall be irrevocable; provided, however, that the Company shall have the right to
irrevocably renounce its right to make an Irrevocable Net Share Settlement Election by
notifying Holders, the Trustee and the Conversion Agent at any time prior to the earlier
of the (A) August 1, 2029 and (B) the Company’s exercise of the Irrevocable Net Share
Settlement Election, in which case no Irrevocable Net Share Settlement Election is
permitted to be made after such notice; if the Company has duly made an Irrevocable Net
Share Settlement Election, then the Company need not, and may not, thereafter provide a
Settlement Method Election Notice in respect of any conversion of a Security or a Free
Convertibility Period Settlement Method Election Notice.



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, if the Conversion Dates of two (2) or more conversions of any Securities occur on
the same Trading Day, then the same Settlement Method shall apply to each of such conversions.



     (C) Upon conversion of a Security in accordance with this Article X, the Holder of such
Security shall not be entitled to receive, on account of such conversion, any separate cash payment
for accrued and unpaid interest, except as provided in the immediately following sentence. If a
Holder surrenders a Security for conversion after 5:00 p.m., New York City time, on a Regular
Record Date and prior to the immediately following Interest Payment Date, then, notwithstanding
such conversion, the interest payable with respect to such Security on such Interest Payment Date
shall be paid on such Interest Payment Date to the Holder of record of such Security at the close
of business on such Regular Record Date; provided, however, that such Security, when surrendered
for conversion, must be accompanied by payment to the Conversion Agent on behalf of the Company of
an amount equal to the interest payable on such Interest Payment Date on the portion of such
Security to be so converted, except that no such payment is required if either (i) the Company
shall have specified a Redemption Date or Fundamental Change Repurchase Date that is after such
Regular Record Date and on or prior to such Interest Payment Date; or (ii) the Conversion Date for
such conversion is after the Regular Record Date that immediately precedes the Maturity Date;
provided further, however, that, if the Company shall have, prior to the Conversion Date with
respect to a Security, defaulted in a payment of



-45-









 




interest on such Security, then in no event shall the Holder of such Security who surrenders
such Security for conversion be required to pay such defaulted interest or the interest that shall
have accrued on such defaulted interest (it being understood that nothing in this Section 10.02(C)
shall affect the Company’s obligations under Section 4.01(B)). Notwithstanding anything in this
Supplemental Indenture, the Base Indenture or the Securities to the contrary, the final paragraph
of Section 3.07 of the Base Indenture shall not apply to the Securities.




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



     (E) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for
the Holder a new Security equal in principal amount to the unconverted portion of the Security
surrendered.



     (F) If the last day on which a Security may be converted is not a Business Day, then the
Security may be surrendered to that Conversion Agent on the next succeeding day that is a Business
Day.



     (G) The Company’s delivery of the Conversion Consideration due upon any conversion of a
Security will be deemed to satisfy in full the Company’s obligation to pay (A) the principal amount
of such Security; and (B) accrued and unpaid interest to, but excluding, the Conversion Date of
such conversion. As a result, accrued and unpaid interest to, but excluding, such Conversion Date
shall be deemed to be paid in full rather than cancelled, extinguished or forfeited.



10.03 Taxes on Conversion.




     If a Holder converts its Security, the Company shall pay any documentary, stamp or similar
issue or transfer tax or duty due on the issue, if any, of shares of Common Stock upon such
conversion, unless the tax is due because such Holder requests any such shares to be issued in a
name other than such Holder’s name, in which case such holder shall pay such tax. Nothing herein
shall preclude any tax withholding required by law or regulation.



10.04 Company to Provide Stock.




     The Company shall at all times reserve out of its authorized but unissued Common Stock or
Common Stock held in its treasury enough shares of Common Stock to permit the conversion, in
accordance herewith, of all of the Securities into shares of Common Stock.



     All shares of Common Stock which may be issued upon conversion of the Securities shall be
validly issued, fully paid and non-assessable and shall be free of preemptive or similar rights and
free of any lien or adverse claim.



     The Company shall comply with all securities laws regulating the offer and delivery of shares
of Common Stock upon conversion of Securities and shall list such shares on each national
securities exchange or automated quotation system on which the Common Stock is listed.



-46-









 





10.05 Adjustment of Conversion Rate.




     The Conversion Rate shall be subject to adjustment from time to time as follows:




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









where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the Ex-Dividend
Date of such dividend or distribution, or the effective date of such share
split or combination, as applicable;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the opening of
business on such Ex-Dividend Date or effective date, as applicable;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior
to such Ex-Dividend Date or effective date, as applicable; and
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock that would be outstanding
immediately after, and solely as a result of, such dividend, distribution,
share split or share combination.







Such adjustment shall become effective immediately after the opening of business on
such Ex-Dividend Date or the effective date, as applicable.




     (b) If the Company distributes to all or substantially all holders of Common
Stock any rights or warrants entitling them, for a period expiring within sixty (60)
calendar days after the declaration date of such distribution, to subscribe for or
purchase shares of Common Stock, at a price per share less than the Last Reported
Sale Price per share of Common Stock on the Trading Day immediately preceding the
declaration date of such distribution, then the Conversion Rate shall be adjusted
based on the following formula (provided that the Conversion Rate will be readjusted
to the extent that such rights or warrants are not exercised prior to their
expiration):









where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior the Ex-Dividend
Date for such distribution;






-47-









 






	 	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of
business on such Ex-Dividend Date;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior
to the open of business on such Ex-Dividend Date;
	 
	 	 	 	 	 	 
	 

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

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







To the extent such rights or warrants are not exercised prior to their expiration or
termination, the Conversion Rate shall be readjusted to the Conversion Rate which
would then be in effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of the delivery of only the number of shares of
Common Stock actually delivered. If such rights or warrants are not so issued, then
the Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if the date fixed for the determination of shareholders entitled
to receive such rights or warrants had not been fixed. For the purposes of this
Section 10.05(b) in determining whether any rights or warrants entitle the holders
to subscribe for or purchase shares of Common Stock at less than the Last Reported
Sale Price per share of Common Stock on the Trading Day immediately preceding the
declaration date of such distribution, and in determining the aggregate exercise
price payable for such shares of Common Stock, there shall be taken into account any
consideration received by the Company for such rights or warrants and any amount
payable upon exercise thereof, with the value of such consideration, if other than
cash, as shall be determined in good faith by the Board of Directors.




