Indenture



 EXHIBIT 4.3 
  

EXECUTION COPY 
  

  
 THE TRIZETTO GROUP, INC. 
  
 2.75% CONVERTIBLE SENIOR NOTES DUE 2025 
  

  
 INDENTURE 
 DATED AS OF OCTOBER 5, 2005 
  

  
  
 WELLS FARGO BANK, NATIONAL ASSOCIATION 
  
 AS TRUSTEE 
  








 TABLE OF CONTENTS 
  

			
	 	  	Page


	 ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	  	1
		
	 SECTION 1.1. DEFINITIONS.
	  	1
	 SECTION 1.2. OTHER DEFINITIONS.
	  	6
	 SECTION 1.3. TRUST INDENTURE ACT PROVISIONS.
	  	7
	 SECTION 1.4. RULES OF CONSTRUCTION.
	  	8
		
	 ARTICLE 2 THE SECURITIES
	  	8
		
	 SECTION 2.1. FORM AND DATING.
	  	8
	 SECTION 2.2. EXECUTION AND AUTHENTICATION.
	  	10
	 SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
	  	11
	 SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
	  	11
	 SECTION 2.5. SECURITYHOLDER LISTS.
	  	12
	 SECTION 2.6. TRANSFER AND EXCHANGE.
	  	12
	 SECTION 2.7. REPLACEMENT SECURITIES.
	  	13
	 SECTION 2.8. OUTSTANDING SECURITIES.
	  	14
	 SECTION 2.9. TREASURY SECURITIES.
	  	14
	 SECTION 2.10. TEMPORARY SECURITIES.
	  	14
	 SECTION 2.11. CANCELLATION.
	  	15
	 SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.
	  	15
	 SECTION 2.13. CUSIP NUMBERS.
	  	17
	 SECTION 2.14. SENIOR UNSECURED OBLIGATIONS.
	  	18
		
	 ARTICLE 3 REDEMPTION AND PURCHASES
	  	18
		
	 SECTION 3.1. RIGHT TO REDEEM; NOTICE TO TRUSTEE.
	  	18
	 SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED.
	  	18
	 SECTION 3.3. NOTICE OF REDEMPTION.
	  	19
	 SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
	  	20
	 SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
	  	20
	 SECTION 3.6. SECURITIES REDEEMED IN PART.
	  	20
	 SECTION 3.7. OTHER ARRANGEMENT ON CALL FOR REDEMPTION.
	  	20
	 SECTION 3.8. REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS.
	  	21
	 SECTION 3.9. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
UPON
                            FUNDAMENTAL CHANGE.
	  	26
		
	 ARTICLE 4 CONVERSION
	  	32
		
	 SECTION 4.1. CONVERSION PRIVILEGE.
	  	32
	 SECTION 4.2. CONVERSION PROCEDURE; CONVERSION RATE; FRACTIONAL SHARES; SETTLEMENT
IN
                            CASH IN LIEU OF COMMON STOCK.
	  	34
	 SECTION 4.3. ADJUSTMENT OF CONVERSION RATE FOR COMMON STOCK.
	  	38
	 SECTION 4.4. CONSOLIDATION OR MERGER OF THE COMPANY.
	  	47
	 SECTION 4.5. NOTICE OF ADJUSTMENT.
	  	48

  

 i 









			
	 SECTION 4.6. NOTICE IN CERTAIN EVENTS.
	  	49
	 SECTION 4.7. COMPANY TO RESERVE STOCK: REGISTRATION; LISTING.
	  	49
	 SECTION 4.8. TAXES ON CONVERSION.
	  	50
	 SECTION 4.9. CONVERSION AFTER RECORD DATE.
	  	50
	 SECTION 4.10. COMPANY DETERMINATION FINAL.
	  	51
	 SECTION 4.11. RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
	  	51
	 SECTION 4.12. UNCONDITIONAL RIGHT OF HOLDERS TO CONVERT.
	  	51
	 SECTION 4.13. ADJUSTMENT TO THE CONVERSION RATE UPON CERTAIN FUNDAMENTAL CHANGES.
	  	52
		
	 ARTICLE 5 [RESERVED]
	  	55
		
	 ARTICLE 6 COVENANTS
	  	55
		
	 SECTION 6.1. PAYMENT OF SECURITIES.
	  	55
	 SECTION 6.2. SEC REPORTS.
	  	56
	 SECTION 6.3. COMPLIANCE CERTIFICATES.
	  	56
	 SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.
	  	56
	 SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE.
	  	57
	 SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.
	  	57
	 SECTION 6.7. STAY, EXTENSION AND USURY LAWS.
	  	57
	 SECTION 6.8. PAYMENT OF ADDITIONAL INTEREST.
	  	57
		
	 ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	  	58
		
	 SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS.
	  	58
	 SECTION 7.2. SUCCESSOR SUBSTITUTED.
	  	58
		
	 ARTICLE 8 DEFAULT AND REMEDIES
	  	58
		
	 SECTION 8.1. EVENTS OF DEFAULT.
	  	58
	 SECTION 8.2. ACCELERATION.
	  	61
	 SECTION 8.3. OTHER REMEDIES.
	  	61
	 SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
	  	62
	 SECTION 8.5. CONTROL BY MAJORITY.
	  	62
	 SECTION 8.6. LIMITATIONS ON SUITS.
	  	62
	 SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT.
	  	63
	 SECTION 8.8. COLLECTION SUIT BY TRUSTEE.
	  	63
	 SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
	  	63
	 SECTION 8.10. PRIORITIES.
	  	64
	 SECTION 8.11. UNDERTAKING FOR COSTS.
	  	64
		
	 ARTICLE 9 TRUSTEE
	  	64
		
	 SECTION 9.1. DUTIES OF TRUSTEE.
	  	64
	 SECTION 9.2. RIGHTS OF TRUSTEE.
	  	65
	 SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE.
	  	66
	 SECTION 9.4. TRUSTEE’S DISCLAIMER.
	  	67
	 SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.
	  	67
	 SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS.
	  	67
	 SECTION 9.7. COMPENSATION AND INDEMNITY.
	  	67
	 SECTION 9.8. REPLACEMENT OF TRUSTEE.
	  	68

  

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	 SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
	  	69
	 SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.
	  	69
	 SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
	  	69
		
	 ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE
	  	69
		
	 SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.
	  	69
	 SECTION 10.2. APPLICATION OF TRUST MONEY.
	  	70
	 SECTION 10.3. REPAYMENT TO COMPANY.
	  	70
	 SECTION 10.4. REINSTATEMENT.
	  	71
		
	 ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS
	  	71
		
	 SECTION 11.1. WITHOUT CONSENT OF HOLDERS.
	  	71
	 SECTION 11.2. WITH CONSENT OF HOLDERS.
	  	72
	 SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT.
	  	73
	 SECTION 11.4. REVOCATION AND EFFECT OF CONSENTS.
	  	73
	 SECTION 11.5. NOTATION ON OR EXCHANGE OF SECURITIES.
	  	73
	 SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
	  	74
	 SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES.
	  	74
		
	 ARTICLE 12 [RESERVED]
	  	74
		
	 ARTICLE 13 MISCELLANEOUS
	  	74
		
	 SECTION 13.1. TRUST INDENTURE ACT CONTROLS.
	  	74
	 SECTION 13.2. NOTICES.
	  	74
	 SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
	  	75
	 SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
	  	75
	 SECTION 13.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.
	  	76
	 SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT.
	  	76
	 SECTION 13.7. LEGAL HOLIDAYS.
	  	76
	 SECTION 13.8. GOVERNING LAW.
	  	77
	 SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
	  	77
	 SECTION 13.10. SUCCESSORS.
	  	77
	 SECTION 13.11. MULTIPLE COUNTERPARTS.
	  	77
	 SECTION 13.12. SEPARABILITY.
	  	77
	 SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
	  	77
	 SECTION 13.14. NO RECOURSE AGAINST OTHERS.
	  	77
	 SECTION 13.15. CALCULATIONS IN RESPECT OF SECURITIES
	  	78

  

 iii 








 CROSS-REFERENCE TABLE* 
  

					
	 TIA SECTION

	 	 	 	INDENTURE
SECTION


	 Section
	 	310(a)(1)	 	9.10
	 	 	(a)(2)	 	9.10
	 	 	(a)(3)	 	N.A.**
	 	 	(a)(4)	 	N.A.
	 	 	(a)(5)	 	9.10
	 	 	(b)	 	9.8; 9.10
	 	 	(c)	 	N.A.
	 Section
	 	311(a)	 	9.11
	 	 	(b)	 	9.11
	 	 	(c)	 	N.A.
	 Section
	 	312(a)	 	2.5
	 	 	(b)	 	13.3
	 	 	(c)	 	13.3
	 Section
	 	313(a)	 	9.6
	 	 	(b)(1)	 	N.A.
	 	 	(b)(2)	 	9.6
	 	 	(c)	 	9.6; 13.2
	 	 	(d)	 	9.6
	 Section
	 	314(a)	 	6.2; 6.4; 13.2
	 	 	(b)	 	N.A.
	 	 	(c)(1)	 	13.4(a)
	 	 	(c)(2)	 	13.4(a)
	 	 	(c)(3)	 	N.A.
	 	 	(d)	 	N.A.
	 	 	(e)	 	13.4(b)
	 	 	(f)	 	N.A.
	 Section
	 	315(a)	 	9.1(b)
	 	 	(b)	 	9.5; 13.2
	 	 	(c)	 	9.1(a)
	 	 	(d)	 	9.1(c)
	 	 	(e)	 	8.11
	 Section
	 	316(a)(last sentence)	 	2.9
	 	 	(a)(1)(A)	 	8.5
	 	 	(a)(1)(B)	 	8.4
	 	 	(a)(2)	 	N.A.
	 	 	(b)	 	8.7
	 	 	(c)	 	13.5
	 Section
	 	317(a)(1)	 	8.8
	 	 	(a)(2)	 	8.9
	 	 	(b)	 	2.4



	*	This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture. 


	**	N.A. means Not Applicable. 








 THIS INDENTURE dated as of October 5, 2005 is between The TriZetto Group, Inc., a corporation duly
organized under the laws of the State of Delaware (the “Company”), and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States, as Trustee (the
“Trustee”). 
  
 In consideration of the premises
and the purchase of the Securities by the Holders thereof, both parties agree as follows for the benefit of the other and for the equal and ratable benefit of the registered Holders of the Company’s 2.75% Convertible Senior Notes due 2025.

  
 ARTICLE 1 
 DEFINITIONS AND INCORPORATION BY REFERENCE 
  
 SECTION 1.1. DEFINITIONS. 
  
 “Additional Interest” has the meaning specified in Paragraph 2 of the Security. 
  
 “Affiliate” means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control” when used with respect to any person means the power to
direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing. 
  
 “Agent” means any Registrar,
Paying Agent or Conversion Agent. 
  
 “Applicable
Procedures” means, with respect to any transfer or exchange of beneficial ownership interests in a Global Security, the rules and procedures of the Depositary, in each case to the extent applicable to such transfer or exchange. 

 
 “Bid Solicitation Agent” means, an agent selected by the
Company to serve as bid solicitation agent hereunder, and, initially, the Trustee. 
  
 “Board of Directors” means either the board of directors of the Company or any committee of the Board of Directors authorized to act for it with respect to this Indenture. 
  
 “Business Day” means each day that is not a Legal Holiday.

  
 “Capital Stock” of any Person means any and
all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, but excluding any debt securities convertible into such equity. 
  
 “Cash” means such coin or currency of the United States as
at any time of payment is legal tender for the payment of public and private debts. 
  
 “Certificated Security” means a Security that is in substantially the form attached hereto as Exhibit A and that does not include the information or the schedule called for by
footnotes 1, 3 and 4 thereof. 







 “Closing Sale Price” of one share of Common Stock on any date means the closing per
share sale price of such Common Stock (or, if no closing sale price is reported, the average of the bid and ask prices or, if there is more than one bid or ask price, the average of the average bid and the average ask prices) on such date as
reported in composite transactions on the principal U.S. national securities exchange on which the Common Stock is traded or if the Common Stock is not traded on a U.S. national securities exchange, as reported by the Nasdaq National Market system,
the Nasdaq SmallCap Market system or by the National Quotation Bureau Incorporated. In the absence of such a quotation, the Board of Directors of the Company shall be entitled to make a good faith determination of the sale price on the basis it
considers appropriate which shall be conclusive. 
  
 “Common Stock” means the common stock of the Company, $0.001 par value, as it exists on the date of this Indenture and any shares of any class or classes of capital stock of the Company resulting from any reclassification
or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not subject to redemption by the
Company; provided, however, that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable on conversion of Securities shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. 
  
 “Company” means the party named as such in the first paragraph of this Indenture until a successor replaces
it pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Company. 
  
 “Conversion Price” means, at any time, $1,000 divided by the Conversion Rate in effect at such time, rounded to two decimal places
(rounded up if the third decimal place thereof is 5 or more and otherwise rounded down). 
  
 “Conversion Rate” means initially 53.0504 shares per $1,000 principal amount of Securities, subject to adjustment as set forth herein. 
  
 “Conversion Value” means, at any time, the amount equal to the product of the Closing Sale Price at such
time multiplied by the then current Conversion Rate. 
  
 “Corporate Trust Office” means the office of the Trustee at which at any particular time the trust created by this Indenture shall be administered which office at the date of the execution of this Indenture is located at 45
Broadway, 12th Floor, MAC N2666-120, New York, NY 10006-3007, Attention: Corporate Trust Department, or at any other
time at such other address as the Trustee may designate from time to time by notice to the Company. 
  
 “Default” or “default” means, when used with respect to the Securities, any event which is or, after notice or passage
of time or both, would be an Event of Default. 
  
 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time. 
  

 2 








 “Final Maturity Date” means October 1, 2025. 
  
 “GAAP” means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture, including those set forth in (1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, (2) the
statements and pronouncements of the Financial Accounting Standards Board, (3) such other statements by such other entity as approved by a significant segment of the accounting profession and (4) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial statements) in registration statements filed under the Securities Act and periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC. 
  
 “Global Security” means a permanent Global Security that is in substantially the form attached hereto as Exhibit A and that
includes the information and schedule called for by footnotes 1 and 6 thereof and which is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee. 
  
 “Holder” or “Securityholder” means the
person in whose name a Security is registered on the Primary Registrar’s books. 
  
 “Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness, obligations and other liabilities (contingent or otherwise) of such Person (i) for borrowed money
(including obligations of such Person in respect of overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection agreements, and any loans or advances from banks, whether or not evidenced by notes or similar
instruments) or (ii) evidenced by credit or loan agreements, bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is to the whole of the assets of such Person or to only a portion thereof) (other than any
accounts payable or other accrued current liability or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services), (b) all reimbursement obligations and other liabilities (contingent or
otherwise) of such Person with respect to letters of credit, bank guarantees or bankers’ acceptances, (c) all obligations and liabilities (contingent or otherwise) of such Person (i) in respect of leases of such Person required, in
conformity with GAAP, to be accounted for as capitalized lease obligations on the balance sheet of such Person (as determined by the Company), or (ii) under any lease or related document (including a purchase agreement, conditional sale or
other title retention agreement) in connection with the lease of real property or improvement thereon (or any personal property included as part of any such lease) which provides that such Person is contractually obligated to purchase or cause a
third party to purchase the leased property or pay an agreed upon residual value of the leased property to the lessor (whether or not such lease transaction is characterized as an operating lease or a capitalized lease in accordance with GAAP),
(d) all obligations (contingent or otherwise) of such Person with respect to any interest rate or other swap, cap, floor or collar agreement, hedge agreement, forward contract, or other similar instrument or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement; (e) all direct or indirect guaranties, agreements to be jointly liable or similar agreements by such Person in respect of, and obligations or liabilities of such Person to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of 
  

 3 








 another Person of the kind described in clauses (a) through (d), and (f) any and all deferrals, renewals,
extensions, refinancings and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of the kind described in clauses (a) through (e). 
  
 “Indenture” means this Indenture as amended or supplemented
from time to time pursuant to the terms of this Indenture. 
  
 “Initial Purchasers” means UBS Securities LLC, Banc of America Securities LLC and William Blair & Company, L.L.C. 
  
 “Interest Payment Date” has the meaning specified in Paragraph 1 of the Security. 
  
 “Issuance Date” means the date on which any of the
Securities are first authenticated and issued. 
  
 “Market
Price” means with respect to Securities, as of any date of determination, the average of the secondary market bid quotations per $1,000 principal amount of Securities obtained by the Bid Solicitation Agent for $5,000,000 principal amount of
Securities at approximately 4:00 p.m., New York City time, on such date of determination from three nationally recognized securities dealers (none of which shall be an Affiliate of the Company) selected by the Company, which may include any Initial
Purchaser, provided, that if at least three such bids cannot be reasonably obtained by the Bid Solicitation Agent, but two bids are obtained, then the average of the two bids shall be used, and if only one such bid can be reasonably
obtained by the Bid Solicitation Agent, this one bid will be used; provided, however, if (a) the Bid Solicitation Agent, through the exercise of reasonable efforts, is unable to obtain at least one such bid from a securities
dealer, or (b) in the Company’s reasonable judgment, the bid quotations are not indicative of the secondary market value of the Securities as of such date of determination, then the Market Price of a Security for such date of determination
shall be equal to 97% of the product of (1) the Conversion Rate in effect as of such date of determination multiplied by (2) the Sale Price of a share of Common Stock on such date of determination. 
  
 “Measurement Period” means the last 30 consecutive Trading
Days in a fiscal quarter. 
  
 “Officer” means the
Chairman or any Co-Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Controller, the Secretary or any Assistant Controller or Assistant Secretary
of the Company. 
  
 “Officers’ Certificate”
means a certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and by one other Officer. 
  
 “Opinion of Counsel” means a written opinion from legal counsel experienced in such matters as are covered
by the opinion. The counsel may be an employee of, or counsel to, the Company or the Trustee. 
  

 4 








 “Person” or “person” means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. 
  
 “Principal” or “principal” of a debt
security, including the Securities, means the principal of the security. 
  
 “Redemption Date” when used with respect to any Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture. 
  
 “Redemption Price” when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this Indenture, as set forth in the form of Security annexed as Exhibit A hereto. 
  

“Registration Rights Agreement” means the Registration Rights Agreement dated, as of October 5, 2005, between the Company and the
Initial Purchasers. 
  
 “Regular Record Date” has
the meaning specified in Paragraph 1 of the Security. 
  
 “Rule 144” means Rule 144 under the Securities Act or any successor to such Rule. 
  
