Exhibit 4.1





Exhibit 4.1




CBIZ, INC.




4.875% Convertible Senior Subordinated Notes due 2015




 





INDENTURE




Dated as of September 27, 2010




 





U.S. BANK NATIONAL ASSOCIATION




TRUSTEE




 






 


 









 







TABLE OF CONTENTS




 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1
Definitions and Incorporation by Reference

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	11	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	12	 
	Section 1.04. Rules of Construction
	 	 	12	 
	Section 1.05. Acts of Holders
	 	 	13	 
	Section 1.06. References to Interest
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2
The Securities

	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	14	 
	Section 2.02. Execution and Authentication
	 	 	16	 
	Section 2.03. Registrar, Paying Agent, Bid Solicitation Agent, and Conversion Agent
	 	 	16	 
	Section 2.04. Paying Agent to Hold Money and Securities in Trust
	 	 	17	 
	Section 2.05. Securityholder Lists
	 	 	17	 
	Section 2.06. Transfer and Exchange
	 	 	18	 
	Section 2.07. Replacement Securities
	 	 	19	 
	Section 2.08. Outstanding Securities; Determinations of Holders’ Action
	 	 	20	 
	Section 2.09. Temporary Securities
	 	 	21	 
	Section 2.10. Cancellation
	 	 	21	 
	Section 2.11. Persons Deemed Owners
	 	 	21	 
	Section 2.12. Global Securities
	 	 	22	 
	Section 2.13. CUSIP Numbers
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 3
Repurchase

	 
	 	 	 	 
	Section 3.01. Repurchase of Securities at Option of the Holder Upon a Fundamental Change
	 	 	28	 
	Section 3.02. Effect of Fundamental Change Repurchase Notice
	 	 	31	 
	Section 3.03. Deposit of Fundamental Change Repurchase Price
	 	 	32	 
	Section 3.04. Securities Purchased in Part
	 	 	32	 
	Section 3.05. Covenant to Comply with Securities Laws upon Purchase of Securities
	 	 	32	 
	Section 3.06. Repayment to the Company
	 	 	33	 






 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 4
Subordination

	 
	 	 	 	 
	Section 4.01. Agreement of Subordination
	 	 	33	 
	Section 4.02. Payments to Holders
	 	 	33	 
	Section 4.03. Subrogation of Securities
	 	 	36	 
	Section 4.04. Authorization to Effect Subordination
	 	 	37	 
	Section 4.05. Notice to Trustee
	 	 	37	 
	Section 4.06. Trustee’s Relation to Senior Indebtedness
	 	 	38	 
	Section 4.07. No Impairment of Subordination
	 	 	38	 
	Section 4.08. Certain Payments Not Prohibited
	 	 	39	 
	Section 4.09. Article Applicable to Paying Agents
	 	 	39	 
	Section 4.10. Senior Indebtedness Entitled to Rely
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 5
Covenants

	 
	 	 	 	 
	Section 5.01. Payment of Securities
	 	 	40	 
	Section 5.02. SEC and Other Reports
	 	 	40	 
	Section 5.03. Compliance Certificate
	 	 	40	 
	Section 5.04. Further Instruments and Acts
	 	 	41	 
	Section 5.05. Maintenance of Office or Agency
	 	 	41	 
	Section 5.06. Delivery of Certain Information
	 	 	41	 
	Section 5.07. Additional Interest
	 	 	42	 
	Section 5.08. Anti-Layering
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 6
Successor Person

	 
	 	 	 	 
	Section 6.01. When Company May Merge or Transfer Assets
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 7
Defaults and Remedies

	 
	 	 	 	 
	Section 7.01. Events of Default
	 	 	45	 
	Section 7.02. Acceleration
	 	 	46	 
	Section 7.03. Other Remedies
	 	 	47	 
	Section 7.04. Waiver of Past Defaults
	 	 	48	 
	Section 7.05. Control by Majority
	 	 	48	 
	Section 7.06. Limitation on Suits
	 	 	48	 
	Section 7.07. Rights of Holders to Receive Payment
	 	 	49	 
	Section 7.08. Collection Suit by Trustee
	 	 	49	 
	Section 7.09. Trustee May File Proofs of Claim
	 	 	49	 
	Section 7.10. Priorities
	 	 	50	 
	Section 7.11. Undertaking for Costs
	 	 	50	 
	Section 7.12. Waiver of Stay, Extension or Usury Laws
	 	 	51	 






 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 8
Trustee

	 
	 	 	 	 
	Section 8.01. Duties of Trustee
	 	 	51	 
	Section 8.02. Rights of Trustee
	 	 	52	 
	Section 8.03. Individual Rights of Trustee
	 	 	54	 
	Section 8.04. Trustee’s Disclaimer
	 	 	54	 
	Section 8.05. Notice of Defaults
	 	 	54	 
	Section 8.06. Reports by Trustee to Holders
	 	 	55	 
	Section 8.07. Compensation and Indemnity
	 	 	55	 
	Section 8.08. Replacement of Trustee
	 	 	56	 
	Section 8.09. Successor Trustee by Merger
	 	 	57	 
	Section 8.10. Eligibility; Disqualification
	 	 	57	 
	Section 8.11. Preferential Collection of Claims Against Company
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 9
Discharge of Indenture

	 
	 	 	 	 
	Section 9.01. Discharge of Liability on Securities
	 	 	57	 
	Section 9.02. Repayment to the Company
	 	 	58	 
	Section 9.03. Application of Trust Money
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 10
Amendments

	 
	 	 	 	 
	Section 10.01. Without Consent of Holders
	 	 	58	 
	Section 10.02. With Consent of Holders
	 	 	60	 
	Section 10.03. Compliance With Trust Indenture Act
	 	 	61	 
	Section 10.04. Revocation and Effect of Consents, Waivers and Actions
	 	 	61	 
	Section 10.05. Notice of Amendments, Notation on or Exchange of Securities
	 	 	62	 
	Section 10.06. Trustee to Sign Supplemental Indentures
	 	 	62	 
	Section 10.07. Effect of Supplemental Indentures
	 	 	62	 
	 
	 	 	 	 
	ARTICLE 11
Conversions

	 
	 	 	 	 
	Section 11.01. Conversion Privilege
	 	 	62	 
	Section 11.02. Conversion Procedure; Conversion Rate; Fractional Shares
	 	 	67	 
	Section 11.03. Payment Upon Conversion
	 	 	69	 
	Section 11.04. Adjustment of Conversion Rate
	 	 	71	 
	Section 11.05. Effect of Reclassification, Consolidation, Merger or Sale
	 	 	78	 
	Section 11.06. Taxes on Shares Issued
	 	 	80	 
	Section 11.07. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements
	 	 	81	 
	Section 11.08. Responsibility of Trustee
	 	 	81	 
	Section 11.09. Notice to Holders Prior to Certain Actions
	 	 	82	 






 


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	 	 	Page	 
	 
	 	 	 	 
	Section 11.10. Shareholder Rights Plan
	 	 	83	 
	Section 11.11. Unconditional Right of Holders to Convert
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 12
No Redemption

	 
	 	 	 	 
	Section 12.01. No Redemption 
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 13
Miscellaneous

	 
	 	 	 	 
	Section 13.01. Trust Indenture Act Controls
	 	 	83	 
	Section 13.02. Notices
	 	 	83	 
	Section 13.03. Communication by Holders with Other Holders
	 	 	84	 
	Section 13.04. Certificate and Opinion as to Conditions Precedent
	 	 	85	 
	Section 13.05. Statements Required in Certificate or Opinion
	 	 	85	 
	Section 13.06. Separability Clause
	 	 	86	 
	Section 13.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	86	 
	Section 13.08. Legal Holidays
	 	 	86	 
	Section 13.09. Governing Law
	 	 	86	 
	Section 13.10. No Recourse Against Others
	 	 	86	 
	Section 13.11. Successors
	 	 	86	 
	Section 13.12. Multiple Originals
	 	 	86	 
	Section 13.13. Execution in Counterparts
	 	 	86	 
	Section 13.14. Benefits of Indenture
	 	 	87	 
	Section 13.15. No Adverse Interpretation of Other Agreements
	 	 	87	 
	Section 13.16. Calculations in Respect of Securities
	 	 	87	 
	Section 13.17. Table of Contents, Cross-Reference Sheet and Headings
	 	 	87	 






	 	 	 
	EXHIBIT A
	 	Form of Global Security
	EXHIBIT B
	 	Form of Certificated Security
	EXHIBIT C
	 	Transfer Certificate
	EXHIBIT D
	 	Notice of Occurrence of Change of Control
	 
	 	 
	SCHEDULE I
	 	Number of Additional Shares





 


iv









 





INDENTURE dated as of September 27, 2010 between CBIZ, INC., a Delaware corporation
(“Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (“Trustee”).



Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 4.875% Convertible Senior Subordinated Notes due 2015:



ARTICLE 1

Definitions and Incorporation by Reference





Section 1.01. Definitions.



“144A Global Security” means a permanent Global Security in the form of the Security attached
hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities Act.




“2006 Notes” means the Company’s 3.125% Convertible Senior Subordinated Notes due 2026.



“Additional Interest” means all amounts, if any, payable pursuant to  Section 5.07 and
 Section 7.02, as applicable.



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



“Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of the Depositary for such
Security, in each case to the extent applicable to such transaction and as in effect from time to
time.



“Bank Indebtedness” means any and all amounts payable under or in respect of (i) the Credit
Agreement, and (ii) any lines of credit and letters of credit of the Company, in each case,
including principal, premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect thereof.


 


 









 





“Bid Solicitation Agent” means the agent of the Company appointed to obtain quotations for the
Securities as set forth under the definition of Trading Price, which agent shall at no time be an
Affiliate of the Company. The Company may, from time to time, change the Bid Solicitation Agent.



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




“Board Resolution” means a resolution of the Board of Directors.



“Business Day” means, with respect to any Security, any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which commercial banks are authorized or required by
law, regulation or executive order to close in The City of New York.



“Capitalized Lease Obligation” means an obligation that is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP; and
the amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease before the first date on which
such lease may be terminated by the lessee without payment of a penalty.



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



“Certificated Securities” means Securities that are in the form of the Securities attached
hereto as Exhibit B.



“Change of Control” means the occurrence at such time after the original issuance of the
Securities when any of the following has occurred:



(1) a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act,
files a Schedule 13D or any schedule, form or report under the Exchange Act disclosing that such
person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3
under the Exchange Act, of shares of Common Stock representing more than 50% of the Voting Stock;
or



(2) the first day on which a majority of the members of the Board of Directors does not
consist of Continuing Directors; or


 


2









 





(3) a consolidation, merger or binding share exchange, or any conveyance, transfer, sale,
lease or other disposition of all or substantially all of the Company’s properties and assets to
another Person, other than:




(a) any transaction (i) that does not result in any reclassification, conversion,
exchange or cancellation of Capital Stock and (ii) under which holders of the
Company’s Capital Stock immediately prior to such transaction have the entitlement
to exercise, directly or indirectly, 50% or more of the total Voting Stock of the
continuing or surviving or successor Person immediately after giving effect to
such issuance; or




(b) 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 outstanding shares of
Common Stock, if at all, solely into shares of common stock, ordinary shares or
American Depositary Shares of the surviving entity or a direct or indirect parent
of the surviving corporation; or




(c) any consolidation, merger, conveyance, transfer, lease or other disposition
with or into a Subsidiary, so long as such merger, consolidation, conveyance,
transfer, sale, lease or other disposition is not part of a plan or a series of
transactions designed to or having the effect of merging, consolidating with, or
conveying, transferring, selling, leasing or otherwise disposing of all or
substantially all the Company’s properties and assets to, any other Person.



The term “person” includes any syndicate or group that would be deemed to be a “person” under
Section 13(d)(3) of the Exchange Act.




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




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



“Common Stock” means the common stock, $0.01 par value, of the Company existing on the date of
this Indenture or any other shares of Capital Stock of the Company into which such Common Stock
shall be reclassified or changed, including, subject to  Section 11.05 below, in the event of a
merger, consolidation or other similar transaction involving the Company that is otherwise
permitted hereunder in which the Company is not the surviving Person, the common stock of such
surviving corporation.



“Company” means the party named as the “Company” in the preamble of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.


 


3









 






“Company Notice” means a notice to Holders delivered pursuant to  Section 3.01.



“Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any Officer.



“Continuing Director” means a director who either was a member of the Board of Directors on
September 27, 2010 or who becomes a member of the Board of Directors after that date and whose
appointment, election or nomination for election by the Company’s shareholders is duly approved by
a majority of the Continuing Directors on the Board of Directors at the time of such approval,
either by specific vote or by approval of the proxy statement issued by the Company on behalf of
the Board of Directors in which such individual is named as nominee for director.



“Conversion Settlement Date” means with respect to the Conversion Settlement Distribution, the
third Business Day immediately following the Cash Settlement Period.




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



“Corporate Trust Office” means the designated office of the Trustee at which at any time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 60 Livingston Avenue, St. Paul, MN 55107, 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 a successor Trustee may designate
from time to time by notice to the Holders and the Company).



“Credit Agreement” means the Credit Agreement dated as of June 4, 2010, among the Company, as
Borrower, Bank of America, N.A., as Agent, a Lender, Issuing Bank and Swing Line Bank, and the
other financial institutions party thereto, as supplemented, amended, modified, refinanced or
replaced at any time or from time to time.



“Current Market Price” of the Common Stock on any day means the average of the VWAP per share
of the Common Stock for each of the ten consecutive Trading Days ending on the earlier of the day
in question and the day before the “Ex-Dividend Date” with respect to the issuance or distribution
requiring such computation, subject to adjustment by the Board of Directors if another transaction
requiring an adjustment to the Conversion Rate pursuant to  Section 11.04 occurs during such ten
day period.



“Custodian” means U.S Bank National Association, as custodian for The Depository Trust
Company, with respect to the Global Securities, or any successor entity thereto.


 


4









 





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



“Designated Senior Indebtedness” means (i) the Bank Indebtedness and (ii) any other Senior
Indebtedness the principal amount of which (or, in the case of a revolving credit, the commitments
thereunder) is $15.0 million or more and that at the time of determination has been designated by
the Company as “Designated Senior Indebtedness”.



“Ex-Dividend Date” means the first date upon which a sale of the Common Stock, regular way on
the relevant exchange or in the relevant market for the Common Stock, does not automatically
transfer the right to receive the relevant dividend or distribution from the seller of the Common
Stock to its buyer.



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



“Fair Market Value”, or “fair market value” means the amount which a willing buyer would pay a
willing seller in an arm’s-length transaction.




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



“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment of the accounting
profession, which are applied on a consistent basis.



“Global Securities” means Securities that are in the form of the Securities attached hereto as
Exhibit A, and that are registered in the register of Securities in the name of a Depositary or a
nominee thereof, and to the extent that such Securities are required to bear the Legend required by
 Section 2.12(a), such Securities shall be in the form of a 144A Global Security.



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



“Indebtedness” means, with respect to any Person on any date of determination (without
duplication),




(1) the indebtedness of such Person for borrowed money;



(2) the obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments;


 


5









 






(3) all Capitalized Lease Obligations of such Person;



(4) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services (except trade payables);



(5) all obligations of such Person in respect of letters of credit, banker’s acceptances or
other similar instruments or credit transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit securing obligations (other than
obligations described in the first four clauses above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn on or, if and to the
extent drawn on, such drawing is reimbursed no later than the third Business Day following receipt
by such Person of a demand for reimbursement following payment on the letter of credit;



(6) all Indebtedness of other Persons secured by a lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person; provided, however, that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of
determination or (B) the amount of such Indebtedness of such other Person; and




(7) all indebtedness of other Persons to the extent guaranteed by such Person.



The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum liability, on the
occurrence of the contingency giving rise to the obligation, of any contingent obligations at such
date.



“Indenture” means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.



“Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, KeyBanc Capital
Markets Inc. and U.S. Bancorp Investments, Inc.




“Interest” means interest payable on each Security pursuant to Section 1 of the Securities.




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




“Interest Record Date” means March 15 and September 15 of each year.



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


 


6









 





“Last Reported Sale Price” means, with respect to the Common Stock on any Trading Day, the
closing sale price (or if no closing sale price is reported, the average of the bid and asked
prices or, if more than one in either case, the average of the average bid and the average asked
prices) on such Trading Day as reported by The New York Stock Exchange or, if the Common Stock is
not reported by The New York Stock Exchange, 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
Trading Day, 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 Trading Day as reported by the National Quotation
Bureau Incorporated or 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 Trading Day from each of at least three independent nationally
recognized investment banking firms selected by the Company for this purpose.



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



“Officer’s Certificate” means a written certificate containing the information specified in
Sections  13.04 and  13.05, signed in the name of the Company by any Officer, and delivered to the
Trustee. An Officer’s Certificate given pursuant to  Section 5.03 shall be signed by the principal
executive officer, principal financial officer or principal accounting officer of the Company but
need not contain the information specified in Sections  13.04 and  13.05.



“Offering Memorandum” means the offering memorandum of the Company dated September 21, 2010,
relating to the offering of the Securities.



“Opinion of Counsel” means a written opinion containing the information specified in Sections
 13.04 and  13.05, from legal counsel. The counsel may be an employee of, or counsel to, the
Company who is reasonably acceptable to the Trustee.



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



“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee
within the Corporate Trust Services department (or any successor department) of the Trustee located
at the Corporate Trust Office of the Trustee who has direct responsibility for the administration
of this Indenture and, for the purposes of  Section 8.01(c)(2) and  8.05 shall also mean any other
officer of
the Trustee to whom any corporate trust matter is referred because of such person’s knowledge
of and familiarity with the particular subject matter.


 


7









 






“Restricted Security” means a Security required to bear the Legend.



“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may
be amended from time to time.




“SEC” means the Securities and Exchange Commission.



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



“Security” means any of the Company’s 4.875% Convertible Senior Subordinated Notes due 2015
issued under this Indenture.



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



“Senior Indebtedness” means the principal of, premium, if any, interest, including any
interest accruing after the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowed as a claim in the proceeding, and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued or due on or in connection
with, the Company’s Indebtedness (including the Credit Agreement), whether secured or unsecured,
absolute or contingent, due or to become due, outstanding on the date of this Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company, including
all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements
to, the foregoing. Senior Indebtedness does not include:



(1) Indebtedness that expressly provides that such Indebtedness will not be senior in right of
payment to the Securities or expressly provides that such Indebtedness is on parity with or junior
in right of payment to the Securities;




(2) any Indebtedness to any of the Company’s Subsidiaries;




(3) any liability for federal, state, local or other taxes owed or owing by the Company;



(4) Indebtedness for trade payables or the deferred purchase price of assets or services
incurred in the ordinary course of business; and




(5) the 2006 Notes.


 


8









 





“Senior Subordinated Debt”, with respect to the Company, means the Securities, the 2006 Notes
and any other Indebtedness of the Company that
specifically provides that such Indebtedness is to have the same rank as the Securities in
right of payment and is not subordinated by its terms in right of payment to any Indebtedness of
the Company or other obligations of the Company that is not Senior Indebtedness.




“Stated Maturity”, when used with respect to any Security, means October 1, 2015.



“Stock Price” means the price per share of Common Stock paid in connection with a Change of
Control transaction pursuant to which Additional Shares are issuable as set forth in  Section
11.01(c) hereof, which shall be equal to (i) if Holders of Common Stock receive only cash in such
Change of Control transaction, the cash amount paid per share of Common Stock and (ii) in all other
cases, the average of the VWAP of the Common Stock on the five Trading Days prior to, but not
including, the effective date of such Change of Control transaction.



“Subordinated Debt” means, with respect to the Company, means any current or future
Indebtedness of the Company that by its terms is subordinated in right of payment to the
Securities.



“Subsidiary” means any person of which at least a majority of the outstanding Voting Stock
shall at the time directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries.



“Termination of Trading” means the occurrence, at any time, of the Common Stock of the Company
(or other common stock into which the Securities are then convertible) not being listed for trading
on a U.S. national securities exchange.



“TIA” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture,
provided, however, that in the event the TIA is amended after such date, TIA means, to the extent
required by any such amendment, the TIA as so amended.



