EXECUTION
VERSION

      


      JAKKS
PACIFIC, INC., as Issuer

       

      and

       

      WELLS
FARGO BANK, National Association, as Trustee

       

      
        

      

       

      INDENTURE

       

      Dated as
of November 10, 2009

       

      
        

      

       

      4.50%
Convertible Senior Notes due 2014


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      TABLE OF
CONTENTS

       

      
        
          
            	 
      	 
      	
                    Page

                  
	 
      	 
      	 
      
	
                    ARTICLE
      1

                  
	
                    DEFINITIONS
      AND INCORPORATION BY REFERENCE

                  
	 
      	 
      	 
      
	
                    Section 1.01.

                  	
                    Definitions

                  	
                    1

                  
	
                    Section 1.02.

                  	
                    Other
      Definitions

                  	
                    7

                  
	
                    Section 1.03.

                  	
                    Trust
      Indenture Act Provisions

                  	
                    7

                  
	
                    Section 1.04.

                  	
                    Rules of
      Construction

                  	
                    8

                  
	 
      	 
      	 
      
	
                    ARTICLE
      2

                  
	
                    THE
      SECURITIES

                  
	 
      	 
      	 
      
	
                    Section 2.01.

                  	
                    Form and
      Dating

                  	
                    8

                  
	
                    Section 2.02.

                  	
                    Execution
      and Authentication

                  	
                    10

                  
	
                    Section 2.03.

                  	
                    Registrar,
      Paying Agent and Conversion Agent

                  	
                    11

                  
	
                    Section 2.04.

                  	
                    Paying
      Agent To Hold Money In Trust

                  	
                    12

                  
	
                    Section 2.05.

                  	
                    Conversion
      Agent To Hold Amounts In Trust

                  	
                    12

                  
	
                    Section 2.06.

                  	
                    Lists
      of Holders of Securities

                  	
                    12

                  
	
                    Section 2.07.

                  	
                    Transfer
      and Exchange

                  	
                    12

                  
	
                    Section 2.08.

                  	
                    Replacement
      Securities

                  	
                    13

                  
	
                    Section 2.09.

                  	
                    Outstanding
      Securities

                  	
                    14

                  
	
                    Section 2.10.

                  	
                    Treasury
      Securities

                  	
                    14

                  
	
                    Section 2.11.

                  	
                    Temporary
      Securities

                  	
                    14

                  
	
                    Section 2.12.

                  	
                    Cancellation

                  	
                    15

                  
	
                    Section 2.13.

                  	
                    Legend;
      Additional Transfer and Exchange Requirements

                  	
                    15

                  
	
                    Section 2.14.

                  	
                    CUSIP
      Numbers

                  	
                    19

                  
	
                    Section 2.15.

                  	
                    Calculations

                  	
                    19

                  
	
                    Section 2.16.

                  	
                    Payment
      of Interest; Interest Rights Preserved

                  	
                    19

                  
	
                    Section 2.17.

                  	
                    Computation
      of Interest

                  	
                    20

                  
	
                    Section 2.18.

                  	
                    Purchase
      of Securities In Open Market

                  	
                    20

                  
	 
      	 
      	 
      
	
                    ARTICLE
      3

                  
	
                    PURCHASE

                  
	 
      	 
      	 
      
	
                    Section 3.01.

                  	
                    Repurchase
      at Option of Holders upon a Fundamental Change

                  	
                    20

                  
	
                    Section 3.02.

                  	
                    Withdrawal
      of Fundamental Change Repurchase Notice

                  	
                    23

                  
	
                    Section 3.03.

                  	
                    Deposit
      of Fundamental Change Repurchase Price

                  	
                    23

                  
	 
      	 
      	 
      
	
                    ARTICLE
      4

                  
	
                    CONVERSION

                  
	 
      	 
      	 
      
	
                    Section 4.01.

                  	
                    Right
      to Convert

                  	
                    24

                  
	
                    Section 4.02.

                  	
                    Conversion
      Procedures

                  	
                    25

                  
	
                    Section 4.03.

                  	
                    Settlement
      Upon Conversion

                  	
                    26

                  
	
                    Section 4.04.

                  	
                    Increased
      Conversion Rate Applicable to Securities Surrendered in Connection with
      Make-Whole Fundamental Changes

                  	
                    29

                  
	
                    Section 4.05.

                  	
                    Adjustment
      of Conversion Rate

                  	
                    31

                  
	
                    Section 4.06.

                  	
                    Effect
      of Reclassification, Consolidation, Merger or Sale

                  	
                    38

                  
	
                    Section 4.07.

                  	
                    Taxes
      on Shares Issued

                  	
                    40

                  
	
                    Section 4.08.

                  	
                    Reservation
      of Shares; Shares to be Fully Paid; Listing of Common
Stock

                  	
                    40

                  
	
                    Section 4.09.

                  	
                    Responsibility
      of Trustee

                  	
                    40

                  
	
                    Section 4.10.

                  	
                    Notice
      to Holders Prior to Certain Actions

                  	
                    41

                  


          

        

      


      
        
           


        

        
          -ii-

          
            

          

        

        
           


        

      

      


      
        
          
            
              
                	
                        Section 4.11.

                      	
                        Stockholder
      Rights Plans

                      	
                        41

                      
	 
      	 
      	 
      
	
                        ARTICLE
      5

                      
	
                        COVENANTS

                      
	 
      	 
      	 
      
	
                        Section 5.01.

                      	
                        Payment
      of Securities

                      	
                        42

                      
	
                        Section 5.02.

                      	
                        Reports
      by Company

                      	
                        42

                      
	
                        Section 5.03.

                      	
                        Compliance
      Certificates

                      	
                        44

                      
	
                        Section 5.04.

                      	
                        Further
      Instruments and Acts

                      	
                        44

                      
	
                        Section 5.05.

                      	
                        Stay,
      Extension And Usury Laws

                      	
                        44

                      
	
                        Section 5.06.

                      	
                        Maintenance
      of Office or Agency

                      	
                        44

                      
	 
      	 
      	 
      
	
                        ARTICLE
      6

                      
	
                        CONSOLIDATION;
      MERGER; SALE OF ASSETS

                      
	 
      	 
      	 
      
	
                        Section 6.01.

                      	
                        Company
      May Consolidate, Etc., Only on Certain Terms

                      	
                        45

                      
	
                        Section 6.02.

                      	
                        Successor
      Substituted

                      	
                        45

                      
	 
      	 
      	 
      
	
                        ARTICLE
      7

                      
	
                        DEFAULT
      AND REMEDIES

                      
	 
      	 
      	 
      
	
                        Section 7.01.

                      	
                        Events
      of Default

                      	
                        45

                      
	
                        Section 7.02.

                      	
                        Acceleration

                      	
                        47

                      
	
                        Section 7.03.

                      	
                        Collection
      of Indebtedness and Suits for Enforcement by Trustee

                      	
                        48

                      
	
                        Section 7.04.

                      	
                        Trustee
      May File Proofs of Claim

                      	
                        49

                      
	
                        Section 7.05.

                      	
                        Trustee
      May Enforce Claims Without Possession of Securities

                      	
                        49

                      
	
                        Section 7.06.

                      	
                        Application
      of Money Collected

                      	
                        49

                      
	
                        Section 7.07.

                      	
                        Limitation
      on Suits

                      	
                        50

                      
	
                        Section 7.08.

                      	
                        Unconditional
      Right of Holders to Receive Payment and to Convert

                      	
                        50

                      
	
                        Section 7.09.

                      	
                        Restoration
      of Rights and Remedies

                      	
                        50

                      
	
                        Section 7.10.

                      	
                        Rights
      and Remedies Cumulative

                      	
                        51

                      
	
                        Section 7.11.

                      	
                        Delay
      or Omission Not Waiver

                      	
                        51

                      
	
                        Section 7.12.

                      	
                        Control
      by Holders

                      	
                        51

                      
	
                        Section 7.13.

                      	
                        Waiver
      of Past Defaults

                      	
                        51

                      
	
                        Section 7.14.

                      	
                        Undertaking
      for Costs

                      	
                        51

                      
	
                        Section 7.15.

                      	
                        Remedies
      Subject to Applicable Law

                      	
                        52

                      
	 	 	 
	
                        ARTICLE
      8

                      
	
                        TRUSTEE

                      
	 
      	 
      	 
      
	
                        Section 8.01.

                      	
                        Duties
      of Trustee

                      	
                        52

                      
	
                        Section 8.02.

                      	
                        Notice
      of Default

                      	
                        53

                      
	
                        Section 8.03.

                      	
                        Certain
      Rights of Trustee

                      	
                        53

                      
	
                        Section 8.04.

                      	
                        Trustee
      Not Responsible for Recitals, Dispositions of Securities or Application of
      Proceeds Thereof

                      	
                        54

                      
	
                        Section 8.05.

                      	
                        Trustee
      and Agents May Hold Securities; Collections; etc.

                      	
                        55

                      
	
                        Section 8.06.

                      	
                        Money
      Held in Trust

                      	
                        55

                      
	
                        Section 8.07.

                      	
                        Compensation
      and Indemnification of Trustee and Its Prior Claim

                      	
                        55

                      
	
                        Section 8.08.

                      	
                        Conflicting
      Interests

                      	
                        56

                      
	
                        Section 8.09.

                      	
                        Trustee
      Eligibility

                      	
                        56

                      
	
                        Section 8.10.

                      	
                        Resignation
      and Removal; Appointment of Successor Trustee

                      	
                        56

                      
	
                        Section 8.11.

                      	
                        Acceptance
      of Appointment by Successor

                      	
                        57

                      
	
                        Section 8.12.

                      	
                        Merger,
      Conversion, Consolidation or Succession to Business

                      	
                        58

                      
	
                        Section 8.13.

                      	
                        Preferential
      Collection of Claims Against Company

                      	
                        58

                      
	
                        Section 8.14.

                      	
                        Reports
      By Trustee

                      	
                        58

                      


              

            

          

        

      


      
        
           


        

        
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                    ARTICLE
      9

                  
	
                    SATISFACTION
      AND DISCHARGE OF INDENTURE

                  
	 
      	 
      	 
      
	
                    Section 9.01.

                  	
                    Satisfaction
      and Discharge of the Indenture

                  	
                    59

                  
	
                    Section 9.02.

                  	
                    Deposited
      Monies to Be Held in Trust by Trustee

                  	
                    59

                  
	
                    Section 9.03.

                  	
                    Paying
      Agent to Repay Monies Held

                  	
                    59

                  
	
                    Section 9.04.

                  	
                    Return
      of Unclaimed Monies

                  	
                    59

                  
	
                    Section 9.05.

                  	
                    Reinstatement

                  	
                    59

                  
	 
      	 
      	 
      
	
                    ARTICLE
      10

                  
	
                    AMENDMENTS;
      SUPPLEMENTS AND WAIVERS

                  
	 
      	 
      	 
      
	
                    Section 10.01.

                  	
                    Without
      Consent of Holders

                  	
                    60

                  
	
                    Section 10.02.

                  	
                    With
      Consent of Holders

                  	
                    60

                  
	
                    Section 10.03.

                  	
                    Execution
      of Supplemental Indentures and Agreements

                  	
                    61

                  
	
                    Section 10.04.

                  	
                    Effect
      of Supplemental Indentures

                  	
                    61

                  
	
                    Section 10.05.

                  	
                    Conformity
      with Trust Indenture Act

                  	
                    62

                  
	
                    Section 10.06.

                  	
                    Reference
      in Securities to Supplemental Indentures

                  	
                    62

                  
	
                    Section 10.07.

                  	
                    Notice
      of Supplemental Indentures

                  	
                    62

                  
	 
      	 
      	 
      
	
                    ARTICLE
      11

                  
	
                    MISCELLANEOUS

                  
	 
      	 
      	 
      
	
                    Section 11.01.

                  	
                    Conflict
      with Trust Indenture Act

                  	
                    62

                  
	
                    Section 11.02.

                  	
                    Notices

                  	
                    62

                  
	
                    Section 11.03.

                  	
                    Disclosure
      of Names and Addresses of Holders

                  	
                    63

                  
	
                    Section 11.04.

                  	
                    Compliance
      Certificates and Opinions

                  	
                    63

                  
	
                    Section 11.05.

                  	
                    Acts
      of Holders

                  	
                    64

                  
	
                    Section 11.06.

                  	
                    Benefits
      of Indenture

                  	
                    65

                  
	
                    Section 11.07.

                  	
                    Legal
      Holidays

                  	
                    65

                  
	
                    Section 11.08.

                  	
                    Governing
      Law; Waiver of Jury Trial

                  	
                    65

                  
	
                    Section 11.09.

                  	
                    No
      Adverse Interpretation of Other Agreements

                  	
                    65

                  
	
                    Section 11.10.

                  	
                    No
      Personal Liability of Directors, Officers, Employees and
      Stockholders

                  	
                    65

                  
	
                    Section 11.11.

                  	
                    Successors
      and Assigns

                  	
                    66

                  
	
                    Section 11.12.

                  	
                    Multiple
      Counterparts

                  	
                    66

                  
	
                    Section 11.13.

                  	
                    Separability
      Clause

                  	
                    66

                  
	
                    Section 11.14.

                  	
                    Schedules
      and Exhibits

                  	
                    66

                  
	
                    Section 11.15.

                  	
                    Effect
      of Headings and Table of Contents

                  	
                    66

                  
	
                    Section
      11.16

                  	
                    Force
      Majeure

                  	
                    66

                  
	
                    Section
      11.17

                  	
                    U.S.A.
      Patriot Act

                  	
                    66

                  
	 
      	 
      	 
      
	
                    EXHIBITS

                  
	 
      	 
      	 
      
	
                    Exhibit A

                  	
                    Form of
      Security

                  	
                    A-1

                  
	
                    Exhibit B

                  	
                    Form of
      Notice of Conversion

                  	
                    B-1

                  
	
                    Exhibit C

                  	
                    Form of
      Fundamental Change Repurchase Notice

                  	
                    C-1

                  
	
                    Exhibit D

                  	
                    Form of
      Assignment and Transfer

                  	
                    D-1

                  


          

        

      


      
        
           


        

        
          -iv-

          
            

          

        

        
           


        

      


      THIS
INDENTURE, dated as of November 10, 2009, is between JAKKS Pacific, Inc., a
corporation incorporated under the laws of the State of Delaware (the
“Company”), and Wells Fargo Bank, National Association, a national banking
association organized under the laws of the United States, as trustee (the
“Trustee”).

       

      In
consideration of the purchase of the Securities (as defined herein) by the
Holders thereof, the parties hereto agree as follows for the benefit of one
another and for the equal and ratable benefit of the Holders of the Company’s
4.50% Convertible Senior Notes due 2014.

       

      ARTICLE
1

       

      DEFINITIONS
AND INCORPORATION BY REFERENCE

       

      Section 1.01.         
Definitions.

       

      “Additional
Interest” means all amounts, if any, payable pursuant to Sections 5.02(d) and
(e), and 7.02(b) hereof.

      


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

       

      “Agent”
means any Registrar, Paying Agent or Conversion Agent.

       

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

       

      “Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.

       

      “Bid
Solicitation Agent” means initially the Company.  The Company may, however,
appoint another Person (including the Trustee, provided the Trustee accepts such
appointment in writing) as the Bid Solicitation Agent without prior notice to
the Holders of the Securities.

       

      “Board of
Directors” means the board of directors of the Company or any duly authorized
committee of such board, or any equivalent body in a limited partnership,
limited liability company or other entity serving substantially the same
function as a board of directors of a corporation.

       

      “Board
Resolution” means, with respect to any Person, a duly adopted resolution (or
other similar action) of the Board of Directors of such Person.

       

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

       

      “Capital
Stock” means, for any entity, any and all shares, equity interests, equity
participations or other equity equivalents of or equity interests in (however
designated) the equity of that entity, but excluding debt securities convertible
into such equity.

       

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


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      


      “Cash
Settlement Averaging Period” means, with respect to any Security surrendered for
conversion, the 20 consecutive Trading Day period beginning on, and including,
the third Trading Day immediately following the Conversion Date for such
Security; provided
that, with respect to any Conversion Date occurring during the period
beginning on, and including, August 1, 2014 and ending at the close of business
on the second Scheduled Trading Day immediately prior to the Maturity Date,
“Cash Settlement Averaging Period” means the 20 consecutive Trading Day period
beginning on, and including, the 22nd Scheduled Trading Day prior to the
Maturity Date.

       

      “Certificated
Security” means a Security that is in substantially the form attached as
Exhibit A but that is not registered in the name of a Depositary or a
nominee thereof and does not include the information or the schedule called for
by footnote 1 thereof.

       

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

       

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

       

      “Common
Stock” means the shares of common stock, par value $0.001 per share, of the
Company as they exist on the date of this Indenture, subject to
Section 4.06.

       

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

       

      “Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by any one of its Chairman of the Board, its Chief Executive
Officer, its President, its Chief Operating Officer, its Chief Financial Officer
or a Vice President (regardless of Vice Presidential designation), and by any
one of its Treasurer, an Assistant Treasurer, any other Vice President
(regardless of Vice Presidential designation), its Secretary or an Assistant
Secretary, and delivered to the Trustee.

       

      “Conversion
Obligation” means the obligation of the Company to deliver amounts owing upon
conversion in accordance with the provisions of Article 4
hereof.

       

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

       

       “Conversion
Rate” means, initially, 63.2091 shares of Common Stock per $1,000 principal
amount of Securities, subject to adjustment as set forth herein.

       

      “Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered, which office at
the date hereof is located at E2818-176, 707 Wilshire Blvd, 17th Floor,
Los Angeles, California 90017, Attention: Corporate Trust Department, or such
other address as the Trustee may designate from time to time by notice to the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Company).

       

      “Daily
Conversion Value” means, for each of the 20 consecutive Trading Days during the
Cash Settlement Averaging Period, one-twentieth (1/20th) of the product of
(a) the then-applicable Conversion Rate on such Trading Day and
(b) the Daily VWAP of the Common Stock on such Trading Day.

       

      “Daily
Measurement Value” is equal to the Specified Dollar Amount, divided by 20.

       

      “Daily
Settlement Amount,” for each of the 20 consecutive Trading Days during the Cash
Settlement Averaging Period, shall consist of:


      
        
           


        

        
          -2-

          
            

          

        

        
           


        

      

      


      (a)           cash
equal to the lesser of the Daily Measurement Value and the Daily Conversion
Value for such Trading Day; and

       

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

       

      “Daily
Share Amount,” with respect to each of the 20 consecutive Trading Days during
the Cash Settlement Averaging Period, means, to the extent the Daily Conversion
Value exceeds the Daily Measurement Value, (i) the difference between the
Daily Conversion Value and
the Daily Measurement Value, divided by (ii) the
Daily VWAP of the Common Stock for such Trading Day.

       

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

       

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

       

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

       

      “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to
time.

       

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

       

      (a)           any
“person” or “group” (within the meaning of Section 13(d) of the
Exchange Act) other than the Company or its Subsidiaries or any of their
respective 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 ultimate “beneficial owner,” as defined in
Rule 13d-3 under the Exchange Act, of the Company’s Common Equity
representing more than 50% of the voting power of the Company’s Common
Equity;

       

      (b)           consummation
of any binding share exchange, exchange offer, tender offer, 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 all or substantially all of the
consolidated assets of the Company and its Subsidiaries, taken as a whole, to
any Person other than one or more of the Company’s Subsidiaries; (any such
exchange, offer, consolidation, merger, sale, lease or other transfer
transaction or series of transactions being referred to herein as an “event”);
provided, however, that any such event
where the holders of more than 50% of the Company’s shares of Common Stock
immediately prior to such event, own, directly or indirectly, more than 50% of
all classes of Common Equity of the continuing or surviving person or transferee
or the parent thereof immediately after such event shall not be a Fundamental
Change;


      
        
           


        

        
          -3-

          
            

          

        

        
           


        

      

      


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

       

      (d)           the
Common Stock (or other common stock into which the Securities are then
convertible) ceases to be listed on at least one U. S. national securities
exchange, or approved for trading on an established automated over-the-counter
trading market in the U.S.,

       

      provided, however, no
transaction or event described in clause (b) above shall constitute a
Fundamental Change if at least 90% of the consideration, excluding cash payments
for fractional shares, in the transaction or event that would otherwise have
constituted a Fundamental Change consists of shares of Publicly Traded
Securities, and as a result of the transaction or event, the Securities become
convertible into such Publicly Traded Securities, excluding cash payments for
fractional shares (subject to the provisions of Section 4.03).

       

      “Global
Security” means a Security in global form that is in substantially the form
attached as Exhibit A and that includes the legend called for in footnote 1
thereof and the related schedule and which is deposited with the Depositary or
its custodian and registered in the name of the Depositary or its
nominee.

       

      “Holder”
or “Holder of a Security” means the person in whose name a Security is
registered on the register maintained by the Primary Registrar.

       

      “Indenture”
means this instrument as originally executed (including all exhibits and
schedules thereto) and as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.

       

      “Initial
Purchaser” means Merrill Lynch, Pierce, Fenner & Smith
Incorporated.

      


       “Interest
Payment Date” means May 1 and November 1 of each year, commencing
May 1, 2010.

       

      “Last
Reported Sale Price” of the Common Stock on any date means the closing sale
price per share (or if no closing sale price is reported, the average of the bid
and ask prices or, if more than one in either case, the average of the average
bid and the average ask prices) on that date as reported in composite
transactions for the principal U.S. securities exchange on which the Common
Stock is traded.  If the Common Stock is not listed for trading on a U.S.
national securities exchange on the relevant date, then the “Last Reported Sale
Price” of the Common Stock will be the last quoted bid price for the Common
Stock in the over-the-counter market on the relevant date as reported by Pink
OTC Markets Inc. or similar organization. If the Common Stock is not so quoted,
the “Last Reported Sale Price” of the Common Stock will be determined by a U.S.
nationally recognized independent investment banking firm selected by the
Company for this purpose.  The Last Reported Sale Price will be determined
without reference to after-hours or extended market trading.