 “Rule 144A” means Rule 144A under the Securities Act or any successor to such Rule. 
  
 “SEC” means the Securities and Exchange Commission.

  
 “Securities” means the 2.75% Convertible
Senior Notes due 2025 or any of them (each, a “Security”), as amended or supplemented from time to time, that are issued under this Indenture. 
  
 “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from
time to time. 
  
 “Securities Custodian” means
the Trustee, as custodian with respect to the Securities in global form, or any successor thereto. 
  
 “Significant Subsidiary” means, in respect of any Person, a Subsidiary of such Person that would constitute a “significant
subsidiary” as such term is defined under Rule 1-02 of Regulation S-X under the Securities Act and the Exchange Act. 
  
 “Subsidiary” means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50%
of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person. 
  
 “TIA” means the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder as in effect on the date of this Indenture, except as provided in Section 11.3, and except to the extent any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act
as in effect on another date. 
  

 5 








 “Trading Day” means, with respect to any security, each Monday, Tuesday, Wednesday,
Thursday and Friday, other than any day on which securities are not generally traded on the principal exchange or market in which such security is traded. 
  
 “Transfer Restricted Global Security” means a Global Security that is a Transfer Restricted Security. 
  
 “Transfer Restricted Security” means a Security required to
bear the restricted legend set forth in the form of Security set forth in Exhibit A of this Indenture. 
  
 “Trustee” means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the
provisions of this Indenture, and thereafter means the successor. 
  
 “Trust Officer” means, with respect to the Trustee, any officer assigned to the Corporate Trust Office, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject. 
  
 “Vice President” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice
president.” 
  
 “Voting Stock” of a Person
means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof. 
  
 SECTION 1.2. OTHER DEFINITIONS.

  

			
	 Term

	  	Defined in Section


	 “Agent Members”
	  	        2.1(b)
	 “Bankruptcy Law”
	  	        8.1
	 “Cash Amount”
	  	        4.2(b)
	 “Cash Settlement Averaging Period”
	  	        4.2(b)
	 “Cash Settlement Notice Period”
	  	        4.2(b)
	 “Change in Control”
	  	        3.9(a)(i)
	 “Company Order”
	  	        2.2
	 “Conversion Agent”
	  	        2.3
	 “Conversion Date”
	  	        4.2(b)
	 “Conversion Notice”
	  	        4.2(a)
	 “Conversion Obligation”
	  	        4.1
	 “Conversion Retraction Period”
	  	        4.2(b)
	 “Conversion Settlement Distribution”
	  	        4.2(b)
	 “Current Market Price”
	  	        4.3(g)
	 “Custodian”
	  	        8.1
	 “DTC”
	  	        2.1
	 “Depositary”
	  	        2.1
	 “Disposition Event”
	  	        4.4

  

 6 









			
	 Term

	  	Defined in Section


	 “distributed assets”
	  	                    4.3(d)
	 “Effective Date”
	  	                    4.13(b)
	 “Election Amount”
	  	                    4.2(b)
	 “Election Date”
	  	                    4.2(b)
	 “Event of Default”
	  	                    8.1
	 “ ‘ex’ date”
	  	                    4.3(g)
	 “Expiration Date”
	  	                    4.3(f)
	 “Expiration Time”
	  	                    4.3(f)
	 “Fair Market Value”
	  	                    4.3(g)
	 “Final Notice Date”
	  	                    4.2(b)
	 “Fundamental Change”
	  	                    3.9(a)(i)
	 “Fundamental Change Company Notice”
	  	                    3.9(a)(ii)
	 “Fundamental Change Repurchase Date”
	  	                    3.9(a)(i)
	 “Fundamental Change Repurchase Notice”
	  	                    3.9(a)(ii)
	 “Fundamental Change Repurchase Price”
	  	                    3.9(a)(ii)
	 “Fundamental Change Repurchase Right”
	  	                    3.9(a)(i)
	 “Legal Holiday”
	  	                    13.7
	 “Legend”
	  	                    2.12
	 “Make-Whole Fundamental Change”
	  	                    4.13(a)
	 “Note Measurement Period”
	  	                    4.1(a)(ii)
	 “Notice of Default”
	  	                    8.1
	 “Paying Agent”
	  	                    2.3
	 “Primary Registrar”
	  	                    2.3
	 “Public Acquirer Common Stock”
	  	                    4.13(d)
	 “Public Acquirer Fundamental Change”
	  	                    4.13(d)
	 “Purchase Agreement”
	  	                    2.1
	 “Purchase Offer”
	  	                    3.8(a)(ii)
	 “Purchased Shares”
	  	                    4.3(f)
	 “QIB”
	  	                    2.1
	 “Record Date”
	  	                    4.3(g)
	 “Reference Period”
	  	                    4.3(d)(ii)(1)
	 “Reference Property”
	  	                    4.4(c)
	 “Registrar”
	  	                    Paragraph 1 of the
                    Security
	 “Regular Record Date”
	  	                    3.4
	 “Repurchase Date”
	  	                    3.8(a)(i)
	 “Repurchase Notice”
	  	                    3.8(a)(ii)
	 “Repurchase Price”
	  	                    3.8(a)(i)
	 “Spin-Off”
	  	                    4.3(d)(ii)(2)
	 “Stock Price”
	  	                    4.13(b)
	 “Trigger Event”
	  	                    4.3(d)(ii)(3)

  
 SECTION 1.3. TRUST
INDENTURE ACT PROVISIONS. 
  
 Whenever this Indenture refers
to a provision of the TIA, that provision is incorporated by reference in and made a part of this Indenture. The Indenture shall also include those provisions of the TIA required to be included herein by the provisions of the Trust Indenture Reform
Act of 1990. The following TIA terms used in this Indenture have the following meanings: 
  
 (a) “indenture securities” means the Securities; 
  

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 (b) “indenture security holder” means a Securityholder; 
  
 (c) “indenture to be qualified” means this Indenture; 

 
 (d) “indenture trustee” or “institutional trustee”
means the Trustee; and 
  
 (e) “obligor” on the
indenture securities means the Company or any other obligor on the Securities. 
  
 All other terms used in this Indenture that are defined in the TIA, defined by TIA reference to another statute or defined by any SEC rule and not otherwise defined herein have the meanings assigned to them therein.

  
 SECTION 1.4. RULES OF CONSTRUCTION. 
  
 Unless the context otherwise requires: 
  
 (a) a term has the meaning assigned to it; 
  
 (b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP; 
  
 (c) words in the singular include the
plural, and words in the plural include the singular; 
  
 (d)
provisions apply to successive events and transactions; 
  
 (e)
the term “merger” includes a statutory share exchange and the term “merged” has a correlative meaning; 
  
 (f) the masculine gender includes the feminine and the neuter; 
  
 (g) references to agreements and other instruments include subsequent amendments thereto; and 
  
 (h) “herein,” “hereof” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. 
  
 ARTICLE 2 
 THE SECURITIES 
  
 SECTION 2.1. FORM AND DATING. 
  
 The Securities and the Trustee’s certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or
usage. 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 are being offered and sold by the Company pursuant to a Purchase
Agreement, dated September 30, 2005 (the “Purchase Agreement”), between the Company and the Initial Purchaser, in transactions exempt from, or not subject to, the registration requirements of the Securities Act. 
  

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 (a) Restricted Global Securities. All of the Securities are initially being offered and sold to
qualified institutional buyers as defined in Rule 144A (collectively, “QIBs” or individually, each a “QIB”) in reliance on Rule 144A under the Securities Act and shall be issued initially in the form of
one or more Restricted Global Securities, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, at its Corporate Trust Office, as custodian for the depositary, The Depository Trust Company
(“DTC”) (such depositary, or any successor thereto, being hereinafter referred to as the “Depositary”), and registered in the name of its nominee, Cede & Co., duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of the Restricted Global Securities may from time to time be increased or decreased by adjustments made on the records of the Securities Custodian as hereinafter provided,
subject in each case to compliance with the Applicable Procedures. 
  
 (b) Global Securities In General. Each Global Security shall represent such 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 thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. 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 and shall be made on the records of the Trustee and the Depositary. 
  
 Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or under the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner
and Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) 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 (B) impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security. 
  
 (c) Book Entry Provisions. The Company shall execute and the Trustee
shall, in accordance with this Section 2.1(c), authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary, (ii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instructions and (iii) shall bear legends substantially to the following effect: 
  
 “UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, 
  

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 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. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.” 
  
 SECTION 2.2. EXECUTION AND AUTHENTICATION. 
  
 An Officer shall sign the Securities for the Company by manual or facsimile signature attested by the manual or facsimile
signature of the Secretary or an Assistant Secretary of the Company. Typographic and other minor errors or defects in any such facsimile signature shall not affect the validity or enforceability of any Security which has been authenticated and
delivered by the Trustee. 
  
 If an Officer whose signature is on
a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless. 
  
 A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this Indenture. 
  
 The Trustee shall authenticate and make available for delivery Securities for original issue in the aggregate principal amount of up to $115,000,000 upon receipt of a written order or orders of the Company signed by
an Officer of the Company (a “Company Order”). The Company Order shall specify the amount of Securities to be authenticated, shall provide that all such Securities will be represented by a Restricted Global Security and the date on
which each original issue of Securities is to be authenticated. The aggregate principal amount of Securities outstanding at any time may not exceed $115,000,000 except as provided in Section 2.7. 
  
 The Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An 
  

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 authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent shall have the same rights as an Agent to deal with the Company or an Affiliate of the Company. 
  
 The Securities shall be issuable only in registered form without coupons and
only in denominations of $1,000 principal amount and any integral multiple thereof. 
  
 SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION AGENT. 
  
 The Company shall maintain one or more offices or agencies where Securities may be presented for registration of transfer or for exchange (each, a
“Registrar”), one or more offices or agencies where Securities may be presented for payment (each, a “Paying Agent”), one or more offices or agencies where Securities may be presented for conversion (each, a
“Conversion Agent”) and one or more offices or agencies where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will at all times maintain a Paying Agent,
Conversion Agent, Registrar and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served in the Borough of Manhattan, The City of New York. One of the Registrars (the
“Primary Registrar”) shall keep a register of the Securities and of their transfer and exchange. 
  
 The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or agent for service of
notices and demands in any place required by this Indenture, or fails to give the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent (except for the purposes of Section 6.1 and
Article 10). 
  
 The Company hereby initially designates the
Trustee as Paying Agent, Registrar, Securities Custodian, Bid Solicitation Agent and Conversion Agent, and each of the Corporate Trust Office of the Trustee and the office or agency of the Trustee in the Borough of Manhattan, The City of New York
(located at 45 Broadway, 12th Floor, MAC N2666-120, New York, NY 10006-3007, Attention: Corporate Trust Department),
one such office or agency of the Company for each of the aforesaid purposes. 
  
 SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST. 
  
 Prior to 11:00 a.m., New York City time, on each due date of the principal of or interest, if any, on any Securities, the Company shall deposit with a Paying Agent a sum sufficient to pay such principal or interest,
if any, so becoming due. A Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest, if any, on the Securities, and shall notify the Trustee of
any default by the Company (or any other obligor on the Securities) in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall, before 11:00 a.m., New York City time, on each due date of the principal of
or interest on any Securities, segregate the money and 
  

 11 








 hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee, and the Trustee may at any time during the continuance of any default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for the money. 
  
 SECTION 2.5. SECURITYHOLDER LISTS. 
  
 The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Primary Registrar, the Company
shall furnish to the Trustee on or before each semiannual interest payment date, 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. 
  
 SECTION 2.6. TRANSFER AND EXCHANGE.

  
 Subject to compliance with any applicable additional
requirements contained in Section 2.12, when a Security is presented to a Registrar with a request to register a transfer thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided, however, that every Security presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by an assignment form and, if applicable, a transfer certificate each in the form included in Exhibit A, and in form satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly
authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.3, the Company shall execute and the
Trustee shall authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto, and provided, that this sentence shall not apply to any exchange pursuant to Section 2.10, 2.12(a), 3.6, or 11.5 not involving any transfer. 

 
 Neither the Company, any Registrar nor the Trustee shall be required to
exchange or register a transfer of (i) any Securities for a period of 15 days next preceding any mailing of a notice of Securities to be redeemed, (ii) any Securities or portions thereof selected or called for redemption (except, in the
case of redemption of a Security in part, the portion thereof not to be redeemed) or (iii) any Securities or portions thereof in respect of which a Fundamental Change Repurchase Notice has been delivered and not withdrawn by the Holder thereof
(except, in the case of the purchase of a Security in part, the portion thereof not to be purchased). 
  
 All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange. 
  

 12 








 Any Registrar appointed pursuant to Section 2.3 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. 
  
 Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment
of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal or state securities law. 
  
 The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express
requirements hereof. 
  
 SECTION 2.7. REPLACEMENT SECURITIES.

  
 If any mutilated Security is surrendered to the Company,
a Registrar or the Trustee, or the Company, a Registrar and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company, the applicable Registrar and the Trustee such
security or indemnity as will be required by them to save each of them harmless, then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has been acquired by a protected 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 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 redeemed or purchased by the Company pursuant to Article 3, the Company in its discretion may, instead of issuing a new Security, pay, redeem
or purchase such Security, as the case may be. 
  
 Upon the
issuance of any new Securities under this Section 2.7, 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 reasonable expenses (including
the reasonable fees and expenses of the Trustee or the Registrar) in connection therewith. 
  
 Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not
the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. 
  

 13 








 The provisions of this Section 2.7 are (to the extent lawful) exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. 
  
 SECTION 2.8. OUTSTANDING SECURITIES. 
  
 Securities outstanding at any time are all Securities authenticated by the Trustee, except for those canceled by it, those converted pursuant to Article
4, those delivered to it for cancellation or surrendered for transfer or exchange and those described in this Section 2.8 as not outstanding. 
  
 If a Security is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Company receives proof satisfactory to it that the replaced
Security is held by a protected purchaser. 
  
 If a Paying Agent
(other than the Company or an Affiliate of the Company) holds on a Redemption Date, a Repurchase Date, a Fundamental Change Repurchase Date or the Final Maturity Date money sufficient to pay the principal of and accrued interest on Securities (or
portions thereof) payable on that date, then on and after such Redemption Date, Repurchase Date, Fundamental Change Repurchase Date or the Final Maturity Date, as the case may be, such Securities (or portions thereof, as the case may be) shall cease
to be outstanding and interest on them shall cease to accrue; provided, that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefore satisfactory to the
Trustee has been made. 
  
 Subject to the restrictions contained
in Section 2.9, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security. 
  
 SECTION 2.9. TREASURY SECURITIES. 
  
 In determining whether the Holders of the required principal amount of Securities have concurred in any notice, direction, waiver or consent, Securities
owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded, except that, for purposes of determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Securities and that the pledgee is not the Company or any other obligor on the Securities or any Affiliate of the Company or of such other obligor.

  
 SECTION 2.10. TEMPORARY SECURITIES. 
  
 Until definitive Securities are ready for delivery, the Company may prepare
and execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company with the
consent of the Trustee considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate and deliver definitive Securities in exchange for temporary Securities. 
  

 14 








 SECTION 2.11. CANCELLATION. 
  
 The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, the Paying Agent and the
Conversion Agent shall forward to the Trustee or its agent any Securities surrendered to them for transfer, exchange, redemption, payment or conversion. The Trustee and no one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, redemption, payment, conversion or cancellation and shall deliver the canceled Securities to the Company. Without limitation to the foregoing, any Securities acquired by any investment bankers or other
purchasers pursuant to Section 3.7 shall be surrendered for conversion and thereafter cancelled, and may not be reoffered, sold or otherwise transferred. 
  

SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS. 
  
 (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject to restrictions on transfer
and bearing the legends set forth on the forms of Securities attached hereto as Exhibit A (collectively, 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 if requested by the Company or such Registrar, as may be
reasonably required by the Company and 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 144A or Rule 144 under the Securities
Act or that such Securities are not “restricted” within the meaning of Rule 144 under the Securities Act; provided, that no such evidence need be supplied in connection with the sale of such Security pursuant to a
registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) written 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 an Affiliate of the Company, the Legend shall be reinstated. 
  
 (b) A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no
such transfer to any such other Person may be registered; provided, that the foregoing shall not prohibit any transfer of a Security that is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a
Global Security, in whole or in part, shall be made only in accordance with this Section 2.12. 
  

 15 








 (c) Subject to the succeeding paragraph, every Security shall be subject to the restrictions on transfer
provided in the Legend other than a Restricted Global Security. Whenever any Transfer Restricted Security other than a Restricted Global 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 B, 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. 
  
 (d) The restrictions imposed by the Legend upon the transferability of any Security shall cease and terminate when such
Security has been sold pursuant to an effective registration statement under the Securities Act or transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if earlier, upon the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision). 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 or any successor provision, by, if requested, an Opinion of Counsel reasonably acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the restrictive 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. 
  
 (e) As used in the preceding two
paragraphs of this Section 2.12, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security. 
  

(f) The provisions of clauses (i), (ii), (iii) and (iv) 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 person designated by the Depositary in the event that (A) 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 the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days, (B) the Company has provided the Depositary with written notice that it has decided to
discontinue use of the system of book-entry transfer through the Depositary or any successor Depositary or (C) an Event of Default has occurred and is continuing with respect to the Securities. Any Global Security exchanged pursuant to clauses
(A) or (B) above shall be so exchanged in whole and not in part, and any Global Security exchanged 
  

 16 








 pursuant to clause (C) 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 shall not be a Global Security. 
  
 (ii)
Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully-registered book-entry form, without interest coupons, 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 Trustee, as 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 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 will promptly make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons. 
  
 (v) Neither Agent Members nor any other Persons on whose
behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of the Company 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. 
  
 SECTION 2.13. CUSIP NUMBERS. 
  
 The Company in issuing the Securities may use one or more “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption or 
  

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 purchase 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 of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such
redemption or purchase shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers. 
  
 SECTION 2.14. SENIOR UNSECURED OBLIGATIONS. 
  
 The Securities are senior unsecured obligations of the Company and rank equally in right of payment with all existing and
future unsecured and unsubordinated indebtedness of the Company senior to existing and future subordinated indebtedness and junior to the existing and future secured indebtedness to the extent of the security therefor of the Company. 
  
 ARTICLE 3 
 REDEMPTION AND PURCHASES 
  
 SECTION 3.1. RIGHT TO REDEEM; NOTICE TO TRUSTEE. 
  