“Trading Day” means a day during which trading in securities generally occurs on The New York
Stock Exchange or, if the Common Stock is not quoted on The New York Stock Exchange, then a day
during which trading in securities generally occurs on the principal U.S. securities exchange on
which the Common Stock is then listed or, if the Common Stock is not listed on a U.S. national or
regional securities exchange, then on the principal other market on which the Common Stock is then
traded or quoted.


 


9









 





“Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of the Securities obtained by the Bid
Solicitation Agent for $5,000,000 principal amount of the Securities at approximately 3:30 p.m.,
New York City time, on such determination date from three independent nationally recognized
securities dealers
which the Company selects, provided that if three such bids cannot reasonably be obtained by
the Bid Solicitation Agent, but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that
one bid shall be used; provided further that if no bids are received or in the Company’s reasonable
judgment, the bid quotations are not indicative of the secondary market value of the Securities,
then the Trading Price of the Securities will be deemed to be less than 98% of the product of the
Last Reported Sale Price of the Common Stock and the Conversion Rate on such date.



“Trustee” means the party named as the “Trustee” in the preamble of this Indenture unless and
until a successor replaces it pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.



“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).



“VWAP” means, for any Trading Day, the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page “CBZ.N <equity> AQR” (or its equivalent
successor if such page is not available) in respect of the period from the scheduled open of
trading until the scheduled close of trading of the primary trading session on such Trading Day (or
if such volume-weighted average price is unavailable, the market value of one share of the Common
Stock on such Trading Day determined, using a volume-weighted average method, by a nationally
recognized independent investment banking firm retained for this purpose by the Company). The
“VWAP” shall be determined without regard to after hours trading or any other trading outside of
the regular trading session trading hours.


 


10









 






Section 1.02. Other Definitions.



	 	 	 
	 	 	Defined in
	Terms:	 	Section:
	“Act”
	 	 1.05
	“Additional Interest Event”
	 	 5.07(a)
	“Additional Interest Notice”
	 	 5.07(c)
	“Additional Shares
	 	 11.01(c)
	“Adjustment Event”
	 	 11.04(j)
	“Agent Members”
	 	 2.12(e)
	“Bankruptcy Law”
	 	 7.01(h)
	“Cash Amount”
	 	 11.03
	“Cash Settlement Period”
	 	 11.03
	“Conversion Agent”
	 	 2.03
	“Conversion Date”
	 	 11.02(c)
	“Conversion Notice”
	 	 11.02(b)
	“Conversion Obligation”
	 	 11.01(a)
	“Conversion Rate”
	 	 11.02(a)
	“Conversion Settlement Distribution”
	 	 11.03
	“Conversion Value”
	 	 11.03
	“Depositary”
	 	 2.01(b)
	“Determination Date”
	 	 11.04(j)
	“Distributed Assets”
	 	 11.04(d)
	“DTC”
	 	 2.01(b)
	“effective date”
	 	 11.01(c)
	“Event of Default”
	 	 7.01
	“Exchange Property”
	 	 11.01(b)
	“Expiration Time”
	 	 11.04(f)
	“Fiscal Quarter”
	 	 11.01(a)
	“Fundamental Change Repurchase Date”
	 	 3.01(a)
	“Fundamental Change Repurchase Notice”
	 	 3.01(c)
	“Fundamental Change Repurchase Price”
	 	 3.01(a)
	“legal holiday”
	 	 13.08
	“junior securities”
	 	 4.08
	“Legend”
	 	 2.06(g)
	“Measurement Period”
	 	 11.01(a)(2)
	“net share amount”
	 	 11.03
	“net shares”
	 	 11.03(a)(ii)
	“Non-Electing Share”
	 	 11.05(b)
	“Notice of Default”
	 	 7.01
	“Paying Agent”
	 	 2.03
	“Payment Blockage Period”
	 	 4.02
	“Purchased Shares”
	 	 11.04(f)
	“QIB”
	 	 2.01(b)
	“Registrar”
	 	 2.03
	“Rule 144A Information”
	 	 5.06
	“specified cash amount”
	 	 11.03
	“successor Person”
	 	 6.01(a)
	“Trigger Event”
	 	 11.04(d)
	“Valuation Period”
	 	 11.04(d)






 


11









 





Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the following meanings




“Commission” means the SEC.




“indenture securities” means the Securities.




“indenture security holder” means a Securityholder.




“indenture to be qualified” means this Indenture.




“indenture trustee” or “institutional trustee” means the Trustee.




“obligor” on the indenture securities means the Company.



All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.




Section 1.04. Rules of Construction. Unless the context otherwise requires:




	 	(1)	 	a term has the meaning assigned to it;
	 
	 	(2)	 	an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect from time to time;
	 
	 	(3)	 	“or” is not exclusive;
	 
	 	(4)	 	“including” means including, without limitation;
	 
	 	(5)	 	words in the singular include the plural, and words in the
plural include the singular; and
	 
	 	(6)	 	references to Sections and Articles are to references to
Sections and Articles of this Indenture.




 


12









 










Section 1.05. Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company, as described
in  Section 13.02. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.



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



(c) The principal amount and serial number of any Security and the ownership of Securities
shall be proved by the register for the Securities.



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



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


 


13









 





Section 1.06. References to Interest. Unless the context otherwise requires, any reference
to the payment of Interest on, or in respect of, any Security in this Indenture shall be deemed to
include Additional Interest, if, in such context, Additional Interest is, was or would be payable
pursuant to either of  Section 5.07 and  Section 7.02. 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 Securities




Section 2.01. Form and Dating. (a) The Securities and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibits A and B, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement required by usage is
in a form acceptable to the Company). The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of its
authentication. The Securities may, but need not, have the corporate seal of the Company or a
facsimile thereof affixed thereto or imprinted thereon.



(b) 144A Global Securities. Securities offered and sold within the United States to qualified
institutional buyers as defined in Rule 144A (“QIBs”) in reliance on Rule 144A shall be issued,
initially in the form of a 144A Global Security, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the
name of The Depository Trust Company (“DTC”) or the nominee thereof (DTC, or any successor thereto,
and any such nominee being hereinafter referred to as the “Depositary”), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount
of the 144A Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.



 


14









 





(c) Global Securities in General. Each Global Security shall represent such amount of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Securities from time to time endorsed in the Schedule of
Increases and Decreases of Global Security attached thereto and that the aggregate amount of
outstanding Securities
represented thereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges, repurchases and conversions. Each Global Security shall bear the Global Securities
legend as set forth below:



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY
TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented thereby shall be made
by the Trustee in accordance with instructions given by the Holder thereof as required by  Section
2.12 hereof, and shall be made on the records of the Trustee and the Depositary.



(d) Book-Entry Provisions. This  Section 2.01(d) shall apply only to Global Securities
deposited with or on behalf of the Depositary.



The Company shall execute and the Trustee shall, in accordance with this  Section 2.01(d),
authenticate and deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depositary or a nominee thereof, (b) shall be delivered by the Trustee to the
Depositary or held by the Trustee pursuant to the Depositary’s instructions and (c) shall be
substantially in the form of Exhibit A attached hereto.



(e) Certificated Securities. Securities not issued as interests in the Global Securities
shall be issued in certificated form substantially in the form of Exhibit B attached hereto.


 


15









 





Section 2.02. Execution and Authentication. The Securities shall be executed on behalf of
the Company by one Officer. The signature of such Officer on the Securities may be manual or
facsimile.



Securities bearing the manual or facsimile signature of an individual who was, at the time of
the execution of the Securities, an Officer shall bind the Company, notwithstanding that such
individual has ceased to hold such office prior to the authentication and delivery of such
Securities or did not hold such office at the date of authentication of such Securities.



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



The Trustee shall authenticate and deliver the Securities for original issue in an aggregate
principal amount of up to $130,000,000 upon one or more Company Orders without any further action
by the Company (other than the Officer’s Certificate to be provided in accordance with  Section
13.04 and  Section 13.05 hereof). Subject to the provisions of  Section 2.08, the aggregate
principal amount of the Securities due at the Stated Maturity thereof outstanding at any time may
not exceed the amount set forth in the foregoing sentence.



The Securities shall be issued only in registered form without coupons and only in
denominations of $1,000 of principal amount and any integral multiple of $1,000.



Section 2.03. Registrar, Paying Agent, Bid Solicitation Agent, and Conversion Agent. The
Company shall maintain an office or agency where Securities may be presented for registration of
transfer or for exchange (“Registrar”), an office or agency where Securities may be presented for
purchase or payment (“Paying Agent”) and an office or agency where Securities may be presented for
conversion (“Conversion Agent”). The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more co-registrars, one or more
additional paying agents, one or more additional bid solicitation agents and one or more additional
conversion agents. The term Paying Agent includes any additional paying agent, including any named
pursuant to  Section 5.05. The term “Conversion Agent” includes any additional conversion agent,
including any named pursuant to  Section 5.05.



The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent,
Conversion Agent, Bid Solicitation Agent or co-registrar (in each case, if such Registrar, agent or
co-registrar is a Person other than the Trustee). The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall promptly notify the Trustee of the
name
and address of any such agent. If the Company fails to maintain a Registrar, Paying Agent,
Bid Solicitation Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefore pursuant to  Section 8.07. The Company or any Subsidiary or an
Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.


 


16









 





The Company initially appoints the Trustee as Registrar, Conversion Agent, Bid Solicitation
Agent and Paying Agent in connection with the Securities. In connection with its initial
appointment as Bid Solicitation Agent, the Trustee will determine the Trading Price of the
Securities in connection with any conversion on satisfaction of trading price condition as set
forth in  Section 11.01(a)(2).



Section 2.04. Paying Agent to Hold Money and Securities in Trust. Except as otherwise
provided herein, on or prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on
the due date) or shares of Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and
shares of Common Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall promptly notify the Trustee of any Default by the Company in making any such
payment. At any time during the continuance of any such Default, the Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money and shares of Common Stock
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying
Agent, it shall segregate the money and shares of Common Stock held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money
and shares of Common Stock held by it to the Trustee and to account for any funds and Common Stock
disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or
shares of Common Stock.



Section 2.05. Securityholder Lists. The Trustee shall preserve the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on March 15
and September 15 a listing of Securityholders dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses of Securityholders.


 


17









 





Section 2.06. Transfer and Exchange. (a) Subject to  Section 2.12 hereof, upon surrender for
registration of transfer of any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to
 Section 2.03, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities of any authorized
denomination or denominations, of a like aggregate principal amount. The Company shall not charge
a service charge for any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the Securityholder requesting
such transfer or exchange.



At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount upon surrender of
the Securities to be exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder’s attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.



The Company shall not be required to make, and the Registrar need not register, transfers or
exchanges of any Securities in respect of which a Fundamental Change Repurchase Notice has been
given and not withdrawn by the Holder thereof in accordance with the terms of this Indenture
(except, in the case of Securities to be repurchased in part, the portion thereof not to be
repurchased).



(b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole
or in part, shall be made only in accordance with  Section 2.12 and this  Section 2.06(b).
Transfers of a Global Security shall, except as set forth in  Section 2.12, be limited to transfers
of such Global Security in whole or in part, to the Depositary, to nominees of the Depositary or to
a successor of the Depositary or such successor’s nominee.



(c) Successive registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on the register for
the Securities.



(d) Except as otherwise set forth in this Indenture, any such action taken by a Holder shall
be conclusive and binding upon such Holder and upon all future Holders and owners of such Security
and of any Securities issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Security or any Security issued in exchange or
substitution therefore.



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


 


18









 





(f) No Registrar shall be required to make registrations of transfer or exchange of Securities
during any periods designated in the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.



(g) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends relating to such restrictions imposed by the
securities laws set forth on the form of Security attached hereto as Exhibit B (the “Legend”), or
if a request is made to remove the Legend on a Security, the Securities so issued shall bear the
Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the
Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as
may be reasonably required by the Company and the Registrar and the Trustee (if not the same Person
as the Registrar), that neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule 144 under the
Securities Act or that such Securities are not “restricted” within the meaning of Rule 144 under
the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the
Company to the Trustee and Registrar of the sale of such Security pursuant to a registration
statement that is effective at the time of such sale, the Trustee, at the written direction of the
Company, shall authenticate and deliver a Security that does not bear the Legend. If the Legend is
removed from the face of a Security and the Security is subsequently held by the Company or an
Affiliate of the Company, the Legend shall be reinstated.



Section 2.07. Replacement Securities. If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount, bearing a certificate number
not contemporaneously outstanding.



In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or is about to be repurchased by the Company pursuant to  Article 3 hereof,
the Company in its discretion may, instead of issuing a new Security, pay or purchase such
Security, as the case may be.



Upon the issuance of any new Securities under this  Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.


 


19









 





Every new Security issued pursuant to this  Section 2.07 in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.



The provisions of this  Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.



Section 2.08. Outstanding Securities; Determinations of Holders’ Action. Securities
outstanding at any time are all the Securities authenticated by the Trustee except for those
cancelled by it, those purchased pursuant to  Section 2.07, those delivered to it for cancellation
and those described in this  Section 2.08 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate thereof holds the Security; provided, however, that
in determining whether the Holders of the requisite principal amount of Securities have given or
concurred in any request, demand, authorization, direction, notice, consent, waiver, or other Act
hereunder, Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other act, only
Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without limitation,
determinations pursuant to  Article 7 and  Article 10).



If a Security is replaced pursuant to  Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



If the Paying Agent holds, in accordance with this Indenture, on the Business Day immediately
following a Fundamental Change Repurchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then from and after such
Fundamental Change Repurchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Interest on such Securities shall cease to accrue.



If a Security is converted in accordance with  Article 11, then from and after the time of
conversion on the date of conversion, such Security shall cease to be outstanding and Interest
shall cease to accrue, and the rights of the Holders therein shall terminate (other than the right
to receive the Conversion Settlement Distribution).


 


20









 





Section 2.09. Temporary Securities. Pending the preparation of Certificated Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Certificated Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the Officers executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.



If temporary Securities are issued, the Company shall cause Certificated Securities to be
prepared without unreasonable delay. After the preparation of Certificated Securities, the
temporary Securities shall be exchangeable for Certificated Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such purpose pursuant to
 Section 2.03, without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore a like principal amount of Certificated Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as Certificated Securities.



Section 2.10. Cancellation. All Securities surrendered for payment, purchase by the Company
pursuant to   Article 3, conversion or registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee
for cancellation other than in connection with registrations of transfer or exchange or that any
Holder has converted pursuant to  Article 11. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the
Trustee in accordance with the Trustee’s customary procedure.



Section 2.11. Persons Deemed Owners. Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of the principal amount of the Security or any portion thereof, or the payment of
the Fundamental Change Repurchase Price in respect thereof, and Interest thereon, for the purpose
of conversion and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.


 


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Section 2.12. Global Securities. (a) Notwithstanding any other provisions of this Indenture
or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made only in
accordance with  Section 2.06 and  Section 2.12(a)(i) below, (B) transfers of a beneficial interest
in a Global Security for a Certificated Security shall comply with  Section 2.06 and  Section
2.12(a)(ii) below and  Section 2.12(e) below, and (C) transfers of a Certificated Security shall
comply with  Section 2.06,  Section 2.12(a)(iii) and  Section 2.12(a)(iv) below.




(i) Transfer of Global Security. A Global Security may not be transferred, in whole
or in part, to any Person other than the Depositary or a nominee or any successor thereof,
and no such transfer to any such other Person may be registered; provided that this
 Section 2.12(a)(i) shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and
until such Security has been registered in the name of such Person. Nothing in this
 Section 2.12(a)(i) shall prohibit or render ineffective any transfer of a beneficial
interest in a Global Security effected in accordance with the other provisions of this
 Section 2.12.




(ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a
Certificated Security. A beneficial interest in a Global Security may not be exchanged for
a Certificated Security except upon satisfaction of the requirements set forth in this
clause  (ii) below and in  Section 2.12(e) below. Upon receipt by the Trustee of a request
to transfer a beneficial interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security in the form satisfactory to the Trustee, together
with:




(A) so long as the Securities are Restricted Securities, certification in
the form set forth in Exhibit C;




(B) written instructions to the Trustee to make, or direct the Registrar to
make, an adjustment on its books and records with respect to such Global Security
to reflect a decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain information
regarding the Depositary account to be decreased; and




(C) if the Company or the Trustee so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend,




then the Trustee shall cause, or direct the Registrar to cause, in accordance with the
standing instructions and procedures existing between the Depositary and the Registrar, the
aggregate principal amount of the Securities represented by the Global Security to be
decreased by the
aggregate principal amount of the Certificated Security to be issued, shall issue such
Certificated Security and shall debit or cause to be debited to the account of the Person
specified in such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so issued.



 


22









 






(iii) Transfer and Exchange of Certificated Securities. When Certificated Securities
are presented to the Registrar with a request:




(y) to register the transfer of such Certificated Securities; or




(z) to exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,




the Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided, however, that the
Certificated Securities surrendered for transfer or exchange:




(1) shall be duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing; and




(2) so long as such Securities are Restricted Securities, such Securities are
being transferred or exchanged pursuant to an effective registration statement
under the Securities Act or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as applicable:




(A) if such Certificated Securities are being delivered to the Registrar
by a Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect; or




(B) if such Certificated Securities are being transferred to the
Company, a certification to that effect; or




(C) if such Certificated Securities are being transferred pursuant to an
exemption from registration, (i) a certification to that effect (in the form
set forth in Exhibit C, if applicable) and (ii) if the Company or the Trustee
so requests, an opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in the Legend.


 


23









 






(iv) Restrictions on Transfer or Exchange of a Certificated Security for a Beneficial
Interest in a Global Security. A Certificated Security may not be transferred or exchanged
for a beneficial interest in a Global Security except upon satisfaction of the requirements
set forth below.




Upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:




(I) so long as the Securities are Restricted Securities, certification, in the form set
forth in Exhibit C, that such Certificated Security (A) is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or (B) is being transferred pursuant to
and in compliance with Rule 144 under the Securities Act or another exemption from the
securities laws (which is documented to the Company’s satisfaction); and




(II) written instructions directing the Trustee to make, or to direct the Registrar to
make, an adjustment on its books and records with respect to such Global Security to
reflect an increase in the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the Depositary account
to be credited with such increase, then the Trustee shall cancel such Certificated Security
and cause, or direct the Registrar to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Registrar, the aggregate principal
amount of Securities represented by the Global Security to be increased by the aggregate
principal amount of the Certificated Security to be exchanged, and shall credit or cause to
be credited to the account of the person specified in such instructions a beneficial
interest in the Global Security equal to the principal amount of the Certificated Security
so cancelled. If no Global Securities are then outstanding, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the form of an
Officer’s Certificate, a new Global Security in the appropriate principal amount.



(b) Subject to the succeeding   Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if
so provided. Whenever any Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set forth in Exhibit C,
dated the date of such surrender and signed by the Holder of such Security, as to compliance with
such restrictions on transfer. The Registrar shall not be required to accept for such registration
of transfer or exchange any Security not so accompanied by a properly completed certificate.


 


24









 





(c) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security is no longer a “restricted security” for purpose of the
Securities Act. Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this  Section 2.12 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 under the Securities Act or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise reasonably acceptable to
the Company and the Trustee, addressed to the Company and the Trustee and in form acceptable to the
Company and the Trustee, to the effect that the transfer of such Security has been made in
compliance with Rule 144 under the Securities Act or such successor provision), be exchanged for a
new Security, of like tenor and aggregate principal amount, which shall not bear the Legend. The
Company shall inform the Trustee of the effective date of any registration statement registering
the Securities under the Securities Act. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel or
registration statement.



(d) As used in the preceding two paragraphs of this  Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, loan, hypothecation, or other disposition of any Security.