For the purposes of this Section 10.05(b) (and subject to Section 10.12), if (1) the
Company distributes any rights or warrants to all holders of its Common Stock
entitling them to subscribe for or purchase shares of the Company’s Capital Stock
(either initially or under certain circumstances); and (2) until the occurrence of a
specified event or events (each a “Trigger Event”), such rights or warrants are (a)
are deemed to be transferred with such shares of Common Stock; (b) are not
exercisable; and (3) are also issued in respect of future issuances of Common Stock,
then such rights or warrants shall be deemed not to have been distributed for
purposes of this Section 10.05(b) (and no adjustment to the Conversion Rate pursuant
to this Section 10.05(b) shall be required on account of such distribution) until
the occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made pursuant to this Section 10.05(b). If
any such rights or warrants, including any such existing



-48-









 






rights or warrants distributed prior to the date of this Supplemental Indenture, are
subject to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of Indebtedness or other
assets, then, for purposes of this Section 10.05(b), the date of the occurrence of
each such event shall be deemed to be the date of distribution and record date with
respect to the distribution of new rights or warrants (and a termination or
expiration of the existing rights or warrants without exercise by any of the holders
thereof). In addition, in the event of any distribution (or deemed distribution) of
rights or warrants, or any Trigger Event or other event (of the type described in
the preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion Rate
under this Section 10.05(b) was made, (1) in the case of any such rights or warrants
which shall all have been redeemed or purchased without exercise by any Holders
thereof, the Conversion Rate shall be readjusted upon such final purchase to give
effect to such distribution or Trigger Event, as the case may be, as though it were
a distribution to each holder of Common Stock of cash in an amount equal to the
redemption or purchase price received by such holder with respect to such rights or
warrants, and (2) in the case of such rights or warrants which shall have expired or
been terminated without exercise by any holders thereof, the Conversion Rate shall
be readjusted as if such rights and warrants had not been issued.




     (c) If the Company distributes shares of its Capital Stock, evidences of the
Company’s Indebtedness, other assets or property of the Company or rights or
warrants to acquire the Company’s Capital Stock or other securities of the Company
to all or substantially all holders of Common Stock, excluding:




     (1) dividends or distributions and rights or warrants as to which an
adjustment is required pursuant to Section 10.05(a), Section 10.05(b) or
Section 10.05(d); and




     (2) a Spin-Off to which the provisions set forth below in this Section
10.05(c) shall apply,




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









where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the open of
business on the Ex-Dividend Date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of
business on such Ex-Dividend Date;






-49-









 






	 	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the average of the Last Reported Sale Prices per share of Common
Stock over the ten (10) consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the Ex-Dividend Date for such
distribution; and
	 
	 	 	 	 	 	 
	 

	 	FMV
	 	=	 	the fair market value (as determined by the Board of
Directors) of the shares of Capital Stock, evidences of Indebtedness, assets,
property, rights or warrants distributed with respect to each outstanding share
of Common Stock on the Ex-Dividend Date for such distribution.







Such adjustment shall become effective immediately after the opening of business on
such Ex-Dividend Date. If the Board of Directors determines the FMV by reference to
the actual or when-issued trading market for any securities, then, in doing so, it
must consider the prices in such market over the same period used in computing
SP0. Notwithstanding the foregoing, if FMV is equal to or greater than
SP0, then, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder shall receive on the date on which such Capital Stock,
evidences of Indebtedness, assets, property, rights or warrants are distributed to
holders of Common Stock, for each $1,000 principal amount of Securities, the amount
of such Capital Stock, evidences of Indebtedness, assets, property, rights or
warrants a person who was a holder of record, on the record date for such
distribution, of a number of shares of Common Stock equal to the Conversion Rate
then in effect would have been entitled to receive pursuant to such distribution.




With respect to an adjustment pursuant to this Section 10.05(c) where there has
been a payment of a dividend or other distribution on Common Stock of shares of
Capital Stock of any class or series, or similar equity interest, of or relating to
a Subsidiary or other business unit of the Company (a “Spin-Off”), the Conversion
Rate will be increased based on the following formula:









where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the end of the
Valuation Period applicable to such Spin-Off;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the end of such
Valuation Period;
	 
	 	 	 	 	 	 
	 

	 	FMV0
	 	=
	 	the average of the Last Reported Sale Prices per share of the
Capital Stock or similar equity interest distributed to holders of Common Stock
applicable to one share of Common Stock (determined for purposes of the
definition of Last Reported Sale Price as if such Capital Stock or similar
equity interest were Common Stock) over the first ten (10)






-50-









 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	consecutive Trading Day period after, and including, the effective date of
such Spin-Off (the “Valuation Period”); and
	 
	 	 	 	 	 	 
	 

	 	MP0
	 	=
	 	the average of the Last Reported Sale Prices per share of Common
Stock over such Valuation Period.







The adjustment to the Conversion Rate pursuant to the immediately preceding formula
shall occur on the last day of the Valuation Period; provided that in respect of any
conversion during such Valuation Period, references with respect to the ten (10)
Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed between the effective date of such Spin-Off and the Conversion Date of
such conversion in determining the applicable Conversion Rate.




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









where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the open of
business on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of
business on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the Last Reported Sale Price per share of Common Stock on the
Trading Day immediately preceding the Ex-Dividend Date for such dividend or
distribution; and
	 
	 	 	 	 	 	 
	 

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







In the case of an adjustment pursuant to this Section 10.05(d), such adjustment
shall become effective immediately after the opening of business on such Ex-Dividend
Date; provided, however, that if C is equal to or greater than SP0, then,
in lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive on the date on which such cash dividend or
distribution is distributed to holders of Common Stock, for each $1,000 principal
amount of Securities, the amount of cash a person who was a holder of record, on the
record date for such dividend or distribution, of a number of shares of Common Stock
equal to the Conversion Rate then in effect would have been entitled to receive
pursuant to such dividend or distribution.



-51-









 






     (e) If the Company or any of the Company’s Subsidiaries makes a payment in
respect of a tender offer or exchange offer for the 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 per share of Common Stock on the
Trading Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer, the Conversion Rate will be increased
based on the following formula:









where,



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the close of
business on the tenth (10th) Trading Day from, and including, the Trading Day
next succeeding the date such tender or exchange offer expires;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the close of
business on the tenth (10th) Trading Day from, and including, the Trading Day
next succeeding the date such tender or exchange offer expires;
	 
	 	 	 	 	 	 
	 

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

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior
to the date such tender or exchange offer expires;
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock outstanding immediately after
the date such tender or exchange offer expires (after giving effect to the
purchase of all shares accepted for purchase or exchange in such offer); and
	 
	 	 	 	 	 	 
	 

	 	SP1
	 	=
	 	the average of the Last Reported Sale Price per share of Common
Stock over the ten (10) consecutive Trading Day period commencing on the
Trading Day next succeeding the date such tender or exchange offer expires.







The adjustment to the Conversion Rate pursuant to this Section 10.05(e) shall occur
on the tenth (10th) Trading Day from, and including, the Trading Day next succeeding
the date such tender or exchange offer expires; provided that in respect of any
conversion within the ten (10) Trading Days immediately following, and including,
the expiration date of such tender or exchange offer, references with respect to the
ten (10) Trading Days shall be deemed replaced with such lesser number of Trading
Days as have elapsed between the expiration date of such tender or exchange offer
and the Conversion Date of such conversion in determining the applicable Conversion
Rate. If the Company is, or one of the



-52-









 






Company’s 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, then the Conversion
Rate shall be readjusted to be the conversion rate that would be in effect if such
tender or exchange offer had not been made.




     (f) Notwithstanding anything in this Section 10.05 to the Contrary, if any
dividend or distribution subject to Section 10.05(a), Section 10.05(c) or Section
 10.05(d) is declared but not so paid or made, then the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.