 The Securities may be redeemed at the election of the Company, as a whole or from time to time in part, at any time on or after October 5, 2010, at the Redemption Price specified in Paragraph 6 of the form
of Security attached hereto as Exhibit A, together with accrued and unpaid interest (including Additional Interest, if any) up to, but not including, the Redemption Date. 
  
 If the Company elects to redeem Securities pursuant to this Section 3.1 and Paragraph 6 of the Securities, it
shall notify the Trustee at least 45 days prior to the Redemption Date, as fixed by the Company, (unless a shorter notice shall be satisfactory to the Trustee) of the Redemption Date and the principal amount of Securities to be redeemed. If fewer
than all of the Securities are to be redeemed, the record date relating to such redemption shall be selected by the Company and given to the Trustee, which record date shall not be less than 10 days after the date of notice to the Trustee.

  
 SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED.

  
 If less than all of the Securities are to be redeemed,
unless the procedures of the Depositary provide otherwise, the Trustee shall, at least 30 days but not more than 60 days prior to the Redemption Date, select the Securities to be redeemed. The Trustee shall make the selection from the
Securities outstanding and not previously called for redemption, by lot, on a pro rata basis or in accordance with any other method the Trustee considers fair and appropriate. Securities in denominations of $1,000 may only be redeemed in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of Securities that have denominations larger than $1,000. Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. 
  
 If any
Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed to be taken from the portion
selected for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as outstanding for the purpose of such selection. 
  

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 SECTION 3.3. NOTICE OF REDEMPTION. 
  
 At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed a notice
of redemption to each Holder of Securities to be redeemed at such Holder’s address as it appears on the Primary Registrar’s books. 
  
 The notice shall identify the Securities (including CUSIP numbers) to be redeemed and shall state: 
  
 (i) the Redemption Date; 
  
 (ii) the Redemption Price; 
  
 (iii) the then current Conversion Rate; 
  
 (iv) the name and address of each Paying Agent and
Conversion Agent; 
  
 (v) that Securities called
for redemption must be presented and surrendered to a Paying Agent to collect the Redemption Price; 
  
 (vi) that Holders who wish to convert Securities must surrender such Securities for conversion no later than the close of business on the
Business Day immediately preceding the Redemption Date and must satisfy the other requirements set forth in Paragraph 9 of the Securities; 
  
 (vii) that, unless the Company defaults in making the payment of the Redemption Price, interest on Securities called for redemption shall
cease accruing on and after the Redemption Date and subject to the provisions of Sections 3.1 and 3.4, the only remaining right of the Holder shall be to receive payment of the Redemption Price plus accrued interest, if any, upon presentation and
surrender to a Paying Agent of the Securities; and 
  
 (viii) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon presentation and surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will be issued. 
  
 If any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemptions.
At the Company’s written request, which request shall (i) be irrevocable once given and (ii) set forth all relevant information required by clauses (i) through (viii) of the preceding paragraph, the Trustee shall give the
notice of redemption in the Company’s name and at the Company’s expense. 
  

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 SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION. 
  
 Once notice of redemption is mailed, Securities called for redemption become
due and payable on the Redemption Date and at the Redemption Price stated in the notice, together with accrued and unpaid interest (including Additional Interest, if any) except for Securities that are converted in accordance with the provisions of
Article 4. Upon presentation and surrender to a Paying Agent, Securities called for redemption shall be paid at the Redemption Price, plus accrued and unpaid interest (including Additional Interest, if any) up to but not including the
Redemption Date. If the Redemption Date is after the Regular Record Date and prior to the corresponding Interest Payment Date, interest (including Additional Interest, if any) accrued and unpaid hereon to, but not including, the applicable
Redemption Date will be paid to the same Holder to whom the Company pays the principal of such Securities regardless of whether such Holder was the registered Holder on the Regular Record Date immediately preceding the applicable Redemption Date.
However, if the Company redeems Securities on a Redemption Date that is an Interest Payment Date, the Company will pay the accrued and unpaid interest (including Additional Interest, if any) due on that Interest Payment Date instead to the
registered Holder of the Securities at the close of business on the Regular Record Date for that Interest Payment Date, and the Redemption Price will not be accompanied by the amount of such interest payment. 
  
 SECTION 3.5. DEPOSIT OF REDEMPTION PRICE. 
  
 Prior to 11:00 a.m. New York City time, on the Redemption Date, the Company
shall deposit with a Paying Agent (or, if the Company acts as Paying Agent, shall segregate and hold in trust) an amount of money (in immediately available funds if deposited on such Redemption Date) sufficient to pay the Redemption Price of and
accrued and unpaid interest (including Additional Interest, if any) on all Securities to be redeemed on that date, other than Securities or portions thereof called for redemption on that date which have been delivered by the Company to the Trustee
for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money not required for that purpose or, if such money is then held by the Company in trust and is not required for such purpose, it
shall be discharged from the trust. 
  
 SECTION 3.6. SECURITIES
REDEEMED IN PART. 
  
 Upon presentation and surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder, without charge, a new Security or Securities of authorized denominations as requested by such Holder in aggregate principal
amount equal to the unredeemed portion of the Security surrendered. 
  
 SECTION 3.7. OTHER ARRANGEMENT ON CALL FOR REDEMPTION. 
  
 In lieu of a redemption of the Securities, the Company may arrange for the purchase of any Securities called for redemption by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to a
Paying Agent (other than the Company or any of its Affiliates) in trust for the Holders, on or before 11:00 a.m. New York City time on the Redemption Date, an amount that, together with any amounts deposited with such 
  

 20 








 Paying Agent by the Company for the redemption of such Securities, is not less than the aggregate Redemption Price of
such Securities. Notwithstanding anything to the contrary contained in this Article 3, the obligation of the Company to pay the Redemption Price of such Securities shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers; provided, however, that nothing in this Section 3.7 shall relieve the Company of its obligation to pay the Redemption Price on Securities called for redemption. If such an agreement with one or more
investment banks or other purchasers is entered into, any Securities called for redemption and not surrendered for conversion by the Holders thereof prior to the relevant Redemption Date may, at the option of the Company upon written notice to the
Trustee, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders as of 11:00 a.m. New York City time on the Redemption Date, subject to payment of the above amount as aforesaid. The Paying Agent shall hold
and pay to the Holders whose Securities are selected for redemption any such amount paid to it for purchase in the same manner as it would money deposited with it by the Company for the redemption of Securities. Without the Paying Agent’s prior
written consent, no arrangement between the Company and such purchasers for the purchase of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Paying Agent from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase of any Securities between the Company and
such purchasers, including the costs and expenses incurred by the Paying Agent in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations
under this Indenture. 
  
 SECTION 3.8. REPURCHASE OF SECURITIES
AT THE OPTION OF HOLDERS. 
  
 (a) Optional Put.

  
 (i) Securities shall be repurchased by the
Company, at the option of the Holder thereof, on October 1, 2010, October 1, 2015 and October 1, 2020 (each, a “Repurchase Date”), at a repurchase price in Cash equal to 100% of the principal amount of the
Securities to be repurchased plus accrued and unpaid interest (including Additional Interest, if any) to, but not including, such Repurchase Date (the “Repurchase Price”), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 3.8(a)(iii). 
  
 (ii) No later than 20 Business Days prior to each Repurchase Date, the Company shall mail a written notice of the repurchase right under Section 3.8(a)(i) (a “Purchase Offer”) by first class mail to the Trustee and to
each Holder (and to beneficial owners as required by applicable law). The notice shall include a form of notice to be completed by the Holder and returned to the Company in the event that the Holder elects such right to such repurchase (the
“Repurchase Notice”) and shall briefly state, as applicable: 
  
 (1) the date by which the Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the repurchase right; 
  

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 (2) the Repurchase Date; 
  
 (3) the Repurchase Price; 
  
 (4) the name and address of the Paying Agent and the Conversion Agent; 
  
 (5) the Conversion Rate; 
  
 (6) that the Securities as to which a Repurchase Notice has
been given may be converted if they are otherwise convertible pursuant to Article 4 only if the Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; 
  
 (7) that the Securities must be surrendered to the Paying Agent to collect payment; 
  
 (8) that the Repurchase Price for any Security as to which a
Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Repurchase Date and the time of surrender of such Security; 
  
 (9) the procedures the Holder must follow to exercise its put right under this Section 3.8(a);

  
 (10) the conversion rights, if any, of the
Securities; 
  
 (11) the procedures for
withdrawing a Repurchase Notice; 
  
 (12) that,
unless the Company defaults in making payment of such Repurchase Price, interest (including Additional Interest, if any) on Securities surrendered for repurchase by the Company will cease to accrue on and after the Repurchase Date; and 

 
 (13) the CUSIP number(s) of the Securities. 

 
 At the Company’s request, the Trustee shall give the
Purchase Offer in the Company’s name and at the Company’s expense; provided, however, that the Company makes such request at least three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to
the date by which such Purchase Offer must be given to the Holder in accordance with this Section 3.8(a)(ii); provided, further, that the text of the notice of repurchase right shall be prepared by the Company. 
  
 (iii) A Holder may exercise its right specified in
Section 3.8(a)(i) upon delivery of a properly completed Repurchase Notice to the Paying Agent at any time during the period beginning at 9:00 a.m., New York City time, on the date that is 20 Business Days immediately preceding the relevant
Repurchase Date until 5:00 p.m., New York City time, on the Business Day immediately preceding such Repurchase Date, stating: 
  
 (1) the certificate number (if in certificated form) of the Security which the Holder will deliver to be repurchased or the appropriate
Depositary procedures if Certificated Securities have not been issued; 
  

 22 








 (2) the portion of the principal amount of the Security which the Holder will deliver to
be repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; and 
  
 (3) that such Security shall be repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in the
Securities and in this Indenture. 
  
 The
delivery of such Security to the Paying Agent with, or at any time after delivery of, the Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the
Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 3.8(a) only if the Security so delivered to the Paying Agent shall conform in all respects to the description
thereof in the related Repurchase Notice. 
  
 The
Company shall repurchase from the Holder thereof, pursuant to this Section 3.8(a), a portion of a Security, so long as 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. 
  
 Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.8(a) shall be consummated by the delivery of
the consideration to be received by the Holder promptly but in no event more than five (5) Business Days following the later of the Repurchase Date (provided the conditions in Section 3.8(a)(iii) have been satisfied) and the time of
delivery of the Security with the necessary endorsements. 
  
 Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 3.8(a)(iii) shall have the right to withdraw such Repurchase
Notice at any applicable time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.8(b). 

 
 The Paying Agent shall promptly notify the Company of the
receipt by it of any Repurchase Notice or written notice of withdrawal thereof. 
  
 (b) Effect of Repurchase Notice. 
  
 Upon receipt by the Paying Agent of the Repurchase Notice specified in Section 3.8(a)(iii), the Holder of the Security in respect of which such Repurchase Notice was given shall 
  

 23 








 (unless such Repurchase Notice is withdrawn as specified in the following paragraph) thereafter be entitled to receive
solely the Repurchase Price with respect to such Security. Such Repurchase Price shall be paid to such Holder, subject to receipt of Cash by the Paying Agent, promptly but in no event more than five (5) Business Days following the later of
(a) the Repurchase Date with respect to such Security (provided the conditions in Section 3.8(a)(iii) have been satisfied) and (b) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner
required by Section 3.8(a)(iii). Securities in respect of which a Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article IV on or after the date of the delivery of such Repurchase Notice unless such
Repurchase Notice has first been validly withdrawn as specified in the following paragraph. 
  
 A 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 Repurchase Notice at any time prior to 5:00 p.m., New York City time,
on the Business Day immediately preceding the Repurchase Date, specifying: 
  
 (i) the Holder’s name and an election to withdraw such Repurchase Notice; 
  
 (ii) the certificate number (if in certificated form) or the appropriate Depositary procedures, if applicable, of the Security in respect
of which such notice of withdrawal is being submitted; 
  
 (iii) the principal amount of the Security (which must be in an integral multiple of $1,000) with respect to which such notice of withdrawal is being submitted; and 
  
 (iv) the principal amount, if any, of such Security which remains subject to the original Repurchase Notice
and which has been or will be delivered for repurchase by the Company. 
  
 (c) Deposit of Repurchase Price. 
  
 Prior to
11:00 a.m., New York City time, on the applicable Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of any of them is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.4) an amount of Cash (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Repurchase Price of all the Securities or portions thereof which are to be repurchased on such
Repurchase Date. 
  
 If the Paying Agent holds, in accordance with
the terms hereof, at 11:00 a.m., New York City time, on the applicable Repurchase Date, Cash sufficient to pay the Repurchase Price of any Securities for which a Repurchase Notice has been tendered and not withdrawn pursuant to Section 3.8(b),
then, on and after such Repurchase Date, such Securities will cease to be outstanding and interest (including Additional Interest, if any) on such Securities will cease to accrue, whether or not such Securities are delivered to the Paying Agent, and
the rights of the Holders in respect thereof shall terminate (other than the right to receive the Repurchase Price upon delivery of such Securities, together with any necessary endorsement) and the repurchased Securities shall be cancelled.

  

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 (d) Securities Repurchased in Part. 
  
 Any Certificated Security which is to be repurchased 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 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 repurchased. 
  
 (e) Covenant to Comply With Securities Laws Upon Repurchase of Securities. 
  
 When complying with the provisions of Section 3.8(a) 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) under the Exchange Act, as applicable; 
  
 (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, as applicable; and 
  
 (iii) otherwise comply with all federal and state securities
laws so as to permit the rights and obligations under Section 3.8 to be exercised in the time and in the manner specified therein. 
  
 To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.8, the Company’s
compliance with such laws and regulations shall not in and of itself cause a breach of its obligations under this Section 3.8. 
  
 (f) Repayment to the Company. 
  
 The Paying Agent shall return to the Company any Cash that remains unclaimed for two years, together with interest, if any, thereon, held by it for the
payment of the Repurchase Price; provided, however, to the extent that the aggregate amount of Cash deposited by the Company pursuant to Section 3.8(c) exceeds the aggregate Repurchase Price of the Securities or portions thereof
which the Company is obligated to repurchase on the Repurchase Date, then, promptly after the Repurchase Date, the Paying Agent shall return any such excess to the Company. 
  

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 SECTION 3.9. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON FUNDAMENTAL CHANGE. 

 
 (a) Fundamental Change Put. 
  
 (i) General. In the event any Fundamental Change (as defined
below) shall occur, each Holder of Securities shall have the right (the “Fundamental Change Repurchase Right”), at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities (or portions
thereof that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the “Fundamental Change Repurchase Date”), which Fundamental Change Repurchase Date shall be no later than thirty
(30) Trading Days, and no earlier than twenty (20) Trading Days, after the date the Fundamental Change Notice (as defined below) is mailed in accordance with Section 3.9(a)(ii), and no earlier than the date such Fundamental Change
occurs, at a price, payable in Cash equal to 100% of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Fundamental Change Repurchase Price”), plus accrued and unpaid interest (including
Additional Interest, if any) to, but excluding, the Fundamental Change Repurchase Date. 
  
 A “Fundamental Change” shall be deemed to have occurred upon the occurrence of either a “Change in Control” or
a “Termination of Trading.” 
  
 A
“Change in Control” shall be deemed to have occurred if any of the following occurs after the date hereof: 
  
 (1) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act)
other than the Company, a Subsidiary of the Company or one of the Company’s employee benefits plans is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty
percent (50%) or more of the Company’s Voting Stock; 
  
 (2) at any time the following persons cease for any reason to constitute a majority of the Company’s Board of Directors: 
  

(A) individuals who on the Issuance Date constituted the Company’s Board of Directors; and 
  
 (B) any new directors whose appointment to the
Company’s Board of Directors or whose nomination for election by the Company’s shareholders was approved by at least a majority of the directors of the Company then still in office either who were directors of the Company on the Issuance
Date or whose appointment or nomination for election was previously so approved; 
  

 26 








 (3) the Company consolidates with, or merges with or into, another person or any person
consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which either: 
  
 (A) the persons that “beneficially owned” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly,
the shares of the Company’s Voting Stock immediately prior to such transaction, “beneficially own” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, immediately after such transaction, shares of the
surviving or continuing corporation’s Voting Stock representing at least a majority of the total voting power of all outstanding classes of the Voting Stock of the surviving or continuing corporation, and in substantially the same proportion to
each other as such ownership immediately prior to the transaction; or 
  
 (B) at least ninety percent (90%) of the consideration (other than Cash payments for fractional shares or pursuant to statutory appraisal rights) in such transaction consists of common stock and any associated
rights traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or another established over-the-counter trading market in the United States (or which shall be so traded or quoted when issued or exchanged in connection
with such transaction), and, as a result of such transaction, the Securities become convertible solely into the same consideration which a Holder would have received if the Holder had converted such Securities immediately prior to the effective date
of such transaction, as provided in Section 4.4; 
  
 (4) the sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act; or 
  
 (5) the Company is liquidated or dissolved or holders of the Company’s Capital Stock approve any plan
for the Company’s liquidation or dissolution. 
  
 A “Termination of Trading” shall be deemed to have occurred if, after the date hereof, the Common Stock (or other common stock into which the Securities are then convertible) is not listed for trading on a U.S. national
securities exchange, quoted on the Nasdaq National Market, the Nasdaq SmallCap Market or approved for trading on an established automated over-the-counter trading market in the United States. 
  
 (ii) Notice of Fundamental Change. No later than 20 Business
Days after the occurrence of a Fundamental Change the Company shall mail a written notice of such occurrence (the “Fundamental Change Company Notice”) by first class mail to the Trustee and to each Holder (and to beneficial owners
as required by applicable law), shall publish such Fundamental Change Company Notice on the Company’s website and shall publicly announce the occurrence of such Fundamental Change through a reputable newswire service. The notice shall include a
form of notice to be completed by the Holder in the event the Holder elects such right to repurchase pursuant to this Section 3.9 (the “Fundamental Change Repurchase Notice”) and shall briefly state, as applicable: 

 
 (1) the events causing a Fundamental Change and the date
of such Fundamental Change; 
  

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 (2) that the Holder has a right to require the Company to repurchase the Holder’s
Securities; 
  
 (3) the date by which the
Fundamental Change Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the Fundamental Change Repurchase Right; 
  
 (4) the Fundamental Change Repurchase Date; 
  
 (5) the Fundamental Change Repurchase Price; 
  
 (6) the name and address of the Paying Agent and the Conversion Agent; 
  
 (7) the Conversion Rate applicable on the date of the Fundamental Change Company Notice and any adjustments
to the Conversion Rate that will result from the Fundamental Change, including whether the Company has exercised its right under Section 4.13(c); 
  
 (8) 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 4 only if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; 
  
 (9) that the Securities must be surrendered to the Paying Agent to collect payment; 
  
 (10) that the Fundamental Change Repurchase Price for any
Security as to which a Fundamental Change Repurchase Notice has been duly given and not withdrawn will be paid promptly but in no event more than five (5) Business Days following the later of the Fundamental Change Repurchase Date and the time
of surrender of such Security with the necessary endorsements; 
  
 (11) the procedures the Holder must follow to exercise its put right under this Section 3.9(a); 
  
 (12) the conversion rights, if any, of the Securities; 
  
 (13) the procedures for withdrawing a Fundamental Change Repurchase Notice; 
  

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 (14) that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, interest (including Additional Interest, if any) on Securities surrendered for repurchase by the Company will cease to accrue on and after the Fundamental Change Repurchase Date; and 
  
 (15) the CUSIP number(s) of the Securities. 
  