(e) The provisions of clauses  (i),  (ii),  (iii),  (iv) and  (v) below shall apply only to
Global Securities:




(i) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name
of any Person other than the Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in the names of any Persons
designated by the Depositary in the event that (i) the Depositary has notified the Company
that it is unwilling or unable to continue as Depositary for such Global Security or such
Depositary has ceased to be a “clearing agency” registered under Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days (ii) the Company
determines at any time that the Securities shall no longer be represented by Global
Securities and shall inform such Depositary of such determination in writing or (iii) a
Default has occurred and is continuing. Any Global Security exchanged pursuant to clause
 (i) above shall be so exchanged in whole and not in part, and any Global Security
exchanged pursuant to clauses  (ii) or  (iii) above may be exchanged in whole or from time
to time in part as directed by the Depositary. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security; provided that any such
Security so issued that is registered in the name of a Person other than the Depositary
or a nominee thereof or any successor of either of the foregoing pursuant to this
paragraph shall not be a Global Security.


 


25









 






(ii) Securities issued in exchange for a Global Security or any portion thereof shall
be issued in definitive, fully registered form, shall have an aggregate principal amount
equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any Global Security
to be exchanged in whole shall be surrendered by the Depositary to the Registrar. With
regard to any Global Security to be exchanged in part, either such Global Security shall be
so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or
its nominee with respect to such Global Security, the principal amount thereof shall be
reduced by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative thereof.




(iii) Subject to the provisions of clause  (v) below, the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members (as defined below) and
persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.




(iv) In the event of the occurrence of any of the events specified in clause  (i)
above, the Company shall promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form.




(v) Neither any members of, or participants in, the Depositary (collectively, the
“Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the
Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and Holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other Person on whose behalf an Agent Member may act, the operation
of customary
practices of such Persons governing the exercise of the rights of a Holder of any
Security.


 


26









 






(vi) Except as expressly set forth in this Indenture, including Sections  2.12(a)(ii)
and  2.12(e), none of the Trustee, any Paying Agent, Conversion Agent, the Company or the
Registrar shall have any responsibility or obligation to any beneficial owner in the Global
Securities, a member of, or a participant in the Depositary or other Person with respect to
the accuracy of the records of the Depositary or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Global Securities or with
respect to the delivery to any participant, member, beneficial owner or other Person (other
than the Depositary) of any notice or the payment of any amount, under or with respect to
such Global Securities. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be, in the case of a Global Security, the
Depositary or its nominee). The rights of beneficial owners in the Global Securities shall
be exercised only through the Depositary subject to the applicable rules and procedures of
the Depositary. Other than as set forth in this Indenture, the Trustee, any Paying Agent,
the Conversion Agent, the Company and the Registrar may rely and shall be fully protected
in relying upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners. Except as expressly set forth in this Indenture,
including Sections  2.12(a)(ii) and  2.12(e), the Trustee, each Paying Agent, the
Conversion Agent, the Company and the Registrar shall be entitled to deal with any
depositary (including the Depositary), and any nominee thereof, that is the Holder of any
Global Securities as a Holder for all purposes of this Indenture relating to such Global
Securities (including the payment of principal and Interest, and the giving of instructions
or directions by or to the owner or Holder of a beneficial ownership interest in such
Global Securities) as the sole Holder of such Global Securities and shall have no
obligations to the beneficial owners thereof. None of the Trustee, any Paying Agent, the
Conversion Agent, the Company or the Registrar shall have any responsibility or liability
for any acts or omissions of any such depositary with respect to such Global Securities,
for the records of any such depositary, including records in respect of beneficial
ownership interests in respect of any such Global Securities, for any transactions between
such depositary and any participant in such depositary or between or among any such
depositary, any such participant and/or any holder or owner of a beneficial interest in
such Global Securities or for any transfers of beneficial interests in any such Global
Securities.


 


27









 





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



The Trustee shall have no responsibility for the actions or omissions of the Depositary, or
the accuracy of the books and records of the Depositary.



Section 2.13. CUSIP Numbers. The Company may issue the Securities with one or more “CUSIP”,
“ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP”, “ISIN” or other similar numbers in all notices issued to Holders as a convenience to
Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice and
that reliance may be placed only on the other identification numbers printed on the Securities.
The Company shall promptly notify the Trustee of any change in the CUSIP, ISIN or other similar
numbers.



ARTICLE 3

Repurchase




Section 3.01. Repurchase of Securities at Option of the Holder Upon a Fundamental Change.
(a) If a Fundamental Change occurs, each Holder shall have the right, at such Holder’s option, to
require the Company to repurchase for cash all or any portion of such Holder’s Securities that is
equal to or an integral multiple of $1,000 principal amount, at a repurchase price equal to 100% of
the principal amount of those Securities, plus accrued and unpaid Interest on those Securities (the
“Fundamental Change Repurchase Price”) to, but not including, the date that is 30 days following
the date of the notice of a Fundamental Change mailed by the Company pursuant to  Section 3.01(b)
(the “Fundamental Change Repurchase Date”), subject to satisfaction by or on behalf of the Holder
of the requirements set forth in  Section 3.01(c); provided that if the Fundamental Change
Repurchase Date is on a date that is after an Interest Record Date and on or prior to the
corresponding Interest Payment Date, the Fundamental Change Repurchase Price shall be 100% of the
principal amount of the Securities repurchased but shall not include accrued and unpaid Interest.
Instead, the Company shall pay such Interest on the Interest Payment Date to the Holder of record
on the corresponding Interest Record Date.



(b) No later than 15 days after the occurrence of a Fundamental Change, the Company shall mail
a Company Notice of the Fundamental Change (substantially in the form of Exhibit D) by first class
mail to the Trustee and to each Holder (and to beneficial owners if required by applicable law).
The Company
Notice shall include a form of Fundamental Change Repurchase Notice to be completed by the
Holder and shall state:



(i) briefly, the events causing a Fundamental Change and the date of such Fundamental
Change;




(ii) the date by which the Fundamental Change Repurchase Notice pursuant to this
 Section 3.01 must be delivered to the Paying Agent in order for a Holder to exercise the
repurchase rights;



 


28









 








(iii) the Fundamental Change Repurchase Date;




(iv) the Fundamental Change Repurchase Price;




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




(vi) the Conversion Rate;




(vii) that the Securities as to which a Fundamental Change Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to  Article 11 hereof
only if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the
terms of this Indenture;




(viii) that the Securities must be surrendered to the Paying Agent (by effecting book
entry transfer of the Securities or delivering Certificated Securities, together with
necessary endorsements, as the case may be) to collect payment;




(ix) that the Fundamental Change Repurchase Price for any Security as to which a
Fundamental Change Repurchase Notice has been duly given and not withdrawn shall be paid
promptly following the later of the Business Day immediately following the Fundamental
Change Repurchase Date and the time of surrender of such Security as described in clause
 (viii);




(x) briefly, the procedures the Holder must follow to exercise rights under this
 Section 3.01;




(xi) briefly, the conversion rights, if any, that exist on the Securities at the date
of the Company Notice and as a result of such Fundamental Change;




(xii) the procedures for withdrawing a Fundamental Change Repurchase Notice;


 


29









 






(xiii) that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price on Securities for which a Fundamental Change Repurchase Notice is
submitted, Interest on Securities surrendered for purchase by the Company shall cease to
accrue from and after the Fundamental Change Repurchase Date; and




(xiv) the CUSIP, “ISIN” or other similar number(s), as the case may be, of the
Securities.



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



(c) A Holder may exercise its rights specified in this  Section 3.01 upon delivery of a
written notice of repurchase (a “Fundamental Change Repurchase Notice”) to the Paying Agent at any
time on or prior to the close of business on the Fundamental Change Repurchase Date, stating:




(i) If Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated Securities
have not been issued, the Fundamental Change Repurchase Notice shall comply with the
appropriate Depositary procedures for book-entry transfer;




(ii) the portion of the principal amount of the Security which the Holder shall
deliver to be repurchased, which portion must be $1,000 or an integral multiple of $1,000;
and




(iii) that such Security shall be repurchased pursuant to the terms and conditions
specified in Section 6 of the Securities and in this Indenture.



The delivery of such Security (together with all necessary endorsements) to the Paying Agent
with the Fundamental Change Repurchase Notice at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor;
provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this
 Section 3.01 only if the Security (together with all necessary endorsements) so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth in the related
Fundamental Change Repurchase Notice.



The Company shall repurchase from the Holder thereof, pursuant to this  Section 3.01, a
portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the repurchase of all of a Security also apply
to the repurchase of such portion of such Security.


 


30









 





Any repurchase by the Company contemplated pursuant to the provisions of this  Section 3.01
shall be consummated by the delivery of the Fundamental Change Repurchase Price promptly following
the later of the Business Day following the Fundamental Change Repurchase Date or the time of
delivery of such Security (together with all necessary endorsements or notifications of book-entry
transfer).



Notwithstanding the foregoing, Holders shall not have the right to require the Company to
repurchase the Securities upon a Change of Control described in clause (3) of the definition
thereof if more than 90% of the consideration in the transaction or transactions constituting such
Change of Control consists of shares of common stock traded or to be traded immediately following
such Change of Control on a U.S. national securities exchange as a result of such transaction or
transactions, the Securities become convertible into such common stock (and any rights attached
thereto).



Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this  Section 3.01(c) shall have the right to
withdraw such Fundamental Change Repurchase Notice by delivery of a written notice of withdrawal to
the Paying Agent in accordance with  Section 3.02 at any time prior to the close of business on the
Fundamental Change Repurchase Date.



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



Section 3.02. Effect of Fundamental Change Repurchase Notice. (a) Upon receipt by the Paying
Agent of the Fundamental Change Repurchase Notice specified in  Section 3.01, the Holder of the
Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in  Section 3.02(b)) thereafter be
entitled solely to receive the Fundamental Change Repurchase Price, with respect to such Security
whether or not the Security is, in fact, properly delivered. Such Fundamental Change Repurchase
Price shall be paid to such Holder, subject to receipt of funds and/or securities by the Paying
Agent, promptly following the later of (x) the Business Day following the Fundamental Change
Repurchase Date, with respect to such Security (provided the conditions in  Section 3.01, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by  Section 3.01. Securities in respect of which a Fundamental Change
Repurchase Notice has been given by the Holder thereof may not be converted pursuant to and to the
extent permitted by  Article 11 hereof on or after the date of the delivery of such Fundamental
Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly
withdrawn as specified in  Section 3.02(b).


 


31









 





(b) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent
in accordance with the Fundamental Change Repurchase Notice, if received by the Paying Agent
prior to the close of business on the Fundamental Change Repurchase Date, specifying:




	 	(1)	 	the principal amount, if any, of such Security which remains subject to
the original Fundamental Change Repurchase Notice and which has been or shall be
delivered for purchase by the Company,






	 	(2)	 	if Certificated Securities have been issued, the certificate number, if
any, of the Security in respect of which such notice of withdrawal is being
submitted (or, if Certificated Securities have not been issued, that such withdrawal
notice shall comply with the appropriate Depositary procedures), and






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





Section 3.03. Deposit of Fundamental Change Repurchase Price. Prior to 11:00 a.m. (local
time in The City of New York) on the Business Day following the Fundamental Change Repurchase
Date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as
provided in  Section 2.04) an amount of cash in immediately available funds sufficient to pay the
aggregate Fundamental Change Repurchase Price of all the Securities or portions thereof which are
to be purchased as of the Fundamental Change Repurchase Date.



Section 3.04. Securities Purchased in Part. Any Certificated Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not purchased.



Section 3.05. Covenant to Comply with Securities Laws upon Purchase of Securities. When
complying with the provisions of  Section 3.01 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) and any other applicable tender
offer rules under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights and obligations
under  Section 3.01 to be exercised in the time and in the manner specified in  Section 3.01.


 


32









 





Section 3.06. Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed as provided in Section 12 of the Securities, together with
interest, if any, thereon (subject to the provisions of  Section 8.01(f)), held by them for the
payment of the Fundamental Change Repurchase Price.



ARTICLE 4

Subordination




Section 4.01. Agreement of Subordination. The Company covenants and agrees, and each Holder
of Securities issued hereunder by its acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this  Article 4; and each Person holding
any Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees to be bound by such provisions.



The payment of the principal and Interest on all Securities (including, but not limited to the
Fundamental Change Repurchase Price with respect to the Securities subject to repurchase in
accordance with  Article 3 and the payment of any cash upon conversion in accordance with  Article
11) issued hereunder shall, to the extent and in the manner hereinafter set forth, be (i)
subordinated and subject in right of payment to the prior payment in full in cash or other payment
satisfactory to the holders of Senior Indebtedness of all Senior Indebtedness, whether outstanding
at the date of this Indenture or thereafter incurred; (ii) pari passu in right of payment to all
Senior Subordinated Debt and (iii) senior in right of payment to all Subordinated Debt.



No provision of this  Article 4 shall prevent the occurrence of any Default or Event of
Default hereunder.



Section 4.02. Payments to Holders. No payment shall be made with respect to the principal
of, or Interest on the Securities (including, but not limited to the Fundamental Change Repurchase
Price with respect to the Securities subject to repurchase in accordance with  Article 3 and any
payment of cash upon conversion in accordance with  Article 11), except payments and distributions
made by the Trustee as permitted by the first or second paragraph of  Section 4.08, if:




(a) any principal, premium, if any, or interest with respect to Designated Senior
Indebtedness is not paid within any applicable grace period (including at maturity), or


 


33









 






(b) any other default on Designated Senior Indebtedness occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its terms,



unless, in either case,





	 	(i)	 	the default has been cured or waived and such acceleration
has been rescinded,






	 	(ii)	 	such Senior Indebtedness has been paid in full in cash, or






	 	(iii)	 	the Company and the Trustee receive written notice
approving such payment from the representatives of each issue of
Designated Senior Indebtedness.





During any default (other than a default described in clause (a) or (b) above of this  Section
4.02) on any Designated Senior Indebtedness under which the maturity of the Designated Senior
Indebtedness may be accelerated without further notice (except any notice required to effect the
acceleration) or the expiration of any applicable grace periods, the Company may not make payments
on the Securities for a period (the “Payment Blockage Period”) starting on the date of receipt by
the Company and the Trustee of written notice of the election to effect a Payment Blockage Period
and ending 179 days thereafter. The Payment Blockage Period may be terminated before its expiration
by written notice by a representative of the holders of such Designated Senior Indebtedness to the
Trustee and to the Company from the Person who gave the blockage notice, by repayment in full in
cash of the Designated Senior Indebtedness with respect to which the blockage notice was given, or
because the default giving rise to the Payment Blockage Period is no longer continuing or has been
waived. Unless the holders of the Designated Senior Indebtedness have accelerated the maturity of
the Designated Senior Indebtedness, the Company may resume payments on the Securities after the
expiration of the Payment Blockage Period. Not more than one blockage notice may be given in any
period of 360 consecutive days unless the first blockage notice within such 360-day period is given
by or on behalf of holders of Designated Senior Indebtedness other than the Bank Indebtedness, in
which case the representative of the Bank Indebtedness may give another blockage notice within such
period. In no event, however, may the total number of days during which any Payment Blockage Period
or Payment Blockage Periods are in effect exceed 179 days in the aggregate during any period of 360
consecutive days. No default that existed or was continuing on the date of delivery of any payment
blockage notice to the Trustee will be, or can be made, the basis for the commencement of a
subsequent Payment Blockage Period whether or not within a period of 360 consecutive days.


 


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Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of the Company
(whether voluntary or involuntary) or in bankruptcy, insolvency, receivership or similar
proceedings, all amounts due or to become due upon all Senior Indebtedness shall first be paid in
full in cash, or other payments satisfactory to the holders of Senior Indebtedness, before any
payment of cash, property or securities is made on account of the principal of or Interest on, or
with respect to the conversion of, the Securities (except as permitted by  Section 4.08); and upon
any such dissolution or winding-up or liquidation or reorganization of the Company or bankruptcy,
insolvency, receivership or other proceeding, any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled, except for the provisions of this
 Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by
the Holders of the Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, or as otherwise required by law or
a court order) or their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to pay all Senior
Indebtedness in full in cash, or other payment satisfactory to the holders of Senior Indebtedness,
after giving effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders of the Securities or to the
Trustee.



The consolidation of the Company with, or the merger of the Company into, another corporation
or the liquidation or dissolution of the Company following the conveyance, transfer or lease of all
or substantially all its property to another corporation upon the terms and conditions provided for
in  Article 6 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this  Section 4.02 if such other corporation shall, as a part of such consolidation,
merger, conveyance, transfer or lease, comply with the conditions stated in  Article 6.



If payment of the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Indebtedness or their Representatives of such acceleration.



In the event that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received
by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, in
cash or other payment satisfactory to the holders of Senior Indebtedness, or provision is made for
such payment thereof in accordance with its terms in cash or other payment satisfactory
to the holders of Senior Indebtedness, such payment or distribution shall be held in trust for
the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their
Representative or Representatives, as their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full, in cash or other payment satisfactory to the
holders of Senior Indebtedness or their Representative, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.


 


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Nothing in this  Section 4.02 shall apply to claims of, or payments to, the Trustee under or
pursuant to  Section 7.10 and  Section 8.07. This  Section 4.02 shall be subject to the further
provisions of  Section 4.08.



Section 4.03. Subrogation of Securities. Subject to the payment in full, in cash or other
payment satisfactory to the holders of Senior Indebtedness, of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of this  Article 4
(equally and ratably with the holders of all Senior Subordinated Indebtedness) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Indebtedness until the principal and Interest on the
Securities shall be paid in full in cash or other payment satisfactory to the holders of
Securities; and, for the purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this  Article 4, and no
payment pursuant to the provisions of this  Article 4, to or for the benefit of the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the benefit of the Holders of the
Securities pursuant to the subrogation provisions of this  Article 4, which would otherwise have
been paid to the holders of Senior Indebtedness shall be deemed to be a payment by the Company to
or for the account of the Securities. It is understood that the provisions of this  Article 4 are
and are intended solely for the purposes of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand.



Nothing contained in this  Article 4 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of and Interest on the
Securities as and when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if
any, under this  Article 4 of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.


 


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Upon any payment or distribution of assets of the Company referred to in this  Article 4, the
Trustee, subject to the provisions of  Section 8.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this  Article 4.



Section 4.04. Authorization to Effect Subordination. Each Holder of a Security by the
Holder’s acceptance thereof authorizes and directs the Trustee on the Holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination as provided in this
 Article 4 and appoints the Trustee to act as the Holder’s attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form
required in any proceeding referred to in  Section 4.03 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior Indebtedness or their
representatives are hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Securities.



Section 4.05. Notice to Trustee. The Company shall give prompt written notice in the form of
an Officer’s Certificate to a Responsible Officer of the Trustee and to any Paying Agent of any
fact known to the Company which would prohibit the making of any payment of monies to or by the
Trustee or any Paying Agent in respect of the Securities pursuant to the provisions of this
 Article 4. Notwithstanding the provisions of this  Article 4 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this  Article 4, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof at the Corporate Trust Office from the
Company (in the form of an Officer’s Certificate) or a Representative or a Holder or Holders of
Senior Indebtedness or from any trustee thereof; and before the receipt of any such written notice,
the Trustee, subject to the provisions of  Section 8.01, shall be entitled in all respects to
assume that no such facts exist; provided that, if on a date not less than two Business Days prior
to the date upon which by the terms hereof any such
monies may become payable for any purpose (including, without limitation, the payment of the
principal of or Interest on any Security) the Trustee shall not have received, with respect to such
monies, the notice provided for in this  Section 4.05, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to receive such monies
and to apply the same to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.


 


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The Trustee, subject to the provisions of  Section 8.01, shall be entitled to rely on the
delivery to it of a written notice by a Representative or a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice
has been given by a Representative or a holder of Senior Indebtedness. In the event that the
Trustee determines in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to
this  Article 4, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this  Article 4, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.



Section 4.06. Trustee’s Relation to Senior Indebtedness. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this  Article 4 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in  Section 8.11 or elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.



With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this  Article
4, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of  Section
8.01, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, the Company or any other Person money or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this  Article 4 or otherwise.



Section 4.07. No Impairment of Subordination. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which
any such holder may have or otherwise be charged with.