     (g) In addition to the foregoing adjustments in subsections (a),  (b),  (c),
 (d) and  (e) above, the Company may, subject to any applicable stock exchange
listing requirements, increase the Conversion Rate by any amount for a period of at
least twenty (20) Business Days if the Board of Directors determines that such
increase would be in the Company’s best interest. The Company shall also (but is
not required to) increase the Conversion Rate to avoid or diminish income tax to
holders of Common Stock or rights to purchase shares of Common Stock in connection
with a dividend or distribution of shares (or rights to acquire shares) or similar
event, subject to any applicable stock exchange listing requirements.



10.06 No Adjustment.




     No adjustment in the Conversion Rate pursuant to this Article X shall be required unless the
adjustment would require a change of at least one percent (1%) in the Conversion Rate; provided,
however, that the Company shall carry forward any adjustments that are less than one percent (1%)
of the Conversion Rate and make such carried-forward adjustments on each Conversion Date, and each
Trading Day during any Observation Period relating to any Conversion Date.



     No adjustment to the Conversion Rate need be made pursuant to Section 10.05 for a transaction
if Holders are to participate in the transaction without conversion on a basis and with notice that
the Board of Directors determines in good faith to be fair and appropriate in light of the basis
and notice on which holders of Common Stock participate in the transaction.



     Except as expressly provided in this Article X, the Company shall not adjust the Conversion
Rate for the issuance of shares of Common Stock or any securities convertible into or exchangeable
for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or
exchangeable securities; provided, however, that if the application of the Conversion Rate
adjustment provisions of Section 10.05 would result in a decrease in the Conversion Rate or reduce
the Conversion Price below the par value per share of Common Stock, then no adjustment to the
Conversion Rate shall be made (other than as a result of a share combination).



     Notwithstanding anything to the contrary in Section 10.05, the Conversion Rate shall not be
adjusted pursuant to Section 10.05 on account of a transaction if Holders participate, as a



-53-









 




result of holding Securities, in such transaction without having to convert such Securities, as if
each Holder held a number of shares of Common Stock equal to the product of the principal amount of
Securities held by such Holder (expressed in thousands) and the Conversion Rate then in effect.




10.07 Other Adjustments.




     In the event that, as a result of an adjustment made pursuant to this Article X, the Holder
of any Security thereafter surrendered for conversion shall become entitled to receive any shares
of Capital Stock other than shares of Common Stock, thereafter the Conversion Rate of such other
shares so receivable upon conversion of any Security shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in this Article X.



10.08 Notice of Adjustment.




     Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Holders at the
addresses appearing on the Security Registrar’s books a notice of the adjustment and file with the
Trustee an Officers’ Certificate briefly stating the facts requiring the adjustment and the manner
of computing it. The certificate shall be conclusive evidence of the correctness of such
adjustment.



10.09 Equitable Adjustments.




     Notwithstanding the Conversion Rate adjustment provisions set forth in this Article X, if any
Conversion Rate adjustment becomes effective, or any Ex-Dividend Date relating to a required
Conversion Rate adjustment occurs, during the period beginning on a Conversion Date with respect to
a conversion and ending on the close of business on the last Trading Day of the corresponding
Observation Period, if any, the Board of Directors will make adjustments to the Conversion Rate or
the amount of cash or number of shares of Common Stock issuable upon such conversion, as may be
necessary or appropriate to effect the intent of the such Conversion Rate adjustment provisions to
avoid unjust or inequitable results, as determined in good faith by the Board of Directors, so long
as such adjustments benefit the applicable Holder. Any adjustment made pursuant to this Section
 10.09 shall apply in lieu of the adjustment or other term that would otherwise be applicable.


10.10 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or
Sales on Conversion Privilege.




     In the case of any recapitalization, reclassification or change of the Common Stock (other
than changes resulting from a subdivision or combination or a change in par value), a
consolidation, merger or combination involving the Company, a sale, lease or other transfer to a
third party of the consolidated assets of the Company and its Subsidiaries substantially as an
entirety, or any statutory share exchange, in each case, as a result of which the Common Stock
would be converted into, or exchanged for, or constitute solely the right to receive, stock, other
securities or other property or assets (including cash or any combination thereof), then, the
Company shall, as a condition precedent to such transaction, execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee providing that, at the



-54-









 




effective time of such transaction, the right to convert the Securities shall be changed into
a right to convert each $1,000 principal amount of Securities into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any combination thereof)
(the “Reference Property”) that a holder of a number of shares of Common Stock equal to the
Conversion Rate immediately prior to such transaction would have received on account of such
transaction, assuming such holder is entitled to participate in such transaction on the basis of
holding such shares; provided, however, that, at and after the effective time of such transaction,
upon any conversion of a Security, (A) any portion of the Conversion Consideration due upon such
conversion that would have been payable in cash pursuant to Section 10.02(A)(i) had such
transaction not occurred shall continue to be payable in cash, (B) any portion of the Conversion
Consideration due upon such conversion that would have been payable in shares of Common Stock
pursuant to Section 10.02(A)(i) had such transaction not occurred shall instead be payable in such
Reference Property and (C) the VWAP per share of Common Stock shall, for these purposes, be
calculated based on the value of a unit of Reference Property that a holder of one (1) share of
Common Stock would have been entitled to receive in such transaction.




     Except as provided in Section 10.13(G), if the Reference Property in respect of such
transaction consists solely of cash and the effective time of the such transaction occurs on or
before the third Business Day after the last Trading Day in any Observation Period applicable to
the conversion of any Security (in the event Physical Settlement does not apply to such conversion)
or on or before the third Business Day after the Conversion Date of such conversion (in the event
Physical Settlement applies to such conversion), then (i) the Conversion Consideration due upon
such conversion shall consist of cash in an amount, per $1,000 principal amount of such Security,
equal to the product of (A) the amount of cash paid per share of Common Stock pursuant to such
transaction and (B) the Conversion Rate on the Conversion Date for such conversion; and (ii) such
consideration shall be paid no later than the third (3rd) Business Day after the later of such
Conversion Date and such effective date.



     If such transaction causes the Common Stock to be converted into the right to receive more
than a single type of consideration (determined based in part upon any form of stockholder
election), then the Reference Property into which the Securities shall be convertible shall be
deemed to be the weighted average of the types and amounts of consideration actually received by
the holders of Common Stock, subject to the Company’s (or its successor’s) right, pursuant to
Section 10.02(A)(i), to deliver, in lieu of Reference Property, cash or a combination of cash and
Reference Property.



     The Company shall not become a party to any such transaction unless the terms of such
transaction are consistent with this Section 10.10.



     The supplemental indenture referred to in the first sentence of this Section 10.10 shall
provide for adjustments of the Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this Article X. The
foregoing, however, shall not in any way affect the right a Holder of a Security may otherwise
have, pursuant to Section 10.12, to receive rights or warrants upon conversion of a Security. If
the Reference Property includes shares of stock or other securities and property of a Person other
than the successor or purchasing Person, as the case may be, in such transaction, then such
supplemental indenture shall also be executed by such other Person and shall contain such



-55-









 




additional provisions to protect the interests of the Holders of the Securities as the Board
of Directors in good faith shall reasonably determine necessary by reason of the foregoing. The
provisions of this Section 10.10 shall similarly apply to successive consolidations, mergers,
binding share exchanges, sales, transfers, leases, conveyances or dispositions.