 At the Company’s request, the Trustee shall give the
Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, the Company makes such request at least three Business Days (unless a shorter period shall be satisfactory to the
Trustee) prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 3.9(a)(ii); provided, further, that the text of the Fundamental Change Company Notice shall be
prepared by the Company. 
  
 (iii) Fundamental
Change Repurchase Notice. A Holder may exercise its right specified in Section 3.9(a)(i) upon delivery of a properly completed Fundamental Change Repurchase Notice to the Paying Agent at any time from the opening of business on the date of the
Fundamental Change Company Notice until 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date, stating: 
  
 (1) the certificate number of the Security which the Holder will deliver to be repurchased or the
appropriate depositary procedures if Certificated Securities have not been issued; 
  
 (2) the portion of the principal amount of the Security which the Holder will deliver to be repurchased, which portion must be $1,000 or
an integral multiple of $1,000; and 
  
 (3) that
such Security shall be repurchased on the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Securities and in this Indenture. 
  
 The delivery of such Security to the Paying Agent with, or at any time after delivery of, the Fundamental
Change Repurchase Notice (together with all necessary endorsements) 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 3.9(a) only if the Security 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 3.9(a), a portion of a Security, so long as 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. 
  

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 Any repurchase by the Company contemplated pursuant to the provisions of this
Section 3.9(a) shall be consummated by the delivery of the consideration to be received by the Holder promptly but in no event more than five (5) Business Days following the later of the Fundamental Change Repurchase Date and the time of
delivery of the Security with the necessary endorsements. 
  
 Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.9(a)(iii) shall have the right to
withdraw such Fundamental Change Repurchase Notice at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.9(b). 
  
 The
Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof. 
  
 (b) Effect of Fundamental Change Repurchase Notice. 
  
 Upon receipt by the Paying Agent of the Fundamental Change Repurchase Notice specified in Section 3.9(a)(iii), 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 the following paragraph) thereafter be entitled to receive solely the Fundamental Change Repurchase
Price with respect to such Security. Such Fundamental Change Repurchase Price shall be paid to such Holder, subject to receipt of Cash by the Paying Agent, promptly but in no event more then five (5) Business Days following the later of
(a) the Fundamental Change Repurchase Date with respect to such Security (provided the conditions in Section 3.9(a)(iii) have been satisfied) and (b) the time of delivery of such Security to the Paying Agent by the Holder thereof in
the manner required by Section 3.9(a)(iii). Securities in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 4 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 the following paragraph. 
  

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 at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying: 
  
 (i) the Holder’s name and election to withdraw such
Fundamental Change Repurchase Notice; 
  
 (ii)
the principal amount of the Security (which must be in an integral multiple of $1,000) with respect to which such notice of withdrawal is being submitted; 
  
 (iii) the certificate number (if in certificated form) or the appropriate Depository procedures, if applicable, of the Security in respect
of which such notice of withdrawal is being submitted; and 
  

 30 








 (iv) the principal amount, if any, of such Security which remains subject to the original
Fundamental Change Repurchase Notice and which has been or will be delivered for repurchase by the Company. 
  
 (c) Deposit of Fundamental Change Repurchase Price. 
  
 Prior to 11:00 a.m., New York City time, on the applicable Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of any of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of Cash (in immediately available funds if deposited on such Business Day) sufficient
to pay the aggregate Fundamental Change Repurchase Price of and accrued and unpaid interest (including Additional Interest, if any) on all the Securities or portions thereof which are to be repurchased on such Fundamental Change Repurchase Date.

  
 If the Paying Agent holds, in accordance with the terms
hereof, at 11:00 a.m., New York City time, on the applicable Fundamental Change Repurchase Date, Cash sufficient to pay the Fundamental Change Repurchase Price of and accrued and unpaid interest (including Additional Interest, if any) on any
Securities for which a Fundamental Change Repurchase Notice has been tendered and not withdrawn pursuant to Section 3.9(b), then, on and after such Fundamental Change Repurchase Date, such Securities will cease to be outstanding and interest
(including Additional Interest, if any) on such Securities will cease to accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the
Fundamental Change Repurchase Price upon delivery of such Securities, together with necessary endorsements) and the repurchased Securities will be cancelled. 
  
 (d) Securities Repurchased in Part. 
  
 Any Certificated Security which is to be repurchased 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 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 repurchased. 
  
 (e) Covenant to Comply With Securities Laws Upon Repurchase of Securities. 
  
 When complying with the provisions of Section 3.9(a) 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) under the Exchange Act, as applicable; 
  

 31 








 (ii) file the related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, as applicable; and 
  
 (iii)
otherwise comply with all federal and state securities laws so as to permit the rights and obligations under this Section 3.9 to be exercised in the time and in the manner specified therein. 
  
 To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 3.9, the Company’s compliance with such laws and regulations shall not in and of itself cause a breach of its obligations under this Section 3.9. 
  
 (f) Repayment to the Company. 
  
 The Paying Agent shall return to the Company any Cash that remains unclaimed
for two years, together with interest, if any, thereon, held by it for the payment of the Fundamental Change Repurchase Price; provided, however, to the extent that the aggregate amount of Cash deposited by the Company pursuant to
Section 3.9(c) exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date then, promptly after the Fundamental Change
Repurchase Date, the Paying Agent shall return any such excess to the Company. 
  
 ARTICLE 4 
 CONVERSION 
  
 SECTION 4.1. CONVERSION PRIVILEGE. 
  
 (a) Subject to and upon compliance with the provisions of this Article 4, 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 or an integral multiple of $1,000) of such Security into shares of Common Stock (the “Conversion Obligation”) or at the
Company’s election as described in this Article 4, into Cash or a combination of shares of Common Stock and Cash, only as follows: 
  
 (i) prior to October 1, 2020, during any fiscal quarter (beginning with the quarter ending after December 31, 2005) if the
Closing Sale Price of the Common Stock for at least 20 Trading Days in the Measurement Period of the immediately preceding fiscal quarter exceeds 120% of the Conversion Price in effect on the last Trading Day of such Measurement Period (in the event
that the Conversion Price on such last Trading Day of such Measurement Period is not the same as the Conversion Price in effect for each of the Trading Days in such Measurement Period, the Conversion Agent shall make such adjustments as it, in its
discretion, deems appropriate in determining whether the foregoing condition has been met); 
  
 (ii) prior to October 1, 2020, during any five consecutive Business Day period immediately following any five consecutive Trading Day
period (the “Note Measurement Period”) in which the average Market Price per $1,000 principal amount of Securities during such Note Measurement Period was equal to or less than 97% of the average Conversion Value during such Note
Measurement Period; 
  

 32 








 (iii) at any time prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Redemption Date, if such Security has been called for redemption pursuant to Article 3 hereof; or 
  
 (iv) at any time on or after October 1, 2020. 
  
 The Conversion Agent shall, on behalf of the Company, determine at the end of each applicable period whether the Securities
shall be convertible as a result of the occurrence of an event specified in clause (i) or (ii) above and, if the Securities shall be so convertible, the Conversion Agent shall promptly deliver to the Company and the Trustee written notice
thereof. Whenever the Securities shall become convertible pursuant to Section 4.1, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the Holders in writing of the event
triggering such convertibility in the manner provided in Section 4.2, and the Company shall also publicly announce such information and publish it on the Company’s website. Any notice so given shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. 
  
 (b) In addition, 
  
 (i) if the Company
elects to distribute to all Holders of the Common Stock: 
  
 (A) certain rights or warrants, as described in Section 4.3(c), exercisable for not more than 60 days, entitling them to purchase Common Stock or securities convertible into or exchangeable or exercisable for
Common Stock at less than the Current Market Price of the Common Stock on the record date for such distribution of the rights or warrants other than pursuant to a shareholder rights plan; or 
  
 (B) Shares of Capital Stock (other than Common Stock or
rights or warrants described in (A) above) or evidences of our indebtedness or non-Cash assets as described in Section 4.3(d); or 
  
 (C) Cash as described in Section 4.3(e) (excluding any Cash that is distributed upon a reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance to which Sections 4.4 or 4.13 apply, Cash distributed as part of a distribution referred to in Section 4.3(d), or any Cash that is distributed pursuant to a tender offer
to which Section 4.3(f) applies); or 
  
 (D)
Cash or other consideration in respect of a tender offer or exchange offer made by the Company or any subsidiary for all or any portion of the Common Stock as described in Section 4.3(f) (excluding any Cash that is distributed upon a
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 4.4 applies or as part of a distribution referred to in Sections 4.3(d) or 4.3(e)), where the Aggregate Amount (as
defined in Section 4.3(f)) expressed as an amount per share of the Purchased Shares (as defined in Section 4.3(f)) exceeds the Closing Sale Price of the Common Stock on the Trading Day next succeeding the last Expiration Date 

 

 33 








 on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as
the same may be amended through the Expiration Date); 
  
 then,
in each case, the Company must notify, in writing, Holders of Securities of the occurrence of such an event (i) in respect of clauses (A) and (B) above, at least 20 days prior to the record date, effective date or expiration date, as
the case may be, for any such distribution, and (ii) in respect of clauses (C) and (D) above, as soon as practicable. Once the Company has given such notice, Holders may surrender their Securities for conversion at any time until the
earlier of the close of business on the Business Day immediately preceding the “ex” date or the date of announcement by the Company that the distribution will not take place. No adjustment shall be made to the ability of a Holder of
Securities to convert if such Holder may participate in the distribution without conversion. 
  
 (ii) if the Company becomes party to a Fundamental Change, then a Holder may surrender the Securities for conversion at any time on or
before the date that is thirty (30) days after the Company announces that such Fundamental Change has occurred. 
  
 SECTION 4.2. CONVERSION PROCEDURE; CONVERSION RATE; FRACTIONAL SHARES; SETTLEMENT IN CASH IN LIEU OF COMMON STOCK. 
  
 (a) To convert a Security, a Holder must satisfy the requirements of
Paragraph 9 of the Securities. Each Security shall be convertible at the office of the Conversion Agent into fully paid and nonassessable shares (calculated to the nearest 1/100th of a share) of Common Stock. Subject to the Company’s rights
pursuant to Section 4.2(b), the Security will be converted into shares of Common Stock at the Conversion Rate therefor. 
  
 Notwithstanding any other provision of this Indenture or the Securities, all Holders’ rights with respect to the conversion of the Securities and the
Company’s Conversion Obligation are subject, in their entirety, to the Company’s right, in its sole discretion, to elect to satisfy its Conversion Obligation as provided in Section 4.2(b). 
  
 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 4.2(b), make a Cash payment equal to such fraction multiplied by the Closing Sale Price of the Common Stock on the last Trading Day prior to the date of
conversion. 
  
 Before any Holder of a Security shall be entitled
to convert the same into Common Stock, such Holder shall, in the case of Securities issued in global form, comply with the procedures of the Depositary in effect at that time, 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 shall give written notice to the Company at said office or place in the form of the Conversion Notice attached to the Security (the “Conversion
Notice”) that such Holder elects to convert the same and shall state in writing therein the principal amount of Security to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for
Common Stock to be issued. Before any such conversion, a Holder also shall pay all funds 
  

 34 








 required, if any, relating to interest on the Securities, as provided in Section 4.9, and all taxes or duties, if
any, as provided in Section 4.8. A Security shall be deemed to have been converted as of the close of business on the date on which all of the foregoing requirements have been satisfied (such date, the “Conversion Date”).

  
 (b) If a Holder elects to convert all or any portion of a
Security into shares of Common Stock as set forth in Section 4.2(a) and the Company receives such Holder’s Conversion Notice on or prior to the day that is 10 days prior to the Final Maturity Date, or with respect to Securities called for
redemption pursuant to Article 3 hereof, the applicable Redemption Date (the “Final Notice Date”), the Company may choose to satisfy all or any portion of the Conversion Obligation in Cash. Upon such election, the Company will
notify such Holder through the Trustee of the dollar amount to be satisfied in Cash (which must be expressed either as 100% of the Conversion Obligation or as a fixed dollar amount) at any time on or before the date that is two Business Days
following the Conversion Agent’s receipt of the Conversion Notice (such period, the “Cash Settlement Notice Period”). If the Company elects to pay Cash for any portion of the shares of Common Stock otherwise issuable to
the Holder, the Holder may retract the Conversion Notice at any time during the two Business Day period beginning on the day after the final day of the Cash Settlement Notice Period (the “Conversion Retraction Period”); no such
retraction can be made (and a Conversion Notice shall be irrevocable) if the Company does not elect to deliver Cash in lieu of shares of Common Stock (other than Cash in lieu of fractional shares). If the Company elects to satisfy all or a portion
of its Conversion Obligation in Cash and the Notice of Conversion has not been retracted, then settlement (in Cash or a combination of Cash and shares of Common Stock) will occur on the third Business Day following the Cash Settlement Averaging
Period. If the Company elects to satisfy the entire Conversion Obligation in shares of Common Stock, then settlement will occur on the third Business Day following the Conversion Date. With respect to any Conversion Notice received by the Company
prior to the Final Notice Date and not retracted pursuant to this Section 4.2(b), the “Conversion Settlement Distribution” for any Security subject to such Conversion Notice shall consist of Cash, Common Stock or a combination
thereof, as selected by the Company as set forth below: 
  
 (i) if the Company elects to satisfy the entire Conversion Obligation in shares of Common Stock, the Conversion Settlement Distribution shall be a number of shares of Common Stock for each $1,000 principal amount of
the Securities to be converted equal to the Conversation Rate, plus Cash for any fractional shares pursuant to Section 4.2(a); 
  
 (ii) if the Company elects to satisfy the entire Conversion Obligation in Cash, the Conversion Settlement Distribution shall be Cash for
each $1,000 principal amount of the Notes in an amount equal to the product of: 
  
 (1) the applicable Conversion Rate, and 
  
 (2) the average of the Closing Sale Price of the Common Stock for the 10 Trading Days beginning on the Trading Day immediately following
the final day of the Conversion Retraction Period (the “Cash Settlement Averaging Period”); and 
  

 35 








 (iii) if the Company elects to satisfy a fixed portion (other than 100%) of the
Conversion Obligation in Cash, the Conversion Settlement Distribution shall consist of such Cash amount (“Cash Amount”) and a number of shares, for each $1,000 principal amount of the Securities, equal to the applicable Conversion
Rate minus the number of shares of Common Stock equal to the Cash Amount divided by the average Closing Sale Price of the Common Stock during the Cash Settlement Averaging Period (plus Cash for any fractional shares pursuant to Section 4.2(a));
provided, however, the number of shares of Common Stock shall not be less than zero. 
  
 (iv) At any time on or before any Final Notice Date, the Company will notify the Trustee in writing whether it intends to satisfy all or
any portion of the Conversion Obligation with respect to all conversions of Securities for which the Company receives a Conversion Notice after such Final Notice Date and the dollar amount to be satisfied in Cash (which must be expressed either as
100% or as a fixed dollar amount). In such case, the applicable Conversion Settlement Distribution will be computed in the same manner as set forth above in this Section 4.2(b) except that the Cash Settlement Averaging Period shall be the 10
Trading Days beginning on the Trading Day following the Company’s receipt of the Conversion Notice, and settlement (in Cash or a combination of Cash and shares of Common Stock) will occur on the third Business Day following the final day of
such Cash Settlement Averaging Period (which date could be after the Final Maturity Date). 
  
 (v) Notwithstanding anything to the contrary in the Indenture, at any time prior to the Final Maturity Date, the Company may irrevocably
elect, in its sole discretion without the consent of the Holders of the Securities, by written notice to the Trustee and the Holders of the Securities, to satisfy a portion of the Conversion Obligation for all Securities for conversion after the
date of such election (the “Election Date”) by paying in Cash up to 100% of the principal amount of the Securities so converted. After making such an election, the Company shall satisfy the remainder of the Conversion Obligation in
Common Stock, to the extent the Conversion Obligation exceeds the principal amount or the portion of the principal amount of the Securities the Company elects to pay in Cash. In the event that the Company receives a Conversion Notice after the
Election Date: 
  
 (1) the Notice of Conversion
will not be retractable; 
  
 (2) the Cash
Settlement Averaging Period shall be the 10 Trading Day period beginning on the day after the Company’s receipt of the Conversion Notice; 
  
 (3) the Conversion Settlement Distribution for each $1,000 principal amount of the Securities shall consist of (A) such Cash amount
(“Election Amount”) equal to the applicable Conversion Rate multiplied by the average Closing Sale Price of the Common Stock during the Cash Settlement Averaging Period (provided, however, that the Election Amount will
not be more than 100% of the principal amount of a Security) and (B) a number of shares of Common Stock equal to the applicable Conversation Rate minus the Election Amount divided by the average Closing Sale Price of the Common Stock during the
Cash Settlement Averaging Period; and 
  

 36 








 (4) settlement (in Cash or a combination of Cash and shares of Common Stock) will occur
on the Business Day following the final day of the Cash Settlement Averaging Period. 
  
 (c) From and after the close of business on the Conversion Date of a Security, the person in whose name any certificate representing Common Stock issued pursuant to this Section 4.2, if any, is to be registered
shall be treated as a stockholder of record of the Company, and all rights of the Holder of such Security shall terminate, other than the right to receive the consideration deliverable upon conversion of such Security as provided herein. A Holder of
Securities is not entitled, as such, to any rights of a holder of Common Stock until such Holder has converted its Securities into shares of Common Stock (to the extent such Securities are convertible into shares of Common Stock) or is deemed to be
a stockholder of record of the Company, as provided in this Section 4.2(c). 
  
 (d) If a Holder converts more than one Security at a time, the number of full shares of Common Stock issuable upon such conversion, if any, shall be based on the aggregate principal amount of the Securities converted.

  
 (e) In case any Certificated Security shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall, upon the written order of the Company, authenticate and deliver to the Holder of the Security so surrendered, without charge to such Holder (subject to the provisions of
Section 4.8 hereof), a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Certificated Securities. 
  