 


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Section 4.08. Certain Payments Not Prohibited. (a) For the purposes of this  Article 4 only,
the issuance and delivery of junior securities upon dissolution, winding-up, liquidation,
insolvency or reorganization and the issuance of Common Stock, other securities into which the
Securities are then convertible or junior securities upon conversion of Securities in accordance
with  Article 11 shall not be deemed to constitute a payment or distribution on account of the
principal of such Security or interest subject to blockage pursuant to  Section 4.02. For the
purposes of this  Section 4.08, the term “junior securities” means (x) shares of any Capital Stock
of any class of the Company, or (y) securities of the Company which are subordinated in right of
payment to all Senior Indebtedness that may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. Nothing contained in this  Article 4 or elsewhere
in this Indenture or in the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders, the right, which is absolute
and unconditional, of the Holder of any Security to convert such Security in accordance with
 Article 11.



(b) Notwithstanding anything in this  Article 4 to the contrary, nothing shall prevent any
payment by the Trustee to the Holders of monies deposited with it pursuant to  Article 9 prior to
commencement of a Payment Blockage Period or commencement of proceedings for dissolution,
winding-up, liquidation or reorganization, and any such payment shall not be subject to the
provisions of this  Article 4.



Section 4.09. Article Applicable to Paying Agents. If at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article shall (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that the first paragraph of  Section 4.05 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.



Section 4.10. Senior Indebtedness Entitled to Rely. The holders of Senior Indebtedness
(including, without limitation, Designated Senior Indebtedness) shall have the right to rely upon
this  Article 4, and no amendment or modification of the provisions contained herein shall diminish
the rights of such holders unless such holders shall have agreed in writing thereto.


 


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ARTICLE 5

Covenants




Section 5.01. Payment of Securities. The Company shall make all payments in respect of the
Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture.
Any amounts of cash in immediately available funds or shares of Common Stock to be given to the
Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by 11:00 a.m., New York
City time, by the Company. The principal amount of, and Interest on, the Securities, and the
Fundamental Change Repurchase Price shall be considered paid on the applicable date due if on such
date (which, in the case of the Fundamental Change Repurchase Price, shall be on the Business Day
immediately following the Fundamental Change Repurchase Date) the Trustee or the Paying Agent
holds, in accordance with this Indenture, cash or securities, if permitted hereunder, sufficient to
pay all such amounts then due.



Section 5.02. SEC and Other Reports. The Company shall deliver to the Trustee, within 15
days after the same are required to be filed with the SEC (giving effect to any grace period
provided by Rule 12b-25 under the Exchange Act), copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. The Company shall also comply with the other
provisions of TIA Section 314(a). Delivery of such reports, information and documents 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 rely conclusively on Officer’s Certificates). Documents filed by the Company
with the SEC via the EDGAR system will be deemed furnished to the Trustee as of the time such
documents are filed via EDGAR, provided that the Trustee shall have no responsibility for
determining whether such filing has taken place.



Section 5.03. Compliance Certificate. The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2010) an Officer’s Certificate, stating whether or not to the knowledge of the signer
thereof, the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which such Officer may have knowledge and otherwise comply
with Section 314(a)(4) of the TIA.


 


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The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee,
promptly after any executive officer of the Company becomes aware
of any Default or Event of Default in respect of the performance or observance of any covenant
or agreement contained in this Indenture or the Securities, an Officers’ Certificate specifying
such Default or Event of Default and what action the Company is taking or proposes to take with
respect thereto.



Section 5.04. Further Instruments and Acts. The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.



Section 5.05. Maintenance of Office or Agency. The Company shall maintain in the United
States of America, an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where Securities may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase or conversion and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served. The Corporate
Trust Office of the Trustee, shall initially be such office or agency for all of the aforesaid
purposes. The Company shall give prompt written notice to the Trustee of the location, and of any
change in the location, of any such office or agency (other than a change in the location of the
office of the Trustee). If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in
 Section 13.02.



The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the United
States of America, for such purposes.



Section 5.06. Delivery of Certain Information. At any time when the Company is not subject
to Section 13 or 15(d) of the Exchange Act, so long as any of the Securities or any shares of
Common Stock issuable upon conversion thereof shall at such time, constitute “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act, upon the request of a
Holder or any beneficial owner of Securities or Holder or beneficial owner of shares of Common
Stock issued upon conversion thereof, the Company shall promptly furnish or cause to be furnished
Rule 144A Information (as defined below) to such Holder or any beneficial owner of Securities or
Holder or beneficial owner of shares of Common Stock, or to a prospective purchaser of any such
security designated by any such Holder, as the case may be, to the extent required to permit
compliance by such Holder or beneficial owner with Rule 144A under the Securities Act in connection
with the resale of any such security. “Rule 144A Information” shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person is a beneficial owner shall be determined by the Company to the Company’s
reasonable satisfaction.



 


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Section 5.07. Additional Interest.



(a) If, at any time during the six-month period beginning on, and including, the date which is
six months after the last date of original issuance of the Securities and ending on the date that
is one year after the last date of original issuance of the Securities, (i) the Company fails to
timely file any periodic report that it is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act, as applicable (other than reports on Form 8-K), and such failure
continues for 14 days in the aggregate, or (ii) the Securities are not otherwise freely tradable
pursuant to Rule 144 under the Securities Act by Holders other than the Company’s Affiliates, or
under this Indenture or the Securities (an “Additional Interest Event”), the Company shall pay
Additional Interest on the Securities. Such Additional Interest will accrue on the Securities at a
rate of 0.25% per annum of the principal amount of the Securities outstanding for each day during
the first 90-day period (or portion thereof) for which an Additional Interest Event has occurred
and is continuing, which rate shall increase by an additional 0.25% per annum of the principal
amount of the Securities for each subsequent 90-day period (or portion thereof), up to a maximum of
0.50% of the principal amount of the Securities.



(b) Unless (i) the Legend on the Securities has been removed, or (ii) the Securities are
freely tradable pursuant to Rule 144 under the Securities Act by Holders other than the Company’s
Affiliates (without restrictions pursuant to U.S. securities law or the terms of this Indenture or
the Securities), on or after the 365th day after the last date of original issuance of the
Securities, an Additional Interest Event would be deemed to have occurred and the Company shall pay
Additional Interest on the Securities at an annual rate equal to 0.25% of the aggregate principal
amount of the Securities for each day during the first 90-day period (or portion thereof) for which
such Additional Interest Event is continuing, which rate shall increase by an additional 0.25% per
annum of the principal amount of the Securities for each subsequent 90-day period (or portion
thereof), up to a maximum of 0.50% of the principal amount of the Securities; provided that the
Company shall not be required to pay Additional Interest on the Securities for failure to remove
the Legend on the Securities unless the Company has received a request to do so by a Holder, any
Initial Purchaser or the Trustee on or after the 365th day after the last Issue Date of the
original issuance of the Securities, except that if the Company receives such a request on or after
the 5th Business Day immediately preceding such 365th day and the restrictive legend on the
Securities has not been removed by the close of business on the 5th Business Day
thereafter, Additional Interest on the Securities will accrue from such 365th day.


 


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(c) Any Additional Interest payable pursuant to  Section 5.07(a) or  Section 5.07(b) shall be
payable in arrears on each Interest Payment Date in the
same manner as Interest on the Securities, and will be in addition to, and not in lieu of, any
Additional Interest that may have accrued or may in the future accrue at the Company’s election as
the sole remedy relating to the failure to comply with its reporting obligations pursuant to
 Section 5.02, except that at no time will the Additional Interest payable pursuant to  Section
5.07(a) or  Section 5.07(b), together with any Additional Interest that may be payable pursuant to
 Section 7.02, exceed a rate of 1.00% per annum. When the Securities become freely tradable as
described in  Section 5.07(a) or  Section 5.07(b), as the case may be, accrued and unpaid
Additional Interest payable pursuant to  Section 5.07(a) or  Section 5.07(b) to, but excluding, the
date on which the Securities become freely tradable shall be paid in cash on the next Interest
Payment Date. If Additional Interest is payable by the Company pursuant to  Section 5.07(a) or
 Section 5.07(b), the Company shall deliver to the Trustee an “Additional Interest Notice” 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 of the Trustee
receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry
that no such Additional Interest is payable. If the Company has paid Additional Interest directly
to the Persons entitled to it, the Company shall deliver to the Trustee an Additional Interest
Notice setting forth the particulars of such payment.



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



Section 5.08. Anti-Layering. The Company may not incur any Indebtedness that is subordinate
in right of payment to Senior Indebtedness of the Company unless such Indebtedness is pari passu
with, or subordinated in right of payment to, the Securities. This does not apply to distinctions
between categories of Indebtedness that exist by reason of any liens or guarantees securing or in
favor of some but not all of such Indebtedness.


 


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ARTICLE 6

Successor Person




Section 6.01. When Company May Merge or Transfer Assets. The Company shall not consolidate
with or merge with or into any other Person or convey, transfer, or lease all or substantially all
of its properties and assets to any Person, unless:




(a) (i) the Company is the continuing Person in the case of a merger; or (ii) the
resulting, surviving or transferee person (the “successor Person”) will 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 Person (if not the Company) will expressly
assume, by indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company or such
successor Person under the Securities and this Indenture;




(b) immediately after giving effect to such transaction (and treating any indebtedness
which becomes an obligation of the successor Person or any Subsidiary as a result of such
transaction as having been incurred by such successor Person or such Subsidiary as the time
of such transaction), no Default shall have occurred and be continuing; and




(c) the Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, or transfer or lease and,
if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this  Article 6 and that all conditions precedent herein
provided relating to such transaction have been satisfied.



The successor Person formed by such consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease and obligations the Company may have under a supplemental
indenture, the Company shall be discharged from all obligations and covenants under this Indenture
and the Securities. Subject to  Section 10.06, the Company, the Trustee and the successor Person
shall enter into a supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.


 


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ARTICLE 7

Defaults and Remedies




Section 7.01. Events of Default. So long as any Securities are outstanding, each of the
following shall be an “Event of Default”:



(a) the Company defaults in the payment of the principal amount of any Security when due at
maturity, upon repurchase or otherwise, whether or not such payment is prohibited by reason of the
subordination provisions in  Article 4;



(b) the Company defaults in the payment of any installment of Interest, when due and payable,
whether or not such payment is prohibited by reason of the subordination provisions in  Article 4,
and continuance of such default for a period of 30 days;



(c) the Company defaults in its obligation to provide timely notice of a Fundamental Change to
the Trustee and each Holder as required under  Section 3.01(b);



(d) following the exercise by the Holder of the right to convert a Security in accordance with
 Article 11 hereof, the Company fails to comply with its obligations to deliver the cash or shares
of Common Stock, if any, required to be delivered as part of the applicable Conversion Settlement
Distribution on the applicable Conversion Settlement Date and such failure continues for a period
of 5 days or more;



(e) the Company fails to comply with the obligation to repurchase Securities pursuant to
 Section 3.01, whether or not such payment is prohibited by reason of the subordination provisions
in  Article 4;



(f) the Company fails to perform or observe any covenant or warranty in the Securities or this
Indenture (other than those referred to in clause  (a) through clause  (e) above) and such failure
continues for 60 days after receipt by the Company of a Notice of Default;



(g) the failure by the Company or any Subsidiary to pay Indebtedness within any applicable
grace period after final maturity or the Indebtedness is accelerated by the holders of the
Indebtedness because of a default, the total amount of such Indebtedness unpaid or accelerated
exceeds $25 million, and such default remains uncured or such acceleration is not rescinded for 10
days after the date on which Notice of Default has been provided;



(h) the entry by a court having jurisdiction in the premise of (i) a decree or order for
relief in respect of the Company or any Subsidiary, in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law (any “Bankruptcy Law”)or
(ii) a decree or order adjudging the Company or any Subsidiary, a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary, under any applicable Bankruptcy Law,
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or any such
other decree or order described in clause (i) or (ii) above is unstayed and in effect for a period
of 60 consecutive days; and


 


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(i) (i) the commencement by the Company or any Subsidiary, of a voluntary case or proceeding
under any applicable Bankruptcy Law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or (ii) the consent by the
Company, to the entry of a decree or order for relief in respect of the Company or any Subsidiary,
in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of
any bankruptcy or insolvency case or proceeding against the Company, or (iii) the filing by the
Company, of a petition or answer or consent seeking reorganization or relief under any applicable
Bankruptcy Law, or (iv) the consent by the Company to the filing of such petition or to the
appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part of its property,
or (v) the making by the Company or any Subsidiary, of a general assignment for the benefit of
creditors.



The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.



For the avoidance of doubt, clauses  (f) and  (g) above shall not constitute an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding notify the Company and the Trustee, of
such default and the Company does not cure such default (and such default is not waived) within the
time specified in clauses  (f) and  (g) above after actual receipt of such notice. Any such notice
must specify the default, demand that it be remedied and state that such notice is a “Notice of
Default.”



Section 7.02. Acceleration. If an Event of Default (other than an Event of Default specified
in Section  7.01(h) or  Section 7.01(i) with respect to the Company) occurs and is continuing (the
Event of Default not having been cured or waived), the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding by
notice to the Company and the Trustee, may declare the principal amount of the Securities and any
accrued and unpaid Interest on all the Securities to be immediately due and payable. Upon such a
declaration, such accelerated amount shall be due and payable immediately. If an Event of Default
specified in Section  7.01(h) or  Section 7.01(i) with respect to the Company occurs and is
continuing, the principal amount of the Securities and any accrued and unpaid Interest on all the
Securities shall become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Securityholders. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to
any other Securityholder) may rescind an acceleration and its consequences, and thereby waive the
Events of Default giving rise to such acceleration, if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or waived except (1) an
Event of Default described in clauses  (a),  (b), and  (e) of  Section 7.01 or (2) an Event of
Default in respect of a provision that under  Section 10.02 cannot be
amended without the consent of each Securityholder affected. No such rescission shall affect
any subsequent Event of Default or impair any right consequent thereto.


 


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Notwithstanding anything in this Indenture or in the Securities to the contrary, to the extent
elected by the Company, the sole remedy for an Event of Default relating to the failure by the
Company to comply with its reporting obligations under  Section 5.02, shall (i) for the first 90
days after the occurrence of such an Event of Default, consist exclusively of the right to receive
Additional Interest on the Securities at an annual rate equal to 0.25% of the principal amount of
the Securities then outstanding, and (ii) for the next 90 days after the expiration of such 90 day
period, consist exclusively of the right to receive Additional Interest on the Securities at an
annual rate equal to 0.50% of the principal amount of the Securities then outstanding.



Any Additional Interest payable pursuant to  this Section 7.02 shall be payable semi-annually
in arrears, with the first semi-annual payment due on the first Interest Payment Date following the
date on which such Additional Interest began to accrue on any Securities. This Additional Interest
shall accrue on all outstanding Securities from and including the date on which an Event of Default
relating to a failure to comply with the reporting obligations under  Section 5.02 first occurs to
but not including the 180th day thereafter (or such earlier date on which the Event of Default
relating to such reporting obligations shall have been cured or waived). On such 180th day (or
earlier, if such Event of Default is cured or waived pursuant to  Section 7.04 prior to such 180th
day), such Additional Interest will cease to accrue and, if such Event of Default relating to such
reporting obligations has not been cured or waived prior to such 180th day, the Securities shall be
subject to acceleration as provided above in this  Section 7.02. The provisions described in this
paragraph shall not affect the rights of the Holders in the event of the occurrence of any other
Event of Default. In the event the Company does not elect to pay Additional Interest upon an Event
of Default in accordance with this paragraph, the Securities shall be subject to acceleration as
provided in this  Section 7.02. If the Company elects to pay Additional Interest as the sole
remedy for an Event of Default relating to the failure by the Company to comply with its
obligations under  Section 5.02, the Company shall notify in writing, in the manner provided for in
 Section 13.02, the Holders and the Trustee of such election at any time on or before the close of
business on the date on which such Event of Default first occurs.



Section 7.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of the principal amount of the Securities
and any accrued and unpaid Interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.


 


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The Trustee may maintain a proceeding even if the Trustee does not possess any of the
Securities or does not produce any of the Securities in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of,
or acquiescence in, the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.



Section 7.04. Waiver of Past Defaults. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to
any other Securityholder), may waive any existing or past Default and its consequences except (1)
an Event of Default described in clauses  (a),  (b), and  (e) of  Section 7.01 or (2) an Event of
Default in respect of a provision that under  Section 10.02 cannot be amended without the consent
of each Securityholder affected. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right.



Section 7.05. Control by Majority. The Holders of a majority in aggregate principal amount
of the Securities at the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent with such direction or
this Agreement. Prior to taking any action under this Indenture, the Trustee shall be entitled to
indemnification or security satisfactory to it in its sole discretion against all losses,
liabilities and expenses caused by taking or not taking such action.



Section 7.06. Limitation on Suits. A Securityholder may not pursue any remedy with respect
to this Indenture or the Securities, except in case of a Default due to the non-payment of the
principal amount of the Securities, or any accrued and unpaid Interest, unless:




	 	(1)	 	the Holder gives to the Trustee written notice stating that a Default is
continuing;






	 	(2)	 	the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to pursue
the remedy;






	 	(3)	 	such Holder or Holders offer reasonable indemnity, which may be secured,
to the Trustee against any costs, liability or expense;






	 	(4)	 	the Trustee does not comply with the request within 60 days after receipt
of such notice and offer of indemnity, which may be secured; and




 


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	 	(5)	 	the Holders of a majority in aggregate principal amount of the Securities
at the time outstanding do not give the Trustee a direction inconsistent with the
request during such 60-day period.





A Securityholder may not use this Indenture to prejudice the rights of any other
Securityholder or to obtain a preference or priority over any other Securityholder.



Section 7.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of the principal amount of the
Securities and any accrued and unpaid Interest and accrued and unpaid Additional Interest, if any,
in respect of the Securities held by such Holder, on or after the respective due dates expressed in
the Securities or the Fundamental Change Repurchase Date, and to convert the Securities in
accordance with  Article 11, or to bring suit for the enforcement of any such payment or the right
to convert on or after such respective dates, shall not be impaired or affected adversely without
the consent of such Holder.



Section 7.08. Collection Suit by Trustee. If an Event of Default described in  Section 7.01
clauses  (a) through  (e) (other than  (c)) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company for the whole
amount owing with respect to the Securities and the amounts provided for in  Section 8.07.



Section 7.09. Trustee May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal amount of the Securities and any accrued and unpaid Interest in respect of
the Securities shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the Company for the payment
of any such amount) shall be entitled and empowered, by intervention in such proceeding or
otherwise:




(a) to file and prove a claim for the whole principal amount of the Securities and any
accrued and unpaid Interest and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel or any other amounts due the Trustee under  Section 8.07) and of the Holders
allowed in such judicial proceeding, and




(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under  Section 8.07.


 


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



The Company agrees not to object to the Trustee participating as a member of any official
committee of creditors of the Company as it deems necessary or advisable.



Section 7.10. Priorities. Any money collected by the Trustee pursuant to this  Article 7,
and, after an Event of Default, any money or other property distributable in respect of the
Company’s obligations under this Indenture, shall be paid out in the following order:




FIRST: to the Trustee (including any predecessor Trustee) for amounts due under
 Section 8.07;




SECOND: to Securityholders for amounts due and unpaid on the Securities for the
principal amount of the Securities and any accrued and unpaid Interest, ratably, without
preference or priority of any kind, according to such amounts due and payable on the
Securities; and




THIRD: the balance, if any, to the Company.



The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this  Section 7.10. At least 15 days before such record date, the Trustee shall mail to each
Securityholder and the Company a notice that states the record date, the payment date and the
amount to be paid.



Section 7.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This  Section 7.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to  Section 7.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Securities at the time outstanding.


 


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Section 7.12. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal amount of the Securities and any
accrued and unpaid Interest on Securities, as contemplated herein, or which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law had been enacted.



ARTICLE 8

Trustee





Section 8.01. Duties of Trustee.



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




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




	 	(1)	 	the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied duties
shall be read into this Indenture against the Trustee; and






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




 


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




	 	(1)	 	this  Section 8.01(c) does not limit the effect of  Section
8.01(b) and  8.01(g);






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






	 	(3)	 	the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to  Section 7.05.





(d) Every provision of this Indenture that in any way relates to the Trustee is subject to
this  Section 8.01.