       

      “Make-Whole
Fundamental Change” means any transaction or event that constitutes a
Fundamental Change under clause (a) or (b) of the definition thereof
(in the case of any Fundamental Change described in clause (b) of the
definition thereof, determined without regard to the proviso in such clause but
after giving effect to the exceptions and exclusions to the definition of
Fundamental Change that otherwise apply).

       

      “Market
Disruption Event” means (a) a failure by the primary exchange or quotation
system on which the Common Stock trades or is quoted to open for trading during
its regular trading session or (b) the occurrence or existence prior to
1:00 p.m., New York City time, on any Trading Day for the Common Stock of
an aggregate one-half hour period, of any suspension or limitation imposed on
trading (by reason of movements in price exceeding limits permitted by the stock
exchange or otherwise) in the Common Stock or in any options, contracts or
future contracts relating to the Common Stock.

       

      “Maturity
Date” means November 1, 2014.


      
        
           


        

        
          -4-

          
            

          

        

        
           


        

      

      


      “Offering
Memorandum” means the final offering memorandum dated November 4, 2009 relating
to the offering and sale of the Securities.

      


      “Officer”
means the Chairman, any Vice Chairman, the President, the Chief Executive
Officer, any Vice President, the Chief Financial Officer, the Chief Operating
Officer, the Treasurer or any Assistant Treasurer, or the Secretary or any
Assistant Secretary of the Company.

       

      “Officer’s
Certificate” means a certificate signed by an Officer of the Company and
delivered to the Trustee; provided, however, that for purposes
of Section 5.03, “Officer’s Certificate” means a certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company.

       

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

       

      “Opinion
of Counsel” means a written opinion of counsel, who may be an employee of or
counsel for the Company or the Trustee and who shall be reasonably acceptable to
the Trustee, and which opinion shall contain the statements required by
Section 11.04.

       

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

       

       “Portal
Market” means the Private Offerings, Resales and Trading through Automated
Linkages Market operated by The Nasdaq Stock Market, Inc. or any successor
thereto.

       

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

       

      “Purchase Agreement” means that
certain Purchase Agreement, dated as of November 4, 2009, between the Company
and the Initial Purchaser.

      


      “Regular
Record Date” means, with respect to each Interest Payment Date, the April 15 or
October 15, as the case may be, immediately preceding such Interest Payment
Date.

      


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

       

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

       

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

       

      “SEC”
means the U.S. Securities and Exchange Commission.

       

      “Securities”
means the up to $85,000,000 aggregate principal amount ($100,000,000 aggregate
principal amount if the Initial Purchaser exercises its over-allotment option to
purchase up to an additional $15,000,000 aggregate principal amount in full) of
4.50% Convertible Senior Notes due 2014, or any $1,000 principal amount thereof
(each a “Security”), that are initially issued under this
Indenture.

       

      “Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.

       

      “Securities
Custodian” means the Trustee, as custodian with respect to the Securities in
global form, or any successor thereto.


      
        
           


        

        
          -5-

          
            

          

        

        
           


        

      

      


      “Settlement
Notice” means the notice specifying the Settlement Method that the Company has
elected in accordance with the provisions of Section 4.03(b) and which
contains the information required by Section 4.03(c).

       

      “Significant
Subsidiary” means, at any date of determination, any Subsidiary that would
constitute a “significant subsidiary” within the meaning of Article 1 of
Regulation S-X promulgated under the Securities Act as in effect on the
date of this Indenture.

       

      “Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 2.16.

       

      “Specified
Dollar Amount” means an amount of cash per $1,000 principal amount of a
converted Security specified by the Company in the Settlement Notice related to
such converted Security.

       

      “Stated
Maturity” means, with respect to any installment of interest or principal on any
Security, the date on which such payment of interest or principal shall become
due and payable.

       

      “Subsidiary”
means, with respect to any specified Person: (1) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); or (2) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person (or
any combination thereof).

       

      “TIA”
means the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture, except to the
extent that the Trust Indenture Act or any amendment thereto expressly provides
for application of the Trust Indenture Act as in effect on another
date.

       

      “Trading
Day” means a day during which (i) trading in the Common Stock generally
occurs on the Nasdaq Global Select Market or, if the Common Stock is not then
listed on the Nasdaq Global Select Market, on the principal other United States
national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a United States 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.  If the Common
Stock (or other security for which a Last Reported Sale Price must be
determined) is not so listed or traded, “Trading Day” means a “Business
Day.”

       

      “Trading
Price” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Bid Solicitation Agent for $5
million principal amount of the Securities at approximately 3:30 p.m., New
York City time, on such determination date from three nationally recognized
securities dealers the Company selects; provided that, if three such
bids cannot reasonably be obtained by the Bid Solicitation Agent but two such
bids are obtained, then the average of the two bids shall be used, and if only
one such bid can reasonably be obtained by the Bid Solicitation Agent, that one
bid shall be used.  If the Bid Solicitation Agent cannot reasonably obtain
at least one bid for $5 million principal amount of the Securities from a
nationally recognized securities dealer, then the Trading Price per $1,000
principal amount of Securities will be deemed to be less than 98% of the product
of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate.

       

       “Trustee”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and
thereafter means the successor.

       

      “Trust
Officer” means, with respect to the Trustee, any officer of the Trustee who
shall have direct responsibility for the administration of this Indenture and,
for the purposes of Section 8.01©(2) and the proviso in
Section 8.02, shall also include any other officer of the Trustee to whom
any corporate trust matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.


      
        
           


        

        
          -6-

          
            

          

        

        
           


        

      

      


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

       

      Section 1.02.         
Other
Definitions.

       

      
        
          
            
              	
                      Term

                    	 
      	
                      Defined
      in
Section

                    	 
      
	 
      	 
      	 
      	 
      
	
                      “Act”

                    	 
      	
                      11.05

                    	 
      
	
                      “Additional
      Securities”

                    	 
      	
                      2.02

                    	 
      
	
                      “Additional
      Shares”

                    	 
      	
                      4.04

                    	 
      
	
                      “Agent
      Members”

                    	 
      	
                      2.01

                    	 
      
	
                      “Conversion
      Agent”

                    	 
      	
                      2.03

                    	 
      
	
                      “Conversion
      Date”

                    	 
      	
                      4.02

                    	 
      
	
                      “Conversion
      Notice”

                    	 
      	
                      4.02

                    	 
      
	
                      “DTC”

                    	 
      	
                      2.01

                    	 
      
	
                      “Defaulted
      Interest”

                    	 
      	
                      2.16

                    	 
      
	
                      “Depositary”

                    	 
      	
                      2.01

                    	 
      
	
                      “Effective
      Date”

                    	 
      	
                      4.04

                    	 
      
	
                      “Event
      of Default”

                    	 
      	
                      7.01

                    	 
      
	
                      “Expiration
      Date”

                    	 
      	
                      4.05

                    	 
      
	
                      “Expiration
      Time”

                    	 
      	
                      4.05

                    	 
      
	
                      “Fundamental
      Change Company Notice”

                    	 
      	
                      3.01

                    	 
      
	
                      “Fundamental
      Change Expiration Time”

                    	 
      	
                      3.01

                    	 
      
	
                      “Fundamental
      Change Repurchase Date”

                    	 
      	
                      3.01

                    	 
      
	
                      “Fundamental
      Change Repurchase Notice”

                    	 
      	
                      3.01

                    	 
      
	
                      “Fundamental
      Change Repurchase Price”

                    	 
      	
                      3.01

                    	 
      
	
                      “Initial
      Securities”

                    	 
      	
                      2.02

                    	 
      
	
                      “Make-Whole
      Fundamental Change Period”

                    	 
      	
                      4.04

                    	 
      
	
                      “Measurement
      Period”

                    	 
      	
                      4.01

                    	 
      
	
                      “Merger
      Event”

                    	 
      	
                      4.06

                    	 
      
	
                      “Outstanding”

                    	 
      	
                      2.09

                    	 
      
	
                      “Paying
      Agent”

                    	 
      	
                      2.03

                    	 
      
	
                      “Primary
      Registrar”

                    	 
      	
                      2.03

                    	 
      
	
                      “Reference
      Property”

                    	 
      	
                      4.06

                    	 
      
	
                      “Registrar”

                    	 
      	
                      2.03

                    	 
      
	
                      “Resale
      Restriction Termination Date”

                    	 
      	
                      2.13

                    	 
      
	
                      “Restricted
      Securities”

                    	 
      	
                      2.13

                    	 
      
	
                      “Settlement
      Amount”

                    	 
      	
                      4.03

                    	 
      
	
                      “Settlement
      Method”

                    	 
      	
                      4.03

                    	 
      
	
                      “Special
      Payment Date”

                    	 
      	
                      2.16

                    	 
      
	
                      “Spin-Off”

                    	 
      	
                      4.05

                    	 
      
	
                      “Stock
      Price”

                    	 
      	
                      4.04

                    	 
      
	
                      “Trading
      Price Condition

                    	 
      	
                      4.01

                    	 
      
	
                      “Trigger
      Event”

                    	 
      	
                      4.05

                    	 
      
	
                      “Valuation
      Period”

                    	 
      	
                      4.05

                    	 
      
	
                      “Weighted
      Average Consideration”

                    	 
      	
                      4.06

                    	 
      


            

          

        

      

       

      Section 1.03.         
Trust Indenture Act
Provisions.

       

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


      
        
           


        

        
          -7-

          
            

          

        

        
           


        

      

      


      All terms
used in this Indenture that are defined in the TIA, defined by the TIA by
reference to another statute or defined by any SEC rule and not otherwise
defined herein have the meanings assigned to them therein.

       

      Section 1.04.         
Rules of
Construction.

       

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

       

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

       

      (2)           an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;

       

      (3)           words
in the singular include the plural, and words in the plural include the
singular;

       

      (4)           the
term “merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;

       

      (5)           the
masculine gender includes the feminine and the neuter;

       

      (6)           the
terms “include”, “including”, and similar terms should be construed as if
followed by the phrase “without limitation”;

       

      (7)           references
to agreements and other instruments include subsequent amendments thereto;
and

       

      (8)           all “Article”, “Exhibit” and “Section”
references are to Articles, Exhibits and Sections, respectively, of or to this
Indenture unless otherwise specified herein, and the terms “hereunder,” “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.

       

      ARTICLE
2

       

      THE
SECURITIES

       

      Section 2.01.         
Form and
Dating.

       

      The
Securities and the Trustee’s certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which
Exhibit is incorporated in and made part of this Indenture. Any Global
Security may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Indenture as may be required by the Securities Custodian, the Depositary or by
the Financial Industry Regulatory Authority, Inc. in order for the Security to
be tradable on the Portal Market or as may be required for the Security to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange or
automated quotation system upon which the Security may be listed or traded or
designated for issuance or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Security are subject.

       

      The
Securities may include such letters, numbers or other marks of identification
and such notations, legends, endorsements or changes as the Officer executing
the same may approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this Indenture, or
as may be required by the Trustee, the Depositary, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or
automated quotation system on which the Securities may be listed or quoted, or
to conform to usage, or to indicate any special limitations or restrictions to
which any particular Securities are subject. Each Security shall be dated the
date of its authentication.


      
        
           


        

        
          -8-

          
            

          

        

        
           


        

      

      


      (a)           Global
Securities.  All of the Securities initially being offered and sold
to the Initial Purchaser shall be issued in the form of one or more Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with Wells Fargo Bank, National Association, at
its Corporate Trust Office, as custodian for the depositary, The Depository
Trust Company (“DTC”, and such depositary, or any successor thereto, being
hereinafter referred to as the “Depositary”), and registered in the name of its
nominee, Cede & Co. (or any successor thereto), for the accounts of
participants in the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided.  The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Securities Custodian as hereinafter
provided, subject in each case to compliance with the Applicable
Procedures.

       

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

       

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

      


      Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by
the Depositary or under the Global Security, and the Depositary (including, for
this purpose, its nominee) may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of such
Global Security for all purposes whatsoever.  None of the Trustee, the
Paying Agent or the Security Registrar shall have any responsibility or
obligation to any beneficial owner in a Global Security, an Agent Member or
other Person with respect to the accuracy of the records of the Depositary or
its nominee or of any Agent Member, with respect to any ownership interest in
the Securities or with respect to the delivery to any Agent Member, beneficial
owner or other Person (other than the Depositary) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to
such Securities.  All notices and communications to be given to the Holders
and all payments to be made to Holders under the Securities and this Indenture
shall be given or made only to or upon the order of the registered Holders
(which shall be the Depositary or its nominee in the case of the Global
Security).  The rights of beneficial owners in the Global Security shall be
exercised only through the Depositary subject to the Applicable
Procedures.  The Trustee, the Paying Agent and the Security Registrar shall
be entitled to conclusively rely and shall be fully protected in conclusively
relying upon information furnished by the Depositary with respect to its
members, participants and any beneficial owners.  The Trustee, the Paying
Agent and the Security Registrar shall be entitled to deal with the Depositary,
and any nominee thereof, that is the registered Holder of any Global Security
for all purposes of this Indenture relating to such Global Security (including
the payment of principal and interest and the giving of instructions or
directions by or to the owner or Holder of a beneficial ownership interest in
such Global Security) as the sole Holder of such Global Security and shall have
no obligations to the beneficial owners thereof.  None of the Trustee, the
Paying Agent or the Security Registrar shall have any responsibility or
liability for any acts or omissions of the Depositary with respect to such
Global Security, for the records of any such depositary, including records in
respect of beneficial ownership interests in respect of any such Global
Security, for any transactions between the Depositary and any Agent Member or
between or among the Depositary, any such Agent Member and/or any Holder or
owner of a beneficial interest in such Global Security, or for any transfers of
beneficial interests in any such Global Security.


      
        
           


        

        
          -9-

          
            

          

        

        
           


        

      

      


      Notwithstanding
the foregoing, nothing herein shall (1) prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
(2) impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.

       

      (c)           Book Entry
Provisions.  The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(c), authenticate and deliver initially
one or more Global Securities that (1) shall be registered in the name of
the Depositary or its nominee, (2) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instructions and (3) shall bear
legends substantially to the following effect:

       

      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. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY 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 LIMITED
CIRCUMSTANCES.

      


      UNLESS
THIS SECURITY 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 SECURITY 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 HEREON 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.

       

      Section 2.02.         
Execution and
Authentication.

       

      (a)           The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is initially limited to $85,000,000 aggregate
principal amount ($100,000,000 aggregate principal amount if the Initial
Purchaser exercises its over-allotment option to purchase up to an additional
$15,000,000 aggregate principal amount in full), except as provided in Sections
2.07 and 2.08.

       

      The
Company may, without the consent of the Holders of the Securities, hereafter
issue additional Securities (“Additional Securities”) under the Indenture with
the same terms and with the same CUSIP number as the Securities issued on the
date of this Indenture (the “Initial Securities”) in an unlimited aggregate
principal amount; provided
that such Additional Securities must be part of the same issue as the
Initial Securities for federal income tax and securities law purposes. Any such
Additional Securities shall constitute a single series together with the Initial
Securities for all purposes hereunder, including, without limitation, for
purposes of any waivers, supplements or amendments to the Indenture requiring
the approval of Holders of the Securities and any offers to purchase the
Securities.

       

      (b)           The
Securities shall be executed on behalf of the Company by one of its Officers.
The signatures of any of the Officers on the Securities may be manual or
facsimile.


      
        
           


        

        
          -10-

          
            

          

        

        
           


        

      

      


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

       

      (d)           No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.

       

      (e)           The Trustee shall authenticate and make
available for delivery Securities for original issue in the aggregate principal
amount of $85,000,000 (or up to $100,000,000 if the Initial Purchaser exercises
its over-allotment option in full) upon receipt of a Company Order. The
Company Order shall specify the
amount of Securities to be authenticated, shall provide that all such Securities
will be represented by a Global Security and the date on which each original
issue of Securities is to be authenticated.

       

      (f)           The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company or an Affiliate of the
Company.

      


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

       

      Section 2.03.         
Registrar, Paying
Agent and Conversion Agent.

       

      (a)           The
Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”),
one or more offices or agencies where Securities may be presented or surrendered
for payment (each, a “Paying Agent”), one or more offices or agencies where
Securities may be presented for conversion (each, a “Conversion Agent”) and one
or more offices or agencies where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will at
all times maintain a Paying Agent, Conversion Agent, Registrar and an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served in Minneapolis, Minnesota. The
address at which such notices or demands to or upon the Company may be served is
625 Marquette Avenue, 11th Floor,
Minneapolis, Minnesota 55479, Attention: Corporate Trust
Department.  One of the Registrars (the “Primary Registrar”) shall
keep a register of the Securities and of their transfer and
exchange.

       

      (b)           The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, provided that the Agent may
be an Affiliate of the Trustee. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee
of the name and address, and any change in the name or address, of any Agent not
a party to this Indenture. If the Company fails to maintain a Registrar, Paying
Agent, Conversion Agent, or agent for service of notices and demands in any
place required by this Indenture, or fails to give the foregoing notice, the
Trustee shall act as such. The Company or any Affiliate of the Company may act
as Paying Agent.

       

      (c)           The
Company hereby initially designates Wells Fargo Bank, National Association as
Paying Agent, Primary Registrar, Securities Custodian and Conversion Agent, and
designates the Trustee’s agency in Minneapolis, Minnesota (at such address as
set forth in 2.03(a) above) as the office or agency of the Company for each of
the aforesaid purposes and as the office or agency where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served.


      
        
           


        

        
          -11-

          
            

          

        

        
           


        

      

      


      Section 2.04.         
Paying Agent To Hold
Money In Trust.

       

      Unless otherwise specified herein,
prior to 10:00 a.m., New York City time, on each due date of the payment of
principal of, or interest on, any Securities, the Company shall deposit a sum
sufficient to pay such principal or interest so becoming due. A Paying Agent
shall hold in trust for
the benefit of Holders of Securities or the Trustee all money held by the Paying
Agent for the payment of principal of, or interest on, the Securities, and shall
notify the Trustee of any failure by the Company to make any such payment. If
the Company or an Affiliate of the Company acts as Paying Agent, it shall,
before 10:00 a.m., New York City time, on each due date of the principal
of, or interest on, any Securities, segregate the money and hold it as a
separate trust fund for the benefit of Holders. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the
Trustee may at any time during the continuance of any Default, upon written
request to a Paying Agent, require such Paying Agent to pay forthwith to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for the
money.

       

      Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest on any Security and
remaining unclaimed for two years after such principal or interest has become
due and payable shall promptly be paid to the Company or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.

       

      Section 2.05.         
Conversion Agent To
Hold Amounts In Trust.

       

      The
Company shall require each Conversion Agent (that is not the Trustee) to agree
in writing that the Conversion Agent will hold in trust for the benefit of
Holders or the Trustee all cash and shares of Common Stock delivered by the
Company to the Conversion Agent for the delivery of amounts due upon conversion,
and will notify the Trustee of any default by the Company in making any such
delivery.

       

      While any
such default continues, the Trustee may require a Conversion Agent to deliver
all cash and shares of Common Stock delivered by the Company to it to the
Trustee. Upon payment over to the Trustee, the Conversion Agent (if other than
the Company or a Subsidiary) shall have no further liability in respect of such
amounts. If the Company or a Subsidiary acts as Conversion Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
cash and shares of Common Stock held by it as Conversion Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Conversion Agent for the Securities.

       

      Section 2.06.         
Lists of Holders of
Securities.

       

      The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities. The Company shall
furnish or cause the Primary
Registrar to furnish to the Trustee (a) semiannually, not more than 10 days
after each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such Regular
Record Date; and (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content to that in subsection (a) hereof as of a date
not more than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee
shall be the Primary Registrar, no such list need be
furnished.

       

      Section 2.07.         
Transfer and
Exchange.

       

      (a)           Subject
to compliance with any applicable additional requirements contained in
Section 2.13, when a Security is presented to a Registrar with a request to
register a transfer thereof or to exchange such Security for an equal principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met; provided, however, that every Security
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by an assignment form and, if applicable, a transfer
certificate each substantially in the form included in Exhibit D hereto,
and completed in a manner satisfactory to the Registrar and duly executed by the
Holder thereof or its attorney duly authorized in writing. To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.03, the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrar’s
request. Any exchange or transfer shall be without charge, except that the
Company or the Registrar may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge that may be imposed in relation
thereto; provided that this sentence shall not apply to any exchange pursuant to
Section 2.11, 2.13(b), 3.03(c), 4.02(c) or 10.06 unless, and to the
extent, specified otherwise therein.


      
        
           


        

        
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      (b)           Neither
the Company, any Registrar nor the Trustee shall be required to register the
transfer of or exchange any Securities or portions thereof in respect of which a
Fundamental Change Repurchase Notice has been delivered and not withdrawn by the
Holder thereof (except, in the case of the purchase of a Security in part, the
portion thereof not to be purchased).

       

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

       

      (d)           Any
Registrar appointed pursuant to Section 2.03 shall provide to the Trustee
such information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Securities upon transfer or exchange of
Securities.

       

      (e)           Each
Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the registration of transfer, exchange or
assignment of such Holder’s Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities
law.

       

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

      


      Section 2.08.         
Replacement
Securities.

