exv4w2






Exhibit 4.2




 





NEWPARK RESOURCES, INC.,




as Issuer



AND




WELLS FARGO BANK, NATIONAL ASSOCIATION,




as Trustee



FIRST SUPPLEMENTAL INDENTURE




Dated as of October 4, 2010




to Indenture



Dated as of October 4, 2010



4.00% Convertible Senior Notes due 2017




 





 









 








 TABLE OF CONTENTS 




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 

	 	ARTICLE 1	 	 	 	 
	 

	 	Definitions	 	 	 	 
	Section 1.01.

	 	Scope of Supplemental Indenture
	 	 	2	 
	Section 1.02.

	 	Definitions
	 	 	2	 
	Section 1.03.

	 	References to Interest
	 	 	9	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 2	 	 	 	 
	 

	 	The Notes	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01.

	 	Designation and Amount
	 	 	9	 
	Section 2.02.

	 	Form of Notes
	 	 	9	 
	Section 2.03.

	 	Date and Denomination of Notes; Payment at Maturity; Payments of Interest; Defaulted Amounts
	 	 	11	 
	Section 2.04.

	 	Additional Notes
	 	 	13	 
	Section 2.05.

	 	Repurchases
	 	 	13	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 3	 	 	 	 
	 

	 	Satisfaction and Discharge	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01.

	 	Satisfaction and Discharge
	 	 	13	 
	Section 3.02.

	 	Application of Trust Money
	 	 	14	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 4	 	 	 	 
	 

	 	Particular Covenants of the Company	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01.

	 	Payment of Principal and Interest
	 	 	14	 
	Section 4.02.

	 	Maintenance of Office or Agency
	 	 	14	 
	Section 4.03.

	 	Appointments to Fill Vacancies in Trustee’s Office
	 	 	15	 
	Section 4.04.

	 	Repayment
	 	 	15	 
	Section 4.05.

	 	Existence
	 	 	15	 
	Section 4.06.

	 	Reporting Requirement
	 	 	16	 
	Section 4.07.

	 	Compliance Certificate; Statements as to Defaults
	 	 	16	 
	Section 4.08.

	 	Further Instruments and Acts
	 	 	16	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 5	 	 	 	 
	 

	 	Defaults and Remedies	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01.

	 	Events of Default
	 	 	16	 
	Section 5.02.

	 	Acceleration; Rescission and Annulment
	 	 	18	 
	Section 5.03.

	 	Additional Interest
	 	 	19	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 5.04.

	 	Limitation on Suits
	 	 	19	 
	Section 5.05.

	 	Control by Holders and Waiver of Defaults by Majority of Holders
	 	 	20	 
	Section 5.06.

	 	Notice of Defaults
	 	 	20	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 6	 	 	 	 
	 

	 	Concerning the Holders	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01.

	 	Revocation of Consents; Future Holders Bound
	 	 	20	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 7	 	 	 	 
	 

	 	Holders’ Meetings	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01.

	 	Purpose of Meetings
	 	 	21	 
	Section 7.02.

	 	Call of Meetings by Trustee
	 	 	21	 
	Section 7.03.

	 	Call of Meetings by Company or Holders
	 	 	21	 
	Section 7.04.

	 	Qualifications for Voting
	 	 	22	 
	Section 7.05.

	 	Regulations
	 	 	22	 
	Section 7.06.

	 	Voting
	 	 	22	 
	Section 7.07.

	 	No Delay of Rights by Meeting
	 	 	23	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 8	 	 	 	 
	 

	 	Amendments	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01.

	 	Without Consent of Holders
	 	 	23	 
	Section 8.02.

	 	With Consent of Holders
	 	 	23	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 9	 	 	 	 
	 

	 	Consolidation, Merger, Sale, Conveyance and Lease	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01.

	 	Company May Consolidate, Etc. on Certain Terms
	 	 	23	 
	Section 9.02.

	 	Successor Corporation to Be Substituted
	 	 	24	 
	Section 9.03.

	 	Opinion of Counsel to Be Given to Trustee
	 	 	25	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 10	 	 	 	 
	 

	 	Conversion of Notes	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01.

	 	Conversion Privilege
	 	 	25	 
	Section 10.02.

	 	Conversion Procedure; Settlement Upon Conversion
	 	 	25	 
	Section 10.03.

	 	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection
with Make-Whole Fundamental Changes
	 	 	27	 
	Section 10.04.

	 	Adjustment of Conversion Rate
	 	 	29	 
	Section 10.05.

	 	Adjustments of Prices
	 	 	37	 
	Section 10.06.

	 	Shares to Be Fully Paid
	 	 	37	 
	Section 10.07.

	 	Effect of Recapitalizations, Reclassifications and
Changes of the Common Stock
	 	 	38	 
	Section 10.08.

	 	Certain Covenants
	 	 	39	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 10.09.

	 	Responsibility of Trustee
	 	 	40	 
	Section 10.10.

	 	Notice to Holders Prior to Certain Actions
	 	 	40	 
	Section 10.11.

	 	Stockholder Rights Plans
	 	 	41	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 11	 	 	 	 
	 

	 	Repurchase of Notes at Option of Holders	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01.

	 	Repurchase at Option of Holders Upon a Fundamental Change
	 	 	41	 
	Section 11.02.

	 	Withdrawal of Fundamental Change Repurchase Notice
	 	 	44	 
	Section 11.03.

	 	Deposit of Fundamental Change Repurchase Price
	 	 	44	 
	Section 11.04.

	 	Covenant to Comply with Applicable Laws Upon Repurchase of Notes
	 	 	45	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 12	 	 	 	 
	 

	 	No Redemption	 	 	 	 
	 
	 	 	 	 	 	 
	Section 12.01.

	 	No Redemption
	 	 	45	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 13	 	 	 	 
	 

	 	Miscellaneous Provisions	 	 	 	 
	 
	 	 	 	 	 	 
	Section 13.01.

	 	Ratification of Indenture
	 	 	45	 
	Section 13.02.

	 	Governing Law
	 	 	45	 
	Section 13.03.

	 	Payment on Business Days
	 	 	46	 
	Section 13.04.

	 	No Security Interest Created
	 	 	46	 
	Section 13.05.

	 	Execution in Counterparts
	 	 	46	 
	Section 13.06.

	 	Severability
	 	 	46	 
	Section 13.07.

	 	Calculations
	 	 	46	 






EXHIBIT




	 	 	 	 	 

	Exhibit A

	 	Form of Note
	 	A-1
	Exhibit B

	 	Form of Notice of Conversion
	 	B-1
	Exhibit C

	 	Form of Fundamental Change Repurchase Notice
	 	C-1
	Exhibit D

	 	Form of Assignment and Transfer
	 	D-1







iii











 





     FIRST SUPPLEMENTAL INDENTURE dated as of October 4, 2010 (this “Supplemental Indenture”)
between NEWPARK RESOURCES, INC., a Delaware corporation, as issuer (the “Company”) and WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”) under the
indenture dated as of October 4, 2010 between the Company and the Trustee (as amended and
supplemented from time to time in accordance with the terms thereof, the “Base Indenture”).



W I T N E S S E T H:




     WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide,
among other things, for the future issuance of the Company’s unsecured Securities from time to time
in one or more series as might be determined by the Company under the Base Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as provided in the
Base Indenture;



     WHEREAS, Section 2.1 of the Base Indenture provides for the Company to establish
Securities of any series pursuant to an indenture supplemental thereto, and Section 9.1 of the Base
Indenture provides for the Company and the Trustee to enter into such supplemental indenture to
establish the form or terms of Securities of such series as permitted by Article 2 of the Base
Indenture without the consent of any Holders;



     WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to
execute and deliver this Supplemental Indenture;



     WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the
establishment of a new series of its Securities to be known as its “4.00% Convertible Senior Notes
due 2017” (the “Notes”), initially in an aggregate principal amount not to exceed $172,500,000, the
form and substance of the Notes and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this Supplemental Indenture; and



     WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid and
legally binding instrument in accordance with its terms and (ii) the Notes, when executed by the
Company and authenticated and delivered by the Trustee, the valid and legally binding obligations
of the Company, have been performed, and the execution and delivery of this Supplemental Indenture
has been duly authorized in all respects.



     NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:



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



 









 





ARTICLE 1

Definitions




     Section 1.01. Scope of Supplemental Indenture. The changes, modifications and supplements to
the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect
to, and shall only govern the terms of, the Notes and shall not apply to any other Securities that
may be issued under the Base Indenture unless a supplemental indenture with respect to such other
Securities specifically incorporates such changes, modifications and supplements. The provisions
of this Supplemental Indenture shall supersede any corresponding provisions in the Base Indenture.



     Section 1.02. Definitions. For all purposes of the Indenture, except as otherwise expressly
provided or unless the context otherwise requires:




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




     (ii) all words, terms and phrases defined in the Base Indenture (but not otherwise
defined herein) shall have the same meanings as in the Base Indenture;




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




     (iv) all accounting terms not otherwise defined herein shall have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of this instrument;




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




     (vi) the words “Article” and “Section” refer to an Article and Section, respectively,
of this Indenture;




     (vii) the word “includes” and its derivatives means “includes, but is not limited to” and
corresponding derivative definitions; and




     (viii) references to any officer of any partnership or limited liability company that does not
have officers but is managed or controlled, directly or indirectly, by an entity that does have
officers, shall be deemed to be references to the officers of such managing or controlling entity.



     “Additional Interest” means all amounts, if any, payable pursuant to Section 5.03.



2









 





     “Additional Shares” shall have the meaning specified in Section 10.03(a).



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



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



     “Clause A Distribution” shall have the meaning specified in Section 10.04(c).