(e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity or security satisfactory to it against any loss, liability or expense.



(f) Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be
under no liability for interest on any money received by it hereunder unless otherwise agreed in
writing with the Company (provided that any interest earned on money held by the Trustee in trust
hereunder shall be the property of the Company).



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




Section 8.02. Rights of Trustee. Subject to the provisions of  Section 8.01:




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




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


 


52









 






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




(d) the Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith which it believes to be authorized or within its rights or powers
conferred under this Indenture;




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




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




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




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




(i) the Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;


 


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




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




(l) the permissive rights of the Trustee to take certain actions under this Indenture
shall not be construed as a duty unless so specified herein.



Section 8.03. Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with  Section 8.10 and  Section 8.11.



Section 8.04. Trustee’s Disclaimer. The Trustee makes no representation as to, and shall
have no responsibility for, the validity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Company’s use or application by the Company of the Securities or of the
proceeds from the Securities, it shall not be responsible for the correctness of any statement in
any registration statement for the Securities under the Securities Act or in any offering document
for the Securities, the Indenture or the Securities (other than its certificate of authentication),
or the determination as to which beneficial owners are entitled to receive any notices hereunder.



Section 8.05. Notice of Defaults. If a Default or Event of Default occurs and if it is known
to the Trustee, the Trustee shall give to each Securityholder notice of the Default or Event of
Default within 90 days after receipt by the Trustee of written notice from the Company, unless such
Default or Event of Default shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of a Default or Event of Default
described in clauses  (a) and  (b) of  Section 7.01, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interest of the Securityholders. The Trustee shall not be deemed to have
knowledge of a Default or Event of Default unless a Responsible Officer of the Trustee has received
written notice of such Default or
Event of Default, which notice specifically references this Indenture and the Securities.


 


54









 





Section 8.06. Reports by Trustee to Holders. Within 75 days after each December 31 beginning
with December 31, 2010, the Trustee shall mail to each Securityholder a brief report dated as of
such December 31 that complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b). Any reports required by this  Section 8.06
shall be transmitted by mail to Securityholders pursuant to TIA Section 313(c).



A copy of each report at the time of its mailing to Securityholders shall be filed with the
SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees to
notify the Trustee promptly whenever the Securities become listed on any securities exchange and of
any delisting thereof.




Section 8.07. Compensation and Indemnity. The Company agrees:




(a) to pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited (to the extent permitted by law) by any provision
of law in regard to the compensation of a trustee of an express trust);




(b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses, advances and
disbursements of its agents and counsel), except any such expense, disbursement or advance
as may be attributable to its own negligence, willful misconduct or bad faith; and




(c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any loss, damage, claim, liability, cost or expense (including
reasonable attorney’s fees and expenses, and taxes (other than taxes based upon, measured
by or determined by the income of the Trustee)) incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending itself against
any claim (whether asserted by the Company or any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties hereunder.



To secure the Company’s payment obligations in this  Section 8.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay the principal amount of, or the Fundamental Change Repurchase Price, the
Conversion Obligation or Interest with respect to particular Securities.


 


55









 





The Company’s payment, reimbursement and indemnity obligations pursuant to this  Section 8.07
shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the
Trustee and the termination of this Indenture for any reason. In addition to and without prejudice
to its rights hereunder, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in  Section 7.01(h) or  Section 7.01(i), the expenses, including the
reasonable charges and expenses of its counsel and the compensation for services payable pursuant
to  Section 8.07(a), are intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or similar laws.



For the purposes of this  Section 8.07, the “Trustee” shall include any predecessor Trustee;
provided, however, that except as may be otherwise agreed among the parties, the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.



Section 8.08. Replacement of Trustee. The Trustee may resign at any time by so notifying the
Company; provided, however, no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this  Section 8.08. The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company shall remove the Trustee if:




	 	(1)	 	the Trustee fails to comply with  Section 8.10;






	 	(2)	 	the Trustee is adjudged bankrupt or insolvent;






	 	(3)	 	a receiver or public officer takes charge of the Trustee or its property;
or






	 	(4)	 	the Trustee otherwise becomes incapable of acting.





If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor
Trustee.



A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the
Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in  Section 8.07.



If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of
a majority in aggregate principal amount of the Securities at the time outstanding may
petition any court of competent jurisdiction at the expense of the Company for the appointment of a
successor Trustee.


 


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If the Trustee fails to comply with  Section 8.10, any Securityholder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.



So long as no Default or Event of Default shall have occurred and be continuing, if the
Company shall have delivered to the Trustee (i) a Board Resolution appointing a successor Trustee,
effective as of a date at least 30 days after delivery of such Resolution to the Trustee, and (ii)
an instrument of acceptance of such appointment, effective as of such date, by such successor
Trustee in accordance with this Indenture, the Trustee shall be deemed to have resigned as
contemplated in this  Section 8.08, the successor Trustee shall be deemed to have been accepted as
contemplated in this Indenture, all as of such date, and all other provisions of this Indenture
shall be applicable to such resignation, appointment and acceptance.



Section 8.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another Person, the resulting, surviving or transferee Person without any further act shall be the
successor Trustee, subject to  Section 8.10 and  8.11.



Section 8.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or any parent holding company)
shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition.



Section 8.11. Preferential Collection of Claims Against Company. The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.



ARTICLE 9

Discharge of Indenture




Section 9.01. Discharge of Liability on Securities. When (i) the Company causes to be
delivered to the Trustee all outstanding Securities (other than Securities replaced or repaid
pursuant to  Section 2.07) for cancellation or (ii) all outstanding Securities have become due and
payable and the Company deposits with the Trustee cash sufficient to pay all amounts due and owing
on all outstanding Securities (other than Securities replaced pursuant to  Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to  Section 8.07, cease to be of further effect.
The Trustee shall join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officer’s
Certificate and Opinion of Counsel and at the cost and expense of the Company.


 


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Section 9.02. Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company upon written request any money or securities held by them for the payment of any amount
with respect to the Securities that remains unclaimed for two years, subject to applicable
abandoned property law. After return to the Company, Holders entitled to the money or securities
must look to the Company for payment as general creditors unless an applicable abandoned property
law designates another person and the Trustee and the Paying Agent shall have no further liability
to the Securityholders with respect to such money or securities for that period commencing after
the return thereof.



Section 9.03. Application of Trust Money. The Trustee shall hold in trust all money and
other consideration deposited with it pursuant to  Section 9.01 and shall apply such deposited
money and other consideration through the Paying Agent and in accordance with this Indenture to the
payment of amounts due on the Securities. Money and other consideration so held in trust is
subject to the Trustee’s rights under  Section 8.07.



ARTICLE 10

Amendments




Section 10.01. Without Consent of Holders. The Company and the Trustee may modify or amend
this Indenture or the Securities without the consent of any Securityholder to:




(a) provide for the assumption by a successor Person of the Company’s obligations to
the Holders of Securities in the case of a merger, consolidation, conveyance, sale,
transfer or lease pursuant to  Article 6 or  Section 11.05 hereof, and otherwise to comply
with the provisions of this Indenture relating to consolidations, mergers, and sales of
assets;




(b) surrender any right or power conferred on the Company by this Indenture, to add
further covenants, restrictions, conditions, or provisions for the protection of the
Holders of all or any Securities, and to make the occurrence, or the occurrence and
continuance of, a default in any of such additional covenants, restrictions, conditions, or
provisions, a Default or an Event of Default;


 


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(c) cure any ambiguity or to correct or supplement any provision herein or in the
Securities which may be inconsistent with any other
provision herein or which is otherwise defective or inconsistent with any provision
contained in this Indenture or the Securities, to convey, transfer, assign, mortgage, or
pledge any property to or with the Trustee, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not adversely affect the
interests of any Holders of the Securities;




(d) comply with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;




(e) to add or change any of the provisions of this Indenture to change or eliminate
any restriction on the payment of principal with respect to the Securities so long as any
such action does not adversely affect the interests of the Holders of the Securities in any
material respect;




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




(g) comply with the provisions of this Indenture relating to consolidations, mergers,
and sales of assets;




(h) to make any change in the provisions of  Article 4 that would limit or terminate
the benefits available to any Holder of Senior Indebtedness under such provisions (but only
if such Holder of Senior Indebtedness consents to such change);




(i) add guarantees with respect to the Securities or to secure the Securities;




(j) evidence and provide for the acceptance of the appointment under this Indenture of
a successor Trustee in accordance with the terms of this Indenture and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of this Indenture by more than one Trustee;




(k) establish the form or terms of Securities if issued in definitive form
(substantially in the form of Exhibit B);




(l) provide for conversion rights of Holders of Securities if any reclassification or
change of the Common Stock or any consolidation, merger or sale of all or substantially all
of the Company’s assets occurs;


 


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(m) change the Conversion Rate in accordance with this Indenture; provided, however,
that any increase in the Conversion Rate
other than pursuant to  Article 11 shall not adversely affect the interests of the
Holders of Securities (after taking into account U.S. federal income tax and other
consequences of such increase);




(n) to confirm, as necessary, this Indenture and the form or terms of the Securities,
to the “Description of the Notes” as set forth in the Offering Memorandum; and




(o) make any changes or modifications in this Indenture or the Securities; provided,
however, that any such change or modification does not adversely affect the interests of
the Holders of Securities in any material respect;



Section 10.02. With Consent of Holders. Except as provided below in this  Section 10.02 and
in  Section 10.01, this Indenture or the Securities may be amended, modified or supplemented, and
noncompliance in any particular instance with any provision of this Indenture or the Securities may
be waived, in each case with the written consent of the Holders of at least a majority of the
principal amount of the Securities at the time outstanding.



Without the written consent or the affirmative vote of each Holder of Securities affected
thereby, an amendment, supplement or waiver under this  Section 10.02 may not:




(a) reduce the percentage of the aggregate principal amount of the outstanding
Securities the consent of whose Holders is required for any such supplemental indenture
entered into in accordance with this  Section 10.02 or the consent of whose Holders is
required for any waiver provided for in this Indenture;




(b) alter the manner of calculation or rate of accrual of Interest, or extend the time
for payment of any such amount or the Fundamental Change Repurchase Price of any Security;




(c) reduce the principal amount of or change the maturity of any Security, or the
payment date of any installment of Interest on any Security;




(d) reduce the Fundamental Change Repurchase Price of any Security or change the time
at which or circumstances under which the Securities may be repurchased;




(e) change the currency of payment of such Securities or Interest or Fundamental
Change Repurchase Price thereon;




(f) make any change to  Article 4 or  Section 5.08 that adversely affects the rights
of the Holders thereunder;


 


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(g) modify any of the provisions of this Section, or reduce the percentage of the
aggregate principal amount of outstanding Securities required to amend, modify or
supplement this Indenture or the Securities or waive an Event of Default, except to provide
that certain other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby;




(h) adversely impair the right of the Holders of the Securities to convert any
Security or reduce the shares of Common Stock or other property receivable upon conversion
as provided in  Article 11, except as otherwise permitted pursuant to  Article 6 or
 Section 11.05 hereof; or




(i) impair the right of any Holder to institute suit for the enforcement of any
payment of past due amounts with respect to, or conversion of, any Security.



It shall not be necessary for the consent of the Holders under this  Section 10.02 to approve
the particular form of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof. A consent to any amendment or waiver under this Indenture by any Holder of
the Securities given in connection with a tender of such Holder’s Securities will not be rendered
invalid by such tender.



After an amendment under this  Section 10.02 becomes effective, the Company shall mail to each
Holder a notice briefly describing the amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity of an amendment
under this  Section 10.02.




Section 10.03. [Reserved]



Section 10.04. Revocation and Effect of Consents, Waivers and Actions. Until an amendment,
waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting Holder’s Security,
even if notation of the consent, waiver or action is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder’s Security
or portion of the Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.



For the purposes of this Indenture, the written consent of the Holder of a Global Security
shall be deemed to include any consent delivered by an Agent by electronic means in accordance with
the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to
authorization by, DTC.


 


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Section 10.05. Notice of Amendments, Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture pursuant to this
 Article 10 may, and shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Securities. Failure to make
the appropriate notation or to issue a new Security shall not affect the validity of such
amendment.



Section 10.06. Trustee to Sign Supplemental Indentures. The Trustee shall sign any
supplemental indenture authorized pursuant to this  Article 10 if the amendment contained therein
does not affect the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such supplemental
indenture the Trustee shall receive, and (subject to the provisions of  Section 8.01) shall be
fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.



Section 10.07. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



ARTICLE 11

Conversions




Section 11.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions
of this  Article 11, a Holder of a Security 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 Security prior to the close of business on the Business Day
immediately preceding Stated Maturity into cash and shares of Common Stock, if any, at the
Conversion Rate (the “Conversion Obligation”) in effect on the date of conversion; provided that a
Holder may exercise such right prior to July 31, 2015 only as follows:




(1) during any fiscal quarter of the Company (a “Fiscal Quarter”) commencing
after December 31, 2010 (and only during such Fiscal Quarter), if the Last Reported
Sale Price of the Common Stock for at least 20 Trading Days during the period of 30
consecutive Trading Days ending on the last Trading Day of the immediately
preceding Fiscal Quarter exceeds 135% of the Conversion Price in effect on such
last Trading Day;


 


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(2) during the five Business Days immediately following any five consecutive
Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of the Securities for each day of such Measurement Period was less
than 98% of the product of the Last Reported Sale Price of the Common Stock and the
Conversion Rate on each such day. The Conversion Agent will, on the Company’s
behalf, determine if the Securities are convertible as a result of the Trading
Price of the Securities and notify the Company and the Trustee; provided, that the
Conversion Agent shall have no obligation to determine the Trading Price of the
Securities unless the Company has requested such determination and the Company
shall have no obligation to make such request unless requested to do so by a Holder
of the Securities in writing. Upon making any such written request, any such
requesting Holder shall provide reasonable evidence that (A) such requesting Holder
is a Holder of the Securities as of the date of such notice, and (B) the Trading
Price per $1,000 principal amount of Securities would be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate. At such time, the Company shall instruct the Bid Solicitation Agent to
determine the Trading Price of the Securities beginning on the next Trading Day and
on each successive Trading Day until the Trading Price per $1,000 principal amount
of the Securities is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate and give notices to
the Holder and the Trustee of the Trading Price of the Securities; and




(3) as provided in clause  (b) of this  Section 11.01.



On or after July 31, 2015, a Holder may exercise its right to convert its Securities as
described in paragraph (a) above irrespective of the conditions listed in clauses (1), (2) and (3)
above.



The Company or, at its option, the Conversion Agent on behalf of the Company, shall determine
on a daily basis during the time periods specified in  Section 11.01(a)(1) or, following a request
by a Holder of Securities in accordance with the procedures specified in  Section 11.01(a)(2),
whether the Securities shall be convertible as a result of the occurrence of an event specified in
such Sections and, if the Securities shall be so convertible, the Company or the Conversion Agent,
as applicable, shall promptly deliver to the Trustee and Conversion Agent or the Company, as
applicable written notice thereof. Whenever the Securities shall become convertible pursuant to
this  Section 11.01 (as determined in accordance with this  Section 11.01), the Company or, at the
Company’s written request, the Trustee in the name and at the expense of the Company, shall
promptly notify the Holders of the event triggering such convertibility in the manner provided in
 Section 13.02, and the Company shall also promptly disseminate a press release
through Dow Jones & Company, Inc. or Bloomberg Business News and publish such information on
the Company’s Website or through another public medium the Company may use at that time. Any
notice so given shall be conclusively presumed to have been duly given, whether or not the Holder
receives such notice.


 


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(b) In the event that:




(1) (A) the Company distributes to all or substantially all holders of Common
Stock rights or warrants entitling them to purchase, for a period expiring within
60 days after the date of such distribution, Common Stock at less than the Last
Reported Sale Price of the Common Stock on the Trading Day immediately preceding
the announcement date for such distribution; or (B) the Company distributes to all
or substantially all holders of Common Stock assets (including cash), debt
securities or rights or warrants to purchase the Company’s securities, which
distribution has a per share value as determined by the Board of Directors
exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading
Day immediately preceding the announcement date of such distribution, then, in
either case, the Securities may be surrendered for conversion at any time on and
after the date that the Company gives notice to the Holders of such distribution,
which shall be not less than 20 Business Days prior to the Ex-Dividend Date for
such distribution, until the earlier of the close of business on the Business Day
immediately preceding the Ex-Dividend Date or the date on which the Company
announces that such distribution shall not take place, even if the Securities are
not otherwise convertible at such time; provided that no Holder of a Security shall
have the right to convert if the Holder may otherwise participate in such
distribution without conversion; or




(2) a Change of Control occurs pursuant to clause  (1) of the definition
thereof set forth above or pursuant to clause (3) of the definition thereof set
forth above under which the Common Stock is to be converted into cash, securities
or other property, in either case regardless of whether a Holder has the right to
require the Company to repurchase such Holder’s Securities pursuant to  Section
3.01, then the Securities may be surrendered for conversion at any time from and
after the date that is 15 days prior to the anticipated effective date of such
transaction until 15 days after the actual effective date of such transaction (or,
if such transaction also constitutes a Change of Control pursuant to which Holders
have a right to require the Company to repurchase the Securities pursuant to
 Section 3.01, to, but not including, the applicable Fundamental Change Repurchase
Date). The Company shall notify Holders and the Trustee at the time the Company
publicly announces the Change of Control transaction giving rise to the above
conversion


 


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right (but in no event less than 15 days prior to the anticipated effective date of such transaction). If the
Company engages in any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value) or is
party to a consolidation, merger, binding share exchange or transfer of all or
substantially all of its assets pursuant to which Holders of Common Stock would be
entitled to receive cash, securities or other property, then at the effective time
of such transaction, to the extent that it constitutes a Change of Control as
described in this paragraph above as giving rise to a conversion right, the
Conversion Obligation and the Conversion Settlement Distribution shall be based on
the applicable Conversion Rate and the kind and amount of cash, securities or other
property that a holder of one share of the Common Stock would have received in such
transaction (such property, collectively, the “Exchange Property”). In addition,
if a Holder converts Securities following the effective time of any such
transaction, any amounts of the Conversion Settlement Distribution to be settled in
 shares of Common Stock shall be paid in such Exchange Property rather than shares
of Common Stock. If the transaction also constitutes a Change of Control, (A) a
Holder can require the Company to repurchase all or a portion of its Securities
pursuant to  Section 3.01 or, (B) if such Holder elects, instead, to convert all or
a portion of its Securities, such Holder shall receive Additional Shares upon
conversion pursuant to  Section 11.01(c), in each case, subject to the terms and
conditions set forth in each such Section.



(c) If and only to the extent a Holder timely elects to convert Securities during the period
specified in  Section 11.01(b)(2) above on or before October 1, 2015, and 10% or more of the
consideration for the Common Stock in such Change of Control transaction consists of consideration
other than common stock traded or scheduled to be traded immediately following such transaction on
a U.S. national securities exchange, the Conversion Rate shall be increased by an additional number
of shares of Common Stock (the “Additional Shares”) as described below; provided that if the Stock
Price paid in connection with such transaction is greater than $25.00 or less than $5.49 (subject
in each case to adjustment as described below), no Additional Shares shall be added to the
Conversion Rate. The Company shall notify Holders and the Trustee, at least 15 days prior to the
anticipated effective date of such transaction causing any increase of the Conversion Rate pursuant
to this  Section 11.01(c).


 


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The number of Additional Shares to be added to the Conversion Rate as described in the
immediately preceding paragraph shall be determined by reference to the table attached as Schedule
I hereto, based on the effective date of such Change of Control transaction and the Stock Price
paid in connection with such transaction; provided that if the Stock Price is between two Stock
Price amounts in
the table or such 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 Price amounts and the two dates, as
applicable, based on a 365-day year. The “effective date” with respect to a Change of Control
transaction means the date that a Change of Control becomes effective.