 (f) If the last day on which a Security may be converted is a Legal Holiday
in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday. 
  

(g) If shares of Common Stock to be issued upon conversion of a Restricted Security are to be issued in the name of a Person other than the Holder of
such Restricted Security, such Holder must deliver to the Conversion Agent a certification in substantially the form set forth in a Transfer Certificate attached to the Security (the “Transfer Certificate”) dated the date of surrender of
such Restricted Security and signed by such Holder, as to compliance with the restrictions on transfer applicable to such Restricted Security. The Company shall not be required to issue Common Stock upon conversion of any such Restricted Security to
a Person other than the Holder if such Restricted Security is not so accompanied by a properly completed Transfer Certificate, and the Registrar shall not be required to register Common Stock upon conversion of any such Restricted Security in the
name of a Person other than the Holder if such Restricted Security is not so accompanied by a properly completed Transfer Certificate. 
  
 (h) Delivery of shares of Common Stock and Cash in respect of conversion to a Holder of a Security upon conversion of such Security shall be accompanied
by delivery to the Conversion Agent of certificates for the relevant number of shares, other than in the case of 
  

 37 








 Holders of Securities in book-entry form with the Depositary, which shares shall be delivered in accordance with the
Depositary’s customary practices and delivery of Cash in respect of conversion to the Conversion Agent or the Depositary, as applicable, for delivery to the Holder. 
  
 (i) If a Holder exercises its right to require the Company to repurchase the Securities as described in Article 3, such
Holder may convert its Securities as provided above only if it withdraws its applicable Repurchase Notice or Fundamental Change Repurchase Notice and converts its Securities prior to the close of business on the Business Day immediately preceding
the applicable Repurchase Date or Fundamental Change Repurchase Date. 
  
 (j) Whenever any event described in Section 4.1 shall occur which shall cause the Securities to become convertible as provided in this Article 4, the Company shall promptly deliver, in accordance with Section 13.2, written notice
of the convertibility of the Securities to the Trustee and each Holder and shall, as soon practicable publicly announce that the Securities have become convertible. Such written notice and public announcement shall include: 
  
 (i) a description of such event; 
  
 (ii) a description of the periods during which the
Securities shall be convertible as provided in this Article 4 as a result of such event; 
  
 (iii) a statement of whether an increase in the Conversion Rate shall take effect in respect of such event pursuant to Section 4.13
and whether the Company has elected to change the Conversion Obligation in respect of such event pursuant to Section 4.13; and 
  
 (iv) the procedures Holders must follow to convert their notes in accordance with this Article 4, including the name and address of the
Conversion Agent. 
  
 SECTION 4.3. ADJUSTMENT OF CONVERSION
RATE FOR COMMON STOCK. 
  
 The Conversion Rate shall be
adjusted from time to time as follows: 
  
 (a) In case the
Company shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend or make a distribution in shares of Common Stock to all holders of its outstanding shares of Common Stock, then the Conversion Rate in effect
at the opening of business on the date next following the Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:

  
 (i) the numerator of which shall be the sum
of the number of shares of Common Stock outstanding at the close of business on such Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution; and 
  

 38 








 (ii) the denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on such Record Date fixed for such determination. 
  
 Such increase shall become effective immediately after the opening of business on the day following the Record Date fixed for such determination. 
  
 If any dividend or distribution of the type described in this Section 4.3(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. 
  
 (b) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, subdivide its outstanding shares of Common
Stock into a greater number of shares of Common Stock, then the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in
case the Company shall, at any time or from time to time while any of the Securities are outstanding, combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, then the Conversion Rate in effect at the opening
of business on the day following the day upon which such combination becomes effective shall be proportionately decreased. In each such case, the Conversion Rate shall be adjusted by multiplying such Conversion Rate by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such
subdivision or combination. Such increase or reduction, as the case may be, shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. 
  
 (c) In case the Company shall, at any time or from time to time while any of
the Securities are outstanding, issue rights or warrants for a period expiring within 60 days after the record date of such issuance (other than any rights or warrants referred to in Section 4.3(d) or any rights or warrants issued pursuant to
the Company’s shareholder rights plan), to all or substantially all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for
shares of Common Stock), at a price per share (or having a conversion, exchange or exercise price per share) less than the Current Market Price of the Common Stock on the record date for such issuance, then the Conversion Rate shall be adjusted so
that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date after such date of announcement by a fraction: 
  
 (i) the numerator of which shall be the number of shares of Common Stock outstanding at the close of
business on the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible, exchangeable or exercisable securities so offered are convertible, exchangeable
or exercisable); and 
  
 (ii) the denominator of
which shall be the number of shares of Common Stock outstanding on the close of business on the date of announcement, plus the number of 
  

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 shares (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the
total number of shares (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate conversion, exchange or exercise price of the convertible securities so offered) would purchase at the Current
Market Price of the Common Stock on the record date for such issuance (determined by multiplying such total number of shares so offered by the conversion, exchange or exercise price of such rights or warrants and dividing the product so obtained by
such Current Market Price). 
  
 Such adjustment shall become
effective immediately after the opening of business on the day following the date of announcement of such issuance. 
  
 To the extent that shares of Common Stock (or securities convertible into or exchangeable or exercisable for shares of Common Stock) are not delivered
pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into or exchangeable or exercisable for shares of Common Stock) actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed.
In determining whether any rights 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 for such rights or warrants and the value of such consideration if other than Cash, to be determined in good faith by the Board of Directors of the Company. 
  
 (d) In case the Company shall, at any time or from time to time while any of
the Securities are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the
continuing corporation and the Common Stock is not changed or exchanged), shares of its Capital Stock (other than any dividends or distributions to which Section 4.3(a) applies), evidences of its Indebtedness or other non-Cash assets, including
securities, but excluding (x) any rights or warrants referred to in Section 4.3(c), (y) dividends or distributions of stock referred to in Section 4.3(a), and (z) dividends and distributions paid exclusively in Cash (such
Capital Stock, evidence of its indebtedness, other non-Cash assets or securities being distributed hereinafter in this Section 4.3(d) called the “distributed assets”), then, in each such case, subject to the other provisions of
this Section 4.3(d), 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 close of business on the Record Date with respect to such
distribution by a fraction: 
  
 (i) the numerator
of which shall be the Current Market Price of the Common Stock; and 
  

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 (ii) the denominator of which shall be such Current Market Price of the Common Stock,
less the Fair Market Value on such date of the portion of the distributed assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Record Date) (determined as
provided in Section 4.3(g)). 
  
 Such increase shall become
effective immediately prior to the opening of business on the day following the Record Date for such distribution. 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 which would then be in effect if such dividend or distribution had not been declared. 
  
 (1) If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.3(d) by reference
to the actual or when issued trading market for any distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the
Current Market Price pursuant to Section 4.3(g) to the extent possible, unless the Board of Directors determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the Holders.

  
 (2) In the event any such distribution
consists of shares of capital stock of, or similar equity interests in, one or more of the Company’s Subsidiaries (a “Spin-Off”), the Fair Market Value of the securities to be distributed shall equal the average of the closing sale
prices of such securities on the principal securities market on which such securities are traded for the 10 consecutive Trading Days commencing on and including the fifth Trading Day after the “ex” date in respect of the Spin-Off. In the
event, however, that an underwritten initial public offering of the securities in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities distributed in the Spin-Off shall mean the initial public offering price of
such securities. 
  
 (3) Rights or warrants
distributed by the Company to all holders of its shares of Common Stock entitling them 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 (“Trigger Event”), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of shares of
Common Stock shall be deemed not to have been distributed for purposes of this Section 4.3(d) (and no adjustment to the Conversion Rate under this Section 4.3(d) will be required) until the occurrence of the earliest Trigger Event. If such
right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different distributed assets, evidences of indebtedness or other assets, or entitle the holder to purchase a
different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or

  

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 warrant (and a termination or expiration of the existing right or warrant without exercise by the holder
thereof). Pursuant to rights issued under any Company shareholder’s rights plan, if holders of the Securities exercising the right of conversion after the date the rights separate from the underlying Common Stock are not entitled to receive the
rights that would otherwise be attributable to the shares of Common Stock received upon conversion, the Conversion Rate will be adjusted as though the rights were being distributed to holders of Common Stock on the date of such separation. If such
an adjustment is made and the rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the conversion rate on an equitable basis. 
  
 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 resulted in an adjustment to the Conversion Rate under this Section 4.3(d): 
  
 (A) in the case of any such rights or warrants which 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 of shares of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of shares of Common Stock as of the date of such
redemption or repurchase; and 
  
 (B) in the
case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. 
  
 (4) For purposes of this Section 4.3(d) and Sections
4.3(a), 4.3(b) and 4.3(c), any dividend or distribution to which this Section 4.3(d) is applicable that also includes (x) shares of Common Stock, (y) a subdivision or combination of shares of Common Stock to which Section 4.3(b)
applies or (z) rights or warrants to subscribe for or purchase shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock to which Section 4.3(c) applies (or any combination thereof), shall be
deemed instead to be: 
  
 (A) a dividend or
distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision or combination or such rights or warrants or securities convertible into or exercisable or
exchangeable for Common Stock to which Sections 4.3(a), 4.3(b) and 4.3(c) apply, respectively (and any Conversion Rate increase required by this Section 4.3(d) with respect to such dividend or distribution shall then be made), immediately
followed by 
  

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 (B) a dividend or distribution of such shares of Common Stock, such subdivision or
combination or such rights or warrants or securities convertible into or exercisable or exchangeable for Common Stock (and any further Conversion Rate increase required by Sections 4.3(a), 4.3(b) and 4.3(c) with respect to such dividend or
distribution shall then be made), except: 
  
 (i) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution,” “Record Date fixed for such
determinations” and “Record Date” within the meaning of Section 4.3(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the
meaning of Section 4.3(b), and (z) as “the date fixed for the determination of stockholders entitled to receive such rights or warrants,” “the Record Date fixed for the determination of the stockholders entitled to receive
such rights or warrants” and such “Record Date” within the meaning of Section 4.3(c); and 
  
 (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business
on the date fixed for such determination” within the meaning of Section 4.3(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with
such dividend or distribution. 
  
 (e) In case the Company shall,
at any time or from time to time while any of the Securities are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its shares of Common Stock, Cash (excluding any Cash that is distributed upon a
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 4.4 or 4.13 applies, Cash distributed as part of a distribution referred to in Section 4.3(d), or any Cash that is
distributed pursuant to a tender offer, to which Section 4.3(f) applies), then, and in each case, immediately after the close of business on such date, 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 close of business of the Record Date for the determination of holders of Common Stock entitled to such distribution by a fraction: 
  
 (i) the numerator of which shall be equal to the Current
Market Price per share of Common Stock (as determined pursuant to Section 4.3(g) on such Record Date); and 
  
 (ii) the denominator of which shall be equal to (a) the Current Market Price per share of Common Stock on such date, less the amount
of the distribution per share of Common Stock; provided, however that if such denominator shall be zero, the Conversion Rate shall be instead adjusted so that the Conversion Price is equal to one cent ($0.01). 
  

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 Notwithstanding the foregoing, if the Conversion Rate as adjusted pursuant to this Section 4.3(e) would cause the
Conversion Price to be less than one cent ($0.01), then the Conversion Price shall be one cent ($0.01). 
  
 (f) In case the Company or any of its subsidiaries shall, at any time or from time to time, while any of the Securities are outstanding, distribute Cash
or other consideration in respect of a tender offer or exchange offer made by the Company or any subsidiary for all or any portion of the Common Stock (excluding any Cash that is distributed upon a reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance to which Section 4.4 applies or as part of a distribution referred to in Sections 4.3(d) or 4.3(e)), where the sum of the aggregate amount of such Cash distributed and the aggregate Fair
Market Value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution), as of the Expiration Date (as defined below), of such other consideration distributed (such sum, the
“Aggregate Amount”) expressed as an amount per share of Common Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration Time (as defined below) (such tendered or
exchanged shares of Common Stock, the “Purchased Shares”) exceeds the Current Market Price per share of the Common Stock on the Trading Day next succeeding the last date (such last date, the “Expiration Date”) on
which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as the same may be amended through the Expiration Date), then, and in each case, immediately after the close of business on such date, 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 close of business of such Expiration Date by a fraction: 
  
 (i) the numerator of which is equal to the sum of
(I) the Aggregate Amount and (II) the product of (a) the Current Market Price of Common Stock on the Expiration Date and (b) an amount equal to (i) the number of shares of Common Stock outstanding as of last time (the
“Expiration Time”) at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer less (ii) the Purchased Shares; and 
  
 (ii) the denominator of which shall be equal to the product of (I) the number of shares of Common Stock
outstanding as of the Expiration Time (including all Purchased Shares) and (II) the Current Market Price of Common Stock on the Expiration Date. 
  
 An adjustment, if any, to the Conversion Rate pursuant to this Section 4.3(f) shall become effective immediately prior to the opening of business on the Business Day
following the Expiration Date. In the event that the Company or a subsidiary is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such subsidiary is permanently prevented by
applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made.
If the application of this Section 4.3(f) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 4.3(f). 

 

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 (g) For purposes of this Article 4, the following terms shall have the meanings indicated: 
  
 “Current Market Price” on any date means the average of the
daily Closing Sale Prices per share of the Common Stock for the ten consecutive Trading Days ending on and including such date; provided, however, that if the “ex” date (as hereinafter defined) for any event (other than the
issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 4.3(a), (b), (c), (d), (e) or (f) occurs during such ten consecutive Trading Days, “Current Market
Price” means the average of the daily Closing Sale Prices per share of the Common Stock for the ten consecutive Trading Days ending on and including the “ex” date. 
  
 For purposes of this Indenture, the term “ex” date, when used: 
  
 (i) with respect to any issuance or distribution, means the
first date on which the shares of Common Stock trade regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution; 
  
 (ii) with respect to any subdivision or combination of
shares of Common Stock, means the first date on which the shares of Common Stock trade regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective; and 
  
 (iii) with respect to any tender or exchange offer, means
the first date on which the shares of Common Stock trade regular way on such exchange or in such market after the expiration of such offer. 
  
 Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are called for pursuant to this Section 4.3, such adjustments shall be made to
the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 4.3 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. 
  
 “Fair Market Value” shall mean the amount which a willing
buyer would pay a willing seller in an arm’s length transaction (as determined in good faith by the Board of Directors, whose good faith determination shall be conclusive). 
  
 “Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which
the holders of shares of Common Stock have the right to receive any Cash, securities or other property or in which the shares of Common Stock (or other applicable security) is exchanged for or converted into any combination of Cash, securities or
other property, the date fixed for determination of stockholders entitled to receive such Cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). 
  

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 (h) The Company shall be entitled at its election to make such additional increases in the Conversion
Rate, in addition to those required by Sections 4.3(a), (b), (c), (d), (e) or (f), as shall be necessary in order that any dividend or distribution of Common Stock, any subdivision, reclassification or combination of shares of Common Stock or
any issuance of rights or warrants referred to above shall not be taxable to the holders of Common Stock for United States federal income tax purposes. 
  
 (i) To the extent permitted by applicable law, the Company may, from time to time, increase the Conversion Rate by any amount for any period of time, if
such period is at least 20 days, the Board of Directors determines that the increase in the Conversion Rate is in the best interest of the Company, and the increase is irrevocable during the period. Whenever the Conversion Rate is increased pursuant
to the preceding sentence, the Company shall mail to the Trustee and each Holder at the address of such Holder as it appears in the register of the Securities maintained by the Registrar, at least 15 days prior to the date the increased Conversion
Rate takes effect, a notice of the increase stating the increased Conversion Rate and the period during which it will be in effect. 
  
 (j) In any case in which this Section 4.3 shall require that any adjustment be made effective as of or retroactively immediately following a Record
Date, the Company may elect to defer (but only for five Trading Days following the filing of the statement referred to in Section 4.5) issuing to the Holder of any Securities converted after such Record Date the consideration issuable upon such
conversion over and above the consideration issuable upon such conversion on the basis of the Conversion Rate prior to adjustment; provided, however, that the Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder’s right to receive such additional shares upon the occurrence of the event requiring such adjustment. 
  
 (k) All calculations under this Section 4.3 shall be made to the nearest cent or one-thousandth of a share, with one-half cent and 0.0005 of a share,
respectively, being rounded upward. Notwithstanding any other provision of this Section 4.3, the Company shall not be required to make any adjustment of the Conversion Rate unless such adjustment would require an increase or decrease of at
least 1% of such rate; provided that (i) any lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% in such rate; and provided further that at the end of each fiscal year of the Company, beginning with the fiscal year ending on December 31, 2005, any adjustments to the
Conversion Rate that have been, and at such time remain, deferred pursuant to this Section 4.3(k) shall be given effect, and such adjustments, if any, shall no longer be carried forward and taken into account in any subsequent adjustment to the
Conversion Rate. Any adjustments under this Section 4.3 shall be made successively whenever an event requiring such an adjustment occurs. 
  
 (l) In the event that at any time, as a result of an adjustment made pursuant to this Section 4.3, the Holder of any Securities thereafter
surrendered for conversion shall become entitled to receive any shares of stock of the Company other than shares of Common Stock into which the Securities originally were convertible, the Conversion Rate of such other shares so receivable upon
conversion of any such Security shall be subject to adjustment from time to time 
  

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 in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in
subparagraphs (a) through (i) of this Section 4.3, and the provisions of Sections 4.1, 4.2, 4.4 through 4.9 and 4.13 with respect to the Common Stock shall apply on like or similar terms to any such other shares and the good faith
determination of the Board of Directors as to any such adjustment shall be conclusive. 
  
 (m) No adjustment shall be made pursuant to this Section 4.3 if the Holders of the Securities may participate in the transaction that would otherwise give rise to an adjustment pursuant to this Section 4.3.

  
 SECTION 4.4. CONSOLIDATION OR MERGER OF THE COMPANY.