       

      (a)           If
(1) any mutilated Security is surrendered to the Trustee, or (2) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee, such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and upon a Company Request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.

       

      (b)           If
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or is about to be purchased by the Company pursuant to
Article 3, or converted pursuant to Article 4, the Company in its
discretion may, instead of issuing a new Security, pay, purchase or convert such
Security, as the case may be.

       

      (c)           Upon
the issuance of any new Securities under this Section 2.08, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of counsel and the Trustee) in connection
therewith.


      
        
           


        

        
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      (d)           Every
new Security issued pursuant to this Section 2.08 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.

       

      (e)           The
provisions of this Section 2.08 are (to the extent lawful) exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.

       

      Section 2.09.         
Outstanding
Securities.

       

      (a)           Securities
outstanding (“Outstanding”) at any time are all Securities authenticated by the
Trustee, except for those canceled by it, those purchased pursuant to
Article 3, those paid pursuant to Section 2.08(b), those converted pursuant
to Article 4, those delivered to the Trustee for cancellation or
surrendered for transfer or exchange and those described in this
Section 2.09 as not Outstanding.

       

      (b)           If
a Security is replaced pursuant to Section 2.08, such replaced Security
ceases to be Outstanding unless the Company receives proof satisfactory to it
that the replaced Security is held by a protected purchaser.

       

      (c)           If
a Paying Agent holds in respect of the Outstanding Securities on a Fundamental
Change Repurchase Date or the Maturity Date money sufficient to pay the
principal of and accrued interest on Securities (or portions thereof) payable on
that date, then on and after such Fundamental Change Repurchase Date or Maturity
Date, as the case may be, such Securities (or portions thereof, as the case may
be) shall cease to be Outstanding and interest on them shall cease to
accrue.

       

      (d)           Subject
to the restrictions contained in Section 2.10, a Security does not cease to
be Outstanding because the Company or an Affiliate of the Company holds the
Security.

       

      Section 2.10.         
Treasury
Securities.

       

      In
determining whether the Holders of the required principal amount of Securities
have concurred in any request, demand, authorization, notice, direction, waiver
or consent, Securities owned by the Company or by any Affiliate of the Company
shall be disregarded, except that, for purposes of determining whether the
Trustee shall be protected in relying on any such request, demand,
authorization, notice, direction, waiver or consent, only Securities which a
Trust Officer of the Trustee actually knows are so owned shall be so
disregarded.

       

      Section 2.11.         
Temporary
Securities.

       

      Until
definitive Securities are ready for delivery, the Company may prepare and
execute, and, upon receipt of a Company Order, the Trustee shall authenticate
and deliver, temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
with the consent of the Trustee considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary
Securities representing an equal principal amount of Securities. The temporary
Securities will be exchanged for definitive Securities in accordance with
Sections 2.07 and 2.13 hereof. Until so exchanged, temporary Securities shall
have the same rights under this Indenture as the definitive
Securities.


      
        
           


        

        
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      Section 2.12.         
Cancellation.

       

      The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar, the Paying Agent and
the Conversion Agent shall forward to the Trustee any Securities surrendered to
them for transfer, exchange, purchase, payment or conversion. The Trustee and no
one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, purchase, payment, conversion or
cancellation and shall dispose of the cancelled Securities in accordance with
its customary procedures. All Securities which are purchased or otherwise
acquired by the Company or any of its Subsidiaries prior to the Maturity Date
pursuant to Article 3 shall be delivered to the Trustee for cancellation,
and the Company may not hold or resell such Securities or issue any new
Securities to replace any such Securities or any Securities that any Holder has converted pursuant
to Article 4. The Trustee shall maintain a record of all canceled
Securities. The Trustee shall provide the Company a list of all Securities that
have been canceled from time to time as requested by the Company in
writing.

       

      Section 2.13.         
Legend;
Additional Transfer and Exchange Requirements.

       

      (a)           A
Global Security may not be transferred, in whole or in part, to any Person other
than the Depositary or a nominee or any successor thereof, and no such transfer
to any such other Person may be registered; provided that the foregoing
shall not prohibit any transfer of a Security that is issued in exchange for a
Global Security but is not itself a Global Security. No transfer of a Security
to any Person shall be effective under this Indenture or the Securities unless
and until such Security has been registered in the name of such Person.
Notwithstanding any other provisions of this Indenture or the Securities,
transfers of a Global Security, in whole or in part, shall be made only in
accordance with this Section 2.13.

       

      (b)           The
provisions below shall apply only to Global Securities:

       

      (1)           Each
Global Security authenticated under this Indenture shall be registered in the
name of the Depositary or a nominee thereof and delivered to such Depositary or
a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for purposes of this Indenture.

       

      (2)           Notwithstanding
any other provisions of this Indenture or the Securities, a Global Security
shall not be exchanged in whole or in part for a Security registered, and no
transfer of a Global Security in whole or in part shall be registered in the
name of any Person other than the Depositary or one or more nominees thereof;
provided that a Global
Security may be exchanged for Securities registered in the names of any person
designated by the Depositary in the event that the Depositary (A) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or such Depositary has ceased to be a “clearing agency”
registered under the Exchange Act, and in either case, a successor Depositary is
not appointed by the Company within 90 days after receiving such notice or
becoming aware that the Depositary has ceased to be a “clearing agency” or
(B) an Event of Default has occurred and is continuing with respect to the
Securities.  Any Global Security exchanged pursuant to the preceding
sentence shall be so exchanged as directed by the Depositary. Any Security
issued in exchange for a Global Security or any portion thereof shall be a
Global Security; provided, however, that any such
Security so issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Security.

       

      (3)           Securities
issued in exchange for a Global Security or any portion thereof that are not
issued as a Global Security shall be issued in definitive, fully registered
form, without interest coupons, shall have a principal amount equal to that of
such Global Security or portion thereof to be so exchanged, shall be registered
in such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the Depositary to the
Trustee or the Registrar. With regard to any Global Security to be exchanged in
part, either such Global Security shall be so surrendered for exchange or, if
the Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.


      
        
           


        

        
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      (4)           Subject
to clause (6) of this Section 2.13(b), the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.

       

      (5)           In
the event of the occurrence of any of the events specified in clause (2) of
this Section 2.13(b), the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully
registered form, without interest coupons.

       

      (6)           Neither
Agent Members nor any other Persons on whose behalf Agent Members may act shall
have any rights under this Indenture with respect to any Global Security
registered in the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the case may be,
may be treated by the Company, the Trustee and any agent of the Company and the
Trustee as the absolute owner and Holder of such 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
the Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a Holder of any Security.

       

      (7)           At
such time as all interests in a Global Security have been converted, cancelled
or exchanged for Securities in certificated form, such Global Security shall,
upon receipt thereof, be cancelled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the Securities
Custodian, subject to Section 2.12 of this Indenture. At any time prior to
such cancellation, if any interest in a Global Security is converted, canceled
or exchanged for Securities in certificated form, the principal amount of such
Global Security shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Securities Custodian, be
appropriately reduced, and an endorsement shall be made on such Global Security,
by the Trustee or the Securities Custodian, at the direction of the Trustee, to
reflect such reduction.

      


      (c)           Every
Security that bears or is required under this Section 2.13(c) to bear the legend
set forth in this Section 2.13(c) (together with any Common Stock issued upon
conversion of the Securities and required to bear the legend set forth in
Section 2.13(d), collectively, the “Restricted Securities”) shall be subject to
the restrictions on transfer set forth in this Section 2.13(c) (including the
legend set forth below), unless such restrictions on transfer shall be
eliminated or otherwise waived by written consent of the Company, and the holder
of each such Restricted Security, by such holder’s acceptance thereof, agrees to
be bound by all such restrictions on transfer.  As used in this
Section 2.13(c) and in Section 2.13(d), the term “transfer” encompasses any
sale, pledge, transfer or other disposition whatsoever of any Restricted
Security.

       

      Until the
date (the “Resale Restriction Termination Date”), which is the later of (1) the
date that is one year after the last date of the original issuance of the
Securities, or such other period of time as permitted by Rule 144 under the
Securities Act or any successor provision thereto, and (2) such later date, if
any, as may be required by applicable laws, any certificate evidencing such
Security (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof which
shall bear the legend set forth in Section 2.13(d), if applicable) shall bear a
legend in substantially the following form (unless such Securities have been
transferred pursuant to a registration statement that has become or been
declared effective under the Securities Act and that continues to be effective
at the time of such transfer, pursuant to the exemption from registration
provided by Rule 144 or any similar provision then in force under the Securities
Act, or unless otherwise agreed by the Company in writing, with notice thereof
to the Trustee):


      
        
           


        

        
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      THIS
SECURITY AND THE SHARES OF COMMON STOCK (‘‘COMMON STOCK’’) OF JAKKS PACIFIC,
INC. (THE ‘‘COMPANY’’) ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES
ACT’’), OR ANY OTHER SECURITIES LAWS. NONE OF THIS SECURITY, THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.

      


      THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION
TERMINATION DATE’’) THAT IS SIX MONTHS AFTER THE ORIGINAL ISSUE DATE HEREOF OR
SUCH OTHER PERIOD AS PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER,’’ AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM.

      


      No
transfer of any Security prior to the Resale Restriction Termination Date will
be registered by the Registrar unless the applicable box on the Form of
Assignment and Transfer has been checked.

       

      Any
Security (or security issued in exchange or substitution therefor) as to which
such restrictions on transfer shall have expired in accordance with their terms
may, upon surrender of such Security for exchange to the Registrar in accordance
with the provisions of this Section 2.13, be exchanged for a new Security or
Securities, of like tenor and aggregate principal amount, which shall not bear
the restrictive legend required by this Section 2.13(c).  The Company
shall notify the Trustee in writing upon the occurrence of the Resale
Restriction Termination Date and promptly after a registration statement with
respect to the Securities or any Common Stock issued upon conversion of the
Securities has been declared effective under the Securities Act.

       

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


      
        
           


        

        
          -17-

          
            

          

        

        
           


        

      

    

     

    THIS
SECURITY OF JAKKS PACIFIC, INC. (THE ‘‘COMPANY’’) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR ANY OTHER
SECURITIES LAWS. THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN MAY NOT
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

    


    THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION
TERMINATION DATE’’) THAT IS SIX MONTHS AFTER THE ORIGINAL ISSUE DATE HEREOF OR
SUCH OTHER PERIOD AS PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER,’’ AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE RIGHT OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM.

    


    Any such
Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing
such shares of Common Stock for exchange in accordance with the procedures of
the transfer agent for the Common Stock, be exchanged for a new certificate or
certificates for a like aggregate number of shares of Common Stock, which shall
not bear the restrictive legend required by this Section 2.13(d).

     

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

     

    (f)           Notwithstanding
any provision of this Section 2.13 to the contrary, in the event Rule 144 as
promulgated under the Securities Act (or any successor rule) is amended to
change the one-year holding period thereunder (or the corresponding period under
any successor rule), from and after receipt by the Trustee of the Officer’s
Certificate and Opinion of Counsel provided for in this Section 2.07(f), (i)
each reference in Section 2.13(c) to “one year” and in the restrictive legend
set forth in such paragraph to “ONE YEAR” shall be deemed for all purposes
hereof to be references to such changed period, (ii) each reference in Section
2.13(d) to “one year” and in the restrictive legend set forth in such paragraph
to “ONE YEAR” shall be deemed for all purposes hereof to be references to such
changed period and (iii) all corresponding references in the Securities
(including the definition of Resale Restriction Termination Date) and the
restrictive legends thereon shall be deemed for all purposes hereof to be
references to such changed period, provided that such changes shall not become
effective if they are otherwise prohibited by, or would otherwise cause a
violation of, the then-applicable federal securities laws.  The
provisions of this Section 2.13(f) will not be effective until such time as the
Opinion of Counsel and Officer’s Certificate have been received by the Trustee
hereunder.  This Section 2.13(f) shall apply to successive amendments
to Rule 144 (or any successor rule) changing the holding period
thereunder.


    
      
         


      

      
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    Section 2.14.         
CUSIP
Numbers.

     

    The Company in issuing the Securities
may use one or more “CUSIP,” “ISIN” or other similar numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP,” “ISIN” or other similar numbers in a Fundamental
Change Repurchase Notice as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any Fundamental Change Repurchase Notice
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such purchase shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the “CUSIP,” “ISIN” or other similar
numbers.

     

    Section 2.15.         
Calculations.

     

    Except as
otherwise specifically stated herein or in the Securities, the Company shall be
responsible for making all calculations called for under the Indenture and the
Securities.  Such calculations include, but are not limited to,
determinations of the Last Reported Sale Price of the Common Stock, the
Settlement Amount and related calculations, accrued interest payable on the
Securities and the applicable Conversion Rate. The Company shall make all these
calculations in good faith and, absent manifest error, such calculations shall
be final and binding on Holders of Securities.  The Company shall provide a
schedule of its calculations to each of the Trustee and the Conversion Agent,
and each of the Trustee and Conversion Agent is entitled to rely conclusively
upon the accuracy of the Company’s calculations without independent
verification. The Trustee shall forward calculations of the Company to any
Holder upon the written request of such Holder.

     

    Section 2.16.         
Payment of Interest;
Interest Rights Preserved.

     

    Interest
on any Security which is payable, and is punctually paid or duly provided for,
on the Stated Maturity of such interest shall be paid to the Person in whose
name the Security is registered at the close of business on the Regular Record
Date for such interest payment.

     

    Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on the Stated Maturity of such interest, and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful (such defaulted interest and interest thereon herein
collectively called “Defaulted Interest”), shall forthwith cease to be payable
to the Holder on the Regular Record Date; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Subsection
(a) or (b) below:

     

    (a)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
(not less than 20 days after such notice) of the proposed payment (the “Special
Payment Date”), and by 10:00 a.m., New York City time, on the date of payment
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the Special Payment Date, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this subsection
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the Special Payment Date and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company in writing of such
Special Record Date. Unless the Company issues a press release to the same
effect, in the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid (in the case of
Securities held in book-entry form, by electronic transmission), to each Holder
at its address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date or notify in such other manner as the Trustee
determines, including in accordance with any Applicable Procedures.  Notice
of the proposed payment of such Defaulted Interest and the Special Record Date
and Special Payment Date therefor having been so mailed or otherwise conveyed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities are registered on such Special Record Date and shall no longer be
payable pursuant to the following paragraph (b).


    
      
         


      

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

     

    Subject
to the foregoing provisions of this Section 2.16, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.

     

    Section 2.17.         
Computation of
Interest.

     

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

     

    Section 2.18.         
Purchase of Securities
In Open Market.

     

    The
Company may from time to time repurchase Securities pursuant to a tender offer
or in open market purchases or negotiated transactions at any price without
prior notice to Holders.  Any Securities so repurchased may be reissued in
accordance with applicable law or surrendered to the Trustee for
cancellation.  Any Securities surrendered to the Trustee for cancellation
pursuant to Section 2.12 may not be reissued or resold by the Company and
will be canceled promptly in accordance therewith.

     

    ARTICLE
3

     

    PURCHASE

     

    Section 3.01.         
Repurchase at Option
of Holders upon a Fundamental Change.

     

    (a)           If
there shall occur a Fundamental Change at any time prior to the Maturity Date,
then each Holder shall have the right, at such Holder’s option, to require the
Company to repurchase for cash all of such Holder’s Securities, or any portion
thereof that is an integral multiple of $1,000
principal amount, on the date (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 Business Days and not more
than 35 Business Days after the date of the Fundamental Change Company Notice at
a repurchase price equal to 100% of the principal amount thereof, together with
accrued and unpaid interest thereon to, but excluding, the Fundamental Change
Repurchase Date (the “Fundamental Change Repurchase Price”), unless the
Fundamental Change Repurchase Date is after a Regular Record Date and on or
prior to the related Interest Payment Date, in which case interest accrued to
the Interest Payment Date will be paid to holders of the Securities as of the
preceding Regular Record Date and the Fundamental Change Repurchase Price
payable to the Holder surrendering the Security for repurchase pursuant to this
Article 3 shall be equal to the principal amount of Securities subject to
repurchase and will not include any accrued and unpaid interest. Repurchases of
Securities under this Section 3.01 shall be made, at the option of the
Holder thereof, upon:


    
      
         


      

      
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    (i)           delivery
to the Paying Agent by a holder of a duly completed notice (the “Fundamental
Change Repurchase Notice”) in the form set forth on the reverse of the Security
and attached as Exhibit C hereto (or in accordance with Applicable
Procedures) on or prior to the Scheduled Trading Day immediately preceding the
Fundamental Change Repurchase Date; and

     

    (ii)           delivery
or book-entry transfer of the Securities to the Paying Agent at any time after
delivery of the Fundamental Change Repurchase Notice (together with all
necessary endorsements) at the office of the Paying Agent, such delivery being a
condition to receipt by the holder of the Fundamental Change Repurchase Price
therefor; provided that
such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 3.01 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Fundamental
Change Repurchase Notice.

     

    The
Fundamental Change Repurchase Notice shall state:

     

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

     

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

     

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

     

    provided,
however, that if the Securities are not Certificated Securities, the Fundamental
Change Repurchase Notice must comply with Applicable Procedures of the
Depositary.

     

    Any
repurchase by the Company contemplated pursuant to the provisions of this
Section 3.01 shall be consummated by the payment of the Fundamental Change
Repurchase Price pursuant to Section 3.03(a).

     

    Notwithstanding anything herein to the
contrary, any holder delivering to the Paying Agent the Fundamental Change
Repurchase Notice contemplated by this Section 3.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at
any time prior to the
close of business on the Scheduled Trading Day immediately preceding the
Fundamental Change Repurchase Date in accordance with
Section 3.02.

     

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

     

    (b)           On
or before the 20th calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide notice (the “Fundamental Change
Company Notice”) to all Holders of record of the Securities and the Trustee of,
and issue a press release in respect of (and make such press release available
on the Company’s website), the occurrence of the Fundamental Change and of the
repurchase right at the option of the Holders arising as a result thereof. 
Such notice shall be effected by first class mail or, in the case of any Global
Securities, in accordance with the Applicable Procedures of the Depositary for
providing notices. Each Fundamental Change Company Notice shall
specify:

     

    (i)           the
events causing the Fundamental Change;

     

    (ii)         the
effective date of the Fundamental Change, and whether the Fundamental Change is
a Make-Whole Fundamental Change, in which case, the effective date of the
Make-Whole Fundamental Change;

     

    (iii)        the
last date on which a holder may exercise the repurchase right pursuant to this
Article 3;


    
      
         


      

      
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    (iv)        the
Fundamental Change Repurchase Price;

     

    (v)         the
Fundamental Change Repurchase Date;

     

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

     

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

     

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

     

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

     

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

     

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

     

    No
failure of the Company to give the foregoing notices and no defect therein shall
limit the Holders’ repurchase rights or affect the validity of the proceedings
for the repurchase of the Securities pursuant to this
Section 3.01.

     

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

     

    (d)           In
connection with any purchase offer, the Company will:

     

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

     

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

     

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

     

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

     

    Notwithstanding
the foregoing the Company shall not be required to repurchase the Securities in
accordance with this Section 3.01 if a third party or any Subsidiary of the
Company makes an offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Section 3.01 and purchases all
Securities validly tendered and not withdrawn under such purchase
offer.


    
      
         


      

      
        -22-

        
          

        

      

      
         


      

    

    


    Section 3.02.         
Withdrawal of
Fundamental Change Repurchase Notice.

     

    (a)           A
Fundamental Change Repurchase Notice may be withdrawn in accordance with
Applicable Procedures or by means of a written notice of withdrawal delivered to
the Paying Agent in accordance with this Section 3.02 at any time prior to
the close of business on the Scheduled Trading Day immediately preceding the
Fundamental Change Repurchase Date, specifying:

     

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

     

    (ii)         if
Certificated Securities have been issued, the certificate numbers of the
withdrawn Securities, and

     

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

     

    provided,
however, that if the Securities are not Certificated Securities, the notice of
withdrawal of the Fundamental Change Repurchase Notice must comply with
Applicable Procedures of the Depositary.

     

    Section 3.03.         
Deposit of
Fundamental Change Repurchase Price.

     

    (a)           The
Company will deposit with the Trustee (or other Paying Agent appointed by the
Company, or if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust) on or prior to 11:00 a.m., New York City time,
on the Fundamental Change Repurchase Date an amount of cash sufficient to
repurchase all of the Securities to be repurchased at the appropriate
Fundamental Change Repurchase Price.  Subject to receipt of funds from the
Company and Securities from Holders by the Trustee (or other Paying Agent
appointed by the Company), payment for Securities surrendered for repurchase
(and not withdrawn prior to the Fundamental Change Expiration Time) will be made
on the later of (i) the Fundamental Change Repurchase Date with respect to
such Security (provided
the holder has satisfied the conditions in Section 3.01) and
(ii) the time of book-entry transfer or the delivery of such Security to
the Trustee (or other Paying Agent appointed by the Company) by the holder or
beneficial owner thereof in the manner required by Section 3.01 by mailing
checks for the amount payable to the holders of such Securities entitled thereto
as they shall appear in the register for the Securities maintained by the
Primary Registrar, provided, however, that payments to the
Depositary shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee. The Trustee shall, promptly after such
payment and upon written demand by the Company, return to the Company any funds
in excess of the Fundamental Change Repurchase Price.

     

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

     

    (c)           Upon
surrender of a Security that is to be repurchased in part pursuant to
Section 3.01, the Company shall execute and the Trustee shall authenticate
and deliver to the holder a new Security in an authorized denomination equal in
principal amount to the unrepurchased portion of the Security
surrendered.