The Stock Prices set forth in the first row of the table in Schedule I hereto shall be
adjusted as of any date on which the Conversion Rate of the Securities is adjusted pursuant to
 Section 11.04. The adjusted Stock Prices shall equal the Stock Prices applicable immediately
prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate
immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator
of which is the Conversion Rate as so adjusted. The number of Additional Shares shall be adjusted
in the same manner as the Conversion Rate as set forth in  Section 11.04.



Notwithstanding the foregoing, in no event shall the total additional number of shares of
Common Stock issuable upon conversion of the Securities pursuant to this clause (c) exceed 182.1493
per $1,000 principal amount of Securities, subject to adjustments in the same manner as the
Conversion Rate as set forth in  Section 11.04.


 


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Section 11.02. Conversion Procedure; Conversion Rate; Fractional Shares. (a) Subject to
 Section 11.01 and the Company’s rights under  Section 11.03, each Security shall be convertible at
the office of the Conversion Agent into a combination of cash and fully paid and nonassessable
shares (calculated to the nearest 1/10,000th of a share) of Common Stock, if any, at a rate (the
“Conversion Rate”) equal to, initially, 134.9255 shares of Common Stock for each $1,000 principal
amount of Securities. The Conversion Rate shall be adjusted in certain instances as provided in
 Section 11.04 hereof, but shall not be adjusted for any accrued and unpaid Interest. Upon
conversion, no payment shall be made by the Company with respect to any accrued and unpaid Interest
unless the Conversion Date occurs between an Interest Record Date and the corresponding Interest
Payment Date. Instead, such amount shall be deemed paid by the applicable Conversion Settlement
Distribution delivered upon conversion of any Security. In addition, no payment or adjustment
shall be made in respect of dividends on the Common Stock with a record date prior to the
Conversion Date. Notwithstanding the foregoing, upon conversion, a Holder shall receive any
accrued and unpaid Additional Interest to the Conversion Date. The Company shall not issue any
fraction of a share of Common Stock in connection with any conversion of Securities, but instead
shall, subject to  Section 11.03 hereof, make a cash payment (calculated to the nearest cent) equal
to such fraction multiplied by the Last Reported Sale Price of the Common Stock on the Trading Day
prior to the Conversion Date.



(b) Before any Holder of a Security shall be entitled to convert the same into a combination
of cash and Common Stock, if any, such Holder shall (1) in the case of Global Securities, comply
with the procedures of the Depositary in effect at that time for converting a beneficial interest
in a Global Security, and in the case of Certificated Securities, surrender such Securities, duly
endorsed to the Company or in blank, at the office of the Conversion Agent, and (2) give written
notice to the Company in the form on the reverse of such Certificated Security (the “Conversion
Notice”) at said office or place that such Holder elects to convert the same and shall state in
writing therein the principal amount of Securities to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for Common Stock included in
the Conversion Settlement Distribution, if any, to be registered.



Before any such conversion, a Holder also shall pay all taxes or duties, if any, as provided
in  Section 11.06 and any amount payable pursuant to  Section 11.02(g).



If more than one Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares of Common Stock, if any, that shall be deliverable upon conversion as
part of the Conversion Settlement Distribution shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent permitted thereby)
so surrendered.


 


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(c) A Security shall be deemed to have been converted as of the close of business on the date
(the “Conversion Date”) that the Holder has complied with  Section 11.02(b).



(d) The Company shall, on the Conversion Settlement Date, (i) pay the cash component
(including cash in lieu of any fraction of a share to which such Holder would otherwise be
entitled) of the Conversion Obligation determined pursuant to  Section 11.03 to the Holder of a
Security surrendered for conversion, or such Holder’s nominee or nominees, and (ii) issue, or cause
to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates for the number of full shares of Common Stock, if any, to which such Holder
shall be entitled as part of such Conversion Obligation. The Company shall not be required to
deliver certificates for shares of Common Stock while the stock transfer books for such stock or
the security register are duly closed for any purpose, but certificates for shares of Common Stock
shall be issued and delivered as soon as practicable after the opening of such books or security
register, and the Person or Persons entitled to receive the Common Stock as part of the applicable
Conversion Settlement Distribution upon such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock, as of the close of business on the applicable
Conversion Settlement Date.



(e) In case any Security 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 Security so surrendered, without charge to such Holder (subject to the provisions of
 Section 11.06 hereof), a new Security or Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Securities.



(f) By delivering the combination of cash and shares of Common Stock, if any, together with a
cash payment in lieu of any fractional shares to the Conversion Agent or to the Holder or such
Holder’s nominee or nominees, the Company shall have satisfied in full its Conversion Obligation
with respect to such Security, and upon such delivery, accrued and unpaid Interest, if any, with
respect to such Security shall be deemed to be paid in full rather than canceled, extinguished or
forfeited, and such amounts shall no longer accrue.



(g) If a Securityholder delivers a Conversion Notice after the close of business on the
Interest Record Date for a payment of Interest but prior to the open of business on the
corresponding Interest Payment Date, the Securityholder at the close of business on such Interest
Record Date shall receive the Interest payable on the Securities on the corresponding Interest
Payment Date despite the conversion. Such Securityholder must pay to the Company, at the time such
Securityholder surrenders Securities for conversion, an amount equal to the Interest (excluding any
Additional Interest) that has accrued and shall be paid on the related Interest Payment Date. The
preceding sentence shall not apply if (1) the Company has specified a Fundamental Change Repurchase
Date that is after an Interest Record
Date but on or prior to the corresponding Interest Payment Date, (2) to the extent of overdue
Interest, if any overdue Interest exists at the time of conversion with respect to the Securities
converted or (3) for conversion following the Interest Record Date immediately preceding the Stated
Maturity.


 


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Section 11.03. Payment Upon Conversion. (a) Upon conversion of Securities, the Company shall
deliver to Holders surrendering Securities for conversion, for each $1,000 principal amount of
Securities, a settlement amount (the “Conversion Settlement Distribution”) on the Conversion
Settlement Date consisting of:




(i) cash amount (the “Cash Amount”) equal to the lesser of $1,000 and the Conversion
Value; and




(ii) to the extent the Conversion Value exceeds $1,000, (x) a number of shares (the
“net shares”) of Common Stock equal to the sum of, for each day of the Cash Settlement
Period described below, the greater of:




(A) zero and




(B) the quotient of




(1) 5% of the difference between (I) the product of the Conversion
Rate (plus any Additional Shares as described under  Section 11.01(c)
and the VWAP of the Common Stock on such day, and (II) $1,000, divided
by




(2) the VWAP of the Common Stock for such day, or




(y) if the Company so elects or if the rules of The New York Stock Exchange so
require, as described in  Section 11.03(c) below, cash equal to the difference (such
difference, the “net share amount”) between the Conversion Value and $1,000 or




(z) if the Company so elects or if the rules of The New York Stock Exchange so
require, as described in  Section 11.03(c) below, a combination of cash and shares of
Common Stock with a value equal to the difference between the Conversion Value and $1,000,
such amount to be determined as set out below.



The Company may elect to pay cash to Holders of Securities surrendered for conversion in lieu
of all or a portion of the net shares of Common Stock issuable upon conversion of such Securities
only if payment of such cash would not be prohibited by the terms of the Company’s other
Indebtedness. If the Company does so elect to pay cash, the Company will notify Holders though the
Trustee of the dollar amount to be satisfied in cash (either 100% or a fixed dollar amount will
be paid (the “specified cash amount”)) at any time on or before the date that is two Business
Days following the Conversion Date.


 


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If the Company elects to satisfy some but not all of the net share amount for any conversion
in cash as set out in clause (ii)(z) above, (a) the Company will pay to converting Holders cash in
an amount equal to the lesser of (x) the net share amount for such conversion and (y) the specified
cash amount, and (b) the Company will deliver to converting holders a number of shares of Common
Stock equal to the greater of (i) zero and (ii) the number of shares to which such Holder would be
entitled under clause (ii)(x), but replacing “$1,000” in clause (ii)(x)(B)(l)(II) with “$1,000 plus
the specified cash amount”.



“Conversion Value’’ means the product of (1) the Conversion Rate in effect (plus any
Additional Shares as described under  Section 11.01(c)) and (2) the average of the VWAPs of the
Common Stock for the 20 consecutive Trading Days during the Cash Settlement Period.



“Cash Settlement Period’’ with respect to any Securities converted means the 20 consecutive
Trading Days beginning on the second Trading Day after the Conversion Date for those Securities
except in circumstances where conversion occurs within 20 days leading up to the Stated Maturity,
in which case the Cash Settlement Period will be the 20 consecutive Trading Days beginning on the
second Trading Day following the Stated Maturity. In addition, if the Company chooses to settle
all or any portion of the net shares in cash in conjunction with conversion within 20 days leading
up to the Stated Maturity, the Company will send, on or prior to the Stated Maturity, a single
notice to the Trustee of the net shares to be satisfied in cash.



(b) If a Holder tenders Securities for conversion and the Conversion Value is being determined
at a time when the Securities are convertible into Exchange Property, the Conversion Value of each
Security shall be determined based on the kind and amount of such Exchange Property and the value
thereof during the Cash Settlement Period. Settlement of Securities tendered for conversion after
the effective date of any transaction giving rise to Exchange Property shall be as set forth above.



For the purposes of this Section, the Last Reported Sale Price of the Common Stock shall be
deemed to equal the sum of (i) 100% of the value of any Exchange Property consisting of cash
received per share of Common Stock, (2) the Last Reported Sale Price of any Exchange Property
received per share of Common Stock consisting of securities that are traded on a U.S. national
securities exchange and (3) the Fair Market Value of any other Exchange Property received per
share, as determined by three independent nationally recognized investment banks selected by the
Company for this purpose. Settlement (in cash and/or shares) will occur on the third Business Day
following the final day of such Cash Settlement Period.


 


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(c) Notwithstanding anything to the contrary in this Indenture, in the event the number of
shares of Common Stock deliverable upon conversion of the Securities, in the aggregate, is equal to
or greater than 19.9% of the Company’s Common Stock outstanding on the date the Securities were
first issued, the Company shall, if so required by the rules of the New York Stock Exchange, at its
option, either obtain stockholder approval of such issuances or deliver cash in lieu of any shares
of Common Stock otherwise deliverable upon conversion of the Securities in excess of such
limitations in accordance with clause (ii)(y) or (ii)(z) above.



Section 11.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time, without duplication, by the Company in accordance with this  Section 11.04:



(a) In case the Company shall hereafter pay a dividend or make a distribution to all or
substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion
Rate shall be increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date for
such dividend or other distribution by a fraction,




(i) the numerator of which shall be the number of shares of Common Stock outstanding
immediately after giving effect to such dividend or distribution; and




(ii) the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to the open of business on such Ex-Dividend Date for such
dividend or distribution,



such increase to become effective immediately after the opening of business on such Ex-Dividend
Date. If any dividend or distribution of the type described in this  Section 11.04 is declared but
not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.



(b) In case the Company shall issue rights, warrants or options (other than pursuant to any
dividend reinvestment or share repurchase plans) to all holders of its outstanding shares of Common
Stock entitling them (for a period expiring within 60 days after the date of such distribution) to
subscribe for or purchase shares of Common Stock at a price per share less than the Current Market
Price on the date fixed for determination of stockholders entitled to receive such rights or
warrants, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the open of business on the
Ex-Dividend Date for such issuance by a fraction,




(i) the numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding immediately prior to the open of
business on such Ex-Dividend Date plus (B) the total number of additional shares of
Common Stock offered for subscription or purchase, and


 


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(ii) the denominator of which is the sum of (A) the number of shares of Common Stock
outstanding immediately prior to the open of business on such Ex-Dividend Date plus (B) the
total number of additional shares of Common Stock that the aggregate offering price of the
total number of shares of Common Stock offered for subscription or purchase would purchase
at the Current Market Price of the Common Stock on such date.



Such adjustment shall be successively made whenever any such rights or warrants are issued,
and shall become effective immediately after the opening of business on the Ex-Dividend Date for
such issuance. To the extent that shares of Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would
then be in effect had the adjustments made upon the issuance of such rights or warrants been made
on the basis of delivery of only the number of shares of Common Stock actually delivered. In the
event that such rights or warrants are not so exercised, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such Ex-Dividend Date for such
issuance had not occurred. In determining whether any rights, options or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price,
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 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) In case outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect immediately prior to the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately
increased, and conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Rate in effect immediately prior to the
opening of business on the day following the day upon which such combination becomes effective
shall be proportionately reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.


 


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(d) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock shares of any class of Capital Stock of the Company or evidences of
its indebtedness or assets (including securities, but excluding any rights, options or warrants
referred to in  Section 11.04(b) and excluding any dividend or distribution (x) paid exclusively in
cash or (y) referred to in  Section 11.04(a)) (any of the foregoing hereinafter in this  Section
11.04(d) called the “Distributed Assets”), then, in each such case, the Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate
in effect immediately prior to the open of business on the Ex-Dividend Date with respect to such
distribution by a fraction,




(i) the numerator of which shall be the Current Market Price per share of the Common
Stock on such Ex-Dividend Date; and




(ii) the denominator of which shall be the Current Market Price per share of the
Common Stock on such Ex-Dividend Date less the Fair Market Value (as determined by the
Board of Directors and described in a resolution of the Board of Directors) on the
Ex-Dividend Date of the portion of the Distributed Assets so distributed applicable to one
share of Common Stock,



such adjustment to become effective immediately after the opening of business on the Ex-Dividend
Date; provided, however, that in the event (1) the then Fair Market Value (as so determined) of the
portion of the Distributed Assets so distributed applicable to one share of Common Stock is equal
to or greater than the Current Market Price of the Common Stock on such Ex-Dividend Date or (2)
the Current Market Price of Common Stock on the Ex-Dividend Date exceeds the then Fair Market
Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one
share of Common Stock by less than $1.00, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right to receive upon conversion the amount of
Distributed Assets such Holder would have received had such Holder owned a number of shares of
Common Stock equal to the product of (a) the Conversion Ratio on the Ex-Dividend Date for such
distribution times (b) the quotient of the principal amount such Holder’s Securities divided by
$1,000. In the event that such dividend or distribution is not so paid or made, the Conversion
Rate shall be adjusted to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors determines the Fair Market Value of
any distribution for purposes of this  Section 11.04(d) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common Stock.


 


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Rights or warrants distributed by the Company to all holders of Common Stock entitling the
Holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either
initially or under certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such shares of
Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of this  Section 11.04 (and
no adjustment to the Conversion Rate under this  Section 11.04
shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights
and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this  Section 11.04. If any such right or
warrant, including any such existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or other assets, then 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 or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this  Section 11.04 was made, (1) in the case of any such rights or warrants
that shall all have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to
the per share redemption or repurchase price received by a holder or holders of Common Stock with
respect to such rights or warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights 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 and warrants had not
been issued.



No adjustment of the Conversion Rate shall be made pursuant to this  Section 11.04(d) in
respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent
that such rights or warrants are actually distributed, or reserved by the Company for distribution
to Holders of Securities upon conversion by such Holders of Securities to Common Stock.



For purposes of this   Section 11.04(d) and  Section 11.04(a) and  (b), any dividend or
distribution to which this  Section 11.04(d) is applicable that also includes shares of Common
Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall
be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or
shares of capital stock other than such shares of Common Stock or rights or warrants (and any
Conversion Rate adjustment required by this  Section 11.04(d) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment
required by  Section 11.04(a) and  (b) with respect to such dividend or distribution shall then be
made).


 


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If any Distributed Assets requiring any adjustment pursuant to this  Section 11.04(d) consists
of the Capital Stock, or similar equity interests in, a Subsidiary or other business unit of the
Company which are or in connection with such distribution will be listed or quoted for trading on a
U.S. national securities exchange, the Conversion Rate in effect immediately prior to the end of
the Valuation Period shall instead be increased by multiplying such Conversion Rate by a fraction,
(A) the numerator of which is the sum of (1) the average of the VWAPs of such distributed security
for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend
Date for such distribution (the “Valuation Period”) plus (2) the average of the VWAPs of the Common
Stock over the Valuation Period and (B) the denominator of which is such average of the VWAPs of
the Common Stock over the Valuation Period.



(e) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock cash (excluding any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in
such case, the Conversion Rate shall be increased so that the same shall equal the rate determined
by multiplying the Conversion Rate in effect immediately prior to the open of business on the
Ex-Dividend Date for such cash dividend by a fraction,




(i) the numerator of which shall be the Current Market Price of the Common Stock on
such Ex-Dividend Date, and




(ii) the denominator of which shall be such Current Market Price of the Common Stock
on such Ex-Dividend Date minus the amount per share of such dividend or the amount of cash
so distributed applicable to one share of Common Stock,



such adjustment to be effective immediately at the opening of business on the Ex-Dividend Date;
provided, however, that in the event the portion of the cash so distributed applicable to one share
of Common Stock is equal to or greater than the Current Market Price of the Common Stock on such
Ex-Dividend Date, in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion the amount of cash such Holder would
have received had such Holder owned a number of shares of Common Stock equal to the product of (a)
the Conversion Ratio on the Ex-Dividend Date for such distribution times (b) the quotient of the
principal amount such Holder’s Securities divided by $1,000. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.


 


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(f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of consideration per share of Common
Stock having a Fair
Market Value (as determined by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors) that as of the last time (the “Expiration
Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Rate shall be increased so that the same shall equal
the rate determined by multiplying the Conversion Rate in effect immediately prior to the
Expiration Time by a fraction,




(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the
 shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Last Reported Sale Price of the Common
Stock on the first Trading Day after the Expiration Time, and




(ii) the denominator of which shall be the product of the number of shares of Common
Stock outstanding (including any Purchased Shares) at the Expiration Time multiplied by the
Last Reported Sale Price of the Common Stock on the first Trading Day after the Expiration
Time,



such adjustment to become effective immediately prior to the opening of business on the day
following the Expiration Time. In the event that the Company is obligated to purchase shares
pursuant to any such tender or exchange offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made.



(g) The Company may make such increases in the Conversion Rate, in addition to those required
by this  Section 11.04, as the Board of Directors considers to be advisable to avoid or diminish
any U.S. federal income tax to holders of Common Stock resulting from any dividend or distribution
of Capital Stock (or rights to acquire Capital Stock) or any such event; provided, however, that
such increase in the Conversion Rate shall not adversely affect the interests of the Holders of
Securities (after taking into account U.S. federal income tax and other consequences of such
increase).


 


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To the extent permitted by applicable law and the listing requirements of The New York Stock
Exchange or any national securities exchange on which the Common Stock is then listed, the Company
from time to time may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) Business Days, the increase is irrevocable during the period and the Board of
Directors shall have made a determination that such increase would be in the best interests of the
Company, which determination shall be conclusive. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to Holders of record of the Securities
and the Trustee a notice of the increase at least fifteen (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 shall be in effect.



(h) All calculations under this  Article 11 shall be made by the Company and shall be made to
the nearest cent or to the nearest one-ten thousandth of a share, as the case may be, with one
half-cent and 0.005 of a share, respectively, being rounded upward.




Notwithstanding the foregoing, no adjustment need be made for:




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




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




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




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




(v) accrued and unpaid Interest.



(i) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent (if other than the Trustee) an Officer’s Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the Holder of each Security at his last address appearing on
the Security register provided for in  Section 2.03 of this Indenture, within twenty
(20) days after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.


 


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(j) In any case in which this  Section 11.04 provides that an adjustment shall become
effective immediately after (1) the open of business on the Ex-Dividend Date for such distribution
pursuant to  Section 11.04(a),  (b), or  (d) or (2) the Expiration Time for any tender or exchange
offer pursuant to  Section 11.04(f) (each a “Determination Date”), the Company may elect to defer
until the occurrence of the relevant Adjustment Event (as hereinafter defined) (x) issuing to the
Holder of any Security converted after such Determination Date and before the occurrence of such
Adjustment Event, the additional shares of Common Stock or other securities issuable upon such
conversion by reason of the adjustment required by such Adjustment Event over and above the Common
Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such
Holder any amount in cash in lieu of any fraction pursuant to  Section 11.04(a). For purposes of
this  Section 11.04(j), the term “Adjustment Event” shall mean:




(i) in any case referred to in  Section 11.04(a) or  (d), the date any such dividend
or distribution is paid or made,




(ii) in any case referred to in  Section 11.04(b) hereof, the date of expiration of
such rights or warrants, and




(iii) in any case referred to in  Section 11.04(f) hereof, the date a sale or exchange
of Common Stock pursuant to such tender or exchange offer is consummated and becomes
irrevocable.