  
 Except as provided in Section 4.13, if any of the
following events (any such event, a “Disposition Event”) occurs, namely: 
  
 (a) any reclassification or change of the outstanding Common Stock into another class of Capital Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination); 
  
 (b) any merger,
consolidation, statutory share exchange or combination of the Company with another corporation as a result of which all of the holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including Cash or any
combination thereof) with respect to or in exchange for all of their Common Stock; or 
  
 (c) any sale, conveyance, transfer, lease or other disposition of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which all of the holders of Common
Stock shall be entitled to receive stock, securities or other property or assets (including Cash or any combination thereof) with respect to or in exchange for all of their Common Stock; 
  
 the Company or the successor or purchasing person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall
comply with the TIA as in force at the date of execution of such supplemental indenture, if such supplemental indenture is then required to so comply) providing that, at and after the effective time of such Disposition Event, the Holder of each
Security then outstanding shall have the right to convert such Security into the kind and amount of shares of stock and other securities and property (including Cash) (collectively, “Reference Property”) receivable upon such conversion of
such Security had such conversion occurred immediately prior to such Disposition Event. For purposes of this Section 4.4, the Conversion Value shall be based on (a) the Conversion Rate in effect immediately prior to such Disposition Event,
(b) the value per share of Common Stock received by holders of Common Stock in connection with the Disposition Event, and (c) the per unit average value of the Reference Property as follows: (i) for any shares of common stock included
in the Reference Property, the average closing sale price of such common stock during the ten (10) Trading Days beginning on the third (3rd) Trading Day following the date that such Security is tendered for conversion, calculated as set
forth in the definition of “Closing Sale Price” in Section 1.1 as if such common stock was Common Stock, (ii) for any other property (other than Cash) included in the Reference Property, as determined in good faith by the Board
of Directors and (iii) for any 
  

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 Cash, the face amount of such Cash. In the event that the holders of the Common Stock have the opportunity to elect the
form of the consideration to be received in such Disposition Event, the Company shall make adequate provision whereby Holders shall have a reasonable opportunity to determine the form of consideration into which all of the Securities, treated as a
single class, shall be convertible from and after the effective date of such Disposition Event. Such determination shall be based on the weighted average of elections made by Holders of the Securities who participate in such determination, shall be
subject to any limitations to which all of the holders of Common Stock are subject, such as pro-rata reductions applicable to any portion of the consideration payable in such Disposition Event and shall be conducted in such a manner as to be
completed by the date which is the earliest of (a) the deadline for elections to be made by holders of Common Stock, and (b) two Trading Days prior to the anticipated effective date of the Disposition Event. In the event the effective date
of the Disposition Event is delayed beyond the initially anticipated effective date, Holders of the Securities shall be given the opportunity to make subsequent similar determinations in regard to such delayed effective date. 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 by issuing a press release and providing a copy of such notice to the Trustee. The Company shall not become a party
to any Disposition Event the terms of which are inconsistent with the foregoing. 
  
 Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 4. If, in the case of any such Disposition Event, the
stock or other securities and assets 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
Disposition Event, 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. 
  
 The Company
shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the register of the Securities maintained by the Registrar, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. 
  
 The above provisions of this Section 4.4 shall similarly apply to successive Disposition Events. 
  
 If this Section 4.4 applies to any event or occurrence, Section 4.3
shall not apply. 
  
 SECTION 4.5. NOTICE OF ADJUSTMENT.

  
 Whenever an adjustment in the Conversion Rate with
respect to the Securities is required: 
  
 (a) the Company shall
forthwith place on file with the Trustee and any Conversion Agent for such Securities a certificate of the Treasurer of the Company (upon which the Trustee may conclusively rely), stating the adjusted Conversion Rate determined as provided herein
and setting forth in reasonable detail such facts as shall be necessary to show the reason for and the manner of computing such adjustment; and 
  

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 (b) a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion
Rate shall forthwith be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, to each Holder in the manner provided in Section 4.2 hereof. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. 
  
 SECTION 4.6. NOTICE IN CERTAIN EVENTS. 
  
 In case: 
  
 (a) of a
consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or conveyance to another Person or entity or group of Persons or entities acting in concert as a
partnership, limited partnership, syndicate or other “group” (as defined in Section 3.9(a)(1)(i)) of all or substantially all of the property and assets of the Company; or 
  
 (b) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or 
  
 (c) of any action triggering an adjustment of the Conversion Rate referred to
in clauses (y) or (z) below; 
  
 then, in each case, the Company shall
cause to be filed with the Trustee and the Conversion Agent, and shall cause to be given, to the Holders of the Securities in the manner provided in Section 4.2 hereof, at least 15 days prior to the applicable date hereinafter specified, a
notice stating: 
  
 (y) the date on which a
record is to be taken for the purpose of any distribution or grant of rights or warrants or other securities triggering an adjustment to the Conversion Rate pursuant to this Article 4, or, if a record is not to be taken, the date as of which the
holders of record of Common Stock entitled to such distribution, rights or warrants or other securities are to be determined, or 
  
 (z) the date on which holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property
deliverable upon any reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up described under clauses (a), (b) and (c) of Section 4.4. 
  
 Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (a), (b) or (c) of this Section 4.6. 
  
 SECTION 4.7. COMPANY TO RESERVE STOCK: REGISTRATION; LISTING. 
  
 (a) The Company shall from time to time reserve and keep available, free from preemptive rights, out of its authorized but
unissued shares of Common Stock for the purpose of effecting the conversion of the Securities, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all Securities then
outstanding into such Common Stock at any time (assuming that, at the time of the computation 
  

 49 








 of such number of shares or securities, all such Securities would be held by a single Holder). The Company covenants that
all shares of Common Stock which may be issued upon conversion of Securities will upon issue be fully paid and nonassessable and free from all liens and charges and, except as provided in Section 4.8, taxes with respect to the issue thereof.

  
 (b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval of any governmental authority before such shares or securities may be issued upon such conversion, the Company will use its commercially reasonable efforts to cause such shares
or securities to be duly registered or approved, as the case may be. The Company further covenants that so long as the Common Stock shall be quoted on the Nasdaq National Market, the Company will use its commercially reasonable efforts, if permitted
by the rules of the American Stock Exchange, to have and keep approved for quoting on the Nasdaq National Market (subject to notice of official issuance) all Common Stock issuable upon conversion of the Securities, and the Company will use its
commercially reasonable efforts to list the shares of Common Stock required to be delivered upon conversion of the Securities prior to such delivery upon any other national securities exchange upon which the outstanding Common Stock is listed at the
time of such delivery. 
  
 SECTION 4.8. TAXES ON CONVERSION.

  
 The issue of stock certificates on conversion of
Securities shall be made without charge to the converting Holder for any documentary, stamp or similar issue or transfer taxes in respect of the issue thereof, and the Company shall pay any and all documentary, stamp or similar issue or transfer
taxes that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any such tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock or the portion, if any, of the Securities which are not so converted in a name other than that in which the Securities so converted were registered, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the Company the amount of such tax or has established to the satisfaction of the Company that such tax has been paid. 
  
 Nothing contained herein shall preclude any income tax withholding required by law or regulation upon conversion of the
Securities, and at the Company’s request, Holders shall be responsible for satisfying any such withholding. 
  
 SECTION 4.9. CONVERSION AFTER RECORD DATE. 
  
 Except as provided in this Section 4.9, a converting Holder of Securities shall not be entitled to receive any accrued and unpaid interest (including
Additional Interest, if any) on any such Securities being converted. By delivery to the Holder of the number of shares of Common Stock, Cash or combination of Common Stock and Cash, or other consideration issuable or payable upon conversion in
accordance with this Article 4, any accrued and unpaid interest (including Additional Interest, if any) on such Securities will be deemed to have been paid in full. If any Securities are surrendered for conversion subsequent to the Regular Record
Date preceding an Interest Payment Date but prior to such Interest Payment Date, the Holder of such Securities at the close of business on such Regular Record Date shall receive the interest payable 
  

 50 








 on such Security on such Interest Payment Date notwithstanding the conversion thereof. Securities surrendered for
conversion during the period from the close of business on any Regular Record Date preceding any Interest Payment Date to the opening of business on such Interest Payment Date shall (except in the case of Securities which have been called for
redemption on a Redemption Date within such period) be accompanied by payment from converting Holders, for the account of the Company, in Cash, or other funds of an amount equal to the interest payable on such Interest Payment Date (excluding any
overdue interest, if applicable) on the Securities being surrendered for conversion; provided, however, if the Company elects to redeem Securities on a date that is after the Regular Record Date but prior to the corresponding Interest
Payment Date, and such Holder elects to convert those Securities, the Holder will not be required to pay the Company, at the time that Holder surrenders those Securities for conversion, the amount of interest payable by the Company on such Interest
Payment Date. 
  
 Except as provided in this Section 4.9, no
adjustments in respect of payments of interest (including Additional Interest, if any) on Securities surrendered for conversion or any dividends or distributions or interest on the Common Stock issued upon conversion shall be made upon the
conversion of any Securities. 
  
 SECTION 4.10. COMPANY
DETERMINATION FINAL. 
  
 Any determination that the Company
or the Board of Directors must make pursuant to this Article 4 shall be conclusive if made in good faith and in accordance with the provisions of this Article, absent manifest error, and set forth in a Board Resolution. 
  
 SECTION 4.11. RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.

  
 The Trustee has no duty to determine when an adjustment
under this Article 4 should be made, how it should be made or what it should be. Unless and until a Trust Officer of the Trustee receives a certificate delivered pursuant to Section 4.5 setting forth an adjustment of the Conversion Rate, the
Trustee may assume without inquiry that no such adjustment has been made and that the last Conversion Rate of which the Trustee has knowledge remains in effect. The Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Securities. The Trustee shall not be responsible for any failure of the Company to comply with this Article 4. Each Conversion Agent other than the Company shall have the same protection under this Section 4.11
as the Trustee. 
  
 The rights, privileges, protections,
immunities and benefits given to the Trustee under this Indenture including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Paying Agent or
Conversion Agent acting hereunder. 
  
 SECTION 4.12.
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 4 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. 
  

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 SECTION 4.13. ADJUSTMENT TO THE CONVERSION RATE UPON CERTAIN FUNDAMENTAL CHANGES. 
  
 (a) If (i) a Fundamental Change, as described under clause (3) or
(4) of the definition of Change in Control occurs before October 5, 2010, and (ii) at least 10% of the consideration (excluding Cash payments for fractional shares or pursuant to statutory appraisal rights) for the Common Stock in
such Fundamental Change consists of any combination of Cash or securities (or other property) that are not traded on a U.S. national securities exchange or quoted on the Nasdaq National Market (and are not scheduled to be so traded or quoted
immediately after the Fundamental Change), then the Conversion Rate then in effect will (subject to the Company’s rights described under paragraph (c) of this Section 4.13) increase, as described in paragraph (b) of this
Section 4.13, with respect to any Securities surrendered for conversion at any time on or before the 30th day after the date the Company announces that the Fundamental Change has occurred. Such a Fundamental Change is referred to herein as a
“Make-Whole Fundamental Change.” The Company shall mail notice to Holders, at their addresses appearing in the Security register, and the Company shall publicly announce, through a reputable national newswire service, and publish on
the Company’s website, that the Make-Whole Fundamental Change has occurred within 20 Business Days after such Make-Whole Fundamental Change has occurred. If applicable, the Company shall also state, in the such notice, announcement and
publication, whether the Company has made the election referred to in paragraph (c) of this Section 4.13. 
  
 (b) The increase in the Conversion Rate referred to in paragraph (a) of this Section 4.13 will be determined by reference to the table below,
based on the date on which the Make-Whole Fundamental Change becomes effective (the “Effective Date”) and the applicable price (the “Stock Price”) paid per share for Common Stock pursuant to the terms of such
Make-Whole Fundamental Change. If holders of Common Stock receive only Cash pursuant to the terms of such Make-Whole Fundamental Change, the Stock Price shall be the Cash amount paid per share. Otherwise, the Stock Price shall be the average of the
Closing Sale Prices for five consecutive Trading Days prior to, but not including, the Effective Date of such Make-Whole Fundamental Change. The Board of Directors shall make appropriate adjustments, in its good faith determination, to account for
any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the “ex” date of the event occurs, at any time during those five consecutive Trading Days. The Stock Prices set
forth in the left column of the table below shall be adjusted as of any date on which the Conversion Rate is adjusted pursuant to Section 4.3. 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 of Common Stock will be adjusted in the same manner and for the same events as the Conversion Rate pursuant to Section 4.3. The following table sets forth the hypothetical Stock Price and the number of additional shares of
Common Stock issuable per $1,000 principal amount of Securities that will be added to the Conversion Rate applicable to the Securities surrendered for conversion during the 30-day period described in paragraph (a) of this Section 4.13:

  

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	 	 	Effective Date


	Applicable Price

	 	October 5,
2005

	 	October 5,
2006

	 	October 5,
2007

	 	October 5,
2008

	 	October 5,
2009

	 	October 5,
2010


	$14.50	 	18.75	 	18.31	 	17.74	 	17.00	 	16.00	 	0.00
	$15.00	 	17.59	 	17.09	 	16.44	 	15.58	 	14.35	 	0.00
	$17.50	 	13.12	 	12.42	 	11.52	 	10.27	 	8.35	 	0.00
	$20.00	 	10.13	 	9.36	 	8.37	 	7.01	 	4.94	 	0.00
	$22.50	 	8.04	 	7.27	 	6.29	 	4.96	 	3.03	 	0.00
	$25.00	 	6.54	 	5.80	 	4.87	 	3.65	 	1.97	 	0.00
	$27.50	 	5.43	 	4.74	 	3.87	 	2.78	 	1.36	 	0.00
	$30.00	 	4.58	 	3.94	 	3.16	 	2.19	 	1.01	 	0.00
	$32.50	 	3.92	 	3.34	 	2.63	 	1.78	 	0.80	 	0.00
	$35.00	 	3.40	 	2.87	 	2.23	 	1.49	 	0.67	 	0.00
	$37.50	 	2.98	 	2.50	 	1.92	 	1.27	 	0.58	 	0.00
	$40.00	 	2.64	 	2.20	 	1.68	 	1.11	 	0.51	 	0.00
	$42.50	 	2.35	 	1.95	 	1.49	 	0.98	 	0.46	 	0.00
	$45.00	 	2.11	 	1.74	 	1.33	 	0.88	 	0.42	 	0.00
	$47.50	 	1.90	 	1.57	 	1.20	 	0.79	 	0.39	 	0.00
	$50.00	 	1.73	 	1.43	 	1.09	 	0.72	 	0.36	 	0.00
	$52.50	 	1.58	 	1.30	 	0.99	 	0.66	 	0.33	 	0.00
	$55.00	 	1.44	 	1.19	 	0.91	 	0.61	 	0.31	 	0.00

  
 In the event that the applicable Stock
Price or Effective Date is not set forth in the table above, then, if: 
  
 (i) the applicable Stock Price is between two Stock Price amounts on the table or the applicable Effective Date is between two dates on the table, the adjustment to the Conversion Rate will be determined by
straight-line interpolation between the adjustments set forth for the higher and lower Stock Price amounts or the two dates, as applicable, based on a 365 day year; 
  
 (ii) the applicable Stock Price is in excess of $55.00 per share (subject to adjustment), no adjustment to
the Conversion Rate will be made; or 
  
 (iii)
the applicable Stock Price is less than $14.50 per share (subject to adjustment), no adjustment to the Conversion Rate will be made. 
  
 Notwithstanding the foregoing, the Conversion Rate will not be increased above 68.9655 shares per $1,000 principal amount of Securities pursuant to the
events described in this paragraph (b) or in paragraphs (c), (d), (e) or (f) of Section 4.3, which maximum Conversion Rate will be subject to adjustment in the same manner the Conversion Rate may be adjusted from time to time
pursuant to paragraphs (a) and (b) of Section 4.3. 
  
 In order to comply with the continued listing requirements of the Nasdaq National Market, the Company shall not issue more than a total of 8,703,195 shares of Common Stock (the “Nasdaq Share Limitation”) in respect of the
Securities (subject to adjustment for stock splits, stock dividends and similar events pursuant to paragraphs (a) and (b) of Section 4.3). If adjustments made to the Conversion Rate pursuant to the terms of this Indenture (including

  

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 adjustments pursuant to Section 4.3 and this Section 4.13) would cause the Company to potentially exceed the
Nasdaq Share Limitation, the Company shall reduce the number of shares to be received by Holders of the Securities upon conversion by that amount which is determined by the Company in good faith to be necessary so that the Nasdaq Share Limitation
will not be exceeded. In the event that the number of shares Holders are entitled to receive is reduced, Holders shall not receive any substitute or additional consideration as a result. The Company will make any such reduction in the increase to
the Conversion Rate in good faith and, to the extent practical, pro rata in accordance with the principal amount of the Securities surrendered for conversion. In accordance with these listing standards, these restrictions will apply at any time when
the Securities are outstanding, regardless of whether the Company then has a class of securities quoted on the Nasdaq National Market. 
  
 (c) Notwithstanding the foregoing, if the Make-Whole Fundamental Change is a Public Acquirer Fundamental Change, then the Company may elect to change the
conversion right in lieu of increasing the Conversion Rate pursuant to paragraphs (a) and (b) of this Section 4.13. If the Company makes this election, then the Company shall adjust the Conversion Rate and the Company’s related
Conversion Obligation such that, from and after the Effective Date of the Public Acquirer Fundamental Change, the right to convert a Security will be changed into a right to convert such security into shares of Public Acquirer Common Stock, Cash or
an combination of shares of Public Acquirer Common Stock and Cash. The Conversion Rate adjusted pursuant to this paragraph (c) shall be a Conversion Rate equal to the Conversion Rate in effect immediately before the Effective Date for such
Public Acquirer Fundamental Change multiplied by a fraction: 
  
 (i) the numerator of which is: 
  
 (1) if the Public Acquirer Fundamental Change is a consolidation, merger or binding share exchange pursuant to which Common Stock is converted into Cash, securities or other property, the fair market value (as
determined in good faith by the Board of Directors), as of the Effective Date of the Public Acquirer Fundamental Change, of the Cash, securities and other property paid or payable per share of Common Stock; or 
  
 (2) in the case of any other Public Acquirer Fundamental
Change, the average of the Closing Sale Prices per share of the Common Stock for the five consecutive Trading Days before, and excluding, the Effective Date of the Public Acquirer Fundamental Change (subject to adjustments to be made in good faith
by the Board of Directors); and 
  
 (ii) the
denominator of which is the average of the last reported sale prices per share of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on, and including, the Trading Day immediately after the Effective Date of the Public
Acquirer Fundamental Change (subject to adjustments to be made in good faith by the Board of Directors). 
  
 If the Company elects to change the conversion right pursuant to this paragraph (c), the change in the conversion right will apply to all Holders from and after the Effective Date of the Public 
  

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 Acquirer Fundamental Change, and not just those Holders, if any, that convert their Securities during the 30-day period
after the Company announces the Public Acquirer Fundamental Change. If the Public Acquirer Fundamental Change is also an event that requires the Company to make another adjustment to the Conversion Rate pursuant to Section 4.3, then the Company
shall also give effect to that adjustment. However, if the Company makes the election set forth in this paragraph (c), then the Company shall not change the Conversion Right in the manner set forth in Section 4.4. 
  