    
      
         


      

      
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    ARTICLE
4

     

    CONVERSION

     

    Section 4.01.         
Right to
Convert.

     

    (a)           Upon
compliance with the provisions of this Indenture, a Holder of Securities shall
have the right, at such Holder’s option, to convert all or any portion (if the
portion to be converted is $1,000 principal amount or an integral multiple
thereof) of such Securities, at the applicable Conversion Rate then in effect,
(x) prior to the close of business on the Business Day immediately
preceding August 1, 2014, only upon satisfaction of one or more of the
conditions described in clauses (i) through (iv) below and (y) on
or after August 1, 2014, at any time prior to the close of business on the
second Scheduled Trading Day immediately preceding November 1, 2014,
irrespective of the conditions described in clauses (i) through
(iv) below.

     

    (i)           Prior
to the close of business on the Business Day immediately preceding
August 1, 2014, a Holder of Securities may surrender all or a portion of
its Securities for conversion during any fiscal quarter (and only during such
fiscal quarter) commencing after December 31, 2009, if the Last Reported
Sale Price of the Common Stock for at least 20 Trading Days (whether or not
consecutive) during the period of 30 consecutive Trading Days ending on the last
Trading Day of the immediately preceding fiscal quarter is greater than or equal
to 130% of the applicable Conversion Price in effect on each applicable Trading
Day.

     

    (ii)           Prior to the close of business on the
Business Day immediately preceding August 1, 2014, a Holder of Securities
may surrender its Securities for conversion during the five Business Day period
after any 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 this Section 4.01(a)(ii), for each Trading Day of such period
was less than 98% of the product of the Last Reported Sale Price of the Common
Stock and the applicable Conversion Rate (the “Trading Price Condition”). 
The Bid Solicitation Agent shall have no obligation to determine the Trading
Price of the Securities in accordance with this
Section 4.01(a)(ii) unless requested by the Company, and the Company
shall have no obligation to make such request unless a Holder of Securities
provides the Company with reasonable evidence that the Trading Price per $1,000
principal amount of Securities would be less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the applicable Conversion
Rate.  Promptly after receiving such evidence, the Company shall instruct
the Bid Solicitation Agent to determine the Trading Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of Securities is greater than or equal
to 98% of the product of the Last Reported Sale Price of the Common Stock and
the applicable Conversion Rate.  If the Company does not so instruct the
Bid Solicitation Agent to obtain bids when required, the Trading Price per
$1,000 principal amount of the Securities will be deemed to be less than 98% of
the product of the Last Reported Sale Price of the Common Stock and the
applicable Conversion Rate on each day the Company fails to do so.  If the
Trading Price Condition has been met, the Company shall so
notify Holders, the Trustee and the Conversion Agent in writing.  If, at
any time after the Trading Price Condition has been met, the Trading Price per
$1,000 principal amount of Securities is greater than or equal to 98% of the
product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate for such date, the Company shall so notify the holders of the Securities,
the Trustee and the Conversion Agent in writing.

     

    (iii)           If
the Company elects to:

     

     
(A)           issue to
all or substantially all holders of Common Stock rights or warrants entitling
them to purchase, for a period expiring within 45 days after the announcement
date of such issuance, shares of Common Stock at less than the average of the
Last Reported Sale Prices of a share of Common Stock for the 10 consecutive
Trading Day period ending on the Trading Day preceding the announcement of such
issuance; or


    
      
         


      

      
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    (B)           distribute
to all or substantially all holders of Common Stock assets, debt securities or
rights to purchase securities of the Company, which distribution has a per share
value, as reasonably determined by the Board of Directors, exceeding 10% of the
Last Reported Sale Price of the Common Stock on the Trading Day preceding the
declaration date for such distribution,

     

    then, in
each case, the Company shall notify the Holders of the Securities, in the manner
provided in Section 11.02 hereof, at least 25 Scheduled Trading Days prior
to the Ex-Dividend Date for such issuance. Once the Company has given such
notice, Holders may surrender Securities for conversion at any time until the
earlier of the close of business on the Business Day immediately prior to such
Ex-Dividend Date or the Company’s announcement that such issuance or
distribution will not take place, even if the Securities are not otherwise
convertible at such time.  Notwithstanding the foregoing, a Holder of
Securities may not convert its Securities under the provisions of this
Section 4.01(a)(iii) if such Holder will participate in such issuance
or distribution, at the same time and upon the same terms as a holder of Common
Stock, as if such Holder held, for each $1,000 principal amount of Securities, a
number of shares of Common Stock equal to the Conversion Rate in effect
immediately prior to the Ex-Dividend Date.

     

    (iv)           If a transaction or event that
constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs,
regardless of whether a Holder has the right to require the Company to purchase
the Securities pursuant to Article 3 hereof, or if the Company is a party
to a consolidation, merger, binding share exchange, or sale, transfer or lease
of all or substantially all of the Company’s assets, in each case, pursuant to
which the Common Stock would be converted into cash, securities or other assets,
Holders may surrender Securities for conversion at any time from or after the
date which is 25 Scheduled Trading Days prior to the anticipated effective date
of such transaction until 35 Trading Days after the actual effective date of
such transaction (or, if such transaction also constitutes a Fundamental Change,
until the related Fundamental Change Repurchase Date).  The Company shall
notify Holders and the Trustee as promptly as practicable in writing following
the date the Company publicly announces such transaction, but in no event less than 25 Scheduled Trading
Days prior to the anticipated effective date of such transaction (it being
understood and agreed that the public announcement by the Company of any such
transaction or event within the required time period shall satisfy in full the
Company’s obligation to so notify Holders of the
Securities).

     

    (b)           Securities
may not be converted after the close of business on the second Scheduled Trading
Day immediately preceding November 1, 2014.

     

    Section 4.02.         
Conversion
Procedures.

     

    (a)           In
order to exercise the conversion privilege with respect to any interest in a
Global Security, the Holder must complete the appropriate instruction form for
conversion pursuant to the Applicable Procedures of the Depositary, furnish
appropriate endorsements and transfer documents if required by the Company or
the Trustee or Conversion Agent, and pay the funds, if any, required by
Section 4.03(e) and any taxes or duties if required pursuant to
Section 4.07 and the Trustee or Conversion Agent must be informed of the
conversion in accordance with the Applicable Procedures of the Depositary. 
In order to exercise the conversion privilege with respect to any Certificated
Securities, the Holder of any such Securities to be converted, in whole or in
part, shall:

     

    (i)     complete
and manually sign the conversion notice provided on the back of the Security
(the “Conversion Notice”) or a facsimile of the Conversion Notice;

     

    (ii)    deliver
the Conversion Notice, which is irrevocable, and the Security to the Conversion
Agent;


    
      
         


      

      
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    (iii)   if
required, furnish appropriate endorsements and transfer documents,

     

    (iv)   make
any payment required under Section 4.03(e); and

     

    (v)    if
required, pay all transfer or similar taxes as set forth in
Section 4.07.

     

    The date
on which the Holder satisfies all of the applicable requirements set forth above
is the “Conversion Date.”  A Security shall be deemed to have been
converted immediately prior to the close of business on the Conversion
Date.  The Conversion Agent will, as promptly as possible, and in any event
within one Business Day, provide the Company with notice of any conversion by
Holders of the Securities.

     

    (b)           Each
Conversion Notice shall state the name or names (with address or addresses) in
which any certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued.  All such Securities
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the registration of such Securities, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the Holder or his duly authorized
attorney.

     

    (c)           In case any Securities of a
denomination greater than $1,000 shall be surrendered for partial conversion,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of the Securities so surrendered, without charge, new Securities in
authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
surrendered Securities.

     

    Each
conversion shall be deemed to have been effected as to any such Securities (or
portion thereof) surrendered for conversion on the relevant Conversion
Date.  The Person in whose name the certificate for any shares of Common
Stock delivered upon conversion is registered shall be treated as a stockholder
of record as of the close of business on the relevant Conversion Date (if the
Company elects in accordance with the provisions of Section 4.03(c) to
satisfy the related Conversion Obligation solely in shares of Common Stock) or
the last Trading Day of the related Cash Settlement Averaging Period (in the
case of any other Settlement Method elected (or deemed elected) by the Company
in accordance with the provisions of Section 4.03(c)); provided, however, if such Conversion
Date or such last Trading Day of the Cash Settlement Averaging Period occurs on
any date when the stock transfer books of the Company shall be closed, such
occurrence shall not be effective to constitute the Person or Persons entitled
to receive any such shares of Common Stock due upon conversion as the record
holder or holders of such shares of Common Stock on such date, but such
occurrence shall be effective to constitute the Person or Persons entitled to
receive such shares of Common Stock as the record holder or holders thereof at
the close of business on the next succeeding day on which such stock transfer
books are open. Upon conversion of Securities, such Person shall no longer be a
Holder of Securities.

     

    (d)           Upon
the conversion of an interest in Global Securities, the Trustee (or other
Conversion Agent appointed by the Company) shall make a notation on such Global
Securities as to the reduction in the principal amount represented thereby. The
Company shall promptly notify the Trustee in writing of any conversions of
Securities effected through any Conversion Agent other than the
Trustee.

     

    (e)           Notwithstanding
the foregoing, a Security in respect of which a Holder has delivered a
Fundamental Change Repurchase Notice exercising such Holder’s option to require
the Company to purchase such Securities may be converted only if such notice of
exercise is withdrawn in accordance with Article 3 hereof prior to the
close of business on the Business Day prior to the relevant Fundamental Change
Repurchase Date.

     

    Section 4.03.         
Settlement Upon
Conversion.

     

    (a)           Upon
any conversion of any Security, the Company shall pay and/or deliver to
converting Holders, in respect of each $1,000 principal amount of Securities
being converted, the Settlement Amount specified in Section 4.03(b) on
the applicable day specified in Section 4.03(d).


    
      
         


      

      
        -26-

        
          

        

      

      
         


      

    

     

    (b)           The
“Settlement Amount” in respect of any conversion of Securities shall be the
amount of shares of Common Stock or cash or combination thereof determined as
follows:

     

     (i)           if the Company elects as its Settlement
Method in accordance with the provisions of Section 4.03(c) to settle
its Conversion Obligation in respect of such conversion solely by delivering
shares of Common Stock, the Company will deliver to the converting Holder a
number of shares of Common Stock equal to (1)(i) the aggregate principal amount of Securities to be
converted, divided by
(ii) $1,000,
multiplied by
(2) the
then-applicable Conversion Rate;

     

     (ii)           if
the Company elects as its Settlement Method in accordance with the provisions of
Section 4.03(c) to satisfy its Conversion Obligation in respect of
such conversion by paying solely cash, the Company shall pay to the converting
Holder, cash in an amount per $1,000 principal amount of Securities being
converted equal to the sum of the Daily Conversion Values for each of the 20
consecutive Trading Days during the related Cash Settlement Averaging Period;
and

     

     (iii)           if
the Company elects as its Settlement Method in accordance with the provisions of
Section 4.03(c) to satisfy its Conversion Obligation in respect of
such conversion by paying and delivering, as the case may be, a combination of
cash and shares of Common Stock, if any, the Company shall pay and deliver to
the converting Holder, as the case may be, in respect of each $1,000 principal
amount of Securities being converted, cash and shares of Common Stock, if any,
in an amount equal to the sum of the Daily Settlement Amounts for each of the 20
consecutive Trading Days during the related Cash Settlement Averaging
Period.

     

    For
purposes of determining the Settlement Amount only, “Trading Day” means a day
during which trading in the Common Stock generally occurs on the primary
exchange or quotation system on which the Common Stock then trades or is quoted
and there is no Market Disruption Event.

     

    (c)           With
respect to each conversion of Securities, the Company shall elect whether it
will satisfy the related Conversion Obligation (x) by delivering solely
shares of Common Stock, (y) by paying solely cash or (z) by paying or
delivering, as the case may be, cash and shares of Common Stock (each, a
“Settlement Method”).

     

     (i)           With
respect to any Conversion Date occurring prior to August 1, 2014, the
Company shall elect a Settlement Method and deliver to converting Holders a
related Settlement Notice no later than the second Business Day immediately
following the relevant Conversion Date (it being understood that, prior to
August 1, 2014, the Company may elect only a single Settlement Method for a
given Conversion Date, but may elect different Settlement Methods for Conversion
Dates occurring on different dates).

     

     (ii)           With
respect to each Conversion Date occurring during the period commencing on and
including August 1, 2014 and ending on and including the second Scheduled
Trading Day preceding the Maturity Date, the Company shall elect a single
Settlement Method applicable to all conversions during such period and deliver
to all Holders the related Settlement Notice prior to August 1,
2014.

     

     (iii)          Each Settlement Notice shall specify
the Settlement Method that the Company has elected and the manner in which the
Settlement Amount shall be calculated in accordance with the provisions of
Section 4.03(b).  If in connection with any conversion of Securities
the Company elects as its Settlement Method to pay and deliver, as the case may be, a combination of
cash and shares of Common Stock, such Settlement Notice shall also designate the
Specified Dollar Amount.

     

     (iv)           If
in connection with any conversion of Securities:


    
      
         


      

      
        -27-

        
          

        

      

      
         


      

    

     

    (x)           the
Company does not deliver a Settlement Notice within the time period required by
Section 4.03(c)(i) or 4.03(c)(ii), as the case may be; or

     

    (y)           the
Company delivers a Settlement Notice within the time period required by
Section 4.03(c)(i) or 4.03(c)(ii), as the case may be, but such
Settlement Notice does not include the Specified Dollar Amount in the event that
the Company shall have elected to satisfy its Conversion Obligation through the
payment and delivery of a combination of cash and shares of Common
Stock,

     

    then, in
either case, the Company will be deemed to have elected to deliver shares of
Common Stock in respect of its Conversion Obligation.

     

    (d)           The
Company shall pay or deliver, as the case may be, the cash, shares of Common
Stock or combination thereof in respect of any relevant Conversion Obligation on
the third Trading Day immediately following the last Trading Day of the
applicable Cash Settlement Averaging Period; provided that

     

     (i)           if
the Company elects to fulfill its Conversion Obligation solely in shares of
Common Stock, or

     

     (ii)           if
prior to the relevant Conversion Date, the Common Stock has been replaced by
Reference Property consisting solely of cash, pursuant to
Section 4.06,

     

    then, in
either case, the Company shall pay the cash amounts owing on the third Trading
Day immediately following the relevant Conversion Date.  Notwithstanding
the foregoing, if any information required to calculate the Conversion
Obligation is not available as of the applicable date on which the consideration
in respect of the Conversion Obligation shall be payable and/or deliverable, the
Company will deliver the additional consideration resulting from such adjustment
on the third Trading Day after the earliest Trading Day on which such
calculation can be made.

     

    If any
shares of Common Stock are due to converting Holders, the Company shall issue or
cause to be issued, and deliver to the Conversion Agent or to such Holder, or
such Holder’s nominee or nominees, certificates or a book-entry transfer through
the Depositary for the number of full shares of Common Stock to which such
Holder shall be entitled in satisfaction of such Conversion
Obligation.

     

    (e)           Upon
conversion, a Holder shall not receive any additional cash payment for accrued
and unpaid interest, except as set forth below. The Company’s settlement of the
Conversion Obligations pursuant to Section 4.02 shall be deemed to satisfy
its obligation to pay the principal amount of the Security and accrued and
unpaid interest to, but not including, the Conversion Date. As a result, accrued
and unpaid interest to, but not including, the Conversion Date shall be deemed
to be paid in full rather than cancelled, extinguished or forfeited.
Notwithstanding the preceding sentence, if Securities are converted after the
close of business on a Regular Record Date, Holders of such Securities as of the
close of business on the Regular Record Date will receive the interest payable
on such Securities on the corresponding Interest Payment Date notwithstanding
the conversion. Securities surrendered for conversion during the period from the
close of business on any Regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount
equal to the interest payable on the Securities so converted; provided, however, that no such payment
shall be required (1) if the Company has specified a Fundamental Change
Repurchase Date that is after a Regular Record Date but on or prior to the
corresponding Interest Payment Date, (2) to the extent of any Defaulted
Interest, if any, existing at the time of conversion with respect to such
Securities or (3) if the Securities are surrendered for conversion after
the close of business on the Regular Record Date immediately preceding the
Maturity Date. Except as set forth in this Section 4.03(e), no payment or
adjustment will be made for accrued and unpaid interest on converted
Securities.


    
      
         


      

      
        -28-

        
          

        

      

      
         


      

    

     

    (f)           The
Company shall not issue fractional shares of Common Stock upon conversion of
Securities. Instead, the Company shall pay cash in lieu of fractional shares
based on the Daily VWAP on the relevant Conversion Date (if the Company elects
to satisfy its Conversion Obligation solely in shares of Common Stock in
accordance with the provisions of clause (i) of Section 4.03(b)) or
based on the Daily VWAP on the last Trading Day of the relevant Cash Settlement
Averaging Period (in the case of any other Settlement Method).  The number
of full shares that shall be issued upon conversion of Securities by a Holder
thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered.  If the Company
has elected to deliver a combination of cash and shares of Common Stock in
respect of its Conversion Obligation in accordance with the provisions of clause
(iii) of Section 4.03(b), the provisions of the preceding sentence
shall apply and the number of full shares that shall be issued upon conversion
thereof shall be computed on the basis of the aggregate Daily Settlement Amounts
for the applicable Cash Settlement Averaging Period and any fractional shares
remaining after such computation shall be paid in cash.

     

    Section 4.04.         
Increased
Conversion Rate Applicable to Securities Surrendered in Connection with
Make-Whole Fundamental Changes.

     

    (a)           If
a Holder elects to convert its Securities at any time from and including the
Effective Date of a Make-Whole Fundamental Change until, and including, the
close of business on the second Scheduled Trading Day immediately preceding the
related Fundamental Change Repurchase Date corresponding to such Make-Whole
Fundamental Change, or the 35th Business Day immediately following the Effective
Date of such Make-Whole Fundamental Change (in the case of a Make-Whole
Fundamental Change that does not constitute a Fundamental Change) (such period,
the “Make-Whole Fundamental Change Period”), the applicable Conversion Rate
shall be increased by an additional number of shares of Common Stock (the
“Additional Shares”) as described in this Section 4.04.  The
Company will notify Holders of the anticipated Effective Date of the Make-Whole
Fundamental Change and issue a press release as soon as practicable after the
Company first determines the anticipated Effective Date of such Make-Whole
Fundamental Change, and use commercially reasonable efforts to make such
determination in time to deliver written notice 25 Scheduled Trading Days in
advance of the anticipated Effective Date; provided, that, the Company will not
be required to give written notice or issue a press release more than 25
Scheduled Trading Days in advance of the anticipated Effective
Date.

     

    (b)           The
number of Additional Shares by which the Conversion Rate will be increased for
conversions that occur during the Make-Whole Fundamental Change Period will be
determined by reference to the table set forth below, based on the date on which
the Make-Whole Fundamental Change occurs or becomes effective (the “Effective
Date”) and the price (the “Stock Price”) paid (or deemed paid) per share of the
Company’s Common Stock in the Make-Whole Fundamental Change.  If Holders of
Common Stock receive only cash in a Make-Whole Fundamental Change described in
clause (b) of the definition of Fundamental Change, the Stock Price shall
be the cash amount paid per share of Common Stock.  In the case of any
other Make-Whole Fundamental Change, the Stock Price shall be the average of the
Last Reported Sale Prices of the Common Stock over the 10 consecutive
Trading-Day period ending on and including the Trading Day preceding the
Effective Date of the Make-Whole Fundamental Change.

     

    (c)           The
following table sets forth the number of Additional Shares, if any, by which the
Conversion Rate will be increased for each Stock Price and Effective Date set
forth in the table below:


    
      
         


      

      
        -29-

        
          

        

      

      
         


      

    

    


    Make-Whole
Conversion Rate Adjustment

    (per
$1,000 principal amount of Securities)

    


    
      
        
          
            
              
                	 
      	 	
                        Effective
      Date

                      	 
	
                        Stock
      Price

                      	 	
                        November
      10,

                         2009

                      	 	 	
                        November
      1,

                        2010

                      	 	 	
                        November
      1,

                        2011

                      	 	 	
                        November
      1,

                        2012

                      	 	 	
                        November
      1,

                        2013

                      	 	 	
                        November
      1,

                        2014

                      	 
	
                        $11.94

                      	 	 	20.5429	 	 	 	20.5429	 	 	 	20.5429	 	 	 	20.5429	 	 	 	20.5429	 	 	 	20.5429	 
	
                        $14.00

                      	 	 	15.6526	 	 	 	14.4939	 	 	 	13.2315	 	 	 	11.879	 	 	 	9.8297	 	 	 	8.2195	 
	
                        $16.00

                      	 	 	12.7004	 	 	 	11.3602	 	 	 	9.7985	 	 	 	7.9938	 	 	 	5.3706	 	 	 	0.0000	 
	
                        $18.00

                      	 	 	10.7316	 	 	 	9.3714	 	 	 	7.7545	 	 	 	5.8782	 	 	 	3.3284	 	 	 	0.0000	 
	
                        $20.00

                      	 	 	9.3375	 	 	 	8.0291	 	 	 	6.4692	 	 	 	4.6867	 	 	 	2.4302	 	 	 	0.0000	 
	
                        $25.00

                      	 	 	7.1833	 	 	 	6.0852	 	 	 	4.7615	 	 	 	3.3374	 	 	 	1.7038	 	 	 	0.0000	 
	
                        $30.00

                      	 	 	5.9423	 	 	 	5.0167	 	 	 	3.9032	 	 	 	2.7281	 	 	 	1.4067	 	 	 	0.0000	 
	
                        $40.00

                      	 	 	4.4324	 	 	 	3.7452	 	 	 	2.9054	 	 	 	2.0382	 	 	 	1.0528	 	 	 	0.0000	 
	
                        $50.00

                      	 	 	3.5426	 	 	 	2.9987	 	 	 	2.3200	 	 	 	1.6308	 	 	 	0.8409	 	 	 	0.0000	 
	
                        $60.00

                      	 	 	2.9511	 	 	 	2.5028	 	 	 	1.9302	 	 	 	1.3592	 	 	 	0.6996	 	 	 	0.0000	 


              

            

          

        

      

    

    


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

     

    (i)          
 If the Stock Price is between two Stock Prices in the table or the
Effective Date is between two Effective Dates in the table, the number of
Additional Shares shall be determined by a straight-line interpolation between
the number of Additional Shares set forth for the higher and lower Stock Prices
and the earlier and later Effective Dates, as applicable, based on a 365-day
year.