(k) For purposes of this  Section 11.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company shall not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.



Section 11.05. Effect of Reclassification, Consolidation, Merger or Sale. (a) If
any of the following events occur, namely (i) any reclassification or change of the outstanding
shares of Common Stock (other than a subdivision or combination to which  Section 11.04(c) applies
or a change in par value) as a result of which holders of Common Stock shall be entitled to receive
Exchange Property with respect to or in exchange for Common Stock, (ii) any consolidation, merger,
binding share exchange or combination of the Company with another Person as a result of which
holders of Common Stock shall be entitled to receive Exchange Property with respect to or in
exchange for such Common Stock, or (iii) any sale or conveyance of all or substantially all the
properties and assets of the Company to any other Person, in each case as a result of which holders
of Common Stock shall be entitled to receive Exchange Property with respect to or in exchange for
such Common Stock, then the Company or the



 


78









 






successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture providing for the
conversion and settlement of the Securities as set forth in this Indenture. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this  Article 11. If, in the case of any such reclassification,
change, merger, consolidation, binding share exchange, combination, sale or conveyance, the
Exchange Property receivable thereupon by a holder of Common Stock includes shares of stock or
other securities and assets of a corporation other than the successor or purchasing corporation, as
the case may be, in such reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason
of the foregoing.



(b) The Conversion Obligation with respect to each $1,000 principal amount of Securities
converted following the effective date of any such transaction, shall be calculated (as provided in
clause  (c) below) based on the Exchange Property. In the event holders of the Common Stock have
the opportunity to elect the form of consideration to be received in such transaction, the Company
shall make adequate provision whereby the Holders of the Securities shall have a reasonable
opportunity to determine the form of consideration, consistent with election rights and
restrictions applicable to holders of Common Stock, into which all of the Securities, treated as a
single class, shall be convertible from and after the effective date of such transaction (subject
to the Company’s ability to settle the conversion obligation, entirely in cash as set forth in
 Section 11.03). Such determination shall be subject to any limitations to which all of the
holders of the Common Stock are subject, such as pro-rata reductions applicable to any portion of
the considerable payable in such event and shall be conducted in such a manner as to be completed
by the date which is the latest of (a) the deadline for elections to be made by holders of the
Common Stock in connection with such transaction, and (b) two Trading Days prior to the anticipated
effective date of such event. The Company shall provide notice of the opportunity to determine the
form of such consideration, as well as notice of the determination made by Holders of the
Securities by issuing a press release and providing a copy of such notice to the Trustee. The
Company shall not become a party to any such transaction unless its terms are consistent with the
proceeding.



(c) The Conversion Obligation in respect of any Securities converted following the effective
date of any such transaction shall be computed in the same manner as set forth in  Section 11.03(a)
except that if the Securities become convertible into Exchange Property, the VWAP of the Common
Stock shall be deemed to equal the sum of (A) 100% of the value of any Exchange Property consisting
of cash received per share of Common Stock, (B) the VWAP of any Exchange Property received per
share of Common Stock consisting of securities that are traded on a U.S. national securities
exchange and (C) the Fair



 


79









 






Market Value of any other Exchange Property received per share, as determined by three independent
nationally recognized investment banks selected by the Company for this purpose. Settlement (in
cash and/or shares) shall occur on the third Business Day following the final day of such Cash
Settlement Period, provided that any amount of the Conversion Settlement Distribution to be
delivered in shares of Common Stock shall be paid in Exchange Property rather than shares of Common
Stock. If the Exchange Property includes more than one kind of property, the amount of Exchange
Property of each kind to be delivered shall be in the proportion that the value of the Exchange
Property (as calculated pursuant to  Section 11.03) of such kind bears to the value of all such
Exchange Property. If the foregoing calculations would require the Company to deliver a fractional
share or unit of Exchange Property to a Holder of Securities being converted, the Company shall
deliver cash in lieu of such fractional share or unit based on the value of the Exchange Property.



(d) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder of Securities, at its address appearing on the Security register provided for
in  Section 2.03 of this Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such supplemental indenture.



(e) The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, statutory share exchanges, combinations, sales
and conveyances.




If this  Section 11.05 applies to any event or occurrence,  Section 11.04 shall not apply.



Section 11.06. Taxes on Shares Issued. The issue of stock certificates on
conversions of Securities shall be made without charge to the converting Holder for any
documentary, stamp or similar issue or transfer tax in respect of the issue thereof, except for
applicable withholding, if any. The Company shall not, however, be required to pay any tax or duty
which may be payable in respect of any transfer involved in the issue and delivery of stock in any
name other than that of the Holder of any Securities converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.


 


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Section 11.07. Reservation of Shares, Shares to Be Fully Paid; Compliance with
Governmental Requirements. (a) 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 for
the conversion of the Securities from time to time as such Securities are presented for conversion.



(b) Before taking any action which would cause an adjustment increasing the Conversion Rate to
an amount that would cause the Conversion Price to be reduced below the then par value, if any, of
the shares of Common Stock issuable upon conversion of the Securities, the Company shall take all
corporate action which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.



(c) (i) The Company covenants that all shares of Common Stock which may be issued upon
conversion of Securities shall upon issue be fully paid and non-assessable by the Company and free
from all taxes, liens and charges with respect to the issue thereof.




(ii) The Company covenants that, if any shares of Common Stock to be provided for the
purpose of conversion of Securities 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 shall in good faith and as expeditiously as possible,
to the extent then permitted by the rules and interpretations of the Securities and
Exchange Commission (or any successor thereto), endeavor to secure such registration or
approval, as the case may be.



Section 11.08. Responsibility of Trustee. The Trustee and any other Conversion
Agent shall not at any time be under any duty or responsibility to any Holder of Securities to
determine the Conversion Rate or whether any facts exist which may require any adjustment 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 or property, which may at any time be issued or delivered upon the
conversion of any Security; and the Trustee and any other Conversion Agent make no representations
with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any Security for the
purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this  Article 11. 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 11.05
relating either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event referred to in such
 Section 11.05 or to any calculation or adjustment to be made with respect thereto, but, subject to
the provisions of  Section 8.01, may accept as conclusive evidence of the correctness of any such
provisions,
and shall be protected in relying upon the Officer’s Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such supplemental indenture) with
respect thereto.


 


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Section 11.09. Notice to Holders Prior to Certain Actions. In case:




(a) the Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to  Section 11.04;
or




(b) the Company shall authorize the granting to the holders of all of its Common Stock
of rights or warrants to subscribe for or purchase any share of any class or any other
rights or warrants that would require an adjustment in the Conversion Rate pursuant to
 Section 11.04(b); or




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




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



the Company shall cause to be filed with the Trustee and to be mailed to each Holder of Securities
at his address appearing on the register provided for in  Section 2.03 of this Indenture, as
promptly as possible but in any event at least ten (10) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution of rights or warrants, or, if a record is not to be taken,
the date as of which the Holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, or statutory share exchange, sale, transfer, dissolution, liquidation or
winding up is expected to become effective or occur, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation, merger, or statutory share
exchange, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, or statutory share exchange, sale, transfer, dissolution,
liquidation or winding up.


 


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Section 11.10. Shareholder Rights Plan. To the extent that the Company has a rights plan in
effect upon conversion of the Securities into Common Stock, a Holder who converts Securities shall
receive, in addition to the Common Stock, if
any, the rights under the rights plan, unless, prior to any conversion, the rights have
separated from the Common Stock, in which case the Conversion Rate shall be adjusted at the time of
separation as if the Company distributed to all Holders of Common Stock, shares of the Company’s
Capital Stock, evidences of indebtedness or assets as described in  Section 11.04(d) above, subject
to readjustment in the event of the expiration, termination or redemption of such rights. In lieu
of any such adjustment, the Company may amend such applicable shareholder rights plan to provide
that upon conversion of the Securities the Holders shall receive, in addition to the Common Stock
issuable upon such conversion, the rights which would have attached to such Common Stock if the
rights had not become separated from the Common Stock under such applicable shareholder rights
agreement.



Section 11.11. Unconditional Right of Holders to Convert. Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to convert its Security in accordance with this  Article 11 and to bring an action
for the enforcement of any such right to convert, and such rights shall not be impaired or affected
without the consent of such Holder.



ARTICLE 12

No Redemption




Section 12.01. No Redemption. The Securities shall not be optionally redeemable by the
Company, and no sinking fund shall be provided for the Securities.



ARTICLE 13

Miscellaneous





Section 13.01. [Reserved].



Section 13.02. Notices. Any request, demand, authorization, notice, waiver, consent or
communication by the Company or the Trustee to the other is duly given if in writing and delivered
in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission to the following facsimile numbers:


 


83









 






if to the Company:




CBIZ, Inc.

6050 Oak Tree Boulevard South

Cleveland, Ohio 44131

Attn: General Counsel

Facsimile: (216) 447-9007




if to the Trustee:




U.S. Bank National Association

Corporate Trust Services, 1350 Euclid Avenue,

CN-OH-RN11

Cleveland, Ohio 44115

Attn: Holly H. Pattison

Fax: (216) 623-9202



The Company or the Trustee by notice given to the other in the manner provided above may
designate additional or different addresses for subsequent notices or communications.



Any notice or communication given to a Securityholder shall be delivered to the
Securityholder, in accordance with the procedures of the Registrar or by first-class mail, postage
prepaid, at the Securityholder’s address as it appears on the registration books of the Registrar
and shall be sufficiently given if so mailed within the time prescribed.



Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not received by the addressee;
provided, however, that no notice to the Trustee shall be deemed to be duly given unless and until
the Trustee actually receives same at the address given above.



If the Company mails a notice or communication to the Securityholders, it shall mail a copy to
the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.



Section 13.03. Communication by Holders with Other Holders. Securityholders may communicate
pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section 312(c).


 


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Section 13.04. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:




(1) an Officer’s Certificate stating that, in the opinion of the signer, all
conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and




(2) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to such matters in one or several documents.



Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate of opinion of, or representations by, counsel, unless such
Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, and may state that it is so
based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the information with respect
to such factual matters is in possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate of opinion or representations with
respect to such matters are erroneous.



Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



Section 13.05. Statements Required in Certificate or Opinion. Each Officer’s Certificate or
Opinion of Counsel with respect to compliance with a covenant or condition provided for in this
Indenture shall include:




(1) a statement that each person making such Officer’s Certificate or Opinion of
Counsel has read such covenant or condition;




(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officer’s Certificate or Opinion of
Counsel are based;




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


 


85









 






(4) a statement that, in the opinion of such person, such covenant or condition has
been complied with.



Section 13.06. Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



Section 13.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Securityholders. The Registrar, the
Conversion Agent and the Paying Agent may make reasonable rules for their functions.



Section 13.08. Legal Holidays. A “legal holiday” is any day other than a Business Day. If
any specified date (including a date for giving notice) is a legal holiday, the action shall be
taken on the next succeeding day that is not a legal holiday, and, if the action to be taken on
such date is a payment in respect of the Securities, no interest shall accrue with respect to such
payment for the intervening period.



Section 13.09. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES THEREOF.



Section 13.10. No Recourse Against Others. A director, officer, incorporator, employee or
stockholder, as such, of the Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each Securityholder shall
waive and release all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.



Section 13.11. Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.



Section 13.12. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



Section 13.13. Execution in Counterparts. This Indenture may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery
of an executed counterpart of a signature page to this Indenture by telecopier shall be as
effective as delivery of a manually executed counterpart of this Indenture.


 


86









 





Section 13.14. Benefits of Indenture. Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder (and, pursuant to Article 4, the holders of Senior Indebtedness and Designated Senior
Indebtedness) and the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.



Section 13.15. No Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret any other indenture, loan or debt agreement of the Company or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this Indenture.



Section 13.16. Calculations in Respect of Securities. The Company or its agents shall be
responsible for making all calculations called for under the Securities including, but not limited
to, determination of the market prices for the Securities and of the Common Stock the amounts of
Interest accrued on the Securities, Conversion Rate adjustments, the Conversion Value and the
Conversion Price. The Company shall make all calculations in good faith. Any calculations made in
good faith and without manifest error shall be final and binding on Holders of the Securities. The
Company or its agents shall be required to deliver to the Trustee and the Conversion Agent a
schedule of its calculations and each of the Trustee and the Conversion Agent shall be entitled to
conclusively rely upon the accuracy of such calculations without independent verification. The
Trustee will forward such calculations to any Holder upon the request of such Holder.



Section 13.17. Table of Contents, Cross-Reference Sheet and Headings. The table of contents
and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.


 


87









 





IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on
behalf of the respective parties hereto as of the date first above written.



	 	 	 	 	 
	 	CBIZ, INC.

 	 
	 	By:  	/s/ Jerome P. Grisko, Jr.
 	 
	 	 	Name:  	Jerome P. Grisko, Jr. 	 
	 	 	Title:  	President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	/s/ Elizabeth A. Thuning
 	 
	 	 	Name:  	Elizabeth A. Thuning 	 
	 	 	Title:  	Vice President 	 




 


 









 







EXHIBIT A




[FORM OF FACE OF GLOBAL SECURITY]





UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY
TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



THE SALE OF THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY, IF ANY, HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND ACCORDINGLY, THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, OR OF A BENEFICIAL OWNERSHIP HEREIN, THE ACQUIRER:
(I) REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, IS A “QUALIFIED INSTITUTIONAL
BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE
INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND AGREES (1) THAT IT WILL NOT WITHIN THE
LATER OF (X) ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF SECURITIES (INCLUDING THROUGH THE
EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL SECURITIES) AND (Y) 90 DAYS AFTER IT CEASES TO BE AN
AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF CBIZ, INC. (THE “COMPANY”),
OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITIES EVIDENCED HEREBY, THE COMMON STOCK
ISSUABLE



 


A-1









 






UPON CONVERSION OF SUCH SECURITIES, IF ANY, OR ANY BENEFICIAL OWNERSHIP HEREIN, EXCEPT: (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF; (B) UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE
UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF
AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING RULE 144, IF AVAILABLE; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF
THIS SECURITY WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE COMPANY HAS NOT SATISFIED THE CURRENT
PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF
SECURITIES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL SECURITIES) AND (Y)
90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ) OF THE COMPANY,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THEY MAY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS
SECURITY OTHER THAN UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES
ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A
TRANSACTION THAT RESULTS IN SUCH SECURITY NO LONGER BEING A “RESTRICTED SECURITY” (AS DEFINED UNDER
RULE 144). NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.



The foregoing legend other than the first two paragraphs thereof may be removed from this
Security upon the date that is the later of (1) the date that is one year after the last date of
original issuance of the Securities, or such shorter period of time as permitted by Rule 144 under
the Securities Act or any successor provision thereto, and (2) such later date, if any, as may be
required by applicable law, unless such Notes have been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to
be effective at the time of such transfer, or sold pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under
the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to
the Trustee.


 


A-2









 





CBIZ, INC.




4.875% Convertible Senior Subordinated Notes due 2015




	 	 	 
	CUSIP: 124805 AC6
	 	 
	ISSUE DATE:                     

	 	Principal Amount: $                    
	No.
 _____ 


	 	 






CBIZ, INC., a Delaware corporation, promises to pay to Cede & Co. or registered assigns, the
principal amount of                      or such other principal amount as shown on the “Schedule of
Increases and Decreases of Global Security” below, on October 1, 2015.




Interest Rate: 4.875% per year.




Interest Payment Dates: April 1 and October 1 of each year, commencing April 1, 2011.




Interest Record Date: March 15 and September 15 of each year.



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


 


A-3









 






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



	 	 	 	 	 	 	 	 	 
	Dated:                                         	 	CBIZ, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




U.S. BANK NATIONAL ASSOCIATION,

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.




	 	 	 	 	 
	By
	 	 	 	 
	 

	 	 

	 	 
	Authorized Officer	 	 






Dated:                                         


 


A-4









 





[FORM OF REVERSE OF GLOBAL SECURITY]




4.875% Convertible Senior Subordinated Notes due 2015




This Security is one of a duly authorized issue of 4.875% Convertible Senior Subordinated
Notes due 2015 (the “Securities”) of CBIZ, Inc., a Delaware corporation (including any successor
corporation under the Indenture hereinafter referred to, the “Company”), issued under an Indenture,
dated as of September 27, 2010 (the “Indenture”), between the Company and U.S. Bank National
Association, as trustee (the “Trustee”). The terms of the Security include those stated in the
Indenture, and those set forth in this Security. This Security is subject to all such terms, and
Holders are referred to the Indenture for a statement of all such terms. To the extent permitted
by applicable law, in the event of any inconsistency between the terms of this Security and the
terms of the Indenture, the terms of the Indenture shall control. Capitalized terms used but not
defined herein have the meanings assigned to them in the Indenture unless otherwise indicated.



1. Interest.



The Securities shall bear Interest on the principal amount thereof at a rate of 4.875% per
year. The Company shall also pay Additional Interest, if any, as set forth in  Section 5.07 and
 Section 7.02 of the Indenture.



Interest shall be payable semi-annually in arrears on each Interest Payment Date to Holders at
the close of business on the preceding Interest Record Date. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30 day months.



The Company shall pay Interest to the Securityholder of record on the Interest Record Date
even if Securityholders elect to require the Company to repurchase the Securities on a date that is
after an Interest Record Date but on or prior to the corresponding Interest Payment Date. In that
instance, the Company shall pay accrued and unpaid Interest on the Securities being repurchased to,
but not including, the Fundamental Change Repurchase Date, to the Securityholder of record on the
Interest Record Date.



If the principal amount of any Security, or any accrued and unpaid Interest are not paid when
due (whether upon acceleration pursuant to  Section 7.02 of the Indenture, upon the date set for
payment of the Fundamental Change Repurchase Price pursuant to  Section 3.01 hereof, upon the
Stated Maturity of the Securities, or upon the Interest Payment Dates), then in each such case the
overdue amount shall, to the extent permitted by law, bear cash interest at the rate of 4.875% per
annum, compounded semiannually, which interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including interest thereon, has been made or
duly provided for. All such interest shall be
payable in cash on demand but if not so demanded shall be paid quarterly to the Holders on the
last day of each quarter.


 


A-5









 





2. Method of Payment.



Except as provided below, the Company shall pay Interest on (i) Global Securities, to DTC in
immediately available funds, (ii) any Certificated Security having an aggregate principal amount of
$2,000,000 or less, by check mailed to the Holder of such Security and (iii) any Certificated
Security having an aggregate principal amount of more than $2,000,000, by wire transfer in
immediately available funds if requested in writing by the Holder of any such Security as least
five business days prior to the relevant Interest Payment Date.



At Stated Maturity, the Company shall pay Interest on Certificated Securities at the Company’s
office or agency maintained for that purpose, which initially shall be the office or agency of the
Trustee located at 60 Livingston Avenue, St. Paul MN 55107.



Subject to the terms and conditions of the Indenture, the Company shall make payments in cash
in respect of the Fundamental Change Repurchase Prices and at Stated Maturity to Holders who
surrender Securities to a Paying Agent to collect such payments in respect of the Securities. The
Company shall 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. However, the Company may make such cash payments by
check payable in such money.



3. [Reserved]




4. Indenture.



The Securities are general unsecured obligations of the Company limited to $130,000,000
aggregate principal amount. The Indenture does not limit other indebtedness of the Company,
secured or unsecured.



5. No Redemption at the Option of the Company.



The Securities shall not be optionally redeemable by the Company, and no sinking fund shall be
provided for the Securities.



6. Purchase by the Company at the Option of the Holder.



At the option of any Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase for cash the Securities held by such Holder after the
occurrence of a Fundamental Change for a Fundamental Change Repurchase Price equal to 100% of the
principal amount of those Securities plus accrued and unpaid Interest on those Securities up to,
but not including, the Fundamental Change Repurchase Date. To exercise such right,
a Holder shall deliver to the Paying Agent a Fundamental Change Repurchase Notice containing
the information set forth in the Indenture at any time on or prior to the close of business on the
Fundamental Change Repurchase Date and shall deliver the Securities to the Paying Agent as set
forth in the Indenture.