 (d) “Public Acquirer Fundamental Change” means an
acquisition of the Company prior to October 5, 2010 pursuant to a Fundamental Change described in clause (3) or (4) of the definition of Change in Control where the acquirer has a class of common stock traded on a U.S. national
securities exchange or quoted on the Nasdaq National Market or that will be so traded or quoted when issued or exchanged in connection with the Public Acquirer Fundamental Change. Such common stock is referred to herein as the “Public
Acquirer Common Stock.” If an acquirer does not itself have a class of common stock satisfying the foregoing requirement, it will be deemed to have Public Acquirer Common Stock if either (i) a direct or indirect Subsidiary of acquirer
or (2) a corporation that directly or indirectly owns at least a majority of the acquirer, has a class of common stock satisfying the foregoing requirement; in such case, all references to Public Acquirer Common Stock shall refer to such class
of common stock. 
  
 (e) The Company shall state, in the notice,
public announcement and publication described paragraph (a) of this Section 4.13 whether the Company has elected to change the conversion right in accordance with paragraph (c) of this Section 4.13 in lieu of increasing the
Conversion Rate in accordance with paragraphs (a) and (b) of this Section 4.13. With respect to each Public Acquirer Fundamental Change, the Company is permitted to make only one election, and the Company is prohibited from changing
that election once the Company has first mailed any such notice or made any such public announcement or publication. However, if the Company elects to change the conversion right as described in paragraph (c) of this Section 4.13 in
connection with a Public Acquirer Fundamental Change that is ultimately not consummated, then the Company shall not be obligated to give effect to that particular election. 
  
 ARTICLE 5 
 [RESERVED] 
  
 ARTICLE 6 
 COVENANTS 
  
 SECTION 6.1. PAYMENT OF SECURITIES. 
  
 The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities and this Indenture. An
installment of principal or interest (including Additional Interest, if any) shall be considered paid on the date it is due if the Paying Agent (other than the Company) holds by 11:00 a.m., New York City time, on that date Cash, deposited by the
Company or an Affiliate thereof, sufficient to pay the installment. The Company shall, (in immediately available funds) to the fullest extent permitted by law, pay interest on overdue principal (including premium, if any) and overdue installments of
interest at the rate borne by the Securities per annum. 
  

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 Payment of the principal of and any interest (including Additional Interest, if any) on the Securities
shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York or at the Corporate Trust Office of the Trustee in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest with respect to a Certified Security may be made by check mailed to the address of the
Person entitled thereto as such address appears in the Register; provided, further, that a Holder with an aggregate principal amount of Certified Securities in excess of $5,000,000 will be paid by wire transfer in immediately
available funds at the election of such Holder if such Holder has provided wire transfer instructions to the Company at least 10 Business Days prior to the payment date. 
  
 SECTION 6.2. SEC REPORTS. 
  

The Company shall timely file all reports and other information and documents which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, and shall make such reports and other information and documents available on its website to the extent required by law. The Company shall deliver any information, documents or reports required to be filed with the SEC
pursuant to Section 13 or 14(d) of the Exchange Act to the Trustee within 15 days after the same is required to be filed with the SEC. 
  
 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
exclusively on Officers’ Certificates). 
  
 SECTION 6.3.
COMPLIANCE CERTIFICATES. 
  
 The Company shall deliver to the
Trustee, within 90 days after the end of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2005), an Officers’ Certificate as to the signer’s knowledge of the Company’s compliance with all
conditions and covenants on its part contained in this Indenture and stating whether or not the signer knows of any default or Event of Default. If such signer knows of such a default or Event of Default, the Officers’ Certificate shall
describe the default or Event of Default and the efforts to remedy the same. For the purposes of this Section 6.3, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this
Indenture. 
  
 SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.

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


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 SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE. 
  
 Subject to Article 7, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence. 
  
 SECTION 6.6. RULE 144A INFORMATION REQUIREMENT. 
  
 Within the period prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), the Company covenants and agrees that it shall,
during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, upon the request of any Holder or beneficial holder of the Securities make available to such Holder or beneficial holder of Securities or any Common
Stock issued upon conversion thereof which continue to be Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of Securities or such Common Stock designated by such Holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the Securities Act or such Common Stock and it will take such further action as any Holder or beneficial holder of such Securities or such Common Stock may reasonably request, all to the
extent required from time to time to enable such Holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act within the limitation of the exemption provided by Rule 144A, as such Rule may be
amended from time to time. Upon the request of any Holder or any beneficial holder of the Securities or such Common Stock, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements. 

 
 SECTION 6.7. STAY, EXTENSION AND USURY LAWS. 
  
 The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the
principal of, or interest (including Additional Interest, if any) on, the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture, and the
Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. 
  
 SECTION 6.8. PAYMENT OF ADDITIONAL INTEREST. 
  
 If Additional Interest is payable by the Company pursuant to the Registration Rights Agreement, the Company shall deliver to the Trustee a certificate to
that effect stating (i) the amount of such Additional Interest that is payable (ii) the reason why such Additional Interest is payable and (iii) the date on which such Additional Interest is payable. Unless and until a Trust Officer
of the Trustee receives 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 a certificate setting forth the particulars of such payment. 
  

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 ARTICLE 7 
 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 
  
 SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS. 
  
 The Company shall not consolidate with or merge into any other Person or convey, sell, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person whether in a single transaction or series of related transactions, unless: 
  
 (a) either 
  
 (i) in the case of a consolidation or merger, the Company is the surviving entity; or 
  
 (ii) the successor or transferee is a corporation, limited
liability company, partnership or trust organized and existing under the laws of the United States, any State thereof, or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, all of the obligations of the Company under the Securities and the Indenture; and 
  
 (b) immediately after giving effect to such transaction, no Default or Event of Default shall exist; and 
  
 (c) the Company shall have delivered to the Trustee an Officers’ Certificate and, if requested by the Trustee, an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer, sale, lease or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 7 and that all conditions
precedent herein provided for relating to such transaction have been satisfied. 
  
 SECTION 7.2. SUCCESSOR SUBSTITUTED. 
  
 Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer, sale, lease or other disposition of the properties and assets of the Company substantially as an
entirety in accordance with Section 7.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities. 
  
 ARTICLE 8 
 DEFAULT AND REMEDIES 
  
 SECTION 8.1. EVENTS OF DEFAULT. 
  
 An “Event of Default” shall occur if: 
  
 (1) the Company defaults in the payment of the principal amount, with respect to the Securities, when the
same become due and payable, whether on the Final Maturity Date, upon redemption or otherwise; 
  

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 (2) the Company defaults in the payment of any accrued and unpaid interest (including
Additional Interest, if any) in each case, when due and payable, and continuance of such default for a period of 30 days; 
  
 (3) the Company fails to satisfy its Conversion Obligation with respect to any portion of the principal amount of any Security following
the exercise by the Holder of the right to convert such Security; 
  
 (4) the Company fails to timely provide a Repurchase Notice or a Fundamental Change Repurchase Notice pursuant to and in accordance with Section 3.8 or 3.9, as applicable, or the notice required under Sections
4.13(a) and (e) regarding the adjustment of the Conversion Rate upon the occurrence of a Make-Whole Fundamental Change; 
  
 (5) the Company defaults in its obligation to pay the Repurchase Price or the Fundamental Change Repurchase Price, as applicable, with
respect to any Security, or any portion thereof, upon the exercise by the Holder of such Holder’s right to require the Company to repurchase such Securities pursuant to and in accordance with Section 3.8 or 3.9, as applicable; 

 
 (6) the Company fails to comply with any of its
agreements or covenants in the Securities or this Indenture (other than those referred to in clauses (1) through (5) above) and such failure continues for 30 days after receipt by the Company of a Notice of Default (defined below);

  
 (7) default by the Company or any of its
Subsidiaries in the payment when due, after the expiration of any applicable grace period, of principal of, premium, if any, or interest on any Indebtedness in the aggregate principal amount then outstanding of $10,000,000 or more or acceleration of
the Company’s or any of its Subsidiaries’ Indebtedness in such aggregate outstanding principal amount or more so that such Indebtedness becomes due and payable prior to the date on which it would otherwise have become due and payable, and
such default is not cured or waived, or such acceleration is not rescinded, within 30 days after receipt by the Company of a Notice of Default; 
  
 (8) the Company or any of its Subsidiaries fails to pay final and non-appealable judgments, the aggregate uninsured portion of which is at
least ten million dollars ($10,000,000), and such judgments are not paid, discharged or fully bonded against within sixty (60) days; 
  
 (9) the Company or any Significant Subsidiary (or any group of Subsidiaries that, together, constitute a Significant Subsidiary), pursuant
to or under or within the meaning of any Bankruptcy Law: 
  
 (A) commences a voluntary case or proceeding; 
  

 59 








 (B) consents to the entry of any order for relief against it in an involuntary case or
proceeding or the commencement of any case against it; 
  
 (C) consents to the appointment of a Custodian of it or for any substantial part of its property; 
  
 (D) makes a general assignment for the benefit of its creditors; 
  
 (E) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or 
  
 (F) consents to the filing of such petition or the
appointment of or taking possession by a Custodian; or 
  
 (10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: 
  
 (A) is for relief against the Company or any Significant Subsidiary (or any group of Subsidiaries that, together, constitute a
Significant Subsidiary), in an involuntary case or proceeding; 
  
 (B) appoints a Custodian of the Company or any Significant Subsidiary (or any group of Subsidiaries that, together, constitute a Significant Subsidiary), or for any substantial part of its property; or 
  
 (C) orders the winding up or liquidation of the Company or
any Significant Subsidiary (or any group of Subsidiaries that, together, constitute a Significant Subsidiary), 
  
 (D) and in each case the order or decree remains unstayed and in effect for 60 consecutive days. 
  
 The term “Bankruptcy Law” means Title 11 of the United States
Code (or any successor thereto) or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. 

 
 A default under clauses (6) or (7) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee, in writing of the default, and the Company does not cure the default
within 30 days after receipt of such notice. The notice given pursuant to this Section 8.1 must specify the default, demand that it be remedied and state that the notice is a “Notice of Default.” When any default under this
Section 8.1 is cured, it ceases. 
  

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 The Trustee shall not be charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder. 
  
 SECTION 8.2. ACCELERATION. 
  
 If an Event of Default (excluding an Event of Default specified in clause (9) or (10) of Section 8.1 in respect of the Company, but
including such Events of Default in respect of a Significant Subsidiary or group of Subsidiaries that would, together, constitute a Significant Subsidiary) occurs and is continuing, the Trustee may, by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding may, by notice to the Company and the Trustee, declare all unpaid principal to the date of acceleration on the Securities then outstanding (if not then due and payable) to be
due and payable upon any such declaration, and the same plus any interest (including Additional Interest, if any) on the Securities accrued but unpaid through the date of such declaration shall become and be immediately due and payable. If an Event
of Default specified in clause (9) or (10) of Section 8.1 occurs in respect of the Company and not solely in respect of a Significant Subsidiary or group of Subsidiaries that would, together, constitute a Significant Subsidiary, all
unpaid principal of the Securities then outstanding and such interest (including Additional Interest, if any) shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may rescind an acceleration and its consequences if (a) all existing Events of Default, other than the nonpayment of the
principal of the Securities which has become due solely by such declaration of acceleration, have been cured or waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the rate per annum borne by the
Securities) on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (d) all payments due to the Trustee and any predecessor Trustee under Section 9.7 have been made. No such rescission shall affect any subsequent default or impair any right consequent thereto. 
  
 SECTION 8.3. OTHER REMEDIES. 
  
 If an Event of Default occurs and is continuing, the Trustee may, but shall
not be obligated to, pursue any available remedy by proceeding at law or in equity to collect the payment of the principal of or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.

  
 The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any 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 to the extent permitted by law. 
  

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 SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT. 
  
 Subject to Sections 8.7 and 11.2, the Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the Trustee may waive an existing default or Event of Default and its consequence, except a default or Event of Default in the payment of the principal, or interest on any
Security, or the payment of the Redemption Price, the Repurchase Price or Fundamental Change Repurchase Price, a Default or Event of Default arising from the Company’s failure to convert any Security in accordance with the terms of Article 4 or
any default or Event of Default in respect of any provision of this Indenture or the Securities which, under Section 11.2, cannot be modified or amended without the consent of the Holder of each Security affected. When a default or Event of
Default is waived, it is cured and ceases. 
  
 SECTION 8.5.
CONTROL BY MAJORITY. 
  
 The Holders of a majority in
aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder or the Trustee, or that may involve the Trustee in personal liability unless the Trustee
is offered indemnity satisfactory to it; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. 
  
 SECTION 8.6. LIMITATIONS ON SUITS. 
  
 A Holder may not pursue any remedy with respect to this Indenture or the
Securities (except actions for payment of overdue principal or interest or for the conversion of the Securities pursuant to Article 4) unless: 
  
 (1) the Holder gives to the Trustee written notice of a continuing Event of Default; 
  
 (2) the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities make a written request to the Trustee to pursue the remedy; 
  
 (3) such Holder or Holders offer to the Trustee reasonable indemnity to the Trustee against any loss, liability or expense; 
  
 (4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and 
  
 (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Securities then outstanding.

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

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 SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT. 
  
 Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of the principal of and interest on the Security, on or after the respective due dates expressed in the Security and this Indenture, to convert such Security in accordance with Article 4 and to bring suit
for the enforcement of any such payment on or after such respective dates or the right to convert, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder. 
  
 SECTION 8.8. COLLECTION SUIT BY TRUSTEE. 
  
 If an Event of Default in the payment of principal or interest specified in
clause (1) or (2) of Section 8.1 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or another obligor on the Securities for the whole amount of principal
and accrued interest remaining unpaid, together with, to the extent that payment of such interest is lawful, interest on overdue principal and on overdue installments of interest, in each case at the rate per annum borne by the Securities and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. 
  
 SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM. 
  
 The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on the Securities), its creditors or its property and shall be entitled and empowered to collect and receive any money or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian 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 to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 9.7, and to the extent that such
payment of the reasonable compensation, expenses, disbursements and advances in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other property which the Holders may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt 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. 
  

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 SECTION 8.10. PRIORITIES. 
  
 If the Trustee collects any money pursuant to this Article 8, it shall pay out the money in the following order:

  
 First, to the Trustee for amounts due under Section 9.7;

  
 Second, to Holders for amounts due and unpaid on the
Securities for principal and interest (including Additional Interest, if any), ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest (including Additional Interest,
if any), respectively; and 
  
 Third, the balance, if any, to the
Company. 
  
 The Trustee may fix a record date
and payment date for any payment to Holders pursuant to this Section 8.10. 
  
 SECTION 8.11. UNDERTAKING FOR COSTS. 
  
 In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any
party litigant in the suit 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 8.11 does not apply to a suit made by the Trustee, a suit by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in
aggregate principal amount of the Securities then outstanding. 
  
 ARTICLE 9 
 TRUSTEE 
  
 SECTION 9.1. 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 its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. 
  
 (b) Except during the continuance of an Event of Default: 
  
 (1) the Trustee need perform only those duties as are specifically set forth in this Indenture and no others; 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. The Trustee, however, shall
examine any certificates and opinions which by any provision hereof are specifically required to be delivered to the Trustee to determine whether or not they conform to the requirements of this Indenture. 
  

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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 paragraph does not limit the effect of subsection (b) of this Section 9.1; 
  
 (2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and 
  
 (3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 8.5. 
  
 (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers unless the Trustee shall have received adequate indemnity in its opinion against potential costs and liabilities incurred by it
relating thereto. 
  
 (e) Every provision of this Indenture that
in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 9.1. 
  
 (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the extent required by law. 
  
 SECTION 9.2. RIGHTS OF TRUSTEE. 
  
 Subject to Section 9.1: 
  
 (a) The Trustee may rely conclusively on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document. 
  
 (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel, which shall conform to Section 13.4(b). The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers’ Certificate or Opinion. 
  
 (c) The Trustee may act through its agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. 
  
 (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers. 
  

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 (e) The Trustee may consult with counsel of its selection, and the advice or opinion of such counsel as
to matters of law shall be full and complete authorization and protection in respect of any such action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such 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 or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or direction. 
  
 (g) 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 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. 
  
 (h) Except
with respect to Section 6.1, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article 6. In addition, the Trustee shall not be deemed to have knowledge of an Event of
Default except (i) any Default or Event of Default occurring pursuant to Sections 6.1, 8.1(1) or 8.1(2) or (ii) any Default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge.

  
 (i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act
hereunder. 
  
 (j) Delivery of reports, information and documents
to the Trustee under Section 6.2 is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). 
  
 SECTION 9.3. 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 an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 9.10 and 9.11. 
  

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 SECTION 9.4. TRUSTEE’S DISCLAIMER. 
  
 The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its certificate of authentication. 
  
 SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT. 
  
 If a default or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Securityholder notice of the default or Event of Default within 90 days after it occurs. However, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is in the interests of Securityholders, except in the case of a default or an Event of Default in payment of the principal of or interest on any Security. 
  
 SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS. 
  
 If such report is required by TIA Section 313, within 60 days after
each October 1, beginning with the October 1 following the date of this Indenture, the Trustee shall mail to each Securityholder a brief report dated as of such October 1 that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b)(2) and (c). 
  
 A copy
of each report at the time of its mailing to Securityholders shall be mailed to the Company and filed with the SEC and each stock exchange, if any, on which the Securities are listed. The Company shall notify the Trustee whenever the Securities
become listed on any stock exchange or listed or admitted to trading on any quotation system and any changes in the stock exchanges or quotation systems on which the Securities are listed or admitted to trading and of any delisting thereof.

  
 SECTION 9.7. COMPENSATION AND INDEMNITY. 
  
 The Company shall pay to the Trustee from time to time such compensation (as
agreed to from time to time by the Company and the Trustee in writing) for its services (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust). The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances incurred or made by it. Such expenses may include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel. 
  
 The Company shall indemnify the Trustee or any predecessor Trustee (which for
purposes of this Section 9.7 shall include its officers, directors, employees and agents) for, and hold it harmless against, any and all loss, liability or expense including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), (including reasonable legal fees and expenses) incurred by it in connection with the acceptance or administration of its duties under this Indenture or any action or failure to act as authorized or within the discretion or
rights or powers conferred upon the Trustee hereunder including the reasonable costs and expenses of the Trustee and its counsel in defending itself against any claim or liability in 

  

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connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company need not pay for any settlement without its written consent, which shall not be unreasonably withheld. 
  