     

    (ii)           If
the Stock Price is greater than $60.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the table above pursuant to
Section 4.04(d) above), no Additional Shares shall be added to the
Conversion Rate.

     

    (iii)          If
the Stock Price is less than $11.94 per share (subject to adjustment in the same
manner as the Stock Prices set forth in the table above pursuant to
Section 4.04(d) above), no Additional Shares shall be added to the
Conversion Rate.

     

    Notwithstanding
the foregoing, in no event shall the Conversion Rate exceed 83.7520 shares of
Common Stock per $1,000 principal amount of Securities, other than on account of
proportional adjustments to the Conversion Rate in the manner set forth in
Sections 4.05(a), 4.05(b) and 4.05(c).

     

    (d)           The
Stock Prices set forth in the first column of the table in
Section 4.04(c) shall be adjusted as of any date on which the
Conversion Rate of the Securities is otherwise adjusted.  The adjusted
Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion
Rate immediately prior to such adjustment and the denominator of which is the
Conversion Rate as so adjusted.  The number of Additional Shares set forth
in such table shall be adjusted in the same manner as the Conversion Rate as set
forth in Section 4.05.

     

    (e)           As
soon as practicable after the Effective Date of any Make-Whole Fundamental
Change but in no event later than five Trading Days after such Effective Date,
the Company shall mail to each Holder, the Trustee and the Conversion Agent
written notice of, and shall issue a press release announcing, the Effective
Date of such Make-Whole Fundamental Change and make such press release available
on the Company’s web site.  If applicable, such notice and press release
shall also specify the amount, if any, by which the Conversion Rate shall be
increased in accordance with the provisions of this Section 4.04 and the
period in which Securities may be converted at the increased Conversion
Rate.


    
      
         


      

      
        -30-

        
          

        

      

      
         


      

    

    


    (f)           Nothing
in this Section 4.04 shall prevent an adjustment to the Conversion Rate pursuant
to Section 4.05.

    


    (g)           If
a Holder elects to convert Securities prior to the Effective Date of the
Fundamental Change, such Holder shall not be entitled to any adjustment to the
Conversion Rate or any Additional Shares under this Section 4.04 in
connection with such conversion.

     

    Section 4.05.         
Adjustment of
Conversion Rate.

     

    The
Conversion Rate shall be adjusted from time to time by the Company if any of the
following events occurs, except that the Company will not make any adjustment to
the Conversion Rate if Holders of Securities participate, as a result of holding
the Securities, in any of the transactions described in this Section 4.05,
at the same time as holders of the Common Stock participate, without having to
convert their Securities as if such Holders held, for each $1,000 principal
amount of Securities, a number of shares of Common Stock equal to the Conversion
Rate in effect at the time any such adjustment would otherwise be
required.

     

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

     

    
      
        	
                CR = CR0  Í 

              	
                OS

              
	
                OS0

              


      

    

     

    where,

     

    
      
        	
                

                  CR0 =

                

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

              


      

    

    
       


    

    
      
        	
                CR =

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

              


      

    

    
       


    

    
      
        	
                OS0 =

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

              


      

    

    
       


    

    
      
        	
                OS =

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

              


      

    

    
       


    

    Such
adjustment shall become effective immediately after the opening of business on
the Ex-Dividend Date for such dividend or distribution, or the effective date
for such share split or share combination. If any dividend or distribution of
the type described in this Section 4.05(a) is declared but not so paid
or made, or the outstanding shares of Common Stock are not split or combined, as
the case may be, the Conversion Rate shall be immediately readjusted, effective
as of the date the Board of Directors determines not to pay such dividend or
distribution, or split or combine the outstanding shares of Common Stock, as the
case may be, to the Conversion Rate that would then be in effect if such
dividend, distribution, share split or share combination had not been declared
or announced.

     

    (b)           If
the Company distributes to all or substantially all holders of its Common Stock
any rights, options or warrants entitling them for a period of not more than 60
calendar days from the record date for such distribution to subscribe for or
purchase shares of the Common Stock, at a price per share less than the average
of the Last Reported Sale Prices of the Common Stock for the ten consecutive
Trading Day period ending on, and including, the Trading Day immediately
preceding the declaration date for such distribution, the Conversion Rate shall
be increased based on the following formula:


    
      
         


      

      
        -31-

        
          

        

      

      
         


      

    

     

    
      
        	
                CR = CR0  Í 

              	
                OS0 + X

              
	
                OS0 + Y

              


      

    

    


    where,

     

    
      
        	
                CR0 =

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

              


      

    

    
       


    

    
      
        	
                CR =

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

              


      

    

    
       


    

    
      
        	
                OS0  =

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

              


      

    

    
       


    

    
      
        	
                X =

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

              


      

    

    


    
      
        	
                Y =

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

              


      

    

    
       


    

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

     

    For
purposes of this Section 4.05(b), in determining whether any rights,
options or warrants entitle the holders to subscribe for or purchase shares of
the Common Stock at less than the average of the Last Reported Sale Prices of
the Common Stock for each Trading Day in the applicable ten-consecutive-Trading
Day period, there shall be taken into account any consideration received by the
Company for such rights, options or warrants and any amount payable on exercise
or conversion thereof, the value of such consideration, if other than cash, to
be determined by the Board of Directors.

     

    (c)           If
the Company shall distribute shares of its Capital Stock, evidences of its
indebtedness or other of its assets or property to all or substantially all
holders of its Common Stock other than (i) dividends or distributions
(including share splits) or rights, options or warrants covered by
Section 4.05(a) or Section 4.05(b), (ii) dividends or
distributions paid exclusively in cash, and (iii) Spin-Offs to which the
provisions set forth below in this Section 4.05(c) shall apply, then,
in each such case the Conversion Rate shall be increased based on the following
formula:

     

    
      
        	
                CR = CR0  Í 

              	
                SP0

              
	
                SP0 - FMV

              


      

    


    
      
         


      

      
        -32-

        
          

        

      

      
         


      

    

    


    where,

     

    
      
        	
                CR0 =

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

              


      

    

    
       


    

    
      
        	
                CR =

              	
                the
      applicable Conversion Rate in effect immediately after the open of
      business on the Ex-Dividend Date for such
  distribution.

              


      

    

    
       


    

    
      
        	
                SP0 =

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

              


      

    

    
       


    

    
      
        	
                FMV =

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

              


      

    

    
       


    

    Such
adjustment shall become effective immediately after the opening of business on
the Ex-Dividend Date for such distribution; provided that if “FMV” as set
forth above is equal to or greater than “SP0” as set forth above, in lieu
of the foregoing adjustment, adequate provisions shall be made so that each
Holder shall have the right to receive on conversion in respect of each $1,000
principal amount of the Securities held by such holder, in addition to the cash,
shares of Common Stock or combination thereof to which such Holder shall be
entitled, the amount and kind of shares of the Company’s Capital Stock,
evidences of the Company’s indebtedness or other of the Company’s assets or
property such holder would have received had such holder owned a number of
shares of Common Stock equal to the Conversion Rate immediately prior to the
record date for such distribution. If such distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared. If the
Board of Directors determines “FMV” for purposes of this
Section 4.05(c) by reference to the actual or when issued trading
market for any securities, it must in doing so consider the prices in such
market over the same period used in computing the Last Reported Sale Prices of
the Common Stock over the ten consecutive Trading Day period ending on the
Trading Day immediately preceding the Ex-Dividend Date for such
distribution.

     

    With
respect to an adjustment pursuant to this Section 4.05(c) where there
has been a dividend or other distribution on all or substantially all shares of
the Common Stock of shares of Capital Stock of any class or series, or similar
equity interest, of or relating to a Subsidiary or other business unit of the
Company that are or will be when issued listed on a securities exchange (a
“Spin-Off”), the Conversion Rate will be increased based on the following
formula:

     

    
      
        	
                CR = CR0  Í 

              	
                FMV + MP0

              
	
                MP0

              


      

    

     

    where

    
       


    

    
      
        	
                CR0 =

              	
                the
      applicable Conversion Rate in effect immediately prior to the open of
      business on the Ex-Dividend Date for the
  Spin-Off;

              


      

    

    
       


    

    
      
        	
                CR =

              	
                the
      applicable Conversion Rate in effect immediately after the open of
      business on the Ex-Dividend Date for the
  Spin-Off;

              


      

    

    
       


    

    
      
        	
                FMV =

              	
                the
      average of the Last Reported Sale Prices of the Capital Stock or similar
      equity interest    distributed to holders of the
      Common Stock applicable to one share of the Common Stock over the first
      ten consecutive Trading Day period immediately following, and including,
      the Ex-Dividend Date for the Spin-Off (such period, the “Valuation
      Period”), and

              


      

    

     

    
      
        	
                MP0 =

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

              


      

    


    
      
         


      

      
        -33-

        
          

        

      

      
         


      

    

    


    The
adjustment to the Conversion Rate under the preceding paragraph of this
Section 4.05(c) shall be made immediately after the opening of
business on the day after the last day of the Valuation Period, but shall become
effective as of the opening of business on the Ex-Dividend Date for the
Spin-Off. If the Ex-Dividend Date for the Spin-Off is less than ten Trading Days
prior to, and including, the end of the Cash Settlement Averaging Period in
respect of any conversion, references within this Section 4.05(c) to
ten Trading Days shall be deemed replaced, for purposes of calculating the
affected daily Conversion Rates in respect of that conversion, with such lesser
number of Trading Days as have elapsed from, and including, the Ex-Dividend Date
for the Spin-Off to, and including, the last Trading Day of such Cash Settlement
Averaging Period. For purposes of determining the applicable Conversion Rate, in
respect of any conversion during the ten Trading Days commencing on the Ex-
Dividend Date of any Spin-Off, references in the portion of this
Section 4.05(c) related to Spin-Offs to ten Trading Days shall be
deemed replaced with such lesser number of Trading Days as have elapsed from,
and including, the Ex-Dividend Date for such Spin-Off to, but excluding, the
Conversion Date for such conversion.

     

    For the purposes of this
Section 4.05(c) (and subject in all respect to Section 4.11),
rights, options or warrants distributed by the Company to all holders of its
Common Stock entitling the holders thereof to subscribe for or purchase shares
of the Company’s Capital Stock, including Common Stock (either initially or
under certain circumstances), which rights, options or warrants, until the
occurrence of a specified event or events (“Trigger Event”): (i) are deemed
to be transferred with such shares of the Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of
the Common Stock, shall be deemed not to have been distributed for purposes of
this Section 4.05 (and no adjustment to the Conversion Rate under this
Section 4.05 will be required) until the occurrence of the earliest Trigger
Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 4.05(c). If any such right, option or
warrant, including any such existing rights, options or warrants distributed
prior to the date of this Indenture, are subject to events, upon the occurrence
of which such rights, options or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and Ex-Dividend Date with respect to new rights, options or
warrants with such rights (and a termination or expiration of the existing
rights, options or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights,
options or warrants, or any Trigger Event or other event (of the type described
in the preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion Rate
under this Section 4.05(c) was made, (1) in the case of any such
rights, options or warrants that shall all have been redeemed or repurchased
without exercise by any holders thereof, upon such final redemption or
repurchase (x) the Conversion Rate shall be readjusted as if such rights,
options or warrants had not been issued and (y) the Conversion Rate shall
then again be readjusted to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights, options or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights, options or warrants that
shall have expired or been terminated without exercise by any holders thereof,
the Conversion Rate shall be readjusted as if such rights, options and warrants
had not been issued.

     

    For
purposes of this Section 4.05(c), Section 4.05(a), and
Section 4.05(b), any dividend or distribution to which this
Section 4.05(c) is applicable that also includes shares of Common
Stock to which Section 4.05(a) applies, or rights, options or warrants
to subscribe for or purchase shares of Common Stock to which
Section 4.05(b) applies (or both), shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, assets or
shares of capital stock other than such shares of Common Stock or rights,
options or warrants to which Section 4.05(c) applies (and any
Conversion Rate adjustment required by this Section 4.05(c) with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock
or such rights, options or warrants (and any further Conversion Rate adjustment
required by Section 4.05(a) and Section 4.05(b) with respect
to such dividend or distribution shall then be made), except that if determined
by the Company (A) “the Ex-Dividend Date for such distribution” and “the
Ex-Dividend Date relating to such distribution of such rights, options or
warrants” within the meaning of Section 4.05(a) and
Section 4.05(b), as the case may be, shall be deemed to be the Ex-Dividend
Date for such dividend or distribution for purposes of Section 4.04(c), and
(B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to the open of business on
the Ex-Dividend Date for such dividend or distribution, or immediately prior to
the open of business on the effective date of such share split or share
combination, as the case may be” within the meaning of
Section 4.05(a) or “outstanding immediately prior to the Ex-Dividend
Date for such dividend or distribution” within the meaning of
Section 4.05(b).


    
      
         


      

      
        -34-

        
          

        

      

      
         


      

    

    


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

     

    
      
        	
                CR = CR0  Í 

              	
                SP0

              
	
                SP0 - C

              


      

    

     

    where

     

    
      
        	
                CR0 =

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

              


      

    

    
       


    

    
      
        	
                CR =

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

              


      

    

    
       


    

    
      
        	
                SP0 =

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

              


      

    

    


    
      
        	
                C =

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

              


      

    

    
       


    

    Such
adjustment shall become effective immediately after the opening of business on
the Ex-Dividend Date for such dividend or distribution; provided that if “C” as set
forth above is equal to or greater than “SP0” as set forth above, in lieu
of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive on the date on which the relevant cash
dividend or distribution is distributed to holders of Common Stock, for each
$1,000 principal amount of Securities, the amount of cash such holder would have
received had such holder owned a number of shares equal to the Conversion Rate
on the record date for such distribution. If such dividend or distribution is
not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.

     

    For the
avoidance of doubt, for purposes of this Section 4.05(d), in the event of
any reclassification of the Common Stock, as a result of which the Securities
become convertible into more than one class of Common Stock, if an adjustment to
the Conversion Rate is required pursuant to this Section 4.05(d),
references in this Section to one share of Common Stock or Last Reported
Sale Prices of one share of Common Stock shall be deemed to refer to a unit or
to the price of a unit consisting of the number of shares of each class of
Common Stock into which the Securities are then convertible equal to the numbers
of shares of such class issued in respect of one share of Common Stock in such
reclassification. The above provisions of this paragraph shall similarly apply
to successive reclassifications.

     

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


    
      
         


      

      
        -35-

        
          

        

      

      
         


      

    

     

    
      
        	
                CR = CR0  Í 

              	
                AC + (SP Í OS)

              
	
                OS0 Í SP

              


      

    

     

    where

     

    
      
        	
                CR0 =

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

              


      

    

     

    
      
        	
                CR =

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

              


      

    

    
       


    

    
      
        	
                AC =

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

              


      

    

    
       


    

    
      
        	
                OS0 =

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

              


      

    

    
       


    

    
      
        	
                OS =

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

              


      

    

    
       


    

    
      
        	
                SP =

              	
                the
      average of the Last Reported Sale Prices of Common Stock over the ten
      consecutive Trading Day period commencing on, and including, the Trading
      Day next succeeding the Expiration
Date.

              


      

    

    
       


    

    Such
adjustment under this Section 4.05(e) shall become effective at the
opening of business on the Trading Day next succeeding the Expiration Date. If
the Trading Day next succeeding the Expiration Date is less than ten Trading
Days prior to, and including, the end of the Cash Settlement Averaging Period in
respect of any conversion, references within this Section 4.05(e) to
ten Trading Days shall be deemed replaced, for purposes of calculating the
affected daily Conversion Rates in respect of that conversion, with such lesser
number of Trading Days as have elapsed from, and including, the Trading Day next
succeeding the Expiration Date to, and including, the last Trading Day of such
Cash Settlement Averaging Period. For purposes of determining the applicable
Conversion Rate, in respect of any conversion during the ten Trading Days
commencing on the Trading Day next succeeding the Expiration Date, references
within this Section 4.05(e) to ten Trading Days shall be deemed
replaced with such lesser number of Trading Days as have elapsed from, and
including, the Trading Day next succeeding the Expiration Date to, but
excluding, the Conversion Date for such conversion. If the Company is obligated
to purchase shares pursuant to any such tender or exchange offer, but the
Company is permanently prevented by applicable law from effecting any or all or
any portion of such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange offer had not been made or had been
made only in respect of the purchases that had been effected. In no event shall
the Conversion Rate be decreased pursuant to this
Section 4.05(e).

     

    (f)           For
purposes of this Section 4.05, the term “record date” means, with respect
to any dividend, distribution or other transaction or event in which the holders
of Common Stock (or other security) have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities
or other property, the date fixed for determination of stockholders entitled to
receive such cash, securities or other property (whether such date is fixed by
the Board of Directors or by statute, contract or otherwise).

     

    (g)           In
addition to those required by clauses (a), (b), (c), (d) and (e) of
this Section 4.05, and to the extent permitted by applicable law and
subject to the applicable rules of the Nasdaq Stock Market, the Company
from time to time may increase the Conversion Rate by any amount for a period of
at least twenty Business Days if the Board of Directors determines that such
increase would be in the Company’s best interest.  Whenever the Conversion
Rate is increased pursuant to the preceding sentence, the Company shall mail to
the holder of each Security at its last address appearing on the register for
the Securities maintained by the Primary Registrar a notice of the increase at
least five days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period during
which it will be in effect.


    
      
         


      

      
        -36-

        
          

        

      

      
         


      

    

     

    (h)           The
Company may (but is not required to) increase the Conversion Rate to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common
Stock in connection with any dividend or distribution of shares (or rights to
acquire shares) or similar event.  Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall mail to the
holder of each Security at its last address appearing on the register for the
Securities maintained by the Primary Registrar a notice of the increase at least
five days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it
will be in effect.

     

    (i)           All
calculations and other determinations under this Article 4 shall be made by
the Company and shall be made to the nearest one-ten thousandth (1/10,000) of a
share. The Company shall not be required to make an adjustment in the Conversion
Rate unless the adjustment would require a change of at least 1% in the
Conversion Rate. However, the Company shall carry forward any adjustments that
are less than 1% of the Conversion Rate and make such carried forward
adjustment, regardless of whether the aggregate adjustment is less than 1%,
(i) upon any conversion of Securities, and (ii) on each of the 22
Scheduled Trading Days immediately preceding the Maturity Date.

     

    (j)           Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an
Officer’s Certificate setting forth the Conversion Rate after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
issue a press release containing the relevant information (and make such press
release available on the Company’s web site). Unless and until a Responsible
Officer of the Trustee shall have received such Officer’s Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume without inquiry that the last Conversion Rate of
which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to each holder of the Securities within ten days of the
effective date of such adjustment. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.

     

    (k)           For
purposes of this Section 4.05, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company
but shall include shares issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Company.

     

    (l)           Notwithstanding
any of the provisions of this Section 4.05, in no event shall the
Conversion Rate exceed 83.7520 shares of Common Stock per $1,000 principal
amount of Securities, other than on account of proportional adjustments to the
Conversion Rate in the manner set forth in Sections 4.05(a), 4.05(b) and
4.05(c).

     

    (m)          Notwithstanding
this Section 4.05 or any other provision of this Indenture or the
Securities, if any Conversion Rate adjustment becomes effective, or any
Ex-Dividend Date for any issuance, dividend or distribution (relating to a
required Conversion Rate adjustment) occurs, during the period beginning on, and
including, the open of business on a Conversion Date and ending on, and
including, (x) the close of business on the third Trading Day immediately
following the relevant Conversion Date (if the Company elects to satisfy the
related Conversion Obligation solely in shares of Common Stock) or (y) the
close of business on the last Trading Day of a related Cash Settlement Averaging
Period (in the case of any other Settlement Method), the Board of Directors may
make adjustments to the Conversion Rate and the amount of cash or number of
shares of Common Stock issuable upon conversion of the Securities, as the case
may be, as are necessary or appropriate to effect the intent of this
Section 4.05 and the other provisions of this Article 4 and to avoid
unjust or inequitable results, as determined in good faith by the Board of
Directors. Any adjustment made pursuant to this Section 4.05(m) shall
apply in lieu of the adjustment or other term that would otherwise be
applicable.


    
      
         


      

      
        -37-

        
          

        

      

      
         


      

    

    


    (n)           Except
as set forth in this Article 4, the Company shall not adjust the Conversion
Rate.  The applicable Conversion Rate will not be adjusted:

     

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

     

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

     

    (iii)           upon
the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described in
clause (ii) of this subsection and outstanding as of the date the
Securities were first issued;

     

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

     

    (v)         
   for accrued and unpaid interest; or

     

    (vi)           except
as stated herein, for the issuance of shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock or the right, option
or warrant to purchase shares of Common Stock or such convertible or
exchangeable securities.