     In the event the Company shall execute a supplemental indenture pursuant to this Section
 10.10, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefor, the kind or amount of Reference Property receivable by Holders of the
Securities upon the conversion of their Securities after such transaction and any adjustments to
the Conversion Rate to be made on account of such Transaction.



10.11 Trustee’s Disclaimer.




     The Trustee has no duty to determine when an adjustment under this Article X should be made,
how it should be made or what such adjustment should be, but may accept as conclusive evidence of
the correctness of any such adjustment, and shall be protected in relying upon, the Officers’
Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 10.08 hereof. The Trustee makes no representation as to the validity or value of any
securities or assets issued or delivered upon conversion of Securities, and the Trustee shall not
be responsible for the failure by the Company to comply with any provisions of this Article X.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 10.10, but may
accept as conclusive evidence of the correctness thereof, and shall be protected in relying upon,
the Officers’ Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 10.10 hereof.



10.12 Rights Distributions Pursuant to Stockholders’ Rights Plans.




     Upon conversion of any Security or a portion thereof, the Company shall make provision for the
Holder thereof, to the extent such Holder is to receive any shares of Common Stock upon such
conversion, to receive, in addition to, and concurrently with the delivery of, the Conversion
Consideration otherwise payable hereunder upon such conversion, the rights described in the Rights
Agreement or any other stockholders’ rights plan the Company may have in effect at such time,
unless such rights have separated from the Common Stock at the time of such conversion, in which
case the Conversion Rate shall be adjusted upon such separation in accordance with Section
 10.05(c).


10.13 Increased Conversion Rate Applicable to Certain Securities Surrendered in
Connection With Make-Whole Fundamental Changes.




     (A) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, if a Make-Whole Fundamental Change occurs prior to November 1, 2017,
then the Conversion Rate applicable to each Security to be converted, in accordance with this
Article X, shall, if the applicable Conversion Notice therefor is received by the Conversion Agent
at any time from, and including, the Scheduled Trading Day following the effective date of such
Make-Whole Fundamental Change to, and including, the thirty fifth (35th)



-56-









 




Trading Day immediately following the effective date of such Make-Whole Fundamental Change
(or, if such Make-Whole Fundamental Change constitutes a Fundamental Change, until the close of
business on the Business Day immediately preceding the applicable Fundamental Change Repurchase
Date), be increased to an amount equal to the Conversion Rate that would, but for this Section
 10.13, otherwise apply to such Security pursuant to this Article X, plus an amount equal to the
Make-Whole Applicable Increase.




          For avoidance of doubt, the Conversion Consideration due upon a conversion of a Security to
which this Section 10.13 applies shall be determined in accordance with Section 10.02(A)(i),
based on the Conversion Rate as adjusted pursuant to this Section 10.13 (and any other applicable
provisions of this Indenture), and paid in accordance with Section 10.02(A)(ii).




     (B) As used herein, “Make-Whole Applicable Increase” shall mean, with respect to a Make-Whole
Fundamental Change, the amount, set forth in the following table, which corresponds to the date
such Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock
Price applicable to such Make-Whole Fundamental Change:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$29.04	 	$34.00	 	$39.20	 	$45.00	 	$50.00	 	$60.00	 	$70.00	 	$80.00	 	$100.00	 	$125.00
	October 26, 2009
	 	8.928
	 	6.400
	 	4.663
	 	3.398
	 	2.666
	 	1.776
	 	1.294
	 	1.005
	 	0.678
	 	0.456
	November 1, 2010
	 	8.928
	 	5.798
	 	4.040
	 	2.776
	 	2.067
	 	1.264
	 	0.878
	 	0.671
	 	0.455
	 	0.309
	November 1, 2011
	 	8.928
	 	5.242
	 	3.423
	 	2.102
	 	1.383
	 	0.671
	 	0.420
	 	0.318
	 	0.221
	 	0.153
	November 1, 2012
	 	8.928
	 	5.029
	 	3.145
	 	1.657
	 	0.705
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	November 1, 2013
	 	8.928
	 	4.891
	 	3.009
	 	1.563
	 	0.659
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	November 1, 2014
	 	8.928
	 	4.771
	 	2.885
	 	1.489
	 	0.628
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	November 1, 2015
	 	8.928
	 	4.540
	 	2.614
	 	1.303
	 	0.542
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	November 1, 2016
	 	8.928
	 	4.150
	 	2.065
	 	0.915
	 	0.367
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	November 1, 2017
	 	8.928
	 	3.904
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000
	 	0.000






          provided, however, that:





     (i) if the actual Stock Price of such Make-Whole Fundamental Change is between two
(2) prices listed in the table above under the row titled “Stock Price,” or if the actual
Effective Date of such Make-Whole Fundamental Change is between two dates listed in the
table above in the column immediately below the title “Effective Date,” then the
Make-Whole Applicable Increase for such Make-Whole Fundamental Change shall be determined
by straight-line interpolation between the Make-Whole Applicable Increases set forth for
the higher and lower Stock Price amounts and the earlier and later Effective Dates, based
on a three hundred and sixty five (365) or three hundred and sixty six (366) day year, as
applicable;




     (ii) if the actual Stock Price of such Make-Whole Fundamental Change is greater than
$125.00 per share (subject to adjustment as provided in Section 10.13(B)(iii)), or if
the actual Stock Price of such Make-Whole Fundamental Change is less than $29.04 per
share (subject to adjustment as provided in Section 10.13(B)(iii)), then the Make-Whole
Applicable Increase shall be equal to zero (0);




     (iii) if an event occurs that requires, pursuant to this Article X (other than
solely pursuant to this Section 10.13), an adjustment to the Conversion Rate, then, on
the date and at the time such adjustment is so required to be made, (A) each price set



-57-









 






forth in the table above under the column titled “Stock Price” shall be deemed to be
adjusted so that such price, at and after such time, shall be equal to the product of (1)
such price as in effect immediately before such adjustment to such price and (2) a
fraction whose numerator is the Conversion Rate in effect immediately before such
adjustment to the Conversion Rate and whose denominator is the Conversion Rate to be in
effect, in accordance with this Article X, immediately after such adjustment to the
Conversion Rate; and (B) each Make-Whole Applicable Increase amount set forth in the
table above shall be adjusted in the same manner as the Conversion Rate is adjusted
pursuant to this Article X (excluding adjustments solely pursuant to this Section
 10.13); and




     (iv) in no event shall the total number of shares of Common Stock issuable upon
conversion of any Security exceed 34.4356 shares per $1,000 principal amount of
Securities, subject to adjustments in the same manner as the Conversion Rate;



     (C) As used herein, “Stock Price” shall have the following meaning with respect to a
Make-Whole Fundamental Change: (a) if the holders of Common Stock receive only cash in such
Make-Whole Fundamental Change, then the Stock Price with respect to such Make-Whole Fundamental
Change shall be the cash amount paid per share of Common Stock; (b) otherwise, the Stock Price with
respect to such Make-Whole Fundamental Change shall be the average of the Last Reported Sale Prices
per share of Common Stock over the five (5) Trading Day period ending on the Trading Day preceding
the Effective Date of such Make-Whole Fundamental Change.