     “Clause B Distribution” shall have the meaning specified in Section 10.04(c).



     “Clause C Distribution” shall have the meaning specified in Section 10.04(c).



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



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



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



     “Common Stock” means the common stock of the Company, par value $0.01 per share, at the date
of this Supplemental Indenture, subject to Section 10.07.



     “Company” shall have the meaning specified in the first paragraph of this Supplemental
Indenture, and subject to the provisions of Article 9, shall include its successors and assigns.



     “Continuing Director” means a director who either was a member of the Board of Directors on
October 4, 2010 or who becomes a member of the Board of Directors subsequent to that date and whose
election, appointment or nomination for election by the stockholders of the Company is duly
approved by a majority of the continuing directors on the Board of Directors at the time of such
approval, by a specific vote in which such individual is named as nominee for director. Solely for
purposes of this definition, the phrase “or any committee thereof duly authorized to act on behalf
of such board” of the definition of Board of Directors shall be disregarded.



     “Conversion Agent” shall have the meaning specified in Section 4.02.



     “Conversion Date” shall have the meaning specified in Section 10.02(c).



     “Conversion Obligation” shall have the meaning specified in Section 10.01.



3









 





     “Conversion Rate” shall have the meaning specified in Section 10.01.



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at
1445 Ross Avenue, 2nd Floor, Corporate Trust Department, Dallas, Texas 75202-2812, or such
other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).



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



     “Defaulted Amounts” means any amounts on any Note (including, without limitation, the
Fundamental Change Repurchase Price, principal and interest) that are payable but are not
punctually paid or duly provided for.



     “Depositary” means, initially DTC, until a successor shall have been appointed and become such
pursuant to the applicable provisions of the Indenture, and thereafter, “Depositary” shall mean or
include such successor.



     “Distributed Property” shall have the meaning specified in Section 10.04(c).



     “DTC” means The Depository Trust Company.



     “Effective Date” shall have the meaning specified in Section 10.03(c).



     “Event of Default” shall have the meaning specified in Section 5.01.



     “Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance or distribution in question, from the Company or, if applicable, from the seller of Common
Stock on such exchange or market (in the form of due bills or otherwise) as determined by such
exchange or market.



     “Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached
hereto as Exhibit D.



     “Form of Fundamental Change Repurchase Notice” shall mean the “Form of Fundamental Change
Repurchase Notice” attached hereto as Exhibit C.



     “Form of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached hereto
as Exhibit B.



     “Fundamental Change” shall be deemed to have occurred at the time after the Notes are
originally issued if any of the following occurs:



4









 






     (a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act,
other than the Company, its Subsidiaries and the employee benefit plans of the Company and
its Subsidiaries, has become the direct or indirect “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 (A) any recapitalization, reclassification or change of the Common
Stock (other than changes resulting from a subdivision or combination) as a result of which
the Common Stock would be converted into, or exchanged for, stock, other securities, other
property or assets or (B) any share exchange, consolidation or merger of the Company
pursuant to which the Common Stock will be converted into cash, securities or other property
or any sale, lease or other transfer in one transaction or a series of transactions of all
or substantially all of the consolidated assets of the Company and its Subsidiaries, taken
as a whole, to any Person other than one of the Company’s Subsidiaries; provided, however,
that neither (i) a transaction where the holders of all classes of the Company’s Common
Equity immediately prior to such transaction that is a share exchange, consolidation or
merger own, directly or indirectly, more than 50% of all classes of Common Equity of the
continuing or surviving corporation or transferee or the parent thereof immediately after
such event in substantially the same proportions as such ownership immediately prior to such
event, nor (ii) any merger, share exchange, transfer of assets or similar transaction solely
for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of the outstanding shares of Common Stock solely
into shares of common stock of the surviving entity that are traded or quoted on any of The
New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any
of their respective successors), and as a result of such transaction the Notes become
convertible into such shares, shall be a Fundamental Change pursuant to this clause (b);




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




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




     (e) the Common Stock (or other common stock underlying the Notes) ceases to be listed
or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The
NASDAQ Global Market (or any of their respective successors);


provided, however, that a transaction or transactions described in clause (b) above shall not
constitute a Fundamental Change, if 90% of the consideration received or to be received by the
common stockholders of the Company, excluding cash payments for fractional shares, in connection
with such transaction or transactions consists of shares of Publicly Traded Securities, and as a
result of this transaction or transactions the Notes become convertible into such Publicly Traded
Securities, excluding cash payments for fractional shares.





5









 








     “Fundamental Change Company Notice” shall have the meaning specified in Section 11.01(c).



     “Fundamental Change Repurchase Date” shall have the meaning specified in Section 11.01(a).



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



     “Fundamental Change Repurchase Price” shall have the meaning specified in Section 11.01(a).



     “Global Note” means any Note that is a Global Security.



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



     “Interest Payment Date” means each April 1 and October 1 of each year, beginning on April 1,
2011.



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



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



     “Maturity Date” means October 1, 2017.



     “Merger Event” shall have the meaning specified in Section 10.07(a).



6









 





     “Note” or “Notes” shall have the meaning specified in the fourth paragraph of the recitals of
this Supplemental Indenture.



     “Notice of Conversion” shall have the meaning specified in Section 10.02(b).



     “Officer” means, with respect to the Company, the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any of its Vice Presidents or any other duly
authorized officer of the Company or any person duly authorized by any of them.



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



     “Outstanding,” shall have the meaning set forth in Section 1.1 of the Base Indenture (but
without regard to clause (b) or clause (d) thereof), other than:




     (a) Notes converted pursuant to Article 10 and required to be cancelled pursuant to
Section 3.9 of the Base Indenture, where the words “or conversion” shall be inserted after
the words “or exchange” and before the words “or for credit” in the first line of such
Section; and




     (b) Notes repurchased by the Company pursuant to the penultimate sentence of Section
2.05.



     “Paying Agent”, notwithstanding the definition set forth in Section 1.1 of the Base Indenture,
shall have the meaning specified in Section 4.02.



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



     “Publicly Traded Securities” means shares of common stock that are listed or quoted on any of
The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of
their respective successors) or will be so listed or quoted when issued or exchanged in connection
with a Fundamental Change described in clause (b) of the definition thereof.



     “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, by statute, by contract or otherwise).



     “Reference Property” shall have the meaning specified in Section 10.07(a).



     “Regular Record Date,” with respect to any Interest Payment Date, shall mean the March 15 or
September 15 (whether or not such day is a Business Day) immediately preceding the applicable April
1 or October 1 Interest Payment Date, respectively.



7









 





     “Security Register” means the register of Securities kept by the Security Registrar in
accordance with Section 3.5 of the Base Indenture.



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



     “Significant Subsidiary” means a Subsidiary of the Company that meets the definition of
“significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act.



     “Spin-Off” shall have the meaning specified in Section 10.04(c).



     “Stock Price” shall have the meaning specified in Section 10.03(c).



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



     “Successor Company” shall have the meaning specified in Section 9.01(a).



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



     “Trigger Event” shall have the meaning specified in Section 10.04(c).



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Supplemental
Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of
this Supplemental Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder.



     “Underwriters” means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Wells Fargo Securities, LLC and Raymond James & Associates, Inc.



     “unit of Reference Property” shall have the meaning specified in Section 10.07(a).



     “Valuation Period” shall have the meaning specified in Section 10.04(c).



8









 





     Section 1.03. References to Interest. Unless the context otherwise requires, any reference
to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional
Interest if, in such context, Additional Interest is, was or would be payable pursuant to Section
5.03. Unless the context otherwise requires, any express mention of Additional Interest in any
provision hereof shall not be construed as excluding Additional Interest in those provisions hereof
where such express mention is not made.



ARTICLE 2

The Notes




     Section 2.01. Designation and Amount. The Notes shall be designated as the “4.00%
Convertible Senior Notes due 2017.” The aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture is initially limited to $172,500,000, subject to
Section 2.04 and except for Notes authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of other Notes pursuant to Section 10.02 and Section 11.03.



     Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes, Notice of Conversion, the Fundamental Change Repurchase Notice and the Form of
Assignment and Transfer shall be substantially in the forms set forth in Exhibits A, B, C and D,
respectively, hereto. The terms and provisions contained in the form of Notes attached as Exhibit
A hereto shall constitute, and are hereby expressly incorporated in and made a part of the
Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery
of the Indenture, expressly agree to such terms and provisions and to be bound thereby.



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



     Each Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with the
Indenture. Payment of principal (including the Fundamental Change Repurchase Price, if applicable)
of, and accrued and unpaid interest on, the Global Note shall be made to the Holder



9









 




of such Note on
the date of payment, unless a record date or other means of determining Holders eligible to receive
payment is provided for herein.




     Notwithstanding any other provisions of the Indenture (other than the provisions set forth in
this Section 2.02), a Global Note may not be transferred as a whole or in part except (i) by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global
Note in certificated form made upon request of a member of, or a participant in, the Depositary
(for itself or on behalf of a beneficial owner) by written notice given to the Trustee
by or on behalf of the Depositary in accordance with customary procedures of the Depositary
and in compliance with this Section 2.02.



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



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



     Physical Notes issued in exchange for all or a part of the Global Note pursuant to this
Section 2.02 shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical
Notes to the Persons in whose names such Physical Notes are so registered.



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



10









 




increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.




     Section 2.03. Date and Denomination of Notes; Payment at Maturity; Payments of Interest;
Defaulted Amounts. (a) Date and Denomination. The Notes initially shall be issued in the form of
one or more Global Notes without interest coupons in denominations of $1,000 principal amount and
integral multiples thereof (i) registered in the name of Cede & Co., as nominee of the Depositary
and (ii) delivered to the Trustee as custodian for the Depositary. Each Note shall be dated the
date of its authentication and shall bear interest from the date specified on the face of the form
of Note attached as Exhibit A hereto.