     

    Section 4.06.                  
           Effect of Reclassification,
Consolidation, Merger or Sale.

     

    (a)           Upon
the occurrence of

     

    (i)          
 any recapitalization, reclassification or change of the outstanding shares
of Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a split, subdivision
or combination covered by Section 4.05(a)),

     

    (ii)          any
consolidation, merger, combination or binding share exchange involving the
Company, or

     

    (iii)         any
sale, lease or conveyance of all or substantially all of the property and assets
of the Company to any other Person,

     

    (any such
event a “Merger Event”) in each case as a result of which the Common Stock would
be converted into cash, securities or other property or assets with respect to
or in exchange for such Common Stock, then at the effective time of such
transaction, the Company or the successor or purchasing Person, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) providing that at and after the effective time of such
transaction, the right to convert a Security will be changed into a right to
convert it as set forth in this Indenture into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any
combination thereof) that a holder of a number of shares of Common Stock equal
to the Conversation Rate immediately prior to such transaction would have owned
or been entitled to receive upon such transaction (the “Reference Property”),
subject to the provisions of Section 4.06(b).  The Company shall not
become a party to any such transaction unless its terms are consistent with this
Section 4.06.  Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 4 in the judgment of the Board of
Directors or the board of directors of the successor Person.  If, in the
case of any Merger Event the Reference Property receivable thereupon by a holder
of Common Stock includes shares of stock, securities or other property or assets
(including cash or any combination thereof) of a Person other than the successor
or purchasing Person, as the case may be, in such Merger Event, then such
supplemental indenture shall also be executed by such other Person with respect
to the delivery of Reference Property upon conversion.  For purposes of the
foregoing, if any Merger Event 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 from of stockholder election), the Reference Property into which
the Securities will be convertible as set forth in this Indenture shall be
deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock (or a plurality thereof if holders of
Common Stock are entitled to make multiple elections pursuant to the  applicable Merger Event)
that affirmatively make such an election (the “Weighted Average
Consideration”).


    
      
         


      

      
        -38-

        
          

        

      

      
         


      

    

     (b)           With
respect to each $1,000 principal amount of Securities surrendered for conversion
after the effective date of any Merger Event, the Company’s Conversion
Obligation shall be settled in cash or units of Reference Property (each
consisting of the kind and amount of shares of stock, securities or other
property or assets (including cash or any combination thereof) that a holder of
one share of Common Stock immediately prior to such Merger Event shall have
received (or shall be deemed to have received) in such Merger Event) or a
combination thereof, at the Company’s election, in accordance with
Section 4.03(b) but subject to the following provisions:

     

    (i)           if
the Company elects to satisfy its Conversion Obligation in respect of such
conversion by delivering solely Reference Property, the Company shall deliver to
the converting Holder a number of units of Reference Property equal to
(1) the aggregate principal amount of Securities to be converted, divided by $1,000, multiplied
by (2) the then-applicable Conversion Rate;

     

    (ii)           if
the Company elects to satisfy its Conversion Obligation in respect of such
conversion by paying solely cash, the Company shall pay to the converting Holder
cash in an amount per $1,000 principal amount of Securities equal to the sum of
the Daily Conversion Values for each of the 20 consecutive Trading Days during
the related Cash Settlement Averaging Period, where such Daily Conversion Values
are determined by reference to the Daily VWAP of a unit of Reference Property in
lieu of the Common Stock; and

     

    (iii)           if
the Company elects to satisfy its Conversion Obligation through delivery of a
combination of cash and Reference Property, the Company shall deliver in respect
of each $1,000 principal amount of Securities being converted, a Settlement
Amount equal to the sum of the Daily Settlement Amounts for each of the 20
consecutive Trading Days during the Cash Settlement Averaging Period, where such
Daily Settlement Amounts are determined by reference to the Daily VWAP of a unit
of Reference Property in lieu of the Common Stock.

     

    (c)           The
Company shall cause notice of the execution of any supplemental indenture in
accordance with the provisions of this Section 4.06 to be mailed to each
Holder, at the address of such Holder as it appears on the register of the
Securities maintained by the Primary Registrar, within 20 days after execution
thereof.  Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.  In addition, in the event that
the Securities become convertible into Reference Property pursuant to this
Section 4.06, the Company shall notify the Trustee in writing and issue a
press release containing the relevant information (and make such press release
available on the Company’s website).  If applicable, the Company shall
notify the holders and the Trustee in writing of the Weighted Average
Consideration as soon as practicable after the Weighted Average Consideration is
determined.

     

    (d)           Notwithstanding
any of the provisions of Section 4.05, if this Section 4.06 applies to
any event or occurrence, Section 4.05 shall not apply.

    


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


    
      
         


      

      
        -39-

        
          

        

      

      
         


      

    

     

    Section 4.07.                            
Taxes on Shares
Issued.

     

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

     

    Section 4.08.                            
Reservation of
Shares; Shares to be Fully Paid; Listing of Common Stock.

     

    The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock to
satisfy conversion of the Securities from time to time as such Securities are
presented for conversion (assuming that, at the time of the computation of such
number of shares or securities, all such Securities would be converted by a
single Holder).

     

    The
Company covenants that all shares of Common Stock that may be issued upon
conversion of Securities shall be newly issued shares or treasury shares, shall
be duly authorized, validly issued, fully paid and non-assessable and shall be
free from preemptive rights and free from any tax, lien or charge (other than
those created by the Holder). 

     

    The
Company shall list or cause to have quoted any shares of Common Stock to be
issued upon conversion of Securities on each national securities exchange or
over-the-counter or other domestic market on which the Common Stock is then
listed or quoted.

     

    Section 4.09.                            
Responsibility
of Trustee.

     

    The Trustee and any other Conversion
Agent shall not at any time be under any duty or responsibility to any Holder to
determine the Conversion Rate (or any adjustment thereto) or whether any facts
exist that may require any adjustment (including any increase) of the Conversion
Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. The
Trustee and any other Conversion Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities,
property or cash that may at any time be issued or delivered upon the conversion
of any Security; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine whether a Supplemental Indenture need be entered
into or to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 4.06 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders upon the conversion of their Securities
after any event referred to in such Section 4.06 or to any adjustment to be
made with respect thereto, but, subject to the provisions of Section 8.03
hereof, may accept (without any independent investigation) as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officer’s Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto. The rights, privileges, protections, immunities and
benefits given to the Trustee, including without limitation its right to be
compensated, reimbursed, and indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, including its
capacity as Conversion Agent.


    
      
         


      

      
        -40-

        
          

        

      

      
         


      

    

     

    Section 4.10.                            
Notice to
Holders Prior to Certain Actions.

     

    In
case:

     

    (a)           the
Company shall declare a dividend (or any other distribution) on its Common Stock
that would require an adjustment in the Conversion Rate pursuant to
Section 4.05; or

     

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

     

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

     

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

     

    the
Company shall cause to be filed with the Trustee and to be mailed, or in the
case of Securities held in book-entry form, by electronic transmission, to each
Holder, as promptly as practicable but in any event at least twenty days prior
to the applicable date hereinafter specified, a notice stating (i) the date
on which a record is to be taken for the purpose of such dividend, distribution
or rights, options or warrants, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (ii) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.

     

    Section 4.11.                            
Stockholder
Rights Plans.

     

    To the
extent that the Company has a stockholder rights plan or other “poison pill” in
effect upon conversion of the Securities, each share of Common Stock, if any,
issued upon such conversion shall be entitled to receive the appropriate number
of rights, if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as may be
provided by the terms of any such stockholder rights plan or poison pill, as the
same may be amended from time to time. If, however, prior to the time of
conversion, the rights have separated from the shares of Common Stock in
accordance with the provisions of the applicable stockholder rights agreement so
that the holders of the Securities would not be entitled to receive any rights
in respect of Common Stock, if any, issuable upon conversion of the Securities,
the Conversion Rate will be adjusted at the time of separation as if the Company
has distributed to all holders of Common Stock, shares of Capital Stock of the
Company, evidence of indebtedness or other assets or property having a fair
market value of the rights as provided in Section 4.05(c), subject to
readjustment in the event of the expiration, termination or redemption of such
rights.


    
      
         


      

      
        -41-

        
          

        

      

      
         


      

    


    ARTICLE
5

     

    COVENANTS

     

    Section 5.01.                            
Payment of
Securities.

     

    (a)           The
Company shall promptly make all payments in respect of the Securities on the
dates and in the manner provided in the Securities and this Indenture. A payment
of principal or interest shall be considered paid on the date it is due if the
Paying Agent (other than the Company) (or if the Company is the Paying Agent,
the segregated account or separate trust fund maintained by the Company pursuant
to Section 2.04) holds by 10:00 a.m., New York City time, on that date
money, deposited by or on behalf of the Company sufficient to make the payment.
Accrued and unpaid interest on any Security that is payable (whether or not
punctually paid or duly provided for) on any Interest Payment Date shall be paid
to the Person in whose name that Security is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose. The Company shall, to the fullest extent
permitted by law, pay interest in immediately available funds on overdue
principal and interest at the annual rate borne by the Securities compounded
semiannually, which interest shall accrue from the date such overdue amount was
originally due to the day preceding the date payment of such amount, including
interest thereon, has been made or duly provided for. All such interest shall be
payable on demand.

     

    (b)           Payment
of the principal of and interest, if any, on the Securities shall be made at the
office or agency of the Company maintained for that purpose (which shall
initially be the Corporate Trust Office of the Trustee) in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option
of the Company payment of interest on any Certificated Securities having an
aggregate principal amount of $5,000,000 or less may be made by check mailed to
the address of the Person entitled thereto as such address appears in the
register maintained by the Primary Registrar; provided further that a
Holder of a Certificated Security having an aggregate principal amount of more
than $5,000,000 will be paid by wire transfer in immediately available funds at
the election of such Holder if such Holder has provided wire transfer
instructions to the Trustee at least 10 Business Days prior to the payment date.
Any wire transfer instructions received by the Trustee will remain in effect
until revoked by the Holder. In the case of a permanent Global Security,
interest payable on any applicable payment date will be paid to the Depositary,
with respect to that portion of such permanent Global Security held for its
account by Cede & Co. for the purpose of permitting such party to
credit the interest received by it in respect of such permanent Global Security
to the accounts of the beneficial owners thereof.

     

    Section 5.02.                            
Reports by
Company.

     

    (a)           The
Company shall deliver to the Trustee, within 15 days after it is required to
file the same with the SEC, copies of all annual reports, quarterly reports and
other documents that it files with the SEC pursuant to Sections 13 or
15(d) of the Exchange Act (giving effect to any grace period provided by
Rule 12b-25 under the Exchange Act).  The Company also shall comply with
the provisions of TIA Section 314(a).  The Trustee agrees that any
such information, documents or reports filed with the SEC pursuant to its
Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system or any
successor thereto shall constitute delivery of the same to the Trustee;
provided, however, that the Company shall promptly notify the Trustee in writing
of any such filing, and provided further that the Trustee shall have no
responsibility whatsoever to determine whether such filing has taken
place.

    


    (b)           During
any period in which the Company is not subject to Section 13 or 15(d) under the
Exchange Act, the Company will make available to the Holders or beneficial
Holders of the Securities or the Common Stock issued upon conversion and
prospective purchasers, upon their request, the information, if any, required
under Rule 144A(d)(4) under the Securities Act until such time as such
Securities are no longer “restricted securities” within the meaning of Rule 144
under the Securities Act, assuming these Securities have not been owned by an
Affiliate of the Company.


    
      
         


      

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

    


    (d)           Subject
to Section 5.02(f), if, at any time during the six-month period beginning on,
and including, the date which is six months after the last original date of
issuance of the Securities and ending on the date which is the one year
anniversary of the last original date of issuance of the Securities, the Company
fails to timely file any document or report that the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, as applicable
(after giving effect to all applicable grace periods thereunder and other than
current reports on Form 8-K), or the Securities are not otherwise freely
tradable by holders other than the Affiliates (as a result of restrictions
pursuant to U.S. securities law or the terms of this Indenture or the
Securities), the Company shall pay a one time Additional Interest payment in
respect of the Securities at the rate of 0.50% per annum of the principal amount
of Securities outstanding for each day during such period for which the
Company’s failure to file, or the failure of the Securities to be freely
tradable by Holders other than the Company’s Affiliates, has occurred and is
continuing.  The Company shall pay any Additional Interest pursuant to
this Section 5.02(d) on the next Interest Payment Date to the record
holder.

    


    (e)           Subject to Section 5.02(f),
unless (i) the restrictive legend on the Securities has been removed, and
(ii) the Securities are freely tradable pursuant to Rule 144 under the
Securities Act without volume restrictions by holders other than Affiliates of
the Company (without restrictions pursuant to U.S. securities law or the terms
of this Indenture or the Securities), as of the 365th day after the last date of
the original issuance of the Securities, the Company shall pay Additional
Interest on the Securities at an annual rate equal to 0.50% of the aggregate
principal amount of the Securities. So long as a condition described in either
(i) or (ii) of this Section 5.02(e) continues, the Company shall pay such
Additional Interest on May 1 and November 1 of each year to the Person who is
the holder of record of the Securities on the immediately preceding April 15 and
October 15. When such registration default ceases to continue, accrued and
unpaid Additional Interest through the date of cessation shall be paid in
arrears on the subsequent Interest Payment Date to the record
holder.

    


    During
the period of one year after the last date of the original issuance of the
Securities, the Company shall not, and shall not permit any of its Affiliates
(who was an Affiliate at the time of, or at any time during the three months
preceding the sale) to, resell any of the Securities that constitute “restricted
securities” under Rule 144 that have been reacquired by any of them. The
Securities shall be issued with a restricted CUSIP number.  Until such
time as the Company notifies the Trustee to remove the restricted legend from
the Securities, the restricted CUSIP will be the CUSIP number for the
Securities. At such time as the Company notifies the Trustee to remove the
restrictive legend from the Securities, such legend will be deemed removed from
any Global Securities and an unrestricted CUSIP number for the Securities will
be deemed to be the CUSIP number for the Securities. 

    


    (f)           Notwithstanding
the foregoing, if the restrictive legend on the Securities has not been removed
pursuant to Section 2.13(c) or the Securities are not otherwise freely
tradable by Holders other than the Company’s Affiliates (as a result of
restrictions pursuant to U.S. securities law or the terms of this Indenture or
the Securities), the Company shall have the right to designate an effective
shelf registration statement for the resale by the Holders of the Securities or
holders of any shares of Common Stock issuable upon conversion of the
Securities. Additional Interest shall not accrue for each day on which such
registration statement remains effective and usable by Holders for the resale of
the Securities or any shares of Common Stock. Any such registration shall be
effected on terms customary for convertible securities generally offered in
reliance upon Rule 144A under the Securities Act.


    
      
         


      

      
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    Section 5.03.                            
Compliance
Certificates.

     

    The
Company shall deliver to the Trustee, within one hundred twenty (120) days after
the end of each fiscal year of the Company (beginning with the fiscal year
ending December 31, 2009), an Officer’s Certificate as to the signer’s knowledge
of the Company’s compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any
Default or Event of Default that shall have occurred in the prior fiscal year.
If such signer knows of such a Default or Event of Default, the Officer’s
Certificate shall describe the Default or Event of Default and the efforts to
remedy the same. For the purposes of this Section 5.03, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.  Such certificates need not comply
with Section 11.04 of this Indenture.

     

    The
Company shall deliver to the Trustee, as soon as possible and in any event
within 30 days after the occurrence of any Default or Event of Default an
Officer’s Certificate setting forth the details of such Default or Event of
Default and the action which the Company proposes to take with respect
thereto.

     

    Section 5.04.                            
Further
Instruments and Acts.

     

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

     

    Section 5.05.                            
Stay, Extension
and Usury Laws.

     

    The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
principal of or accrued but unpaid interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture, and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.

     

    Section 5.06.                            
Maintenance of
Office or Agency.

     

    The
Company shall maintain an office or agency where Securities may be presented or
surrendered for payment. The Company also will maintain an office or agency
where Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of the Trustee, at its Corporate
Trust Office, will be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of the
location and any change in the location of any such offices or agencies. If at
any time the Company shall fail to maintain any such required offices or
agencies or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
office of the Trustee and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.

     

    The
Company may from time to time designate one or more other offices or agencies
(in or outside of The City of New York) where the Securities may be presented or
surrendered for any or all such purposes, and may from time to time rescind such
designation. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such office
or agency.


    
      
         


      

      
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    ARTICLE
6

     

    CONSOLIDATION;
MERGER; SALE OF ASSETS

     

    Section 6.01.                            
Company
May Consolidate, Etc., Only on Certain Terms.

     

    (a)           The
Company shall not consolidate with or merge with or into, or convey, transfer,
or lease all or substantially all of the Company’s property or assets to,
another Person, unless:

     

    (1)           the
resulting, surviving or transferee Person (if other than the Company) shall be a
corporation organized and validly existing under the laws of the United States
of America or any State thereof or the District of Columbia, and such Person
shall expressly assume by a supplemental indenture, the due and punctual payment
of the principal of and interest on all the Securities and the performance and
observance of every covenant of this Indenture to be performed or observed on
the part of the Company;

     

    (2)           immediately
after giving effect to the transaction, no Default or Event of Default shall
have occurred and be continuing; and

     

    (3)           if
the Company will not be the resulting or surviving Person, the Company shall
have, at or prior to the effective date of such consolidation or merger or
conveyance, transfer or lease, delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease complies with this Article 6.01 and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture complies with this Article, and that all conditions
precedent herein provided for relating to such transaction have been complied
with.

     

    Section 6.02.                            
Successor
Substituted.

     

    Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any transfer or lease of all or substantially all of the Company’s
assets in accordance with Section 6.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.

     

    ARTICLE
7

     

    DEFAULT
AND REMEDIES

     

    Section 7.01.                            
Events of
Default.

     

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

    


    (1)           a
default in the payment in respect of the principal amount of any Security when
the same becomes due and payable whether on the Maturity Date, upon required
repurchase, upon declaration of acceleration or otherwise;

     

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


    
      
         


      

      
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    (3)           the
failure to comply with the obligation to convert Securities into Common Stock,
cash or a combination of cash and Common Stock, as applicable, upon exercise of
a Holder’s conversion right and such failure continues for 30 days;

     

    (4)           failure
by the Company to provide a Fundamental Change Repurchase Notice within the time
required to provide such notice as set forth in Section 3.01(b) hereof
or the failure to provide notice of any transaction or event specified in
Section 4.01(a)(iii) or 4.01(a)(iv) within the time required to
provide such notice as forth in the relevant Section and such failure
continues for five days;

     

    (5)           default
in the performance, or breach, of any covenant or agreement by the Company in
the Indenture or Securities (other than a covenant or agreement a default in
whose performance or whose breach is specifically dealt with in clauses
(1) through (4) of this Section 7.01), and continuance of such
default or breach for a period of 60 consecutive days after written notice
thereof has been given to the Company by the Trustee or to the Trustee and the
Company by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities;

     

    (6)           an
event of default (or comparable default) under any bonds, debentures or other
instruments under which there may be issued evidences of indebtedness (other
than the Securities) by the Company or any of its Subsidiaries that is a
Significant Subsidiary having, individually or in the aggregate, a principal or
similar amount outstanding of at least $25 million, whether such indebtedness
now exists or shall hereafter be created, which event of default (or comparable
default) shall have resulted in the acceleration of the maturity of at least $25
million of such indebtedness prior to its express maturity or shall constitute a
failure to pay at least $25 million of such indebtedness when due and payable
after the expiration of any applicable grace period with respect thereto and
such event of default (or comparable default) shall not have been rescinded or
annulled or such indebtedness shall not have been discharged and such event of
default (or comparable default) continues for a period of 60 consecutive days
after written notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of 25% or more in aggregate principal amount of the
Securities then Outstanding;

     

    (7)           the
entry against the Company or any of its Subsidiaries that is a Significant
Subsidiary of a final judgment or final judgments for the payment of money in an
aggregate amount in excess of $25 million (excluding any amounts covered by
insurance), by a court or courts of competent jurisdiction, which judgments
remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of
60 days after (i) the date on which the right to appeal or petition for
review thereof has expired if no such appeal or review has commenced, or
(ii) the date on which all rights to appeal or petition for review have
been extinguished;

     

    (8)           the
Company or any Subsidiary of the Company that is a Significant Subsidiary
pursuant to or within the meaning of the Bankruptcy Law:

     

    (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

     

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


    
      
         


      

      
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    (A)           is
for relief against the Company or any Subsidiary of the Company that is a
Significant Subsidiary in an involuntary case;

     

    (B)           appoints
a custodian of the Company or any Subsidiary of the Company that is a
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any such Subsidiary; or

     

    (C)           orders
the liquidation of the Company or any Subsidiary of the Company that is a
Significant Subsidiary and the order or decree remains unstayed and in effect
for 60 consecutive days.

     

    Section 7.02.                          
Acceleration.

     

    (a)           In
case one or more Events of Default shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), then, and in each and every such case
(other than an Event of Default specified in clause (8) or clause
(9) of Section 7.01 with respect to the Company (and not solely with
respect to a Significant Subsidiary of the Company)), unless the principal of
all of the Securities shall have already become due and payable, either the
Trustee or the holders of at least 25% in aggregate principal amount of the
Securities then outstanding by notice in writing to the Company (and to the
Trustee if given by Holders), may declare 100% of the principal of and accrued
and unpaid interest on all the Securities to be due and payable immediately, and
upon any such declaration the same shall become and shall automatically be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.  If an Event of Default
specified in clause (8) or clause (9) of Section 7.01 with
respect to the Company (and not solely with respect to a Significant Subsidiary
of the Company) occurs and is continuing, the principal of all the Securities
and accrued and unpaid interest shall be immediately due and
payable.