     (D) At least thirty (30) calendar days before the anticipated effective date of each proposed
Make-Whole Fundamental Change, the Company shall mail to each Holder, in accordance with Section
1.06 of the Base Indenture, written notice of the anticipated effective date of such proposed
Make-Whole Fundamental Change. Each such notice shall also state that, in connection with such
Make-Whole Fundamental Change, if consummated, the Company shall increase, in accordance herewith,
the Conversion Rate applicable to Securities entitled as provided herein to such increase (along
with a description of how such increase shall be calculated and the time periods during which
Securities must be surrendered in order to be entitled to such increase). No later than the third
(3rd) Business Day after the Effective Date of each Make-Whole Fundamental Change, the Company
shall mail to Holders, in accordance with Section 1.06 of the Base Indenture, written notice of
such Effective Date and the Make-Whole Applicable Increase applicable to such Make-Whole
Fundamental Change.



     (E) For avoidance of doubt, the provisions of this Section 10.13 shall not affect or diminish
the Company’s obligations, if any, pursuant to Article IV with respect to a Make-Whole Fundamental
Change.



     (F) Nothing in this Section 10.13 shall prevent an adjustment to the Conversion Rate pursuant
to Section 10.05 in respect of a Make-Whole Fundamental Change.



     (G) If a Make-Whole Fundamental Change occurs and the consideration for the Common Stock in
such Make-Whole Fundamental Change is comprised entirely of cash, then, notwithstanding anything to
the contrary in the second paragraph of Section 10.10, (i) the



-58-









 




Conversion Consideration due in respect of each conversion of a Security following the
Effective Date of such Make-Whole Fundamental Change shall be deemed to be a cash amount equal to
the applicable Conversion Rate (including any adjustment pursuant to this Article X) multiplied by
the Stock Price applicable to such Make-Whole Fundamental Change; and (ii) the Conversion
Consideration shall be determined and paid, to each Holder that converts a Security, in cash on the
third (3rd) Business Day following the Conversion Date of such conversion.




10.14 Exchange In Lieu of Conversion.




     (A) Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, if a Holder surrenders any Security for conversion, the Company may,
but is not obligated to, direct the Conversion Agent to surrender, on or prior to the second (2nd)
Business Day following the Conversion Date of such conversion, such Security to a financial
institution designated by the Company (which may not be an Affiliate of the Company; provided that,
for purposes of this Section 10.14, an “Affiliate” shall include any Person with direct or
indirect ownership of ten percent (10%) or more of the equity of the Company or the power to
directly or indirectly vote more than ten percent (10%) of the securities having ordinary voting
power for the election of directors of the Company) (a “Financial Institution”) for exchange in
lieu of conversion. In order to accept any Securities surrendered for conversion, such designated
institution must agree to deliver, in exchange for such Securities, the Conversion Consideration
due upon such conversion in accordance with this Indenture. By the close of business on the second
(2nd) Business Day immediately following such Conversion Date, the Company shall notify such
Holder, the Trustee and the Conversion Agent that the Company has directed the designated financial
institution to make an exchange in lieu of such conversion, and such financial institution shall be
required to notify the Conversion Agent, no later than the close of business on the second (2nd)
Business Day immediately following such Conversion Date, of the Settlement Method applicable to
such conversion, which Settlement Method must comply with the terms of this Indenture.



     (B) In order to accept such Security surrendered for conversion, the Financial Institution
must agree to deliver, in exchange for such Security, the Conversion Consideration due upon such
conversion as prescribed by Section 10.02(A)(i) (it being understood that such Financial
Institution shall be permitted to provide a Settlement Method Election Notice with respect to such
conversion in accordance with Section 10.02(B), if the Company is permitted to provide such a
Settlement Method Election Notice pursuant to Section 10.02(B)).



     (C) If such Financial Institution so accepts any such Security to be converted, then it shall
deliver the Conversion Consideration due upon such conversion to the Conversion Agent, and the
Conversion Agent shall deliver such Conversion Consideration to the applicable Holder, in each case
within the time frames prescribed by Section 10.02(A)(ii). Each Security so exchanged by such
designated institution shall remain outstanding.



     (D) If such Financial Institution agrees to accept such Security for exchange but does not
timely deliver the related consideration, or if such Financial Institution does not accept such
Security for exchange, then the Company shall deliver, as soon as practicable, the applicable
Conversion Consideration as if the Company had not made an exchange election.



-59-









 





     (E) The Company shall not provide to the Financial Institution, directly or indirectly, any of
such Conversion Consideration to be delivered by the Financial Institution in exchange for such
Security.



     (F) In no event shall the Company’s designation of a Financial Institution pursuant to this
Section 10.14 require such Financial Institution to accept any Securities for exchange. The
Company shall not be obligated to pay any consideration to, or otherwise enter into any agreement
or arrangement with, a Financial Institution for or with respect to such designation pursuant to
this Section 10.14.



XI. TAX TREATMENT




11.01 Tax Treatment.





     (a) The Company hereby agrees and each Holder and any beneficial holder of a
Security by its purchase of a Security hereby agrees (in the absence of
administrative or judicial determination to the contrary):




     (1) to treat the Securities as indebtedness of the Company for all U.S.
federal income tax purposes;




     (2) to treat the Securities as debt instruments that are subject to
Treasury Regulation section 1.1275-4(b);




     (3) to be bound by the Company’s application of Treasury Regulation
section 1.1275-4(b), including the Company’s determination of the comparable
yield and the projected payment schedule; and




     (4) to treat the delivery of Common Stock or cash (including cash
delivered in lieu of a fractional share) to a Holder of a Security upon
conversion of such Security, as a contingent payment (in an amount equal to
the sum of the fair market value of such Common Stock and any cash received
(as determined in good faith by the Board of Directors of the Company))
under Treasury Regulation section 1.1275-4(b).



11.02 Comparable Yield And Projected Payment Schedule.





     (a) Solely for purposes of applying Treasury Regulation section 1.1275-4 to the
Securities:




     (1) for U.S. federal income tax purposes, the Company shall accrue
interest with respect to outstanding Securities as original issue discount
according to the “noncontingent bond method,” as set forth in Treasury
Regulation section 1.1275-4(b), using a comparable yield of 8.25%,
compounded semiannually, and the projected payment schedule as determined by
the Company; and



-60-









 






     (2) the Company shall file with the Trustee promptly following the end
of each calendar year (A) a written notice specifying the amount of original
issue discount for U.S. federal income tax purposes accrued on outstanding
Securities as of the end of such year and (B) such other specific
information relating to such original issue discount that the Company
determines to be relevant under the Internal Revenue Code of 1986, as
amended from time to time, including the amount of any adjustment made under
the noncontingent bond method to account for the amount of any difference
between the amount of an actual payment and the amount of a projected
payment.



     Holders that wish to obtain the projected payment schedule may do so by submitting a written
request to the Company (to the attention of Investor Relations) at 520 Madison Avenue, New York,
New York 10022.