     (b) Payment at Maturity. The Notes shall mature on October 1, 2017, unless earlier converted
or repurchased upon a Fundamental Change in accordance with the provisions hereof.
On the Maturity Date, each Holder shall be entitled to receive on such date $1,000 in cash for
each $1,000 principal amount of Notes, together with accrued and unpaid interest (including
Additional Interest, if any) to, but not including, the Maturity Date. With respect to Global
Notes, principal and interest (including Additional Interest, if any) will be paid to the
Depositary in immediately available funds. With respect to any Physical Notes, principal and
interest (including Additional Interest, if any) will be payable at the Company’s office or agency
in New York City, which initially will be the corporate trust office of the Trustee in New York
City, New York. If the Maturity Date is not a Business Day, payment shall be made on the next
succeeding Business Day, and no additional interest shall accrue in respect of the delay.



     (c) Payments of Interest. Interest on the Notes will accrue at the rate of 4.00% per annum,
from October 4, 2010 until the principal thereof is paid or made available for payment. Interest
shall be payable on each Interest Payment Date to the Person in whose name a Note is registered on
the Security Register at the close of business on any Regular Record Date immediately preceding the
applicable Interest Payment Date. If Notes are converted after the close of business on a Regular
Record Date, Holders of such Notes at the close of business on such Regular Record Date will
receive the interest and Additional Interest, if any, payable on such Notes on the corresponding
Interest Payment Date notwithstanding a conversion. Notwithstanding the foregoing, any Notes or
portion thereof surrendered for conversion after 5:00 p.m., New York City time, on the Regular
Record Date for an Interest Payment Date but prior to 9:00 a.m., New York City time, on the
immediately following Interest Payment Date shall be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to the interest and
Additional Interest, if any, otherwise payable on such Interest Payment Date on the principal
amount being converted; provided that no such payment need be made:




     (i) with respect to Notes converted after the close of business following the Regular
Record Date immediately preceding the Maturity Date;




     (ii) if the Company has specified a Fundamental Change Repurchase Date pursuant to
Section 11.01(a) that is after a Regular Record Date and on or prior to the Business Day
immediately following the corresponding Interest Payment Date; or



11









 






     (iii) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the
time of conversion with respect to such Notes.




     Interest on the Notes will be computed on the basis of a three hundred sixty (360)-day
year comprising of twelve (12) thirty (30)-day months.




The Company shall pay interest, including Additional Interest, if any, on:




     (i) any Global Notes by wire transfer of immediately available funds to the account of
the Depositary or its nominee;




     (ii) any Physical Notes having a principal amount of $5,000,000 or less, by check
mailed to each Holder at its address in the Security Register; and




     (iii) any Physical Notes having a principal amount of more than $5,000,000, either by
check mailed to each Holder at its address in the Security Register or, upon application by
a Holder to the Security Registrar not later than the relevant Regular Record Date, by wire
transfer in immediately available funds to that Holder’s account within the United States,
which application shall remain in effect until the Holder notifies, in writing, the Security
Registrar to the contrary.



          If an Interest Payment Date is not a Business Day, payment shall instead be made on the next
succeeding Business Day, and no additional interest shall accrue in respect of the delay.




     (d) Defaulted Amounts. Any Defaulted Amounts shall forthwith cease to be payable to the
Holder on the relevant payment date by virtue of its having been such Holder but shall accrue
interest per annum at the rate borne by the Notes plus one percent, subject to the enforceability
thereof under applicable law, from, and including, such relevant payment date to, but excluding,
the date on which such Defaulted Amounts shall have been paid by the Company, at its election in
each case, as provided in clause (i) or (ii) below:




     (i) The Company may elect to make payment of any Defaulted Amounts to the Persons in
whose names the Notes (or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such Defaulted Amounts, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of
the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the
proposed payment (which shall be not less than 25 days after the receipt by the Trustee of
such notice, unless the Trustee shall consent to an earlier date), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount to
be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Amounts as in this clause provided. Thereupon the Company shall fix a special record date
for the payment of such Defaulted



12









 







Amounts which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment, and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Company shall promptly
notify the Trustee of such special record date and the Trustee, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts
and the special record date therefor to be mailed, first-class postage prepaid, to each
Holder at its address as it appears in the Security Register, not less than 10 days prior to
such special record date. Notice of the proposed payment of such Defaulted Amounts and the
special record date therefor having been so mailed, such Defaulted Amounts shall be paid to
the Persons in whose names the Notes (or their respective Predecessor Securities) are
registered at the close of business on such special record date and shall no longer be
payable pursuant to the following clause (ii) of this Section 2.03(d).




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



     Section 2.04. Additional Notes. The Company may, without the consent of the Holders and
notwithstanding Section 2.01, reopen the Indenture and issue additional Notes hereunder with the
same terms and with the same CUSIP number as the Notes initially issued hereunder in an unlimited
aggregate principal amount; provided that such additional Notes must be part of the same issue as
the Notes initially issued hereunder for U.S. federal income tax purposes. Prior to the issuance
of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an
Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel
to cover such matters, in addition to those required by Section 1.3 of the Base Indenture, as the
Trustee shall reasonably request.



     Section 2.05. Repurchases. The Company may, to the extent permitted by law, and directly or
indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in
the open market or otherwise, whether by the Company or its Subsidiaries or through a private or
public tender or exchange offer or through counterparties to private agreements. The Company shall
cause any Notes so repurchased to be surrendered to the Trustee for cancellation in accordance with
the Base Indenture.



ARTICLE 3

Satisfaction and Discharge




     Section 3.01. Satisfaction and Discharge. The satisfaction and discharge provisions set
forth in this Article 3 shall, with respect to the Notes, supersede in their entirety Article 4 of
the Base Indenture, and all references in the Base Indenture to Article 4 thereof and the
satisfaction


13









 







and discharge provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this
Article 3 and the satisfaction and discharge provisions
set forth in this Article 3, respectively. The Indenture shall upon request of the Company
contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of the Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes
which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.6 of the Base Indenture) have been delivered to the Trustee for cancellation; or (ii) the
Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have
become due and payable, whether at the Maturity Date, any Fundamental Change Repurchase Date, upon
conversion or otherwise, cash or, in the case of conversion, shares of Common Stock and cash in
lieu of fractional shares solely to satisfy the Company’s Conversion Obligation, sufficient to pay
all of the Outstanding Notes and all other sums due and payable under the Indenture by the Company;
and (b) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of the Indenture have been complied with. Notwithstanding the
satisfaction and discharge of the Indenture, the obligations of the Company to the Trustee
under Section 6.7 of the Base Indenture shall survive.




     Section 3.02. Application of Trust Money. In addition to Section 10.3 and 13.5 of the Base
Indenture, the Trustee shall hold in trust any shares of Common Stock or other property, including
cash in respect of any fractional shares pursuant to Section 10.02(j), due in respect of converted
Notes deposited with it pursuant to this Article 3. It shall apply the deposited Common Stock or
other property, including any cash in respect of fractional shares, through the Paying Agent and in
accordance with the Indenture in relation to the conversion of Notes pursuant to the terms hereof.



ARTICLE 4

Particular Covenants of the Company




     Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”)
or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in
respect of the Notes and the Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,



14









 




surrenders, notices and demands
may be made or served at the Corporate Trust Office or the office or agency of the Trustee in the
Borough of Manhattan, The City of New York.




     The Company may also from time to time designate as co-Security Registrars one or more other
offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent”
include any such additional or other offices or agencies, as applicable.



     The Company hereby initially designates the Trustee as the Paying Agent, Security Registrar,
Custodian and Conversion Agent and the Corporate Trust Office and the office or agency of the
Trustee in the Borough of Manhattan, The City of New York, each shall be considered as one such
office or agency of the Company for each of the aforesaid purposes.



     Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10 of the Base Indenture, a Trustee, so that there shall at all times be
a Trustee hereunder.



     Section 4.04. Repayment. In addition to Section 13.6 of the Base Indenture, any money or
shares of Common Stock deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, any Note and remaining unclaimed for two years
after such principal (including the Fundamental Change Repurchase Price, if applicable) or interest
has become due and payable shall be paid to the Company on request of the Company contained in an
Officers’ Certificate, or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money and shares of Common Stock, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the written direction and expense of the Company
cause to be published once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in The Borough of Manhattan, The City of New York,
notice that such money and shares of Common Stock remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money and shares of Common Stock then remaining will be repaid or
delivered to the Company.



     Section 4.05. Existence. Subject to Article 9, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.



15









 





     Section 4.06. Reporting Requirement. (a) In lieu of Section 7.4 of the Base Indenture, the
Company shall file with the Trustee within 15 days after the same are required to be filed with the
Commission, copies of any documents or reports that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period
provided by Rule 12b-25 under the Exchange Act). Any such document or report that the Company
files with the Commission via the Commission’s EDGAR system shall be deemed to be filed with the
Trustee for purposes of this Section 4.06 at the time such documents are filed via the EDGAR
system.



     (b) Delivery of the reports and documents described in subsection Section 4.06(a) 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 on an Officers’ Certificate).



     Section 4.07. Compliance Certificate; Statements as to Defaults. In lieu of Section 10.5 of
the Base Indenture, the Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on December 31, 2010) an
Officers’ Certificate stating whether or not the signers thereof have knowledge of any failure by
the Company to comply with all conditions and covenants then required to be performed under the
Indenture and, if so, specifying each such failure and the nature thereof.



     In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event
within 30 days after the Company becomes aware of the occurrence of any Event of Default or
Default, an Officers’ Certificate setting forth the details of such Event of Default or Default,
its status and the action that the Company proposes to take with respect thereto.