 


A-6









 





Holders have the right to withdraw any Fundamental Change Repurchase Notice by delivering to
the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture.



If cash sufficient to pay the Fundamental Change Repurchase Price of all Securities or
portions thereof to be purchased as of the Fundamental Change Repurchase Date is deposited with the
Paying Agent, prior to or on the Business Day following the Fundamental Change Repurchase Date,
Interest shall cease to accrue on such Securities (or portions thereof) on and following such
Fundamental Change Repurchase Date, and the Holder thereof shall have no other rights as such other
than the right to receive the Fundamental Change Repurchase Price upon surrender of such Security.



7. [Reserved]




8. Conversion.



Subject to the occurrence of certain events and in compliance with the provisions of the
Indenture (including, without limitation, the conditions to conversion of this Security set forth
in  Section 11.01 thereof), a Holder is entitled, at such Holder’s option, to convert the Holder’s
Security (or any portion of the principal amount thereof that is $1,000 or an integral multiple of
$1,000), into cash or a combination of cash and fully paid and nonassessable shares of Common Stock
at the Conversion Rate in effect at the time of conversion.



The Company shall notify Holders of any event triggering the right to convert the Securities
prior to July 31, 2015 as specified in the Indenture.



A Security in respect of which a Holder has delivered a Fundamental Change Repurchase Notice,
exercising the option of such Holder to require the Company to purchase such Security may be
converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with the
terms of the Indenture.



The initial Conversion Rate is 134.9255 shares of Common Stock per $1,000 principal amount,
subject to adjustment in certain events described in the Indenture. The Conversion Rate shall not
be adjusted for any accrued and unpaid Interest. Upon conversion, no payment shall be made by the
Company with respect to accrued and unpaid Interest, except as provided in the Indenture. Instead,
such amount shall be deemed paid by the cash and shares of Common Stock, if any, delivered upon
conversion of any Security. In addition, no payment
or adjustment shall be made in respect of dividends on the Common Stock, except as set forth
in the Indenture.


 


A-7









 





In addition, following certain corporate transactions as set forth in  Section 11.01(b) of the
Indenture that occur prior to the Stated Maturity and that also constitute a Change of Control, a
Holder who elects to convert its Securities during the period beginning on the effective date of
such Change of Control and ending on the relevant Fundamental Change Repurchase Date for such
corporate transaction shall be entitled to receive Additional Shares of Common Stock upon
conversion (subject to the Company’s ability to settle the conversion entirely in cash as set forth
in the Indenture).



To surrender a Security for conversion, a Holder must (1) complete and manually sign the
Conversion Notice attached hereto (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent,
(3) if required, furnish appropriate endorsements and transfer documents, (4) if required by
 Section 11.02(g) of the Indenture, pay Interest and (5) pay any transfer or similar tax, if
required.



No fractional shares of Common Stock shall be issued upon conversion of any Security. Instead
of any fractional share of Common Stock that would otherwise be issued upon conversion of such
Security, the Company shall pay a cash adjustment as provided in the Indenture.



If the Company engages in any reclassification of the Common Stock, (other than a subdivision
or combination of its outstanding Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value) or is party to a consolidation, merger, binding share
exchange or transfer of all or substantially all of its assets, and as a result of any such event
the Holders of Common Stock would be entitled to receive Exchange Property for their Common Stock,
upon conversion of the Securities after the effective date of such event, the Conversion Obligation
and the Conversion Settlement Distribution shall be based on the applicable Conversion Rate and the
Exchange Property, in each case in accordance with the Indenture.



9. Paying Agent, Conversion Agent and Registrar.




Initially, the Trustee shall act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent or Registrar without notice, other than
notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act
as Paying Agent, Conversion Agent or Registrar.


 


A-8









 





10. Denominations; Transfer; Exchange.



The Securities are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Securities in respect
of which a Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the
case of a Security to be purchased in part, the portion of the Security not to be purchased).



11. Persons Deemed Owners.



The registered Holder of this Security may be treated as the owner of this Security for all
purposes.



12. Unclaimed Money or Securities.



The Trustee and the Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the Securities that remains
unclaimed for two years, subject to applicable abandoned property law. After return to the
Company, Holders entitled to the money or securities must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another person.



13. Amendment; Waiver.



Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities and (ii) certain Events of Defaults may be waived
with the written consent of the Holders of a majority in aggregate principal amount of the
outstanding Securities. Without the consent of any Securityholder, the Company and the Trustee may
amend the Indenture or the Securities in certain respects.



14. Defaults and Remedies.



If any Event of Default with respect to Securities shall occur and be continuing, the
principal amount of the Securities and any accrued and unpaid Interest on all the Securities may be
declared due and payable in the manner and with the effect provided in the Indenture.


 


A-9









 





15. Subordination.



This Note is subordinated as set forth in the Indenture to all obligations in respect of
Senior Indebtedness (including all interest accrued or accruing on Senior Indebtedness after the
commencement of any bankruptcy, insolvency or reorganization or similar case or proceeding at the
contract rate (including, without limitation, any contract rate applicable upon default) specified
in the relevant documentation, whether or not the claim for the interest is allowed as a claim in
the case or proceeding with respect to the Senior Indebtedness).



16. Trustee Dealings with the Company.



Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.



17. Calculations in Respect of Securities.



The Company or its agents shall be responsible for making all calculations called for under
the Securities including, but not limited to, determination of the market prices for the Securities
and of the Common Stock and the amount of Interest accrued on the Securities, Conversion Rate
adjustments, the Conversion Value and the Conversion Price. Any calculations made in good faith
and without manifest error shall be final and binding on Holders of the Securities. The Company or
its agents shall be required to deliver to the Trustee a schedule of its calculations and the
Trustee shall be entitled to conclusively rely upon the accuracy of such calculations without
independent verification.



18. [Reserved]




19. No Recourse Against Others.



A director, officer, incorporator, employee or shareholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Security, each Securityholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.



20. Authentication.



This Security shall not be valid until an authorize signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.


 


A-10









 





21. Abbreviations.



Customary abbreviations may be used in the name of a Securityholder or an assignee, such as
TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift
to Minors Act).



22. Governing Law.



THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.



23. Copy of Indenture.



The Company shall furnish to any Securityholder upon written request and without charge a copy
of the Indenture which has in it the text of this Security in larger type. Requests may be made to:




CBIZ, Inc.

6050 Oak Tree Boulevard South, Suite 500

Cleveland, Ohio 44131

Attn: General Counsel

Facsimile No.: (216) 447-9007



24. No Registration Rights.



The Company is not required to file a shelf registration statement for the resale of the
Securities or the Common Stock, if any, issuable upon conversion of the Securities.


 


A-11









 





	 	 	 
	ASSIGNMENT FORM

	 	CONVERSION NOTICE
	 
	 	 
	To assign this Security, fill in the form below:
	 	To convert this Security, check the box o
	 
	 	 
	I or we assign and transfer this Security to
 	 	To convert only part of this Security, state the principal amount to be converted (which must be $1,000 or an integral multiple of $1,000):
	 	 


	(Insert assignee’s soc. sec. or tax ID no.)	 
	 
	 
	 	 	If you want the stock certificate made out in another person’s name fill in the form below:
	 	 


	 	 


	 

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

	 


	 
	 	 
	 

	 	 
	 

	 	 
	 

	 	(Insert the other person’s soc. sec. tax ID no.)
	and irrevocably appoint	 	 
	 
                                         agent to transfer this
Security on the books of the Company. The agent
may substitute another to act for him.	 	 
	 	 
	 	 
	 	 
	 	(Print or type other person’s name, address and zip code)






	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 






 





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




Signature Guaranteed




 






Participant in a Recognized Signature




Guarantee Medallion Program




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






 


A-12









 





SCHEDULE OF INCREASES AND DECREASES

OF GLOBAL SECURITY




Initial Principal Amount of Global Security:                      ($                    ).



	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	Amount of	 	Principal	 	 
	 	 	Increase in	 	Decrease in	 	Amount of	 	 
	 	 	Principal	 	Principal	 	Global	 	Notation by
	 	 	Amount of	 	Amount of	 	Security After	 	Registrar or
	 	 	Global	 	Global	 	Increase or	 	Security
	Date	 	Security	 	Security	 	Decrease	 	Custodian
	 

	 	 
	 	 
	 	 
	 	 







 


A-13









 







EXHIBIT B




[FORM OF FACE OF CERTIFICATED SECURITY]




THE SALE OF THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY, IF ANY, HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND ACCORDINGLY, THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, OR OF A BENEFICIAL OWNERSHIP HEREIN, THE ACQUIRER:
(I) REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, IS A “QUALIFIED INSTITUTIONAL
BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE
INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND AGREES (1) THAT IT WILL NOT WITHIN THE
LATER OF (X) ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF SECURITIES (INCLUDING THROUGH THE
EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL SECURITIES) AND (Y) 90 DAYS AFTER IT CEASES TO BE AN
AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF CBIZ, INC. (THE “COMPANY”),
OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITIES EVIDENCED HEREBY, THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITIES, IF ANY, OR ANY BENEFICIAL OWNERSHIP HEREIN, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF; (B) UNDER A REGISTRATION STATEMENT THAT HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF
AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING RULE 144, IF AVAILABLE; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF
THIS SECURITY WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE COMPANY HAS NOT SATISFIED THE CURRENT
PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF
SECURITIES (INCLUDING THROUGH THE EXERCISE OF THE OPTION TO PURCHASE ADDITIONAL SECURITIES) AND (Y)
90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ) OF THE COMPANY,
FURNISH TO THE TRUSTEE AND


 


B-1









 





THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REQUIRE AND MAY
RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS SECURITY OTHER
THAN UNDER A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT OR PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A TRANSACTION THAT
RESULTS IN SUCH SECURITY NO LONGER BEING A “RESTRICTED SECURITY” (AS DEFINED UNDER RULE 144). NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



The foregoing legend may be removed from this Security upon the date that is the later of (1)
the date that is one year after the last date of original issuance of the Securities, or such
shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision
thereto, and (2) such later date, if any, as may be required by applicable law, unless such Notes
have been transferred pursuant to a registration statement that has become or been declared
effective under the Securities Act and that continues to be effective at the time of such transfer,
or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision
then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with
notice thereof to the Trustee.


 


B-2









 





CBIZ, INC.




4.875% Convertible Senior Subordinated Notes due 2015




	 	 	 
	CUSIP: 124805 AC6
	 	 
	ISSUE DATE:                     

	 	Principal Amount: $[          ]
	No.
 _____ 


	 	 






CBIZ, INC., a Delaware corporation, promises to pay to                      or registered assigns, the
principal amount of                     , on October 1, 2015.




Interest Rate: 4.875% per year.




Interest Payment Dates: April 1 and October 1 of each year, commencing April 1, 2011.




Interest Record Date: March 15 and September 15 of each year.



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


 


B-3









 






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



	 	 	 	 	 	 	 	 	 
	Dated:                     	 	CBIZ, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




                                                            ,

U.S. Bank National Association

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.




	 	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






Dated:                     


 


B-4









 





[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]





 


B-5









 







EXHIBIT C




CBIZ, INC.




4.875% Convertible Senior Subordinated Notes due 2015




Transfer Certificate




In connection with any transfer of any of the Securities within the period prior to the
expiration of the holding period applicable to the sales thereof under Rule 144 under the
Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the
undersigned registered owner of this Security hereby certifies with respect to $                    
principal amount of the above-captioned Securities presented or surrendered on the date hereof (the
“Surrendered Securities”) for registration of transfer, or for exchange or conversion where the
securities issuable upon such exchange or conversion are to be registered in a name other than that
of the undersigned registered owner (each such transaction being a “transfer”), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:




	 	o	 	A transfer of the Surrendered Securities is made to the Company or any
subsidiaries; or
	 
	 	o	 	The transfer of the Surrendered Securities is pursuant to an effective
registration statement under the Securities Act; or
	 
	 	o	 	The transfer of the Surrendered Securities complies with Rule 144A under
the Securities Act; or
	 
	 	o	 	The transfer of the Surrendered Securities is pursuant to Rule 144 under
the Securities Act and each of the conditions set forth in such rule have been met;





and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144
under the Securities Act (an “Affiliate”).


 


C-1









 






	 	o	 	The transferee is an Affiliate of the Company.





	 	 	 	 	 
	DATE:
	 	 	 	 
	 

	 	 

Signature(s)
	 	 






(If the registered owner is a corporation, partnership or fiduciary, the title of the person
signing on behalf of such registered owner must be stated.)



Signature Guaranteed




	 	 	 
	 

Participant in a Recognized Signature

	 	 






Name:



Address:



Tax I.D.:




 


C-2









 







EXHIBIT D




CBIZ, INC.

NOTICE OF OCCURRENCE

OF FUNDAMENTAL CHANGE




[DATE]




To the Holders of the 4.875% Convertible Senior Subordinated Notes due 2015

(the “Securities”) issued by CBIZ, Inc.:



CBIZ, Inc. (the “Issuer”) by this written notice hereby notifies you, pursuant to  Section
3.01 of that certain Indenture (the “Indenture”), dated as of September 27, 2010, between the
Issuer and U.S. Bank National Association, that a Fundamental Change (as such term and other
capitalized terms used herein and not otherwise defined herein are defined in the Indenture) as
described below has occurred. Included herewith is the form of Fundamental Change Repurchase Notice
to be completed by you if you wish to have your Securities repurchased by the Issuer.



1. Fundamental Change: [Insert brief description of the Fundamental Change and the date of the
occurrence thereof].



2. Date by which Fundamental Change Repurchase Notice must be delivered by you to Paying Agent in
order to have your Securities repurchased:



3. Fundamental Change Repurchase Date:



4. Fundamental Change Repurchase Price:



5. Paying Agent and Conversion Agent: [NAME] [ADDRESS]




6. Conversion Rate: To the extent described in Item 7 below, each $1,000 principal amount of the
Securities is convertible into [insert number of shares] shares of the Issuer’s common stock, par
value $0.01 per share (the “Common Stock”), subject to adjustment.



7. The Securities as to which you have delivered a Fundamental Change Repurchase Notice to the
Paying Agent may be converted if they are otherwise convertible pursuant to  Article 11 of the
Indenture and the terms of the Securities only if you withdraw such Fundamental Change Repurchase
Notice pursuant to the terms of the Indenture. You may be entitled to have your Securities
converted into cash or a combination of cash and shares of the Issuer’s common stock prior to July
31, 2015:




(i) during any fiscal quarter commencing after December 31, 2010 (and only during
such fiscal quarter), if the last reported sale price (as defined in the Indenture) of the
Issuer’s common stock for at least 20 days
during the period of 30 consecutive trading days ending on the last trading day (as
defined in the Indenture) of the preceding fiscal quarter was more than 135% of the
conversion price (as defined in the Indenture) on such last trading day;


 


 









 






(ii) during the five business days immediately following any five consecutive
trading-day period in which the trading price (as defined in the Indenture) per $1,000
principal amount of the Securities for each day of that period was less than 98% of the
product of the last reported sale price (as defined in the Indenture) of the Common Stock
and the conversion rate (as defined in the Indenture) of the Securities on each such day;
or




(iii) upon the occurrence of certain specified corporate transactions described in
the Indenture.




On or after July 31, 2015, you may exercise the right to convert the Securities
irrespective of the conditions listed in clauses (i), (ii) and (iii) above.



8. The Securities as to which you have delivered a Fundamental Change Repurchase Notice must be
surrendered by you (by effecting book entry transfer of the Securities or delivering Certificated
Securities, together with necessary endorsements, as the case may be) to [Name of Paying Agent] at
[insert address] in order for you to collect the Fundamental Change Repurchase Price.



9. The Fundamental Change Repurchase Price for the Securities as to which you have delivered a
Fundamental Change Repurchase Notice and not withdrawn such Notice shall be paid promptly following
the later of the Business Day immediately following such Fundamental Change Repurchase Date and the
date you deliver such Securities to [Name of Paying Agent].



10. In order to have the Issuer repurchase your Securities, you must deliver the Fundamental Change
Repurchase Notice, duly completed by you with the information required by such Fundamental Change
Repurchase Notice (as specified in  Section 3.01 of the Indenture) and deliver such Fundamental
Change Repurchase Notice to the Paying Agent at any time from 9:00 a.m. (New York City time) on the
date of the occurrence of the Change of Control until 5:00 p.m. (New York City time) on the
Fundamental Change Repurchase Date.


 


D-2









 





11. In order to withdraw any Fundamental Change Repurchase Notice previously delivered by you to
the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. (New York City time) on the
Fundamental Change Repurchase Date, a written notice of withdrawal specifying (i) the certificate
number, if any, of the Securities in respect of which such notice of withdrawal is
being submitted, (ii) the principal amount of the Securities in respect of which such notice of
withdrawal is being submitted, and (iii) if you are not withdrawing your Fundamental Change
Repurchase Notice for all of your Securities, the principal amount of the Securities which still
remain subject to the original Fundamental Change Repurchase Notice.



12. Unless the Issuer defaults in making the payment of the Fundamental Change Repurchase Price
owed to you, Interest on your Securities as to which you have delivered a Fundamental Change
Repurchase Notice shall cease to accrue on and after the Fundamental Change Repurchase Date.



13. CUSIP Number: 124805 AC6




CBIZ, INC.



 


D-3









 





SCHEDULE I




The following table sets forth the Stock Prices and the number of Additional Shares per $1,000
principal amount of Securities.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective Date	 	$5.49	 	 	$5.75	 	 	$6.00	 	 	$6.50	 	 	$7.00	 	 	$8.00	 	 	$9.00	 	 	$10.00	 	 	$12.50	 	 	$15.00	 	 	$17.50	 	 	$20.00	 	 	$22.50	 	 	$25.00	 
	September 27, 2010
	 	 	47.2238	 	 	 	45.8696	 	 	 	42.4271	 	 	 	36.7761	 	 	 	32.3832	 	 	 	26.1184	 	 	 	21.9422	 	 	 	18.9798	 	 	 	14.2990	 	 	 	11.5345	 	 	 	9.6226	 	 	 	8.2065	 	 	 	7.1103	 	 	 	6.2354	 
	October 1, 2011
	 	 	47.2238	 	 	 	43.7152	 	 	 	39.9539	 	 	 	33.8549	 	 	 	29.2114	 	 	 	22.8213	 	 	 	18.7737	 	 	 	16.0327	 	 	 	11.9901	 	 	 	9.6587	 	 	 	8.0633	 	 	 	6.8839	 	 	 	5.9707	 	 	 	5.2415	 
	October 1, 2012
	 	 	47.2238	 	 	 	41.6260	 	 	 	37.4258	 	 	 	30.6956	 	 	 	25.6904	 	 	 	19.0975	 	 	 	15.2107	 	 	 	12.7571	 	 	 	9.4111	 	 	 	7.5855	 	 	 	6.3437	 	 	 	5.4250	 	 	 	4.7129	 	 	 	4.1438	 
	October 1, 2013
	 	 	47.2238	 	 	 	39.3885	 	 	 	34.5695	 	 	 	26.9367	 	 	 	21.4082	 	 	 	14.5610	 	 	 	10.9567	 	 	 	8.9369	 	 	 	6.4992	 	 	 	5.2512	 	 	 	4.3990	 	 	 	3.7646	 	 	 	3.2716	 	 	 	2.8773	 
	October 1, 2014
	 	 	47.2238	 	 	 	39.1880	 	 	 	33.1553	 	 	 	22.0823	 	 	 	15.7054	 	 	 	8.6437	 	 	 	5.7498	 	 	 	4.5206	 	 	 	3.3751	 	 	 	2.7541	 	 	 	2.3154	 	 	 	1.9865	 	 	 	1.7308	 	 	 	1.5261	 
	October 1, 2015
	 	 	47.2238	 	 	 	38.9875	 	 	 	31.7412	 	 	 	18.9207	 	 	 	7.9316	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000