    


    After a
declaration of acceleration with respect to the Securities, but before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Securities Outstanding, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if:

     

    (A)         the
Company has paid or deposited with the Trustee a sum sufficient to
pay

     

    (1)           all
sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel,

     

    (2)           all
overdue interest on all Outstanding Securities,

     

    (3)           the
principal of any Outstanding Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne by the
Securities, and

     

    (4)           to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities;

     

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

     

    (C)          all
Defaults or Events of Default, other than the non-payment of principal of and
interest on the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 7.13.


    
      
         


      

      
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    No such
rescission shall affect any subsequent Default or impair any right consequent
thereon.

     

    (b)           Notwithstanding
the foregoing and notwithstanding anything in this Indenture or in the
Securities to the contrary, if the Company so elects, the sole remedy of Holders
for an Event of Default relating to the Company’s failure to comply with its
reporting obligations as required under Section 5.02(a) of this Indenture
shall, for the first 180 days after the occurrence of such an Event of
Default (which will be the 60th day after written notice is provided to the
Company in accordance with Section 7.02(a)), consist exclusively of the
right to receive Additional Interest on the Securities at an annual rate equal
to (x) 0.25% of the Outstanding principal amount of the Securities for the
first 90 days an Event of Default is continuing in such 180-day period, and (y)
0.50% of the Outstanding principal amount of the Securities for the remaining 90
days an Event of Default is continuing in such 180-day period. Additional
Interest shall be payable in arrears on each Interest Payment Date following the
occurrence of such Event of Default in the same manner as regular interest on
the Securities.  On the 181st day after such Event of Default (if such
violation is not cured or waived prior to such 181st day), the Securities will
be subject to acceleration as provided in Section 7.02(a). The provisions
set forth in this Section 7.02(b) shall not affect the rights of the
Holders in the event of the occurrence of any other Event of Default.  In
the event the Company does not elect to pay Additional Interest upon an Event of
Default in accordance with the provisions of this paragraph, the Securities will
be subject to acceleration as provided in Section 7.02(a). For the
avoidance of doubt, in the event Additional Interest is also triggered pursuant
to Sections 5.02(d) and (e), the interest rate applicable to the Securities
under such sections shall apply to the Securities in this Section 7.02(b) and
shall constitute the exclusive rate of Additional Interest applicable to the
Securities in such circumstances.

     

    The
Company may elect to pay Additional Interest as the sole remedy under this
Section 7.02(b) by giving written notice to the Holders, the Trustee
and Paying Agent of such election on or before the close of business on the 5th
Business Day after the date on which such Event of Default otherwise would
occur. If the Company fails to timely give such notice or pay Additional
Interest, the Securities will be immediately subject to acceleration as provided
in Section 7.02(a).

     

    Whenever
in this Indenture there is mentioned, in any context, the payment of interest
on, or in respect of, any Security, such mention shall be deemed to include
mention of the payment of “Additional Interest” provided for in this
Section 7.02(b) and Sections 5.02(d) and (e) to the extent that, in
such context, Additional Interest is, was or would be payable in respect thereof
pursuant to the provisions of such sections, and express mention of the payment
of Additional Interest (if applicable) in any provision shall not be construed
as excluding Additional Interest in those provisions where such express mention
is not made.

     

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

     

    The
Company covenants that if (a) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or (b) default is made in the payment of the
principal of any Security at the Stated Maturity thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and interest, with interest upon the overdue principal and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.

     

    If the
Company fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, wherever
situated.


    
      
         


      

      
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    If an
Event of Default occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders under
this Indenture by such appropriate private or judicial proceedings as the
Trustee shall deem most effectual to protect and enforce such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy, subject however to Section 7.12. No recovery of any such
judgment upon any property of the Company shall affect or impair any rights,
powers or remedies of the Trustee or the Holders.

     

    Section 7.04.                            
Trustee
May File Proofs of Claim.

     

    In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or the property of the Company, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise, (a) to file and prove a claim for the whole
amount of principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and (b) to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay 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 8.07.

     

    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.

     

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

     

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

     

    Section 7.06.                            
Application of
Money Collected.

     

    Any money
collected by the Trustee pursuant to this Article 7 or otherwise on behalf
of the Holders or the Trustee pursuant to this Article 7 or through any
proceeding or any arrangement or restructuring in anticipation or in lieu of any
proceeding contemplated by this Article 7 and any money or other property
distributable in respect of the Company’s obligations under this Indenture after
an Event of Default shall be applied, subject to applicable law, in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:

     

    
      
        	
              	
                FIRST:

              	
                To
      the payment of all amounts due the Trustee (or any predecessor trustee)
      under Section 8.07 (including amounts in respect of reasonable
      compensation, expenses and disbursements of counsel and
      agents);

              


      

    

    
       


        
          
             


          

          
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                SECOND:

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

              


      

    

    
       


    

    
      
        	
              	
                THIRD:

              	
                The
      balance, if any, to the Person or Persons entitled thereto, including the
      Company, provided that all sums due and owing to the Holders and the
      Trustee have been paid in full as required by this
    Indenture.

              


      

    

    
       


    

    Section 7.07.                            
Limitation on
Suits.

     

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

     

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

     

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

     

    (c)           such
Holder or Holders have offered to the Trustee indemnity reasonably satisfactory
to it against any loss, liability or expense to be incurred in compliance with
such request;

     

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

     

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

     

    it being
understood and intended that no one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
or any Security to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture or any Security, except in the
manner provided in this Indenture and for the equal and ratable benefit of all
the Holders (it being understood that the Trustee does not have an affirmative
duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders).

     

    Section 7.08.                            
Unconditional
Right of Holders to Receive Payment and to Convert.

     

    Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of the principal amount, interest, Fundamental Change Repurchase
Price, if any, or Additional Interest, if any, in respect of the Securities held
by such Holder, on or after the respective due dates expressed in the Securities
and this Indenture (whether upon repurchase or otherwise), and to convert such
Security in accordance with Article 4, and to bring suit for the
enforcement of any such payment on or after such respective due dates or for the
right to convert in accordance with Article 4, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.

     

    Section 7.09.                            
Restoration of
Rights and Remedies.

     

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


    
      
         


      

      
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    Section 7.10.                            
Rights and
Remedies Cumulative.

     

    No right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.

     

    Section 7.11.                            
Delay or
Omission Not Waiver.

     

    No delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 7 or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may
be.

     

    Section 7.12.                            
Control by
Holders.

     

    The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for exercising any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, provided
that:

    


    (a)           such
direction shall not be in conflict with any rule of law or with this
Indenture, expose the Trustee to personal liability, or be unduly prejudicial to
Holders not joining therein; and

     

    (b)           subject
to the provisions of Section 315 of the TIA, the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.

     

    Section 7.13.                            
Waiver of Past
Defaults.

     

    Subject
to Section 7.08, the Holders of a majority in aggregate principal amount of
the Securities then Outstanding by notice to the Trustee may waive an existing
or past Default or Event of Default and its consequences and rescind any
acceleration with respect to the Securities and its consequences, except a
Default or Event of Default and any related acceleration with respect to the
payment of the principal of or any accrued but unpaid interest on any Security,
the failure to repurchase Securities in accordance with the provisions of
Article 3 or the failure by the Company to deliver, upon conversion of
Securities, cash, shares of Common Stock or a combination thereof, as
applicable, or any Default or Event of Default any related acceleration in
respect of any provision of this Indenture or the Securities which, under
Section 10.02, cannot be modified or amended without the consent of the
Holder of each Security affected.  When a Default or Event of Default is
waived, it is cured and ceases to exist.

     

    Section 7.14.                            
Undertaking for
Costs.

     

    All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant, but
the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on, any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
purchase pursuant to Article 3 hereof, on the Fundamental Change Repurchase
Date) or for amounts owing upon conversion.


    
      
         


      

      
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    Section 7.15.                            
Remedies
Subject to Applicable Law.

     

    All
rights, remedies and powers provided by this Article 7 may be exercised
only to the extent that the exercise thereof does not violate any applicable
provision of law in the premises, and all the provisions of this Indenture are
intended to be subject to all applicable mandatory provisions of law which may
be controlling in the premises and to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable
law.

     

    ARTICLE
8

     

    TRUSTEE

     

    Section 8.01.                            
Duties of
Trustee.

     

    (a)           In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.

     

    (b)           Except
during the continuance of an Event of Default:

     

    (1)           the
Trustee undertakes to perform those duties and only those duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and

     

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

     

    (c)           The
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:

     

    (1)           this
clause (c) does not limit the effect of clauses (b) or (d) of
this Section 8.01;

     

    (2)           the
Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and

     

    (3)           the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction of the Holders of a majority in
principal amount of Outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Indenture.

     

    (d)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.


    
      
         


      

      
        -52-

        
          

        

      

      
         


      

    


    (e)           Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to clauses (a), (b), (c), (d) and
(f) of this Section 8.01.

     

    (f)           The
Trustee shall not be liable for interest on any money or assets received by it
except as the Trustee may agree in writing with the Company. Assets held in
trust by the Trustee need not be segregated from other assets except to the
extent required by law.

     

    Section 8.02.                            
Notice of
Default.

     

    Within 90
days after the occurrence of any Default, the Trustee shall transmit by mail to
all Holders and any other Persons entitled to receive reports pursuant to
Section 313(c) of the TIA, as their names and addresses appear in the
Security Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of or interest on any Security
or the failure to deliver amounts owing upon conversion of a Security in
accordance with the provisions of Article 4, the Trustee shall be protected
in withholding such notice if and so long as a trust committee of Trust Officers
of the Trustee in good faith determines that the withholding of such notice is
in the interest of the Holders.

     

    Section 8.03.                            
Certain Rights
of Trustee.

     

    Subject
to the provisions of Section 8.01 hereof:

     

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

     

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

     

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

     

    (d)           the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense which might be incurred by it in compliance with such
request or direction;

     

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

    


    (f)           the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may deem fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or
investigation;


    
      
         


      

      
        -53-

        
          

        

      

      
         


      

    


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

     

    (h)           the
Trustee shall not be charged with knowledge of or be deemed to have notice of
any Default or Event of Default with respect to the Securities unless written
notice of such Default or Event of Default shall have been received by the
Trustee at its Corporate Trust Office from the Company or any Holder of
Securities, and such notice references this Indenture and the
Securities;

     

    (i)           the
permissive rights of the Trustee enumerated herein shall not be construed as
duties of the Trustee;

     

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

     

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

     

    (l)           the
Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such time
to take specified actions pursuant to this Indenture, which Officer’s
Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded;

     

    (m)           the
Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God, earthquakes, fire, flood, terrorism,
wars and other military disturbances, sabotage, epidemics, riots, interruptions,
loss or malfunctions of utilities, computer (hardware or software) or
communication services, accidents, labor disputes, acts of civil or military
authority and governmental action;

    


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

    


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

    


    Section 8.04.                            
Trustee Not
Responsible for Recitals, Dispositions of Securities or Application of Proceeds
Thereof.

     

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


    
      
         


      

      
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    Section 8.05.                            
Trustee and
Agents May Hold Securities; Collections; etc.

     

    The
Trustee, any Paying Agent, Registrar, Conversion Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Registrar, Conversion Agent or such other agent and,
subject to TIA Sections 310 and 311, may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee, Paying Agent, Registrar,
Conversion Agent or such other agent.

     

    Section 8.06.                            
Money Held in
Trust.

     

    All
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by mandatory
provisions of law.

     

    Section 8.07.                            
Compensation
and Indemnification of Trustee and Its Prior Claim.

     

    The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as the parties shall agree in
writing from time to time for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or willful misconduct. The Company also covenants and agrees
to indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any and all claims, losses, liabilities, taxes, assessments or
other governmental charges (other than taxes applicable to the Trustee’s
compensation hereunder) or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including enforcement of this Section 8.07 and also including
any liability which the Trustee may incur as a result of failure to withhold,
pay or report any tax, assessment or other governmental charge, and the costs
and expenses of defending itself against or investigating any claim (whether
asserted by the Company, a Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 8.07 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for reasonable expenses,
disbursements and advances shall constitute an additional obligation hereunder
and, together with the lien referred in the next sentence, shall survive the
satisfaction and discharge, and termination for any reason, of this Indenture
and the resignation or removal of the Trustee and each predecessor Trustee. To
secure the Company’s obligations in this Section 8.07, the Trustee shall
have a lien prior to the Securities on all money and property held or collected
by the Trustee, other than money or property held in trust for the payment of
principal of or interest on particular Securities.

     

    “Trustee”
for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee
hereunder.

     

    Without
prejudice to its other rights hereunder, when the Trustee incurs expenses or
renders services in connection with an Event of Default specified in
Section 7.01(8) or Section 7.01(9) with respect to the
Company, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.


    
      
         


      

      
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    Section 8.08.                            
Conflicting
Interests.

     

    The
Trustee shall comply with the provisions of Section 310(b) of the
TIA.  For purposes of Section 310(b)(1) of the TIA and to the
extent permitted thereby, the Trustee, in its capacity as trustee in respect of
the Securities, shall not be deemed to have a conflicting interest arising from
its capacity as trustee in respect of any indenture or indentures, if any,
pursuant to which other securities or certificates of interest or participation
in other securities of the Company are outstanding if the requirements for such
exclusion set forth in said Section 310(b)(1) are met.  Nothing
herein shall preclude the Trustee from making the application referred to in the
penultimate paragraph of Section 310(b) of the TIA.

     

    Section 8.09.                            
Trustee
Eligibility.

     

    There
shall at all times be a Trustee hereunder which shall be eligible to act as
trustee under TIA Section 310(a) and which shall have a combined
capital and surplus of at least $50,000,000, to the extent there is an
institution eligible and willing to serve. If the Trustee does not have a
Corporate Trust Office in The City of New York, the Trustee may appoint an agent
in The City of New York reasonably acceptable to the Company to conduct any
activities which the Trustee may be required under this Indenture to conduct in
The City of New York. If such Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section 8.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section 8.09, the Trustee shall resign immediately in the manner and with
the effect hereinafter specified in this Article 8.

    


    Section 8.10.                            
Resignation and
Removal; Appointment of Successor Trustee.

     

    (a)           No
resignation or removal of the Trustee and no appointment of a successor trustee
pursuant to this Article 8 shall become effective until the acceptance of
appointment by the successor trustee under Section 8.11.

     

    (b)           The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign
by giving written notice thereof to the Company.  Such resignation shall
take effect upon the appointment of a successor Trustee and the acceptance of
such appointment by such successor Trustee.  If the instrument of
acceptance by a successor Trustee required by Section 8.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation or of any removal of the Trustee as hereinafter provided, the
resigning or removed Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities.

     

    (c)           The
Trustee may be removed at any time for any cause or for no cause by an Act of
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the
Company.

     

    (d)           If
at any time:

     

    (1)           the
Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months,

     

    (2)           the
Trustee shall cease to be eligible under Section 8.09 and shall fail to
resign after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or

     

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


    
      
         


      

      
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    then, in
any case, (i) the Company may remove the Trustee, or (ii) subject to
Section 7.14, the Holder of any Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.

     

    (e)           If
the Trustee shall be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company shall promptly
appoint a successor trustee and shall comply with the applicable requirements of
Section 8.11. If, within 60 days after such removal or incapability, or the
occurrence of such vacancy, the Company has not appointed a successor Trustee, a
successor trustee shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee. Such successor trustee so appointed shall forthwith upon its
acceptance of such appointment become the successor trustee. If no successor
trustee shall have been so appointed by the Company or the Holders of the
Securities and accepted appointment in the manner hereinafter provided, the
Trustee or the Holder of any Security who has been a bona fide Holder for at
least six months may, subject to Section 7.14, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee.

     

    (f)           The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor trustee by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities as
their names and addresses appear in the register of the Registrar. Each notice
shall include the name of the successor trustee and the address of its Corporate
Trust Office or agent hereunder.

     

    Section 8.11.                            
Acceptance of
Appointment by Successor.

     

    (a)           Every
successor trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee,
upon payment of its charges pursuant to Section 8.07 then unpaid, such
retiring Trustee shall pay over to the successor trustee all moneys at the time
held by it hereunder, subject nevertheless to its lien provided for in
Section 8.07, and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, trusts and duties.  Upon
request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers.

     

    (b)           No
successor trustee with respect to the Securities shall accept appointment as
provided in this Section 8.11 unless at the time of such acceptance such
successor trustee shall be eligible to act as trustee under the provisions of
TIA Section 310(a) and this Article 8 and shall have a combined
capital and surplus of at least $50,000,000 and have a Corporate Trust Office or
an agent selected in accordance with Section 8.09.

     

    (c)           Upon
acceptance of appointment by any successor trustee as provided in this
Section 8.11, the Company shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the appointment, then the notice called for
by the preceding sentence may be combined with the notice called for by
Section 8.10. If the Company fails to give such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be given at the expense of the Company.


    
      
         


      

      
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    Section 8.12.                            
Merger,
Conversion, Consolidation or Succession to Business.

     

    Any
Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee
(including the trust created by this Indenture) shall be the successor of the
Trustee hereunder, provided that such Person
shall be eligible under TIA Section 310(a) and this Article 8 and
shall have a combined capital and surplus of at least $50,000,000 and have a
Corporate Trust Office or an agent selected in accordance with
Section 8.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.

     

    In case
at the time such successor to the Trustee shall succeed to the trusts created by
this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.

     

    Section 8.13.                            
Preferential
Collection of Claims Against Company.

     

    If and
when the Trustee shall be or become a creditor of the Company, the Trustee shall
be subject to the provisions of the TIA regarding the collection of claims
against the Company. A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated therein.

     

    Section 8.14.                            
Reports By
Trustee.

     

    (a)           Within
60 days after June 15 of each year commencing with the first June 15
after the issuance of Securities, the Trustee, if so required under the TIA,
shall transmit by mail to all Holders, in the manner and to the extent provided
in TIA Section 313(c), a brief report dated as of such June 15 in
accordance with and with respect to the matters required by TIA
Section 313(a). The Trustee shall also transmit by mail to all Holders, in
the manner and to the extent provided in TIA Section 313(c), a brief report
in accordance with and with respect to the matters required by TIA
Section 313(b)(2).

     

    (b)           A
copy of each report transmitted to Holders pursuant to this Section 8.14
shall, at the time of such transmission, be mailed to the Company and filed with
each national securities exchange, if any, upon which the Securities are listed
and also with the SEC. The Company will promptly notify the Trustee promptly if
the Securities are listed on any national securities exchange and of any
delisting thereof.  The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the deposit
pursuant to Section 9.01 or any amounts received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of outstanding Securities.


    
      
         


      

      
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    ARTICLE
9

     

    SATISFACTION
AND DISCHARGE OF INDENTURE

     

    Section 9.01.                            
Satisfaction
and Discharge of the Indenture.

     

    When
(i) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities that have been
destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled, or (ii) all the Securities not theretofore canceled or delivered
to the Trustee for cancellation shall have become due and payable (whether on
the Maturity Date, on any Fundamental Change Repurchase Date or following the
Conversion Date or the last Trading Day of the applicable Cash Settlement
Averaging Period, as the case may be, upon conversion or otherwise) and the
Company shall deposit with the Trustee, in trust, or deliver to the Holders, as
applicable, cash funds and shares of Common Stock, if and as applicable,
sufficient to pay or deliver all amounts due on all of such Securities (other
than any Securities that shall have been mutilated, destroyed, lost or stolen
and in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) not theretofore canceled or delivered to the
Trustee for cancellation, including principal and interest due, accompanied,
except in the event the Securities are due and payable solely in cash on the
Maturity Date of the Securities or upon an earlier Fundamental Change Repurchase
Date, by a verification report as to the sufficiency of the deposited amount
from an independent certified accountant or other financial professional
reasonably satisfactory to the Trustee (which may include the Initial
Purchaser), and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (A) rights hereunder of Holders of the
Securities to receive all amounts owing upon the Securities and the other
rights, duties and obligations of Holders of the Securities, as beneficiaries
hereof with respect to the amounts, if any, so deposited with the Trustee and
(B) the rights, obligations and immunities of the Trustee hereunder), and
the Trustee, on written demand of the Company accompanied by an Officer’s
Certificate and an Opinion of Counsel as required by Section 11.04 hereof
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture.

     

    Section 9.02.                            
Deposited
Monies to Be Held in Trust by Trustee.

     

    Subject
to Section 9.04, all monies deposited with the Trustee pursuant to
Section 9.01 shall be held in trust for the sole benefit of the Holders of
the Securities, and such monies shall be applied by the Trustee to the payment,
either directly or through any Paying Agent (including the Company if acting as
its own Paying Agent), to the Holders of the particular Securities for the
payment or redemption of which such monies have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest, if
any.

     

    Section 9.03.                            
Paying Agent to
Repay Monies Held.

     

    Upon the
satisfaction and discharge of this Indenture, all monies then held by any Paying
Agent of the Securities (other than the Trustee) shall, upon written request of
the Company, be repaid to it or paid to the Trustee, and thereupon such Paying
Agent shall be released from all further liability with respect to such
monies.

     

    Section 9.04.                            
Return of
Unclaimed Monies.