     Section 4.08. 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 the Indenture.



ARTICLE 5

Defaults and Remedies




     Section 5.01. Events of Default. The following events shall be “Events of Default” with
respect to the Notes:



     (a) default in any payment of interest on any Note when due and payable, and the default
continues for a period of 30 days;



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



16









 





     (c) failure by the Company to comply with its obligation to convert the Notes in accordance
with the Indenture upon exercise of a Holder’s conversion right;



     (d) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 11.01(c) when due;



     (e) failure by the Company to comply with its obligations under Article 9;



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



     (g) default by the Company or any Subsidiary of the Company with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $25 million in the aggregate
of the Company and/or any such Subsidiary, whether such indebtedness now exists or shall hereafter
be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii)
constituting a failure to pay the principal or interest of any such debt when due and payable at
its stated maturity (after the expiration of any applicable grace period), upon required
repurchase, upon declaration of acceleration or otherwise, and such indebtedness is not discharged,
or such acceleration is not rescinded, by the end of the 30th day after receipt by the
Company of written notice from the Trustee or the Holders of at least 25% in principal amount of
the Notes then Outstanding;



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



     (i) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary of the Company seeking liquidation, reorganization or other relief with
respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or such Significant Subsidiary or
any substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 consecutive days; or



     (j) a final judgment for the payment of $25 million or more (excluding any amounts covered by
insurance) rendered against the Company or any Subsidiary of the Company, which judgment is not
discharged or stayed within 60 days after (i) the date on which the right to appeal



17









 




thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been
extinguished.




     Section 5.02. Acceleration; Rescission and Annulment. Notwithstanding Section 5.2 of the
Base Indenture, in case one or more Events of Default shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body), then, and in each and every
such case (other than an Event of Default specified in Section 5.01(h) or Section 5.01(i) hereof
with respect to the Company or any of its Significant Subsidiaries), unless the principal of all of
the Notes shall have already become due and payable, either the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then Outstanding determined in accordance with the
Indenture, 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 Notes to be due and
payable immediately, and upon any such declaration the same shall become and shall automatically be
immediately due and payable, anything in the Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 5.01(h) or Section 5.01(i) hereof
with respect to the Company or any of its Significant Subsidiaries occurs and is continuing, the
principal of, and accrued and unpaid interest on, all Notes shall be automatically and immediately
due and payable.



     This provision, however, is subject to the conditions that if, at any time after the principal
of the Notes shall have been so declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and
unpaid interest upon all Notes and the principal of any and all Notes that shall have
become due otherwise than by acceleration (with interest on overdue installments of accrued
and unpaid interest to the extent that payment of such interest is enforceable under applicable
law, and on such principal at the rate borne by the Notes plus one percent per annum at such time)
and amounts due to the Trustee pursuant to Section 6.7 of the Base Indenture, and if (1) rescission
would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and
all existing Events of Defaults under the Indenture, other than the nonpayment of the principal of
and accrued and unpaid interest, if any, on Notes that shall have become due solely by such
acceleration, shall have been cured or waived pursuant to Section 5.12 of the Base Indenture, then
and in every such case (except as provided in the immediately succeeding sentence) the Holders of a
majority in aggregate principal amount of the Notes then Outstanding, by written notice to the
Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes
and rescind and annul such declaration and its consequences and such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of
the Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any
subsequent Default or Event of Default, or shall impair any right consequent thereon.
Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall
extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the
principal of, or accrued and unpaid interest on, any Notes, (ii) a



18









 




failure to repurchase any Notes
when required or (iii) a failure to pay or deliver, as the case may be, the consideration due upon
conversion of the Notes.




     Section 5.03. Additional Interest. Notwithstanding anything in the Indenture or in the Notes
to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating
to any obligation to file reports with the Trustee as required by Section 314(a)(1) of the Trust
Indenture Act or by Section 4.06 hereof shall, after the occurrence of such an Event of Default
consist exclusively of the right to receive additional interest (“Additional Interest”) on the
Notes at a rate equal to:



     (a) 0.25% per annum of the principal amount of the Notes Outstanding for each day during the
first 90-day period on which such Event of Default is continuing beginning on, and including, the
date on which such an Event of Default first occurs; and



     (b) 0.50% per annum of the principal amount of the Notes Outstanding for each day during the
next 90-day period on which such Event of Default is continuing beginning on the date immediately
following the last day of the 90-day period referred to in clause (a) above.



     If the Company so elects, such Additional Interest shall be payable in the same manner and on
the same dates as regular interest on the Notes. On the 181st day after such Event of Default (if
the Event of Default relating to the Company’s failure to file is not cured or waived prior to such
181st day), the Notes will be subject to acceleration as provided in Section 5.02. In the event
the Company does not elect to pay Additional Interest following an Event of Default in accordance
with this Section 5.03, the Notes shall be subject to acceleration as provided in Section 5.02.



     In order to elect to pay Additional Interest as the sole remedy during the first 180 days
after the occurrence of any Event of Default described in the immediately preceding paragraph, the
Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such
election prior to the close of business on the date on which such Event of Default first
occurs. Upon the failure to timely give such notice, the Notes shall be immediately subject to
acceleration as provided in Section 5.02.



     If Additional Interest is payable by the Company, the Company shall deliver to the Trustee an
Officers’ Certificate to that effect stating (i) the amount of such Additional Interest that is
payable and (ii) the date on which such Additional Interest is payable. Unless and until a
Responsible Officer receives such a certificate, the Trustee may assume without inquiry that no
Additional Interest is payable.



     Section 5.04. Limitation on Suits. Notwithstanding Section 5.7 of the Base Indenture and any
provision of any Note, the right of any Holder to receive payment or delivery, as the case may be,
of (x) the principal (including the Fundamental Change Repurchase Price, if applicable) of, (y)
accrued and unpaid interest on, and (z) the consideration due upon conversion of, such Note, on or
after the respective due dates expressed or provided for in such Note or in this Indenture, or to
institute suit for the enforcement of any such payment or delivery, as the



19









 




case may be, on or after
such respective dates against the Company shall not be impaired or affected without the consent of
such Holder.




     Section 5.05. Control by Holders and Waiver of Defaults by Majority of Holders. In addition
to Section 5.12 of the Base Indenture, the Holders of a majority in aggregate principal amount of
the Notes at the time Outstanding determined in accordance with the Indenture may on behalf of the
Holders of all of the Notes waive any past Default or Event of Default hereunder and its
consequences except (i) a default in the payment of accrued and unpaid interest, if any, on, or the
principal (including any Fundamental Change Repurchase Price) of, the Notes when due that has not
been cured pursuant to the provisions of Section 5.01, (ii) a failure by the Company to pay the
consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or
provision hereof which under Article 8 cannot be modified or amended without the consent of each
Holder of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the
Holders of the Notes shall be restored to their former positions and rights hereunder; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as
permitted by this Section 5.05, said Default or Event of Default shall for all purposes of the
Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.



     Section 5.06. Notice of Defaults. Notwithstanding the proviso in Section 6.2 of the Base
Indenture, the Trustee will not be protected in withholding notice of a Default after the ninetieth
(90th) day following the occurrence of the Default if such Default relates to the
payment or delivery of the consideration due upon conversion.



ARTICLE 6

Concerning the Holders




     Section 6.01. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 1.5 of the Base Indenture, of the
taking of any action by the Holders of the percentage in aggregate principal amount of the Notes
specified in the Indenture in connection with such action, any Holder of a Note that is shown by
the evidence to be included in the Notes the Holders of which have consented to such action may, by
filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as
provided in Section 1.5 of the Base Indenture, revoke such action so far as concerns such Note.
Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Note and of any Notes
issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective
of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor or upon registration of transfer thereof.



20









 





ARTICLE 7

Holders’ Meetings




     Section 7.01. Purpose of Meetings. A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 7 for any of the following purposes:



     (a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article 5;



     (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 6 of the Base Indenture;



     (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 8.02; or



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



     Section 7.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Holders to take any action specified in Section 7.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken at such meeting and
the establishment of any record date pursuant to Section 1.5 of the Base Indenture, shall be mailed
to Holders of such Notes at their addresses as they shall appear on the Security Register. Such
notice shall also be mailed to the Company. Such notices shall be mailed not less than twenty nor
more than ninety days prior to the date fixed for the meeting.



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



     Section 7.03. Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the
Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 7.01, by mailing notice thereof as
provided in Section 7.02.



21









 





     Section 7.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a
Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or
(b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on
the record date pertaining to such meeting. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.



     Section 7.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Holders as provided in Section 7.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Holders of a majority in principal amount of the Notes represented
at the meeting and entitled to vote at the meeting.



     At any meeting of Holders each Holder or proxyholder of an Outstanding Note shall be entitled
to one vote for each $1,000 principal amount of Notes held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in
writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any
meeting of Holders duly called pursuant to the provisions of Section 7.02 or Section 7.03 may be
adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes
represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.



     Section 7.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall
be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 7.02. The record shall show the principal amount of
the Notes voting in favor of or against any resolution. The record shall be signed and verified



22









 




by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.




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



     Section 7.07. No Delay of Rights by Meeting. Nothing contained in this Article 7 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under
any of the provisions of this Indenture or of the Notes.



ARTICLE 8

Amendments




     Section 8.01. Without Consent of Holders. In addition to any permitted amendment or
supplement to the Indenture pursuant to Section 9.1 of the Base Indenture, the Company and the
Trustee, at any time and from time to time, may amend or supplement the Indenture or the Notes
without notice to or the consent of any Holder of the Notes to conform the provisions of this
Supplemental Indenture or the Notes to the “Description of notes” section as set forth in the final
prospectus supplement related to the offering and sale of Notes dated September 29, 2010.