XII. MISCELLANEOUS




12.01 Trust Indenture Act Controls.




     If any provision of this Supplemental Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Supplemental Indenture by the Trust Indenture
Act, the required provision of the Trust Indenture Act shall control.



12.02 Legal Holidays.




     If any Interest Payment Date (other than an Interest Payment Date coinciding with the Maturity
Date or a Redemption Date, Option Purchase Date or Fundamental Change Repurchase Date) of a
Security shall fall on a day that is not a Business Day, then such Interest Payment Date shall be
postponed to the next succeeding Business Day, and no additional interest shall accrue as a result
of such delay in payment. If the Maturity Date or a Redemption Date, Option Purchase Date or
Fundamental Change Repurchase Date shall fall on a day that is not a Business Day, then the
required payment of interest, if any, and principal shall be made on the next succeeding Business
Day and no interest on such payment shall accrue for the period from and after such Maturity Date,
Redemption Date, Option Purchase Date or Fundamental Change Repurchase Date to such next succeeding
Business Day.



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, Section 1.13 of the Base Indenture shall not apply not apply to the Securities.



12.03 Holder Lists.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, the phrase “, unless the Trustee is the Security Registrar with respect to such
series,” shall, for all purposes with respect to the Securities, be deemed to be inserted
immediately after the phrase “The Company will” in the first sentence of Section 7.01 of the Base
Indenture.



-61-









 





12.04 Notices to Holders.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, the clause “, and such notice shall be deemed to have been given on the date of
such mailing” shall, for all purposes with respect to the Securities, be deemed to be inserted
immediately before the period in the first sentence of Section 1.06 of the Base Indenture.



12.05 Adjustments to Last Reported Sales Prices and VWAPs.




     Whenever any provision of this Indenture requires the Company to calculate Last Reported
Prices or VWAPs over a span of multiple days, the Company shall make appropriate adjustments to
account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time
during the period from which such prices are to be calculated.



12.06 Contingent Interest.




     Each references in this Supplemental Indenture, the Base Indenture or the Securities to
interest shall be deemed to include any and all Contingent Interest to the extent provided for
pursuant to the Securities; provided, however, that Contingent Interest shall accrue in addition
to, and in no event shall this Section 12.06 be deemed to reduce the Company’s obligation to pay,
the stated interest and Additional Interest, if any, on any Security.



12.07 Acts of Holders.




     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, (A) each reference, in Section 1.04 of the Base Indenture, to “Section 5.02”,
“Section 5.07(2)” and “Section 5.12” shall be deemed, for purposes of the Securities, to be
replaced with “Section   6.02 of the Supplemental Indenture”, “Section   6.06(ii) of the Supplemental
Indenture” and “Section   6.05 of the Supplemental Indenture”, respectively.



12.08 Duplicate Originals.




     The parties may sign any number of copies of this Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. Delivery of an
executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart
thereof.



12.09 Governing Law.




     This Supplemental Indenture, the Securities and, for purposes of the Securities, the Base
Indenture shall be governed by, and construed in accordance with, the internal laws of the State of
New York. Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the
Securities to the contrary, this Section 12.09 shall replace Section 1.12 of the Base Indenture
for purposes of the Securities.



-62-









 





12.10 No Adverse Interpretation of Other Agreements.




     This Supplemental Indenture and the Base Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its Subsidiaries, and no such indenture,
loan or debt agreement may be used to interpret this Supplemental Indenture or the Base Indenture.



12.11 Successors.




     All agreements of the Company in this Supplemental Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Supplemental Indenture shall bind its
successors.



12.12 Separability.




     In case any provision in this Supplemental Indenture, the Base Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have
no claim therefor against any party hereto.



12.13 Table of Contents, Headings, etc.




     The Table of Contents and headings of the Articles and Sections of this Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a part of this
Supplemental Indenture or the Base Indenture and shall in no way modify or restrict any of the
terms or provisions of this Supplemental Indenture or the Base Indenture.



12.14 Calculations in Respect of the Securities.




     The Company and its agents (including, without limitation, the Bid Solicitation Agent) shall
make all calculations under this Indenture and the Securities in good faith. In the absence of
manifest error, such calculations shall be final and binding on all Holders. The Company shall
provide a copy of such calculations to the Trustee as required hereunder, and, absent such manifest
error, the Trustee shall be entitled to rely on the accuracy of any such calculation without
independent verification.



[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]





-63-











 





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



	 	 	 	 	 
	 	Jefferies Group, Inc.

 	 
	 	By:  	/s/
Peregrine C. Broadbent
 	 
	 	 	Name:  	Peregrine C. Broadbent 	 
	 	 	Title:  	Executive Vice President and 
Chief Financial
Officer 	 
	 
	 	The Bank of New York Mellon

 	 
	 	By:  	/s/
Geovanni Barris 	 
	 	 	Name:  	Geovanni Barris 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



EXHIBIT A




[Face of Security]




JEFFERIES GROUP, INC.




Certificate No. _______




[INSERT GLOBAL SECURITY LEGEND AS REQUIRED]




3.875% Convertible Senior Debenture due 2029




CUSIP No.                               





     Jefferies Group, Inc., a Delaware corporation (the “Company”), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum of
                                         dollars ($                    ) on November 1, 2029 and to pay interest thereon, as
provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or
duly provided for.



     Interest Payment Dates: May 1 and November 1, with the first payment to be made on May 1,
2010.



     Regular Record Dates: April 15 and October 15.



     The provisions on the back of this certificate are incorporated as if set forth on the face
hereof.



     IN WITNESS WHEREOF, Jefferies Group, Inc. has caused this instrument to be duly signed.



	 	 	 	 	 
	 	Jefferies Group, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Dated:                                         




A-1









 





TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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




	 	 	 	 	 
	The Bank of New York Mellon, as Trustee

 	 
	By:  	 	 
	 	Authorized Signatory 	 



Dated:                                         





A-2











 





[REVERSE OF SECURITY]




JEFFERIES GROUP, INC.




3.875% Convertible Senior Debenture due 2029




     1. Interest. Jefferies Group, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Security at the rate per annum shown above. The Company
will pay interest, payable semi-annually in arrears, on May 1 and November 1 of each year, with the
first payment to be made on May 1, 2010. Interest on the Securities will accrue on the principal
amount from, and including, the most recent date to which interest has been paid or provided for
or, if no interest has been paid, from, and including, October 26, 2009, in each case to, but
excluding, the next Interest Payment Date or Maturity Date, as the case may be. Interest will be
computed on the basis of a 360-day year composed of twelve 30-day months.



     In addition, if the Contingent Interest Trading Price of a Security for each of the five (5)
Trading Days (the “Contingent Interest Measurement Period”) ending on the third (3rd) Trading Day
immediately preceding the first day of any six (6) month period (each a “Contingent Interest
Period”) from and including an Interest Payment Date to but excluding the next Interest Payment
Date, commencing with the six (6) month period beginning on November 1, 2017, is equal to or
greater than one thousand two hundred dollars ($1,200.00) per one thousand dollars ($1,000)
principal amount of the Securities, then the Company shall pay contingent interest (“Contingent
Interest”) to the Holders.