     

    Subject
to the requirements of applicable law, any monies deposited with or paid to the
Trustee for payment of the principal of or interest, if any, on the Securities
and not applied but remaining unclaimed by the Holders of the Securities for two
years after the date upon which the principal of or interest, if any, on such
Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on demand and all liability of the Trustee
shall thereupon cease with respect to such monies; and the Holder of any of the
Securities shall thereafter look only to the Company for any payment that such
Holder of the Securities may be entitled to collect unless an applicable
abandoned property law designates another Person.

     

    Section 9.05.                            
Reinstatement.

     

    If the
Trustee or the Paying Agent is unable to apply any money in accordance with
Section 9.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 9.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money in accordance with Section 9.02; provided, however, that if the Company
makes any payment of interest on or principal of any Security following the
reinstatement of its obligations, 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.


    
      
         


      

      
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    ARTICLE
10

    


    AMENDMENTS;
SUPPLEMENTS AND WAIVERS

    


    Section 10.01.                      
Without Consent
of Holders.

    


     The Company and the
Trustee, may from time to time and at any time, and without the consent of any
Holder, enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:

    


    (1)           to
cure any ambiguity, omission, defect or inconsistency in this Indenture or in
the Securities in a manner that does not materially adversely affect the rights
of any Holder;

    


    (2)           to
conform the terms of the Indenture or the Securities to the description thereof
in the Offering Memorandum;

    


    (3)           to
provide for the assumption by a successor corporation of the obligations of the
Company under this Indenture pursuant to Article 6 of this
Indenture;

    


    (4)           to
add guarantees with respect to the Securities;

    


    (5)           to
secure the Securities;

    


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

    


    (7)           to
make any change that does not materially adversely affect the rights of any
Holder;

    


    (8)           to
appoint a successor Trustee with respect to the Securities; or

    


    (9)           to
comply with any requirements of the Trust Indenture Act.

    


    Section 10.02.                      
With Consent of
Holders.

    


    (a)           The
Company and the Trustee may amend or supplement this Indenture and the
Securities with the consent of the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Securities). However, without the written consent of each Holder
affected, an amendment or supplement may not:

    


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

    


    (2)           reduce
the principal of, or change the Maturity Date of, any Security;

    


    (3)           make
any change that impairs or adversely affects the conversion rights of any
Securities;

    


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


    
      
         


      

      
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    (5)           make
any Security payable in a currency other than that stated in the Security or
change the place of payment of any Security;

    


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

    


    (7)           make
any change in this Article 10 relating to provisions that cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected or in the waiver provisions in Section 7.13 or
Section 10.02(b); or

    


    (8)           reduce
the percentage in aggregate principal amount of Securities Outstanding necessary
to modify or amend this Indenture or to waive any past Default or Event of
Default.

    


    (b)           Without
limiting the provisions of Section 10.02(a) hereof, the Holders of a
majority in aggregate principal amount of the Securities then Outstanding may,
on behalf of all the Holders of all Securities, consent to the waiver of
compliance (including, without limitation and for the avoidance of doubt, any
past Default or Event of Default under this Indenture and the Securities and its
consequences) by the Company with any provisions of this Indenture and the
Securities (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, the Securities) except in
each instance compliance by the Company with its obligations to pay when due the
principal amount, accrued and unpaid interest, or the Fundamental Change
Repurchase Price, if any and as applicable, or to deliver amounts due upon
conversion, with respect to the Securities, or in respect of any provision which
under this Indenture cannot be modified or amended without the consent of the
Holder of each outstanding Security affected (and, in each case, any related
Default or Event of Default relating thereto).

    


    (c)           Upon
delivery to the Trustee of a Company Request, and upon the filing with the
Trustee of evidence of the consent of Holders as aforesaid, if required, the
Trustee shall, subject to Section 10.03, join with the Company in the
execution of such supplemental indenture.

    


    (d)           It
shall not be necessary for any Act of Holders under this Section 10.02 to
approve the particular form of any proposed supplemental indenture but it shall
be sufficient if such Act shall approve the substance thereof.

    


    Section 10.03.                      
Execution of
Supplemental Indentures and Agreements.

    


    In
executing, or accepting the additional trusts created by, any supplemental
indenture, agreement, instrument or waiver permitted by this Article 10 or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall receive, in addition to the documents required by Section 11.04, and
(subject to Section 8.01 and Section 8.03(a) hereof) shall be
fully protected in conclusively relying upon, an Opinion of Counsel and an
Officer’s Certificate each stating that the execution of such supplemental
indenture, agreement or instrument, or acceptance of any such additional trust,
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement or
instrument, or accept any such additional trusts, which affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.

    


    Section 10.04.                      
Effect of
Supplemental Indentures.

    


    Upon the
execution of any supplemental indenture under this Article 10, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.


    
      
         


      

      
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    Section 10.05.                      
Conformity with
Trust Indenture Act.

    


    Every
supplemental indenture executed pursuant to this Article 10 shall conform
to the requirements of the TIA as then in effect.

    


    Section 10.06.                      
Reference in
Securities to Supplemental Indentures.

    


    Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 10 may, and shall if required by the Trustee, bear
a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.

    


    Section 10.07.                      
Notice of
Supplemental Indentures.

    


    Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 10.02, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in Section 11.02, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.

    


    ARTICLE
11

    


    MISCELLANEOUS

    


    Section 11.01.                      
Conflict with
Trust Indenture Act.

    


    If any
provision hereof limits, qualifies or conflicts with any provision of the TIA or
another provision which is required or deemed to be included in this Indenture
by any of the provisions of the TIA, the provision or requirement of the TIA
shall control. If any provision of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.

    


    Section 11.02.                      
Notices.

    


    Any
demand, authorization notice, request, consent or communication shall be given
in writing and mailed by first-class mail, postage prepaid, or delivered by
recognized overnight courier addressed as follows or transmitted by facsimile
transmission (confirmed by delivery in person or mail by first-class mail,
postage prepaid, or by guaranteed overnight courier) to the following facsimile
numbers:

    


    If to the
Company, to:

    


    
      JAKKS
Pacific, Inc.

    

    
      22619
Pacific Coast Highway

    

    
      Malibu,
California  90265

    

    
      Attention:  Jack
Friedman

    

    Facsimile
No.:  (310) 317-8527

    


    or at any
other address previously furnished in writing to the Trustee by the
Company


    
      
         


      

      
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    if to the
Trustee, to:

    


    Wells
Fargo Bank, National Association

    E2818-176

    707
Wilshire Blvd, 17th
Floor

    Los
Angeles, CA 90017

    Attention:
Corporate Trust Department

    Facsimile
No.: (213) 614-3355

    


    or at any
other address previously furnished in writing to the Holders or the Company by
the Trustee.

    


    Such
notices or communications shall be effective only when actually
received.

    


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

    


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

    


    In case
by reason of the suspension of regular mail service or by reason of any other
cause, it shall be impracticable to mail notice of any event as required by any
provision of this Indenture, then any method of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice.

    


    If the
Company mails any notice to a Holder of a Security, it shall mail a copy to the
Trustee and each Registrar, Paying Agent and Conversion Agent.

    


    Section 11.03.                      
Disclosure of
Names and Addresses of Holders.

    


    Holders
may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Securities, and the Trustee
shall comply with TIA Section 312(b). The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA 312(c). Further,
every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee or any agent of
either of them shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312.

    


    Section 11.04.                      
Compliance
Certificates and Opinions.

    


    (a)           Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture and as may be requested by the Trustee,
the Company shall furnish to the Trustee an Officer’s Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such certificates or opinions is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be
furnished.


    
      
         


      

      
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    (b)           Every
certificate or Opinion of Counsel with respect to compliance with a condition or
covenant provided for in this Indenture shall include:

    


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

    


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

    


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

    


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

    


    Section 11.05.                      
Acts of
Holders.

    


    (a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 11.05.

    


    (b)           The
ownership of Securities shall be proved by the register maintained by the
Primary Registrar.

    


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

    


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

    


    (e)           If
the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding TIA Section 316(c), any
such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than the
date such first solicitation is completed.


    
      
         


      

      
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    (f)           If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for purposes of determining whether Holders
of the requisite proportion of Securities then Outstanding have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for this purpose the Securities then
Outstanding shall be computed as of such record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other Act
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six
months after such record date.

    


    (g)           For
purposes of this Indenture, any action by the Holders which may be taken in
writing may be taken by electronic means or as otherwise reasonably acceptable
to the Trustee.

    


    Section 11.06.                      
Benefits of
Indenture.

    


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

    


    Section 11.07.                      
Legal
Holidays.

    


    In any
case where any Interest Payment Date, Fundamental Change Repurchase Date or
Maturity Date of any Security shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of interest
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, Fundamental Change Repurchase Date or Maturity Date, and
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date, Fundamental Change Repurchase Date or Maturity
Date, as the case may be, to the next succeeding Business Day.

    


    Section 11.08.                      
Governing Law;
Waiver of Jury Trial.

    


    THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE APPLICATION
OF PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED.

    


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

     

    Section 11.09.                      
No Adverse
Interpretation of Other Agreements.

    


    This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.

    


    Section 11.10.                      
No Personal
Liability of Directors, Officers, Employees and
Stockholders.

    


    No
director, officer, employee, stockholder, incorporator or agent of the Company,
as such, will 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 of the Securities by
accepting a Security waives and releases all such liability.


    
      
         


      

      
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    Section 11.11.                      
Successors and
Assigns.

    


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

    


    Section 11.12.                      
Multiple
Counterparts.

    


    The
parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.  The exchange of copies of this Indenture and of
signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be
used in lieu of the original Indenture for all purposes.  Signatures
of the parties hereto transmitted by facsimile or PDF shall be deemed to be
their original signatures for all purposes.

    


    Section 11.13.                      
Separability
Clause.

    


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

    


    Section 11.14.                      
Schedules and
Exhibits.

    


    All
schedules and exhibits attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.

    


    Section 11.15.                      
Effect of
Headings and Table of Contents.

    


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

    


    Section
11.16  Force
Majeure.

     

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

    


    Section
11.17 U.S.A. Patriot
Act.

    


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

    


    [SIGNATURE
PAGES FOLLOW]


    
      
         


      

      
        -66-

        
          

        

      

      
         


      

    


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

     

    
      
        	 
      	
                JAKKS
      PACIFIC, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Joel Bennett

              
	 
      	 
      	
                Name:

              	
                Joel
      Bennett

              
	 
      	 
      	
                Title:

              	
                Executive
      Vice President and Chief Financial Officer

              
	 
      	 
      	 
      
	 
      	
                WELLS
      FARGO BANK, National Association, as Trustee

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Maddy Hall

              
	 
      	 
      	
                Name:

              	
                Maddy
      Hall

              
	 
      	 
      	
                Title:

              	
                Vice
      President

              


      

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    EXHIBIT
A

    


    [FORM OF
FACE OF SECURITY]

    


    [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. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY 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 LIMITED
CIRCUMSTANCES.

    


    UNLESS
THIS SECURITY 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 SECURITY 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 HEREON 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.](1)

    


    THIS
SECURITY AND THE SHARES OF COMMON STOCK (‘‘COMMON STOCK’’) OF JAKKS PACIFIC,
INC. (THE ‘‘COMPANY’’) ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES
ACT’’), OR ANY OTHER SECURITIES LAWS. NONE OF THIS SECURITY, THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.

    


    THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION
TERMINATION DATE’’) THAT IS SIX MONTHS AFTER THE ORIGINAL ISSUE DATE HEREOF OR
SUCH OTHER PERIOD AS PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER,’’ AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM.


    
      
         


      

      
        A-1

        
          

        

      

      
         


      

    


    JAKKS
PACIFIC, INC.

    


    4.50%
Convertible Senior Note due 2014

     

    
      	
              No. R-1

            	 
      	
              Initially
      $100,000,000

            
	
              CUSIP
      No. 47012EAC0

            	 
      	 
      


    

    


    JAKKS
Pacific, Inc., a Delaware corporation (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay CEDE & CO., or registered
assigns,
                      
Dollars
($                    )
[(or such lesser principal amount as shall be specified in the “Schedule of
Exchanges of Securities” attached hereto)](1) on November 1, 2014
unless earlier converted or repurchased, and to pay interest thereon as set
forth in the manner, at the rates and to the Persons set forth in the
Indenture.

    


    This
Security shall bear interest at a rate of 4.50% of the outstanding aggregate
principal amount per annum from November 10, 2009 or from the most recent
date to which interest had been paid or provided to, but excluding, the next
scheduled Interest Payment Date, until the principal hereof shall be
repaid.  Interest on this Security will be computed on the basis of a
360-day year composed of twelve 30-day months.  Interest is payable
semi-annually in arrears on each May 1 and November 1, commencing on
May 1, 2010, to the Person in whose name this Security (or one or more
predecessor securities) is registered at the close of business on the Regular
Record Date for such interest. Additional Interest will be payable at the option
of the Company on the terms set forth in the within-mentioned
Indenture.

    


     

      
        

      

    

    (1) Include
this legend in the case of a Global Security.


    
      
         


      

      
        A-2

        
          

        

      

      
         


      

    

    


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

    


    In the
case of any conflict between this Security and the Indenture, the provisions of
the Indenture shall control.  This Security, for all purposes, shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of laws principles thereof.

    


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

    


    [Remainder
of page intentionally left blank]


    
      
         


      

      
        A-3

        
          

        

      

      
         


      

    

    


    IN
WITNESS WHEREOF, JAKKS PACIFIC, INC. has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.

     

    
      	 
      	 
      	 
      	
              JAKKS
      PACIFIC, INC.

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	 
      
	 
      	 
      	 
      	 
      	
              Name:

            
	 
      	 
      	 
      	 
      	
              Title:

            
	 
      	 
      	 
      	 
      	 
      
	
              Attest:

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
              By:

            	 
      	 
      	 
      	 
      
	 
      	
              Name:

            	 
      	 
      	 
      
	 
      	
              Title:

            	 
      	 
      	 
      


    


    
      
         


      

      
        A-4

        
          

        

      

      
         


      

    

    


    CERTIFICATE
OF AUTHENTICATION

    


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

    


    Dated:
November 10, 2009

     

    
      
        	 
      	
                WELLS
      FARGO BANK, National Association, as Trustee

              
	 
      	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Authorized
      Signatory

              


      

    


    
      
         


      

      
        A-5

        
          

        

      

      
         


      

    


     [FORM OF
REVERSE OF SECURITY]

    


    JAKKS
PACIFIC, INC.

    


    4.50%
Convertible Senior Note due 2014

    


    This
Security is one of a duly authorized issue of Securities of the Company (herein
called the “Securities”), issued under an Indenture dated as of
November 10, 2009 (herein called the “Indenture”), by and between the
Company and Wells Fargo Bank, National Association, herein called the “Trustee”,
and reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. Additional
Securities may be issued in an unlimited aggregate principal amount, subject to
certain conditions specified in the Indenture.

    


    This
Security is not subject to redemption at the option of the Company prior to
November 1, 2014.

    


    Upon the
occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or
any portion thereof (in principal amounts of $1,000 or integral multiples
thereof) on the Fundamental Change Repurchase Date at a price equal to the
Fundamental Change Repurchase Price.

    


    As
provided in and subject to the provisions of the Indenture, the Holder hereof
has the right, at its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close of business on
the second Scheduled Trading Day immediately preceding November 1, 2014, to
convert this Security or a portion thereof that is $1,000 or an integral
multiple thereof, into cash or shares of Common Stock or a combination thereof
at the option of the Company at the applicable Conversion Rate specified in the
Indenture, as adjusted from time to time as provided in the
Indenture.

    


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

    


    The
Trustee and each Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed for
two years after a right to such money has matured.  After payment to the
Company, Holders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person.

    


    When a
successor corporation assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the
Indenture, the predecessor corporation (except in certain circumstances
specified in the Indenture) shall be released from those
obligations.

    


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


    
      
         


      

      
        A-6

        
          

        

      

      
         


      

    


    As
provided in and subject to the provisions of the Indenture, in case an Event of
Default, as defined in the Indenture, shall have occurred and be continuing, the
principal of and interest on all Securities may be declared due and payable, by
either the Trustee or Holders of at least 25% in aggregate principal amount of
Securities then outstanding, and upon said declaration shall become due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture; provided that upon the
occurrence of an Event of Default specified in Section 7.01(8) or
(9) of the Indenture with respect to the Company, the principal amount of,
and interest on, all the Securities shall automatically become due and
payable.

    


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

    


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

    


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

    


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

    


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

    


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


    
      
         


      

      
        A-7

        
          

        

      

      
         


      

    

    


    ABBREVIATIONS

    


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

     

    
      	
              TEN
      COM - as tenants in common

            	 
      	
              UNIF
      GIFT MIN ACT

            	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              Custodian

            
	 
      	 
      	
              (Cust)

            	 
      
	 
      	 
      	 
      	 
      
	
              TEN
      ENT - as tenants by the entireties

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
              (Minor)

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

            	 
      	
              Uniform
      Gifts to Minors Act
                                         
      (State)

            


    

    


    Additional
abbreviations may also be used

    though
not in the above list.


    
      
         


      

      
        A-8

        
          

        

      

      
         


      

    

    


    SCHEDULE
A

    


    SCHEDULES
OF EXCHANGES OF SECURITIES(2)

    


    JAKKS
PACIFIC, INC.

    


    4.50%
Convertible Senior Notes due 2014

    


    The
initial principal amount of this Registered Global Security is
                              
($                  ). 
The following, exchanges, purchases or conversions of a part of this Registered
Global Security have been made:

     

    
      
        	
                Date of

                Exchange

              	 
      	
                Amount of decrease in

                principal amount of this

                Registered Global Security

              	 
      	
                Amount of increase in

                principal amount of this

                Registered Global Security

              	 
      	
                Principal amount of this

                Registered Global Security

                following such decrease or

                increase

              	 
      	
                Signature of

                authorized signatory

                of Trustee or

                Securities Custodian

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

    

     

      
        

      

    

    (2) Include
this Schedule in the case of a Global Security.


    
      
         


      

      
        A-9

        
          

        

      

      
         


      

    


    EXHIBIT
B

     [FORM OF
NOTICE OF CONVERSION]

    


    To: 
JAKKS Pacific, Inc.

    


    The
undersigned owner of this Security hereby irrevocably exercises the option to
convert this Security, or a portion hereof (which is $1,000 or an integral
multiple hereof) below designated, into shares of Common Stock or cash or a
combination thereof at the option of the Company in accordance with the terms of
the Indenture referred to in this Security, and directs that cash, if any,
payable and shares of Common Stock, if any, issuable and deliverable upon
conversion, together with any check in payment for fractional shares of Common
Stock, and any Securities representing any unconverted principal amount hereof,
be paid or issued and delivered, as the case may be, to the registered Holder
hereof unless a different name has been indicated below. Subject to certain
exceptions set forth in the Indenture, if this notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date, this notice is
accompanied by payment of an amount equal to the interest payable on such
Interest Payment Date of the principal of this Security to be converted. If any
shares of Common Stock are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
hereto. Any amount required to be paid by the undersigned on account of interest
accompanies this Security.

    


    Principal
amount to be converted (in an integral multiple of $1,000, if less than
all):

    


    $                                                

    
      	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
              Signature(s)

            
	 
      	 
      
	 
      	
              Signature(s) must
      be guaranteed by an institution which is a member of one of the following
      recognized signature Guarantee Programs:

            
	 
      	 
      
	 
      	
              (i) The
      Securities Transfer Agent Medallion Program (STAMP); (ii) The New
      York Stock Exchange Medallion Program (MNSP); (iii) The Stock
      Exchange Medallion Program (SEMP) or (iv) another guarantee program
      acceptable to the Trustee.

            
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
              Signature
      Guarantee

            


    

    Fill in
for registration of any shares of Common Stock and Securities if to be issued
otherwise than to the registered Holder.

    


    
      	 
      	 
      
	
              (Name)

            	 
      
	 
      	 
      
	
              (Address)

            	 
      
	 
      	 
      
	
              Please
      print Name and Address

            	 
      
	
              (including
      zip code number)

            	 
      
	
              Social
      Security or other Taxpayer

            	 
      
	
              Identifying
      Number
                              

            	 
      


    


    
      
         


      

      
        B-1

        
          

        

      

      
         


      

    

    


    EXHIBIT
C

    


    [FORM OF
FUNDAMENTAL CHANGE REPURCHASE NOTICE]

    


    To: JAKKS
Pacific, Inc.

    


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

    


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

     

    
      	
              Dated:

            	 
      
	 
      	 
      
	 
      	 
      
	 
      	
              Signature(s)

            
	 
      	 
      
	 
      	 
      
	 
      	
              Social
      Security or Other Taxpayer Identification Number

            
	 
      	 
      
	 
      	
              principal
      amount to be repaid (if less than all):
      $            ,000

            
	 
      	 
      
	 
      	
              NOTICE:
      The signature on the Fundamental Change Repurchase Notice must correspond
      with the name as written upon the face of the Security in every particular
      without alteration or enlargement or any change
  whatever.

            
	 
      	 
      	 
      


    


    
      
         


      

      
        C-1

        
          

        

      

      
         


      

    

    


    EXHIBIT
D

    


    [FORM OF
ASSIGNMENT AND TRANSFER]

    


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

     

    
      	
              Dated:

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              Signature(s)

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              Signature(s) must
      be guaranteed

            
	 
      	 
      	 
      	
              by
      an institution which is a member of one of the following recognized
      signature Guarantee Programs:

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              (i) The
      Securities Transfer Agent Medallion Program (STAMP); (ii) The New
      York Stock Exchange Medallion Program (MNSP); (iii) The Stock
      Exchange Medallion Program (SEMP) or (iv) another guarantee program
      acceptable to the Trustee.

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              Signature
      Guarantee

            


    


    
      
         


      

      
        D-1