     Section 8.02. With Consent of Holders. In addition to the amendments or supplements to the
Indenture pursuant to Section 9.2 of the Base Indenture that require the consent of the Holder of
each Outstanding Note affected thereby, without the consent of each Holder of an Outstanding Note
affected, no amendment or supplement may:



     (a) make any change that adversely affects the conversion rights of any Notes;



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



     (c) change the ranking of the Notes.



ARTICLE 9

Consolidation, Merger, Sale, Conveyance and Lease




     Section 9.01. Company May Consolidate, Etc. on Certain Terms. Notwithstanding Section 8.1 of
the Base Indenture, subject to the provisions of Section 8.2 of the Base Indenture, the Company
shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or
substantially all of its properties and assets to another Person, unless:



23









 





     (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture all of the obligations of the Company
under the Notes and the Indenture;



     (b) the Company delivers an Officer’s Certificate and Opinion of Counsel to the Trustee
stating that such consolidation, merger or sale, conveyance, transfer or lease and any supplemental
indenture comply with the Indenture and that all conditions precedent set forth in the Indenture
have been complied with; and



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



     For purposes of this Section 9.01, the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of one or more Subsidiaries of the Company to
another Person, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company to another Person.



     Section 9.02. Successor Corporation to Be Substituted. In case of any such consolidation,
merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all
of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration
due upon conversion of the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such Successor Company shall succeed
to and be substituted for the Company, with the same effect as if it had been named herein as the
party of the first part, except in the case of a lease of all or substantially all of the Company’s
properties and assets. Such Successor Company thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company any or all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon
the order of such Successor Company instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or
cause to be authenticated
and delivered, any Notes that previously shall have been signed and delivered by the Officers
of the Company to the Trustee for authentication, and any Notes that such Successor Company
thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes
so issued shall in all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof. In the event of any such
consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon
compliance with this Article 9 the Person named as the “Company” in the first paragraph of this Indenture or any successor that shall thereafter have become such in the manner prescribed in



24









 




this Article 9 may be dissolved, wound up and liquidated at any time thereafter and, except in the case
of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes
and from its obligations under this Indenture.




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



     Section 9.03. Opinion of Counsel to Be Given to Trustee. No consolidation, merger, sale,
conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture, complies with the
provisions of this Article 9.



ARTICLE 10

Conversion of Notes




     Section 10.01. Conversion Privilege. Subject to and upon compliance with the provisions of
this Article 10, each Holder of a Note shall have the right, at such Holder’s option, to convert
all or any portion (if the portion to be converted is $1,000 principal amount or an integral
multiple thereof) of such Note at any time prior to the close of business on the Business Day
immediately preceding the Maturity Date, at an initial conversion rate of 90.8893 shares of Common
Stock (equivalent to an initial conversion price of approximately $11.00 per share) (subject to adjustment as
provided in Section 10.04, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to
the settlement provisions of Section 10.02, the “Conversion Obligation”).



     Section 10.02. Conversion Procedure; Settlement Upon Conversion.



     (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in
respect of each $1,000 principal amount of Notes being converted, a number of shares of Common
Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of any
fractional share of Common Stock in accordance with subsection (j) of this Section 10.02, on the
third Business Day immediately following the relevant Conversion Date.



     (b) Subject to Section 10.02(e), before any Holder of a Note shall be entitled to convert the
same as set forth above, such Holder shall (i) in the case of a Global Note, comply with the
procedures of the Depositary in effect at that time and, if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set
forth in Section 10.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and
deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of
Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion
Agent and state in writing therein the principal amount of Notes to be converted and the name or
names (with addresses) in which such Holder wishes the certificate or certificates for any shares
of



25









 




Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2)
surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate
endorsement and transfer documents), at the office of the Conversion Agent, (3) if required,
furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set
forth in Section 10.02(h). The Trustee (and if different, the Conversion Agent) shall notify the
Company of any conversion pursuant to this Article 10 on the Conversion Date for such conversion.
No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such
Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such
Notes and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with
Section 11.02.




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



     (c) A Note shall be deemed to have been converted immediately prior to the close of business
on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in
subsection (b) above. 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 full number of shares of Common Stock to which such Holder
shall be entitled in satisfaction of the Company’s Conversion Obligation.



     (d) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the
Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note, without payment of any service
charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum
sufficient to cover any transfer tax or similar governmental charge required by law or that may be
imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon
such conversion being different from the name of the Holder of the old Notes surrendered for such
conversion.



     (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of the shares of Common Stock upon conversion,
unless the tax is due because the Holder requests such shares to be issued in a name other than the
Holder’s name, in which case the Holder shall pay that tax upon request from Trustee. 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 is due by such Holder in accordance with the immediately
preceding sentence.




26











 





     (f) Except as provided in Section 10.04, no adjustment shall be made for dividends on
any shares issued upon the conversion of any Note as provided in this Article 10.



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



     (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest, if any, except as set forth in Section 2.03(c). The Company’s settlement of the
Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount
of the Note and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As
a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be
deemed to be paid in full rather than cancelled, extinguished or forfeited.



     (i) The Person in whose name the certificate for any shares of Common Stock delivered upon
conversion is registered shall be treated as a stockholder of record as of the close of business on
the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder
of such Notes surrendered for conversion.



     (j) The Company shall not issue any fractional share of Common Stock upon conversion of the
Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon
conversion based on the Last Reported Sale Price of the Common Stock on the relevant Conversion
Date.



     Section 10.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection with Make-Whole Fundamental Changes. (a) If a Make-Whole Fundamental Change occurs and
a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, the
Company shall, under the circumstances described below, increase the Conversion Rate for the Notes
so surrendered for conversion by a number of additional shares of Common Stock (the “Additional
Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in
connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is
received by the Conversion Agent from, and including, the Effective Date of the Make-Whole
Fundamental Change up to, and including, the Business Day immediately prior to the related
Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would
have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the
35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change).



     (b) The Company shall notify the Holders of Notes of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no later than five
Business Days after such Effective Date.



     (c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased
shall be determined by reference to the table below, based on the date on which the



27









 




Make-Whole
Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock
Price”) paid (or deemed to be paid) per share of the Common Stock in the
Make-Whole Fundamental Change. If the holders of the 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. Otherwise, the Stock Price shall be the
average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period
ending on, and including, the Trading Day immediately preceding the Effective Date of the
Make-Whole Fundamental Change. The Board of Directors shall make appropriate adjustments to the
Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate
that becomes effective, or any event requiring an adjustment to the Conversion Rate where the
Ex-Dividend Date of the event occurs, during such five consecutive Trading Day period.




     (d) The Stock Prices set forth in the column headings of the table below shall be adjusted as
of any date on which the Conversion Rate of the Notes 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
giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the
same manner and at the same time as the Conversion Rate as set forth in Section 10.04.



     (e) The following table sets forth the number of Additional Shares to be received per $1,000
principal amount of Notes pursuant to this Section 10.03 for each Stock Price and Effective Date
set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective Date	 	$8.09	 	 	$10.00	 	 	$15.00	 	 	$20.00	 	 	$25.00	 	 	$30.00	 	 	$35.00	 	 	$40.00	 	 	$45.00	 	 	$50.00	 	 	$55.00	 
	October 4, 2010
	 	 	32.7200	 	 	 	26.4140	 	 	 	13.7291	 	 	 	8.5036	 	 	 	5.7829	 	 	 	4.1558	 	 	 	3.0912	 	 	 	2.3503	 	 	 	1.8118	 	 	 	1.4077	 	 	 	1.0973	 
	October 1, 2011
	 	 	32.7200	 	 	 	26.0436	 	 	 	13.0490	 	 	 	7.9024	 	 	 	5.3021	 	 	 	3.7788	 	 	 	2.7954	 	 	 	2.1169	 	 	 	1.6261	 	 	 	1.2589	 	 	 	0.9773	 
	October 1, 2012
	 	 	32.7200	 	 	 	25.4131	 	 	 	12.1148	 	 	 	7.1152	 	 	 	4.6914	 	 	 	3.3114	 	 	 	2.4363	 	 	 	1.8385	 	 	 	1.4085	 	 	 	1.0874	 	 	 	0.8414	 
	October 1, 2013
	 	 	32.7200	 	 	 	24.3718	 	 	 	10.8202	 	 	 	6.0799	 	 	 	3.9157	 	 	 	2.7329	 	 	 	2.0008	 	 	 	1.5065	 	 	 	1.1524	 	 	 	0.8881	 	 	 	0.6850	 
	October 1, 2014
	 	 	32.7200	 	 	 	22.7770	 	 	 	9.0458	 	 	 	4.7406	 	 	 	2.9545	 	 	 	2.0391	 	 	 	1.4907	 	 	 	1.1247	 	 	 	0.8620	 	 	 	0.6645	 	 	 	0.5115	 
	October 1, 2015
	 	 	32.7200	 	 	 	20.2491	 	 	 	6.5584	 	 	 	3.0258	 	 	 	1.8029	 	 	 	1.2415	 	 	 	0.9177	 	 	 	0.7006	 	 	 	0.5416	 	 	 	0.4190	 	 	 	0.3218	 
	October 1, 2016
	 	 	32.7200	 	 	 	16.2968	 	 	 	3.0414	 	 	 	0.9782	 	 	 	0.5583	 	 	 	0.4019	 	 	 	0.3077	 	 	 	0.2396	 	 	 	0.1869	 	 	 	0.1448	 	 	 	0.1104	 
	October 1, 2017
	 	 	32.7200	 	 	 	9.0734	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	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 above 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;



28









 






     (ii) if the Stock Price is greater than $55.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above pursuant
to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and




     (iii) if the Stock Price is less than $8.09 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above pursuant
to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.


Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion exceed 123.6093 per $1,000 principal amount of Notes, subject to
adjustment in the same manner as the Conversion Rate pursuant to Section 10.04.




     (f) Nothing in this Section 10.03 shall prevent an adjustment to the Conversion Rate pursuant
to Section 10.04 in respect of a Make-Whole Fundamental Change.



     Section 10.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company shall
not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in
the case of a share split or share combination), at the same time and upon the same terms as
holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions
described in this Section 10.04, without having to convert their Notes, as if they held a number of
shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed
in thousands) of Notes held by such Holder.



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




	 	 

	CR’ = CR0 × 
	OS’

	 
	OS0






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

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

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on such Record Date or
immediately after the open of business on such
effective date, as applicable;






29









 






	 	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the close of business on such
Record Date or immediately prior to the open of
business on such effective date, as applicable;
and
	 
	 	 	 	 
	OS’

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





Any adjustment made under this Section 10.04(a) shall become effective immediately after the close
of business on the Record Date for such dividend or distribution, or immediately after the open of
business on the effective date for such share split or share combination, as applicable. If any
dividend or distribution of the type described in this Section 10.04(a) is declared but not so paid
or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of
Directors determines not to pay such dividend or distribution, to the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.




     (b) If the Company issues to all or substantially all holders of its Common Stock any rights,
options or warrants entitling them, for a period of not more than 45 calendar days after the
announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a
price per share that is less than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased based
on the following formula:




	 	 

	CR’ = CR0 × 
	OS0 + X

	 
	OS0 + Y







	 	 	 	 	 

	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the close of business on the Record Date for such
issuance;
	 
	 	 	 	 
	CR’

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

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

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

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






30









 





Any increase made under this Section 10.04(b) shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the close of business
on the Record Date for such issuance. 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 decreased to the Conversion Rate that would then be in effect had the increase with
respect to the issuance of such rights, options or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. If such rights, options or warrants
are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be
in effect if such Record Date for such issuance had not occurred.




     For purposes of this Section 10.04(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 such
average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day
period ending on the Trading Day immediately preceding the date of announcement for such issuance,
and in determining the aggregate offering price of such shares of Common Stock, there shall be
taken into account any consideration received by the Company for such rights, options or warrants
and any amount payable on exercise or conversion thereof, the value of such consideration, if other
than cash, to be determined by the Board of Directors.



     (c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other assets or property or rights, options or warrants to acquire its Capital Stock or other
securities, to all or substantially all holders of the Common Stock, excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 10.04(a) or
Section 10.04(b), (ii) dividends or distributions paid exclusively in cash as to which an
adjustment was effected pursuant to Section 10.04(d), and (iii) Spin-Offs as to which the
provisions set forth below in this Section 10.04(c) shall apply (any of such shares of Capital
Stock, evidences of indebtedness, other assets or property or rights, options or warrants to
acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the
Conversion Rate shall be increased based on the following formula:





	 	 

	CR’ = CR0 × 
	SP0

	 
	SP0 – FMV







	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

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

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on such Record Date;
	 
	 	 	 	 
	SP0

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






31









 






	 	 	 	 	 
	FMV

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





Any increase made under the portion of this Section 10.04(c) above shall become effective
immediately after the close of business on the Record Date for such distribution. If such
distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same
terms as holders of the Common Stock receive the Distributed Property, the amount of Distributed
Property such Holder would have received if such Holder owned a number of shares of Common Stock
equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board
of Directors determines the “FMV” (as defined above) of any distribution for purposes of this
Section 10.04(c) by reference to the actual or when-issued trading market for any securities, it
shall 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 10 consecutive Trading Day period ending on
the Trading Day immediately preceding the Record Date for such distribution.




     With respect to an adjustment pursuant to this Section 10.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national
securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following
formula:




	 	 

	CR’ = CR0 × 
	FMV0 +
 MP0

	 
	 MP0






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the end of the Valuation Period;
	 
	 	 	 	 
	CR’

	 	=
	 	the Conversion Rate in effect immediately after the end of the Valuation Period;
	 
	 	 	 	 
	FMV0

	 	=
	 	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 (determined by
reference to the definition of Last Reported Sale Price as set forth in Section 1.02 as if references
therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10
consecutive Trading
Day period after, and including, the Ex-Dividend Date of the Spin-Off (the
“Valuation Period”); and






32









 






	 	 	 	 	 
	MP0

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





The adjustment to the Conversion Rate under the preceding paragraph shall occur on the last Trading
Day of the Valuation Period; provided that in respect of any conversion during the Valuation
Period, references in the portion of this Section 10.04(c) related to Spin-Offs to 10 Trading Days
shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate.




     For purposes of this Section 10.04(c) (and subject in all respect to Section 10.11), rights,
options or warrants distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares
of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this
Section 10.04(c) (and no adjustment to the Conversion Rate under this Section 10.04(c) will be
required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or
warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this Section 10.04(c). If any such right,
option or warrant, including any such existing rights, options or warrants distributed prior to the
date of this Supplemental Indenture, are subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and Record Date with respect to new rights, options or
warrants with such rights (in which case the existing rights, options or warrants shall be deemed
to terminate and expire on such date without exercise by any of the holders thereof). In addition,
in the event of any distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the immediately preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 10.04(c) was made, (1) in the case of any such
rights, options or warrants that shall all have been redeemed or purchased without exercise by any
holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted
as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then
again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as
the case may be, as though it were a cash distribution, equal to the per share redemption or
purchase price received by a holder or holders of Common Stock with respect to such rights, options
or warrants (assuming such holder had retained such rights, options or warrants), made to all
holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such
rights, options or warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants
had not been issued.



33









 





     For purposes of Section 10.04(a), Section 10.04(b) and this Section 10.04(c), any dividend or
distribution to which this Section 10.04(c) is applicable that also includes one or both of:



     (A) a dividend or distribution of shares of Common Stock to which Section 10.04(a) is
applicable (the “Clause A Distribution”); or



     (B) a dividend or distribution of rights, options or warrants to which Section 10.04(b) is
applicable (the “Clause B Distribution”),


then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 10.04(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this
Section 10.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause
A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C
Distribution and any Conversion Rate adjustment required by Section 10.04(a) and Section 10.04(b)
with respect thereto shall then be made, except that, if determined by the Company (I) the “Record
Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Record
Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A
Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to
the close of business on such Record Date or immediately after the open of business on such
effective date, as applicable” within the meaning of Section 10.04(a) or “outstanding immediately
prior to the close of business on such Record Date or immediately after the open of business on
such effective date, as applicable” within the meaning of Section 10.04(b).




     (d) If any cash dividend or distribution (other than in connection with a liquidation,
dissolution or winding up) is made to all or substantially all holders of the Common Stock, the
Conversion Rate shall be adjusted based on the following formula:




	 	 

	CR’ = CR0 × 
	SP0

	 
	SP0 – C







	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

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

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the Record Date for such
dividend or distribution;
	 
	SP0

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






34









 






	 	 	 	 	 
	C

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





Any increase pursuant to this Section 10.04(d) shall become effective immediately after the close
of business on the Record Date for such dividend or distribution. If such dividend or distribution
is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of
Directors determines not to make or pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared. Notwithstanding
the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined
above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000
principal amount of Notes, at the same time and upon the same terms as holders of shares of the
Common Stock, the amount of cash that such Holder would have received if such Holder owned a number
of shares of Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or
distribution.




     (e) If the Company or any of its Subsidiaries make a payment in respect of a tender offer
(which for the avoidance of doubt shall not include any open market buybacks or purchases that are
not tender offers) or exchange offer for the Common Stock, to the extent that the cash and value of
any other consideration included in the payment per share of 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 Conversion Rate
shall be increased based on the following formula:





	 	 

	CR’ = CR0 × 
	AC + (SP’×OS’)

	 
	OS0
SP’







	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the close of business on the 10th Trading Day
immediately following, and including, the Trading
Day next succeeding the date such tender or
exchange offer expires;
	 
	 	 	 	 
	CR’

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

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

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






35









 






	 	 	 	 	 
	OS’

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

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





The adjustment to the Conversion Rate under this Section 10.04(e) shall occur at the close of
business on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; provided that in respect of any
conversion within the 10 Trading Days immediately following, and including, the expiration date of
any tender or exchange offer, references in this Section 10.04(e) with respect to 10 Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date
that such tender or exchange offer expires and the Conversion Date in determining the Conversion
Rate.




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



     (g) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this
Section 10.04, and to the extent permitted by applicable law and subject to the applicable rules of
The New York Stock Exchange, the Company from time to time may increase the Conversion Rate by any
amount for a period of at least 20 Business Days if the Board of Directors determines that such
increase would be in the Company’s best interest. In addition, 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 a dividend or distribution of shares
(or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant
to either of the preceding two sentences, the Company shall mail to the Holder of each Note at its
last address appearing on the Security Register a notice of the increase at least 15 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.



     (h) Notwithstanding anything to the contrary in this Article 10, the Conversion Rate shall not
be adjusted:




     (i) unless the adjustment would result in a change in the Conversion Rate of at least
1%; provided, however, that any adjustment which by reason of the foregoing is
not required to be made shall be carried forward and such carried forward adjustment
shall be made to the Conversion Rate, regardless of whether the aggregate adjustment is less
than 1%, on the Conversion Date for any Notes;




36











 






     (ii) upon the issuance of any shares of Common Stock pursuant to a plan for the
reinvestment of dividends or interest or for a change in the par value of the Common Stock
or a change to no par value of the Common Stock;




     (iii) upon the issuance of any shares of the Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security outstanding as of the
date the Notes were first issued; or




     (iv) for accrued and unpaid interest, including Additional Interest, if any.