     The amount of Contingent Interest payable per $1,000 principal amount of Securities in respect
of any Contingent Interest Period, if applicable, shall be equal to 0.375%, per annum, of the
average Contingent Interest Trading Price per $1,000 principal amount of the Securities during the
applicable Contingent Interest Measurement Period. Contingent Interest shall accrue from, and
including, the first day of the applicable Contingent Interest Period through, but excluding, the
Interest Payment Date at the end of such Contingent Interest Period, and Contingent Interest shall
be payable to Holders in the same manner as regular cash interest. Regular cash interest shall
continue to accrue at the per annum rate of 3.875% on the principal amount of the Securities
whether or not Contingent Interest is paid.



     The Company shall instruct the Bid Solicitation Agent to determine the daily Contingent
Interest Trading Prices of the Securities during each Contingent Interest Measurement Period during
which any Securities are outstanding. Upon determining that the Securities shall begin to accrue
Contingent Interest during a Contingent Interest Period, the Company shall, on or before the start
of such Contingent Interest Period, provide notice to the Trustee setting forth the amount of
Contingent Interest per $1,000 principal amount of Securities and disseminate a press release
through a public medium that is customary for such press releases.



     The “Contingent Interest Trading Price” of a Security on any Trading Day means the average of
the secondary market bid quotations per Security obtained by the Bid Solicitation Agent for five
million dollars ($5,000,000) principal amount of the Securities at approximately 3:30 p.m., New
York City time, on such Trading Day from three (3) independent nationally



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recognized securities dealers selected by the Company, which may include one or more of the
Underwriters, provided, however, that if at least three (3) such bids cannot reasonably be obtained
by the Bid Solicitation Agent, but two (2) such bids can reasonably be obtained by the Bid
Solicitation Agent, then the average of such two (2) bids shall be used, and if only one (1) such
bid can be obtained by the Bid Solicitation Agent, then that one (1) bid shall be used; provided
further that if the Bid Solicitation Agent cannot reasonably obtain at least one (1) bid for five
million dollars ($5,000,000) principal amount of the Securities from a nationally recognized
securities dealer or if, in the Company’s reasonable judgment, the bid quotations are not
indicative of the secondary market value of the Securities, then the Contingent Interest Trading
Price of a Security shall be determined by the Board of Directors based on a good faith estimate of
the fair value of the Securities.




     Contingent Interest, if any, shall accrue and be payable in the same manner, and on the same
dates, as the stated interest payable on the Securities.



     Notwithstanding anything in this Supplemental Indenture, the Base Indenture or the Securities
to the contrary, the Company may unilaterally increase the amount of Contingent Interest the
Company may pay or pay interest or other amounts the Company is not obligated to pay; provided,
however, that the Company shall have no obligation to do so.



     2. Maturity. The Securities will mature on November 1, 2029.



     3. Method of Payment. Except as provided in the Indenture (as defined below), the Company
will pay interest on the Securities to the persons who are Holders of record of Securities at the
close of business on the Regular Record Date set forth on the face of this Security next preceding
the applicable Interest Payment Date. Except as provided in the Indenture, Holders must surrender
Securities to a Paying Agent to collect the principal amount, Redemption Price, Option Purchase
Price, or Fundamental Change Repurchase Price of the Securities, as the case may be. The Company
will pay, in money of the United States that at the time of payment is legal tender for payment of
public and private debts, all amounts due in cash with respect to the Securities, which amounts
shall be paid (A) in the case this Security is in global form, by wire transfer of immediately
available funds to the account designated by the Depositary for the Securities or its nominee; (B)
in the case of a Security that is held, other than global form, by a Holder of more than five
million dollars ($5,000,000) in aggregate principal amount of Securities, either by check mailed to
such Holder or, upon application by such Holder to the Security Registrar not later than the
relevant Regular Record Date (or, in the case of a payment of principal, not later than fifteen
(15) Business Days prior to the due date thereof), by wire transfer in immediately available funds
to such Holder’s account within the United States, which application shall remain in effect until
such Holder notifies, in writing, the Security Registrar to the contrary; and (C) in the case of a
Security that is held, other than global form, by a Holder of five million dollars ($5,000,000) or
less in aggregate principal amount of Securities, by mailing a check to the address of such Holder
set forth in the Security Registrar’s books.



     4. Paying Agent, Security Registrar, Conversion Agent. Initially, The Bank of New York Mellon
(the “Trustee”) will act as Paying Agent, Security Registrar, Bid Solicitation Agent and Conversion
Agent. The Company may change any Paying Agent, Security Registrar, Bid Solicitation Agent or
Conversion Agent without notice.



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     5. Indenture. The Company issued the Securities under an indenture dated as of October 26,
2009 (the “Base Indenture”) between the Company and the Trustee, as amended, supplemented or
otherwise modified by the First Supplemental Indenture (the “Supplemental Indenture”), dated as of
October 26, 2009, between the Company and the Trustee (the Base Indenture, as amended, supplemented
or otherwise modified by the Supplemental Indenture, the “Indenture”). The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Securities are subject to all such terms, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of such terms. The Securities are general
unsecured senior obligations of the Company limited to three hundred and forty five million dollars
($345,000,000), except as otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to them in the
Indenture.



     6. Provisional and Optional Redemption.



          The Company shall have the right, at the Company’s option, at any time, and from time to time,
on a Redemption Date on or after November 1, 2012 and before November 1, 2017, to redeem (a
“Provisional Redemption”) all or any part of the Securities at a price, payable in cash, equal to
the Redemption Price, if the Last Reported Sale Price per share of Common Stock for twenty (20) or
more Trading Days in a period of thirty (30) consecutive Trading Days ending on the Trading Day
prior to the date the Company provides the notice of Provisional Redemption pursuant to Section
3.06 of the Supplemental Indenture exceeds one hundred and thirty percent (130%) of the Conversion
Price in effect on the applicable Trading Day.



          The Company shall have the right, at the Company’s option, at any time, and from time to time,
on a Redemption Date on or after November 1, 2017, to redeem (an “Optional Redemption”) all or any
part of the Securities at a price payable in cash equal to the Redemption Price.



     7. Purchase by the Company at the Option of the Holder. Subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase, at the option of each Holder, the
Securities held by such Holder on November 1, 2017, November 1, 2019 and November 1, 2024 (each, an
“Option Purchase Date”) at the Option Purchase Price, payable in cash, upon the due delivery, in
accordance with the Indenture, of a Purchase Notice containing the information set forth in the
Indenture, and upon delivery of the Securities to the Paying Agent by the Holder as set forth in
the Indenture.



     8. Repurchase at Option of Holder Upon a Fundamental Change. Subject to the terms and
conditions of the Indenture, in the event of a Fundamental Change, each Holder of the Securities
shall have the right, at the Holder’s option, to require the Company, upon the Holder’s
satisfaction of certain conditions set forth in the Supplemental Indenture, to repurchase such
Holder’s Securities on a date selected by the Company (the “Fundamental Change Repurchase Date”),
which Fundamental Change Repurchase Date shall be no later than thirty five (35) days, nor earlier
than twenty (20) Business Days, after the date the Fundamental Change Notice is



A-5









 




mailed in accordance with Section 3.13(B) of the Supplemental Indenture, at a price, payable
in cash, equal to the Fundamental Change Repurchase Price for such Securities.