     (i) All calculations and other determinations under this Article 10 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share.



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



     (k) For purposes of this Section 10.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the
Company does not pay any dividend or make any distribution on shares of Common Stock 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.



     Section 10.05. Adjustments of Prices. Whenever any provision of the Indenture requires the
Company to calculate the Last Reported Sale Prices or the Stock Price for purposes of a Make-Whole
Fundamental Change over a span of multiple days, the Board of Directors shall make appropriate
adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or
any event requiring an adjustment to the Conversion Rate where the Record Date of the event occurs,
at any time during the period when such Last Reported Sale Prices or Stock Prices are to be
calculated.



     Section 10.06. Shares to Be Fully Paid. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for conversion of the Notes from time to time as such Notes are presented
for conversion (assuming that at the time of computation of such number of shares, all such Notes
would be converted by a single Holder).



37









 





     Section 10.07. Effect of Recapitalizations, Reclassifications and Changes of the Common
Stock.



     (a) In the case of:




     (i) any recapitalization, reclassification or change of the Common Stock (other than
changes resulting from a change in par value of the Common Stock, or from par value to no
par value of the Common Stock, or from no par value to par value of the Common Stock or a
subdivision or combination),




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




     (iii) any sale, lease or other transfer to a third party of the consolidated assets of
the Company and the Company’s Subsidiaries substantially as an entirety or




     (iv) any statutory share exchange,


in each case as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any combination thereof) (any
such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Notes shall be changed into a right to convert
such principal amount of Notes 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 Conversion Rate immediately prior to such Merger Event would
have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference
Property” meaning the kind and amount of Reference Property that a holder of one share of Common
Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such
Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute
with the Trustee a supplemental indenture permitted under Section 9.1(o) of the Base Indenture providing for such change in the right to
convert each $1,000 principal amount of Notes.




     If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right
to receive more than a single type of consideration (determined based in part upon any form of
stockholder election), then (i) the Reference Property into which the Notes will be convertible
shall be deemed to be the weighted average of the types and amounts of consideration received by
the holders of Common Stock that affirmatively make such an election, and (ii) the unit of
Reference Property for purposes of the immediately preceding paragraph shall refer to the
consideration referred to in clause (i) attributable to one share of Common Stock. The Company
shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such
weighted average as soon as practicable after such determination is made.



     To the extent that the Notes become convertible into the right to receive cash, interest will
not accrue on such cash.



38









 





     Such supplemental indenture described in the third immediately preceding paragraph shall
provide for adjustments that shall be as nearly equivalent as is possible to the adjustments
provided for in this Article 10. If, in the case of any Merger Event, the Reference Property
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 corporation, as the case may be, in
such Merger Event, then such supplemental indenture shall also be executed by such other Person and
shall contain such additional provisions to protect the interests of the Holders of the Notes as
the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to
the extent required by the Board of Directors and practicable the provisions providing for the
purchase rights set forth in Article 11.



     (b) In the event the Company shall execute a supplemental indenture pursuant to Section
10.07(a), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefore, the kind or amount of cash, securities or property or asset that will
comprise the Reference Property after any such Merger Event, any adjustment to be made with respect
thereto and that all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders. The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at its address appearing on the Security Register provided
for in the Indenture, within 20 days after execution thereof. Failure to deliver such notice shall
not affect the legality or validity of such supplemental indenture.



     (c) The Company shall not become a party to any Merger Event unless its terms are consistent
with this Section 10.07. None of the foregoing provisions shall affect the right of a holder of
Notes to convert its Notes into shares of Common Stock as set forth in Section 10.01 and Section
10.02 prior to the effective date of such Merger Event.



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



     Section 10.08. Certain Covenants. (a) The Company covenants that all shares of Common Stock
issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from
all taxes, liens and charges with respect to the issue thereof.



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



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



39









 





     Section 10.09. 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 Note; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Note for
the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to Section 10.07
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 Notes after any event referred to in such
Section 10.07 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 6.1 of the Base Indenture, may accept (without any independent investigation) as
conclusive evidence of the correctness of any such provisions, and shall be protected in relying
upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee
prior to the execution of any such supplemental indenture) with respect thereto.



     Section 10.10. Notice to Holders Prior to Certain Actions. In case of any:



     (a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 10.04 or Section 10.11; or



     (b) Merger Event; or



     (c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of
its Subsidiaries;


then, in each case (unless notice of such event is otherwise required pursuant to another provision
of the Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent
(if other than the Trustee) and to be mailed to each Holder at its address appearing on the
Security Register, as promptly as possible but in any event at least 20 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 action by the Company or one of its Subsidiaries or, if a record is
not to be taken, the date as of which the holders of Common Stock of record are to be determined
for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on
which such Merger Event, 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


40









 






entitled to exchange their Common Stock for securities or other property deliverable upon such
Merger Event, dissolution, liquidation or winding-up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such action by the Company or one of its
Subsidiaries, Merger Event, dissolution, liquidation or winding-up.




     Section 10.11. Stockholder Rights Plans. To the extent that the Company has a rights plan in
effect upon conversion of the Notes, each share of Common Stock 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, as the same may be amended from time
to time. If at the time of conversion, however, the rights have separated from the shares of Common
Stock in accordance with the provisions of the applicable stockholder rights plan so that the
Holders would not be entitled to receive any rights in respect of Common Stock issuable upon
conversion of the Notes, the Conversion Rate shall be adjusted at the time of separation as if the
Company distributed to all or substantially all holders of Common Stock shares of Capital Stock of
the Company, evidences of its indebtedness, other assets or property or rights, options or warrants
to acquire its Capital Stock or other securities as provided in Section 10.04(c), subject to
readjustment in the event of the expiration, termination or redemption of such rights.



ARTICLE 11

Repurchase of Notes at Option of Holders




     Section 11.01. Repurchase at Option of Holders Upon a Fundamental Change. (a) If a
Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option,
to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof
that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change
Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35
calendar days following the date of the Fundamental Change Company Notice at a repurchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but
excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record
Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid
interest to Holders of record as of the preceding Regular Record Date and the Fundamental Change
Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant
to this Article 11.



     (b) Repurchases of Notes under this Section 11.01 shall be made, at the option of the Holder
thereof, upon:




     (i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of
Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in



41









 







compliance with
the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are
Global Notes, in each case on or before the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date; and




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



     The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall
state:




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




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




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


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




     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 11.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date
by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 11.02.



     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.



     (c) On or before the 20th calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the
Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of
the repurchase right at the option of the Holders arising as a result thereof. Such notice shall
be by first class mail or, in the case of Global Notes, in accordance with the applicable
procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish
a notice containing the information set forth in the Fundamental Change Company Notice in a
newspaper of general circulation in The City of New York or publish such



42









 







information on the
Company’s website or through such other public medium as the Company may use at that time. Each
Fundamental Change Company Notice shall specify:




     (i) the events causing the Fundamental Change;




     (ii) the date of the Fundamental Change;




     (iii) the last date on which a Holder may exercise the repurchase right pursuant to
this Article 11;




     (iv) the Fundamental Change Repurchase Price;




     (v) the Fundamental Change Repurchase Date;




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




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




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




     (ix) the procedures that Holders must follow to require the Company to repurchase their
Notes.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 11.01.



     At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change
Company Notice shall be prepared by the Company.



     (d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at
the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been
accelerated, and such acceleration has not been rescinded, on or prior to such
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 Notes). The Paying Agent
will promptly return to the respective Holders thereof any Physical Notes held by it during the
acceleration of the Notes (except in the case of an acceleration resulting from a Default by the
Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes) and
shall deem to be cancelled any instructions for book-entry transfer of the Notes in compliance with
the procedures of the Depositary, in which case, upon such return or



43









 







cancellation, as the case may
be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.



     Section 11.02. Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change
Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 11.02
at any time prior to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date specifying:




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




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




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


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




     Section 11.03. Deposit of Fundamental Change Repurchase Price. (a) The Company will deposit
with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in 10.3 of the Base
Indenture) on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date
an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate
Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date
with respect to such Note (provided the Holder has satisfied the conditions in Section 11.01) and
(ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying
Agent appointed by the Company) by the Holder thereof in the manner required by Section 11.01 by
mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall
appear in the Security Register; provided, however, that payments to the Depositary shall be made
by wire transfer of immediately available funds to the account of the Depositary or its nominee.
The Trustee shall, promptly after such payment and upon written demand by the Company, return to
the Company any funds in excess of the Fundamental Change Repurchase Price.



     (b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the
Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on
all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase
Date, then (i) such Notes will cease to be Outstanding, (ii)



44









 







interest will cease to accrue on such
Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been
delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes
will terminate (other than the right to receive the Fundamental Change Repurchase Price).



     (c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 11.01, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an
authorized denomination equal in principal amount to the unrepurchased portion of the Note
surrendered.



     Section 11.04. Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In
connection with any repurchase offer, the Company will, if required:



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



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



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


in each case, so as to permit the rights and obligations under this Article 11 to be exercised
in the time and in the manner specified in this Article 11.




ARTICLE 12

No Redemption




     Section 12.01. No Redemption. The Notes shall not be redeemable by the Company prior to
Maturity, and no sinking fund is provided for the Notes.



ARTICLE 13

Miscellaneous Provisions




     Section 13.01. Ratification of Indenture. The Base Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture
shall be deemed part of the Base Indenture in the manner and to the extent herein and therein
provided; provided that the provisions of this Supplemental Indenture apply solely with respect to
the Notes.



     Section 13.02. Governing Law. THIS SUPPLEMENTAL INDENTURE AND EACH NOTE, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE



45









 







STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS THEREOF).



     Section 13.03. Payment on Business Days. In any case where any Interest Payment Date,
Fundamental Change Repurchase Date, Conversion Date or Maturity Date is not a Business Day, then
any action to be taken on such date need not be taken on such date, but may be taken on the next
succeeding Business Day with the same force and effect as if taken on such date, and no interest
shall accrue in respect of the delay.



     Section 13.04. No Security Interest Created. Nothing in this Supplemental Indenture or in
the Notes, expressed or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.



     Section 13.05. Execution in Counterparts. This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.



     Section 13.06. Severability. In the event any provision of the Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or
impaired.



     Section 13.07. Calculations. Except as otherwise provided herein, the Company shall be
responsible for making all calculations called for under the Notes. These calculations include,
but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock,
accrued interest payable on the Notes and the Conversion Rate of the Notes. The Company shall make
all these calculations in good faith and, absent manifest error, the Company’s calculations shall
be final and binding on Holders of Notes. 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 will forward the Company’s calculations to any Holder of Notes upon the
request of that Holder at the sole cost and expense of the Company.



46









 





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



	 	 	 	 	 
	 	NEWPARK RESOURCES, INC.

 	 
	 	By:  	/s/  James E. Braun
 	 
	 	 	Name:  	James E. Braun 	 
	 	 	Title:  	Vice President and Chief
Financial Officer 	 
	 
	 	WELLS FARGO BANK, NATIONAL

   ASSOCIATION, as Trustee

 	 
	 	By:  	/s/  Patrick Giordano
 	 
	 	 	Name:  	Patrick Giordano 	 
	 	 	Title:  	Vice President 	 
	 




 









 





EXHIBIT A




[FORM OF NOTE]




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



A-1









 





NEWPARK RESOURCES, INC.




4.00% Convertible Senior Note due 2017



			
	 	 	 
	No. [_____]
	 	Initially U.S. $[_____]





CUSIP No. 651718AC2



     Newpark Resources, Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the “Company,” which term includes any successor or resulting Person under
the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum as set forth in the “Schedule of Exchanges of Notes”
attached hereto in United States Dollars, which amount, taken together with the principal amounts
of all other Outstanding Notes, shall not, unless permitted by the Supplemental Indenture, exceed
$172,500,000 in aggregate at any time, in accordance with the rules and procedures of the
Depositary, on October 1, 2017, and interest thereon as set forth below



     This Note shall bear interest at the rate of 4.00% per year from October 4, 2010, or from the most
recent date to which interest had been paid or provided for to, but excluding, the next scheduled
Interest Payment Date until October 1, 2017. Interest is payable semi-annually in arrears on each
April 1 and October 1, commencing on April 1, 2011, to Holders of record at the close of business
on the preceding March 15 and September 15 (whether or not such day is a Business Day),
respectively. Additional Interest will be payable as set forth in Section 5.03 of the
within-mentioned Supplemental Indenture, and any reference to interest on, or in respect of, any
Note therein shall be deemed to include Additional Interest if, in such context, Additional
Interest is, was or would be payable pursuant to such Section 5.03 and any express mention of the
payment of Additional Interest in any provision therein shall not be construed as excluding Additional
Interest in those provisions thereof where such express mention is not made. Interest on the Notes
will be computed on the basis of a three hundred sixty (360)-day year comprising of twelve (12)
thirty (30)-day months.




     Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes plus one
percent, subject to the enforceability thereof under applicable law, from, and including, the
relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been
paid by the Company, at its election, in accordance with Section 2.03(d) of the Supplemental
Indenture.



     The Company shall pay the principal of and interest on this Note, so long as such Note is a
Global Note, in immediately available funds to the Depositary or its nominee, as the case may be,
as the registered Holder of such Note. As provided in and subject to the provisions of the
Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global
Notes) at the office or agency designated by the Company for that purpose. The Company has
initially designated the Trustee as its Paying Agent and Security Registrar in respect of the Notes



A-2









 







and its agency in New York, New York as a place where Notes may be presented for payment or for
registration of transfer.



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



     This Note, and any claim, controversy or dispute arising under or related to this Note, shall
be construed in accordance with and governed by the laws of the State of New York (without regard
to the conflicts of laws provisions thereof).



     In the case of any conflict between this Note and the Indenture, the provisions of the
Indenture shall control.



     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note 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, the Company has caused this Note to be duly executed.



	 	 	 	 	 
	 	NEWPARK RESOURCES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

WELLS FARGO BANK, NATIONAL ASSOCIATION

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

in the within-named Indenture.




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




A-4












 





NEWPARK RESOURCES, INC.




4.00% Convertible Senior Note due 2017



     This Note is one of a duly authorized issue of senior securities of the Company, designated as
its 4.00% Convertible Senior Notes due 2017 (herein called the “Notes”), limited to the aggregate
principal amount of $172,500,000 all issued or to be issued under and pursuant to an Indenture
dated as of October 4, 2010, as amended and supplemented from time to time in accordance with the
terms thereof (herein called the “Base Indenture”) and as further supplemented by the First
Supplemental Indenture dated as of October 4, 2010 (herein called the “Supplemental Indenture” and
the Base Indenture, as supplemented by the Supplemental Indenture, the “Indenture”), between the
Company and Wells Fargo Bank, National Association, as Trustee (the “Trustee”), to which Indenture
and all indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal
amount, subject to certain conditions specified in the Indenture.



     This Note is the general, unsecured, senior obligation of the Company.



     In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or
Holders of at least 25% in aggregate principal amount of Notes then Outstanding, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions and certain exceptions set forth in the Indenture.



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



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



A-5









 





     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal (including the Fundamental Change Repurchase Price, if applicable) of and
accrued and unpaid interest on this Note at the place, at the respective times, at the rate and in
the lawful money herein prescribed.



     The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. At the office or agency of the Company referred to on the
face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may
be exchanged for a like aggregate principal amount of Notes of other authorized denominations,
without payment of any service charge but, if required by the Company or Trustee, with payment of a
sum sufficient to cover any transfer or similar tax that may be required by law or that may be
imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon
such exchange of Notes being different from the name of the Holder of the old Notes surrendered for
such exchange.



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



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



     Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
prior to the close of business on the Business Day immediately preceding the Maturity Date, to
convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into shares of
Common Stock at the Conversion Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture.



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



A-6









 





ABBREVIATIONS




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


TEN COM = as tenants in common



UNIF GIFT MIN ACT = Uniform Gifts to Minors Act



CUST = Custodian



TEN ENT = as tenants by the entireties



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




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



A-7









 





SCHEDULE A




SCHEDULE OF EXCHANGES OF NOTES




NEWPARK RESOURCES, INC.



4.00% Convertible Senior Notes due 2017



     The initial principal amount of this Global Note is ONE HUNDRED SEVENTY-TWO MILLION FIVE
HUNDRED THOUSAND DOLLARS ($172,500,000). The following increases or decreases in this Global Note
have been made:



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





A-8









 






EXHIBIT B




[FORM OF NOTICE OF CONVERSION]



To: Newpark Resources, Inc.




     The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, into shares of Common Stock in accordance with the terms of the Indenture referred to
in this Note, and directs that any cash payable and any shares of Common Stock issuable and
deliverable upon such conversion, together with any cash for any fractional share, and any Notes
representing any unconverted principal amount hereof, be issued and delivered to the registered
Holder hereof unless a different name has been indicated below. If any shares of Common Stock or
any portion of this Note not converted are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer or similar taxes in accordance with Section
10.02(d) of the Indenture. Any amount required to be paid to the undersigned on account of
interest accompanies this Note.



	 	 	 	 	 	 	 

	Dated:
	 	 	 	 	 	 
	 

	 	 

	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Signature(s)
	 	 






	 	 	 	 	 
	 	 
	 	 
	Signature Guarantee 	 



Signature(s) must be guaranteed

by an eligible Guarantor Institution

(banks, stock brokers, savings and

loan associations and credit unions)

with membership in an approved

signature guarantee medallion program

pursuant to Securities and Exchange

Commission Rule 17Ad-15 if shares

of Common Stock are to be issued, or

Notes are to be delivered, other than

to and in the name of the registered holder.




Fill in for registration of shares if

to be issued, and Notes if to

be delivered, other than to and in the

name of the registered holder:




B-1









 





	 	 	 

	 

(Name)

	 	 
	 
	 	 
	 
	 

(Street Address)

	 	 
	 
	 	 
	 
	 

(City, State and Zip Code)

Please print name and address

	 	 
	 
	 	 
	 

	 	Principal amount to be converted (if less than all):
	 

	 	$                    ,000
	 
	 	 
	 

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

	 	 

	 

	 	Social Security or Other Taxpayer

Identification Number






B-2









 






EXHIBIT C




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]



To: Newpark Resources, Inc.




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Newpark Resources, 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 pay to the registered holder hereof in accordance with the applicable provisions of the
Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion
thereof (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, if
any, thereon to, but excluding, such Fundamental Change Repurchase Date.



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



	 	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 	Signature(s)
	 
	 	 	 	 
	 
	 	 	 	 	 
	 	 	 	 	Social Security or Other Taxpayer 

Identification Number
	 
	 	 	 	 
	 	 	 	 	Principal amount to be repaid (if less than all):

$                    ,000
	 
	 	 	 	 
	 	 	 	 	NOTICE: The above signature(s) of the Holder(s) hereof must
correspond with the name as written upon the face of the Note
in every particular without alteration or enlargement or any
change whatever.










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 Note, and hereby irrevocably constitutes and appoints             
                      
       attorney to
transfer the said Note on the books of the Company, with full power of substitution in the
premises.








D-1









 








	 	 	 	 	 

	Dated:
	 	 
	 

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





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





D-2