     9. Conversion.



     The Securities are convertible during the times, and upon the conditions, set forth in Article
X of the Supplemental Indenture.



     To convert a Security, a Holder must (1) complete and manually sign the Conversion Notice on
the back of such Security, or a facsimile of such Conversion Notice; (2) deliver such Conversion
Notice, which is irrevocable, and such Security to the Conversion Agent; (3) if required, furnish
appropriate endorsements and transfer documents; (4) if required, pay all transfer or similar
taxes; and (5) if required pursuant to Section 10.02(C) of the Supplemental Indenture, pay funds
equal to interest payable on such Security the next Interest Payment Date; provided, however, that
if such Security is represented by a Global Security, then, in lieu of clauses (1), (2) and (3),
such Holder must comply with the Depositary’s procedures for the same.



          A Holder may convert a portion of a Security if the portion is $1,000 principal amount or an
integral multiple of $1,000 principal amount.




          Each conversion of a Security will be settled pursuant to Physical Settlement, Cash Settlement
or Combination Settlement in accordance with the Indenture.




          The initial Conversion Rate is 25.5076 shares of Common Stock per $1,000 principal amount of
Securities, subject to adjustment in the event of certain circumstances as specified in the
Indenture. The Company will pay cash in lieu of any fractional share. If a Holder surrenders a
Security for conversion after 5:00 p.m., New York City time, on a Regular Record Date and prior to
the immediately following Interest Payment Date, then, notwithstanding such conversion, the
interest payable with respect to such Security on such Interest Payment Date shall be paid on such
Interest Payment Date to the Holder of record of such Security at the close of business on such
Regular Record Date; provided, however, that such Security, when surrendered for conversion, must
be accompanied by payment to the Conversion Agent on behalf of the Company of an amount equal to
the interest payable on such Interest Payment Date on the portion of such Security to be so
converted, except that no such payment is required if either (i) the Company shall have specified a
Redemption Date or Fundamental Change Repurchase Date that is after such Regular Record Date and on
or prior to such Interest Payment Date; or (ii) the Conversion Date for such conversion is after
the Regular Record Date that immediately precedes the Maturity Date; provided further, however,
that, if the Company shall have, prior to the Conversion Date with respect to a Security, defaulted
in a payment of interest on such Security, then in no event shall the Holder of such Security who
surrenders such Security for conversion be required to pay such defaulted interest or the interest
that shall have accrued on such defaulted interest (it being understood that nothing in this
paragraph shall affect the Company’s obligations under Section 4.01(B) of the Supplemental
Indenture).




     10. Tax Agreements. Each Holder and beneficial holder of a Security by its purchase of a
Security is deemed to make certain agreements relating to the tax treatment of such Security. See
Article XI of the Indenture.



A-6









 





     11. Denominations, Transfer, Exchange. The Securities are in registered form, without
coupons, in denominations of $1,000 principal amount and integral multiples of $1,000 principal
amount. The transfer of Securities may be registered and Securities may be exchanged as provided
in the Indenture. The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or similar governmental charge that may be imposed in connection with certain
transfers or exchanges. The Company or the Trustee, as the case may be, shall not be required to
register the transfer of or exchange any Security for which a Purchase Notice has been delivered,
and not withdrawn, in accordance with the Indenture, except the unrepurchased portion of Securities
being repurchased in part. The Company is not required to effect any transfer or exchange of
Securities in certain situations, as set forth in the Indenture.



     12. Persons Deemed Owners. The registered Holder of a Security may be treated as the owner of
such Security for all purposes.



     13. Defaults and Remedies. The Securities may become immediately due and payable in full
after the occurrence of an Event of Default if certain conditions are satisfied, as provided in
Article VI of the Supplemental Indenture.



     14. Trustee Dealings with the Company. The Trustee under the Indenture, or any banking
institution serving as successor Trustee thereunder, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not Trustee.



     15. No Recourse Against Others. No past, present or future director, officer, employee or
stockholder, as such, of the Company shall have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder, by accepting a Security, waives and releases all
such liability. The waiver and release are part of the consideration for the issue of the
Securities.



     16. Authentication. This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent in accordance with the Indenture.



     17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (Uniform Gifts to Minors Act).



     THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE
BASE INDENTURE OR THE SUPPLEMENTAL INDENTURE. REQUESTS MAY BE MADE TO:



Jefferies Group, Inc.





A-7









 








520 Madison Avenue

12th Floor

New York, NY 10022





A-8












 





[FORM OF ASSIGNMENT]




	 	 	 
	I or we assign to
	 	 
	 
	 	 
	 
	 	 
	PLEASE INSERT SOCIAL SECURITY OR 

OTHER IDENTIFYING NUMBER
	 	 
	 
	 	 
	 	 	 





 

(please print or type name and address)



 




 




the within Security and all rights thereunder, and hereby irrevocably constitute and appoint



 




Attorney to transfer the Security on the books of the Company with full power of substitution in
the premises.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 	 	NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.






	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 





A-9









 





CONVERSION NOTICE



To convert this Security in accordance with the Indenture, check the box: o



To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):




$__________________



If you want the stock certificate representing the shares of Common Stock, if
any, issuable upon conversion made out in another person’s name, fill in the
form below:



 

(Insert other person’s soc. sec. or tax I.D. no.)



 




 




 




 

(Print or type other person’s name, address and zip code)



 





	 	 	 	 	 	 	 
	Date:

	 	 	 	Signature(s):	 	 
	 

	 	 
	 	 	 	 





	 	 	 
	 

	 	 
	 

	 	(Sign exactly as your name(s) appear(s) on the other side of
this Security)






	 	 	 
	Signature(s) guaranteed by:
	 	 
	 

	 	 
	 

	 	(All signatures must be guaranteed by a guarantor institution
participating in the Securities Transfer Agents Medallion Program or
in such other guarantee program acceptable to the Trustee.)






A-10









 





PURCHASE NOTICE




Certificate No. of Security: ___________




     If you want to elect to have this Security purchased by the Company pursuant to Section  3.12
of the Indenture, check the box: o



     If you want to elect to have this Security purchased by the Company pursuant to Section  3.13
of the Indenture, check the box: o



     If you want to elect to have only part of this Security purchased by the Company pursuant to
Sections  3.12 or  3.13 of the Indenture, as applicable, state the principal amount to be so
purchased by the Company:



$ ________________________

(in an integral multiple of $1,000)




	 	 	 	 	 	 	 
	Date:

	 	 	 	Signature(s):	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	(Sign exactly as your name(s) appear(s) on the
other side of this Security)
	 
	 	 	 	 	 	 
	Signature(s) guaranteed by:	 	(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.)







A-11









 








SCHEDULE A




SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY1




     The following exchanges of a part of this Global Security for an interest in another Global
Security or for Securities in certificated form, have been made:



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








 




			
	1	 	This is included in Global Securities only.




A-12









 










EXHIBIT B




FORM OF LEGEND FOR GLOBAL SECURITY




     Any Global Security authenticated and delivered hereunder shall bear a legend in substantially
the following form:




     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE 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) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




     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.




     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.




B-1