 The Company need not reimburse the Trustee for any expense or indemnify it against any loss or liability incurred by it
resulting from its gross negligence or bad faith. 
  
 To secure
the Company’s payment obligations in this Section 9.7, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property held or collected by the Trustee, except such money or property held
in trust to pay the principal of and interest on the Securities. The obligations of the Company under this Section 9.7 shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee. 
  
 When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (7) or (8) of Section 8.1 occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section shall
survive the termination of this Indenture. 
  
 SECTION 9.8.
REPLACEMENT OF TRUSTEE. 
  
 The Trustee may resign by so
notifying the Company. The Holders of a majority in aggregate principal amount of the Securities then outstanding may remove the Trustee by so notifying the Trustee and may, with the Company’s written consent, appoint a successor Trustee. The
Company may remove the Trustee if: 
  
 (1) the
Trustee fails to comply with Section 9.10; 
  
 (2) the Trustee is adjudged a bankrupt or an insolvent; 
  
 (3) a receiver or other public officer takes charge of the Trustee or its property; or 
  
 (4) the Trustee 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 a successor
Trustee. The resignation or removal of a Trustee shall not be effective until a successor Trustee shall have delivered the written acceptance of its appointment as described below. 
  
 If a successor Trustee does not take office within 45 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of 10% in principal amount of the Securities then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Company. 
  
 If the Trustee fails to comply with Section 9.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. 
  

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 A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee and be released from its obligations (exclusive of any liabilities that the retiring Trustee may have incurred while
acting as Trustee) hereunder, 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. A successor Trustee shall mail
notice of its succession to each Holder. 
  
 A retiring Trustee
shall not be liable for the acts or omissions of any successor Trustee after its succession. 
  
 Notwithstanding replacement of the Trustee pursuant to this Section 9.8, the Company’s obligations under Section 9.7 shall continue for the benefit of the retiring Trustee. 
  
 SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC. 
  
 If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets (including the administration of this Indenture) to, another corporation, the resulting, surviving or transferee corporation, without any further act, shall be the successor Trustee, provided
such transferee corporation shall qualify and be eligible under Section 9.10. Such successor Trustee shall promptly mail notice of its succession to the Company and each Holder. 
  
 SECTION 9.10. ELIGIBILITY; DISQUALIFICATION. 
  
 The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA Section 310(a).
The Trustee (or its parent holding company) shall have a combined capital and surplus of at least $50,000,000. If at any time the Trustee shall cease to satisfy any such requirements, it shall resign immediately in the manner and with the effect
specified in this Article 9. The Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA
Section 310(b). 
  
 SECTION 9.11. 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 10 
 SATISFACTION AND DISCHARGE OF INDENTURE 
  
 SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE. 
  
 This Indenture shall cease to be of further effect if: 
  
 (a) either: 
  
 (i) all outstanding Securities (other than Securities replaced pursuant to Section 2.7) have been delivered to the Trustee for
cancellation or 
  

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 (ii) all
outstanding Securities have been called for Redemption or have become due and payable at their scheduled maturity or upon repurchase pursuant to Sections 3.8 or 3.9, 
  
 and in any such case the Company irrevocably deposits, prior to the applicable due date, with the Trustee or the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) Cash, and, if applicable as herein provided and in accordance herewith, such other consideration, sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities
replaced pursuant to Section 2.7) on the Final Maturity Date or a Repurchase Date, Redemption Date or Fundamental Change Repurchase Date, as the case may be; 
  
 (b) the Company pays to the Trustee all other sums payable hereunder by the Company; 
  
 (c) no Default or Event of Default with respect to the Securities shall exist
on the date of such deposit; 
  
 (d) such deposit shall not result
in a breach or violation of, or constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; and 
  
 (e) the Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel (which may rely upon such Officer’s Certificate as to the absence of Defaults and Events of Default and as to any factual matters), each stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been complied with. 
  
 Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 9.7 shall survive and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.8 and 3.9, Article 4, the last paragraph of Section 6.1 and this Article 10, shall survive until the Securities have been paid in full.

  
 SECTION 10.2. APPLICATION OF TRUST MONEY. 

 
 Subject to the provisions of Section 10.3, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited with it pursuant to Section 10.1 and shall apply the deposited money in accordance with this Indenture and the Securities to the payment of the principal of and
interest on the Securities. 
  
 SECTION 10.3. REPAYMENT TO
COMPANY. 
  
 The Trustee and each Paying Agent shall promptly
pay to the Company upon request any excess money (i) deposited with them pursuant to Section 10.1 and (ii) held by them at any time. 
  

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 The Trustee and each Paying Agent shall pay to the Company upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years after a right to such money has matured; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment, may at the expense
of the Company cause to be mailed to each Holder entitled to such money or publish in a newspaper of general circulation in the City of New York notice that such money remains unclaimed and that after a date specified therein, which shall be at
least 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person. 
  
 SECTION 10.4. REINSTATEMENT. 
  
 If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 10.2 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.1 until such time as the Trustee or
such Paying Agent is permitted to apply all such money in accordance with Section 10.2; provided, however, that if the Company has made any payment of the principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive any such payment from the money held by the Trustee or such Paying Agent. 
  
 ARTICLE 11 
 AMENDMENTS, SUPPLEMENTS AND WAIVERS 
  
 SECTION
11.1. WITHOUT CONSENT OF HOLDERS. 
  
 The Company and the
Trustee may amend or supplement this Indenture or the Securities without notice to or consent of any Securityholder: 
  
 (a) to comply with Sections 4.4, 7.1 and 7.2; 
  
 (b) to make any changes or modifications to this Indenture necessary in connection with the registration of the public offer and sale of the Securities
under the Securities Act pursuant to the Registration Rights Agreement or the qualification of this Indenture under the TIA; 
  
 (c) to secure the obligations of the Company in respect of the Securities; 
  
 (d) to add to the covenants of the Company described in this Indenture for the benefit of Securityholders or to surrender
any right or power conferred upon the Company; 
  
 (e) to make
provisions with respect to adjustments to the Conversion Rate as required by this Indenture or to increase the Conversion Rate in accordance with this Indenture; and 
  

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 (f) to cure any ambiguity, defect, omission or inconsistency in this Indenture in a manner that does not
materially adversely affect the rights of any Holder. 
  
 SECTION 11.2. WITH CONSENT OF HOLDERS. 
  
 The
Company and the Trustee may amend or supplement this Indenture or the Securities with the written consent of the Holders of at least a majority in aggregate principal amount of the Securities then outstanding. The Holders of at least a majority in
aggregate principal amount of the Securities then outstanding may waive compliance in a particular instance by the Company with any provision of this Indenture or the Securities without notice to any Securityholder. However, notwithstanding the
foregoing but subject to Section 11.4, without the written consent of each Securityholder affected, an amendment, supplement or waiver, including a waiver pursuant to Section 8.4, may not: 
  
 (a) change the stated maturity of the principal of, or any installment of
interest (including Additional Interest, if any) on, any Security; 
  
 (b) reduce the principal amount of, Redemption Price, Repurchase Price, Fundamental Change Repurchase Price or any interest (including Additional Interest, if any) on, any Security; 
  
 (c) alter the manner of calculation or rate of accrual of interest (including
Additional Interest, if any) on or the Redemption Price, the Repurchase Price, or the Fundamental Change Repurchase Price of any Security or extend the time or payment of any such amount; 
  
 (d) change the place or currency of payment of principal of, or any interest on (including Additional Interest, if any), any
Security; 
  
 (e) impair the right of any Holder to institute suit
for the enforcement of any repurchase of, payment on or with respect to, or conversion of, any Security on or after the stated maturity of the Securities, in the case of redemption, on or after the Redemption Date, or in the case of repayment at the
option of the Holder, on or after the Repurchase Date or Fundamental Change Repurchase Date; 
  
 (f) modify the optional redemption provisions of Article 3 in a manner adverse to the Holders of Securities; 
  
 (g) adversely affect the right of Holders to convert Securities other than as provided in or under Article 4 of this Indenture; 
  
 (h) adversely affect the right of Holders to require the Company to
repurchase the Security as provided in Sections 3.8 and 3.9; 
  
 (i) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a modification or amendment; 
  
 (j) reduce the percentage of the aggregate principal amount of the outstanding Securities necessary for the waiver of compliance with certain provisions
of this Indenture or the waiver of certain defaults under this Indenture; and 
  

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 (k) modify any of the provisions of this Section 11.2 or Section 8.4, except to increase any
such percentage or to provide that certain provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security affected thereby. 
  
 It shall not be necessary for the consent of the Holders under this Section 11.2 to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. 
  
 After an amendment, supplement or waiver under this Section 11.2 becomes effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver. 
  
 To the extent that the Company or any of the Subsidiaries hold any
Securities, such Securities shall be disregarded for purposes of voting in connection with any notice, waiver, consent or direction requiring the vote or concurrence of Securityholders. 
  
 SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT. 
  
 Every amendment to or supplement of this Indenture or the Securities shall comply with the TIA as in effect at the date of
such amendment or supplement. 
  
 SECTION 11.4. REVOCATION AND
EFFECT OF CONSENTS. 
  
 Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. 
  
 After an amendment, supplement or
waiver becomes effective, it shall bind every Securityholder, unless it makes a change described in any of clauses (a) through (k) of Section 11.2. In that case the amendment, supplement or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security. 
  
 SECTION 11.5. NOTATION ON OR EXCHANGE OF SECURITIES. 
  
 If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the changed terms. 
  

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 SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC. 
  
 The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 11 if the amendment or supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but need not sign it. In signing
or refusing to sign such amendment or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel stating that such amendment or supplemental
indenture is authorized or permitted by this Indenture. The Company may not sign an amendment or supplement indenture until the Board of Directors approves it. 
  

SECTION 11.7. 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 12 
 [RESERVED] 
  
 ARTICLE 13 
 MISCELLANEOUS 
  
 SECTION 13.1. TRUST INDENTURE ACT CONTROLS. 
  
 If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the TIA
through operation of Section 318(c) thereof, such imposed duties shall control. 
  
 SECTION 13.2. NOTICES. 
  
 Any demand, authorization notice, request, consent or communication shall be given in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by facsimile transmission (confirmed
by delivery in person or mail by first-class mail, postage prepaid, or by guaranteed overnight courier) to the following facsimile numbers: 
  
 If to the Company, to: 
  
 The TriZetto Group, Inc. 
 567 Nicolas Drive, Suite 360 
 Newport Beach, CA 92661 
 Attention: Chief Financial Officer 
 Facsimile No.: 949-219-2198 
  
 with copies to: 
  
 Stradling Yocca Carlson & Rauth 
 660 Newport Center Drive, Suite 1600 
 New Port Beach, CA 92660 
 Attn: K.C. Schaaf and Christopher Ivey 
 Facsimile No.: 949-725-4100 
  

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 if to the Trustee, to: 
  
 Wells Fargo Bank, National Association 
 45 Broadway, 12th Floor 
 MAC N2666-120, New York, NY 10006-3007 
 Attn: Corporate Trust Department 
 Facsimile No.: 
  
 Such notices or
communications shall be effective when received. 
  
 The Company
or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. 
  
 Any notice or communication mailed to a Securityholder shall be mailed by first-class mail or delivered by an overnight delivery service to it at its
address shown on the register kept by the Primary Registrar. 
  
 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 to a Securityholder is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it. 
  
 SECTION 13.3. COMMUNICATIONS 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 and any other
person shall have the protection of TIA Section 312(c). 
  
 SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. 
  
 (a) 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 at the request of the Trustee: 
  
 (i) an Officers’ Certificate stating that, in the
opinion of the signers, all conditions precedent (including any covenants, compliance with which constitutes a condition precedent), if any, provided for in this Indenture relating to the proposed action have been complied with; and 
  
 (ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent (including any covenants, compliance with which constitutes a condition precedent) have been complied with. 
  

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 (b) Each Officers’ Certificate and Opinion of Counsel with respect to compliance with a condition or
covenant provided for in this Indenture shall include: 
  
 (i) a statement that the person making such certificate or opinion has read such covenant or condition; 
  
 (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; 
  
 (iii)
a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

  
 (iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with; 
  
 provided, however, that with respect to matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials. 
  
 SECTION 13.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS. 
  
 The Company (or, in the event deposits have been made pursuant to
Section 10.1, the Trustee) may set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall not be more
than thirty (30) days prior to the date of the commencement of solicitation of such action. Notwithstanding the provisions of Section 11.4, if a record date is fixed, those persons who were Holders of Securities at the close of business on
such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such
record date. 
  
 SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT,
REGISTRAR AND CONVERSION AGENT. 
  
 The Trustee may make
reasonable rules (not inconsistent with the terms of this Indenture) for action by or at a meeting of Holders. Any Registrar, Paying Agent or Conversion Agent may make reasonable rules for its functions. 
  
 SECTION 13.7. LEGAL HOLIDAYS. 
  
 A “Legal Holiday” is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York and the state in which the Corporate Trust Office is located are not required to be open. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected. 
  

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 SECTION 13.8. 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 regard to principles of conflicts of laws. 
  
 SECTION
13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. 
  
 This
Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. 
  
 SECTION 13.10. 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 13.11. MULTIPLE COUNTERPARTS. 
  
 The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall be deemed an original, but all of them together represent the same agreement. 
  
 SECTION 13.12. SEPARABILITY. 
  
 In case any provisions 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 13.13. TABLE OF CONTENTS, HEADINGS, ETC. 
  
 The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. 
  
 SECTION 13.14. NO RECOURSE AGAINST OTHERS. 
  
 No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders and as
part of the consideration for the issue of the Securities. 
  

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 SECTION 13.15. CALCULATIONS IN RESPECT OF SECURITIES 
  
 The Company or its agents will be responsible for making all calculations
called for under the Securities including, but not limited to, determination of the Market Price, Current Market Price and Closing Sale Price of the Common Stock, the number of shares of Common Stock issuable upon conversion and the amounts of
interest (including Additional Interest, if any) on the Securities. Any calculations made in good faith and without manifest error will be final and binding on Holders of the Securities. The Company or its agents will be required to deliver to the
Trustee a schedule of its calculations and the Trustee will be entitled to conclusively rely upon the accuracy of such calculations without independent verification. The Trustee has no duty to determine when such calculations should be made, how
they should be made or what the calculations should be and shall not suffer any liability as a result thereof. 
  
 [SIGNATURE PAGE FOLLOWS] 
  

 78 








 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date and year first above
written. 
  

			
	THE TRIZETTO GROUP, INC.
		
	By:	 	  


	Name:	 	 
	Title:	 	 
	
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
		
	By:	 	  


	Name:	 	 
	Title:	 	 









 EXHIBIT A 
 [FORM OF FACE OF SECURITY] 
  
 [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF 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. THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]1 
  
 [THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
“SECURITIES ACT”), AND THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.]2 
  
 [THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A 
  


	1	These paragraphs should be included only if the Security is a Global Security. 


	2	These paragraphs to be included only if the Security is a Transfer Restricted Security. 

  

 A-1 








 TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]3 
  
 [THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.]4 
  


	3	These paragraphs to be included only if the Security is a Transfer Restricted Security. 


	4	These paragraphs to be included only if the Security is a Transfer Restricted Security. 

  

 A-2 








 THE TRIZETTO GROUP, INC. 
  
 CUSIP No.: 896882 AA 5 
 ISIN: US896882AA51 
  
 2.75% CONVERTIBLE SENIOR NOTES DUE 2025 
  
 The TriZetto Group, Inc., a Delaware corporation (the “Company,” which term shall include any successor entity under the Indenture
referred to on the reverse hereof), promises to pay to Cede & Co., or registered assigns, the principal sum of         
($                    ) on October 1, 2025, or such greater or lesser amount as is indicated on the Schedule of Exchanges of Notes
on the other side of this Note to reflect exchanges, redemptions, purchases and conversions. 
  

			
	Interest Payment Dates:        	  	April 1 and October 1, commencing April 1, 2006
		
	Record Dates:	  	March 15 and September 15

  
 This Note is
convertible as specified on the other side of this Note. Additional provisions of this Note are set forth on the other side of this Note. 
  
 SIGNATURE PAGE FOLLOWS 
  

 A-3 








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

			
	THE TRIZETTO GROUP, INC.
		
	By:	 	  


	Name:	 	 
	Title:	 	 


  

	
	Attest:
	
	  


	Name:
	
	Dated:
	
	TRUSTEE’S CERTIFICATE OF AUTHENTICATION
	This is one of the Securities referred to in the within-mentioned Indenture.
	
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
	
	  


	Authorized Signatory








 [FORM OF REVERSE SIDE OF SECURITY] 
  
 THE TRIZETTO GROUP, INC. 
 2.75% CONVERTIBLE SENIOR NOTES DUE 2025 
  
 1. INTEREST 
  
 The Company promises to pay interest on
the principal amount of this Note at the rate of 2.75% per annum. The Company shall pay interest semiannually on April 1 and October 1 of each year (each, an “Interest Payment Date”), commencing on April 1, 2006.
Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from October 5, 2005; provided, however, that if there is not an existing default in the payment of
interest and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. 
  
 If this Note is redeemed
pursuant to Section 6 of this Note, or the Holder elects to require the Company to repurchase this Note pursuant to Section 8 of this Note, on a date that is after the Regular Record Date and prior to the corresponding Interest Payment
Date, interest (including Additional Interest, if any) accrued and unpaid hereon to, but not including, the applicable Redemption Date, Repurchase Date or Fundamental Change Repurchase Date will be paid to the same Holder to whom the Company pays
the principal of such Note regardless of whether such Holder was the registered Holder on the Regular Record Date immediately preceding the applicable Redemption Date, Repurchase Date or Fundamental Change Repurchase Date. 
  
 Interest (including Additional Interest, if any) on Notes converted after the
close of business on a Regular Record Date but prior to the opening of business on the corresponding Interest Payment Date will be paid to the Holder of the Notes on the March 15 or September 15 (whether or not a Business Day), as the case
may be, next preceding the corresponding Interest Payment Date (a “Regular Record Date”) but, upon conversion, the Holder must pay the Company the interest (including Additional Interest, if any) which has accrued and will be paid on such
Interest Payment Date. No such payment need be made with respect to Notes which will be converted after a Regular Record Date and prior to the corresponding Interest Payment Date after being called for redemption by the Company. 
  
 Any reference herein to interest accrued or payable as of any date shall
include any Additional Interest accrued or payable on such date as provided in Paragraph 2 hereof. 
  
 2. [REGISTRATION RIGHTS AGREEMENT 
  
 The holder of this Note is entitled to the benefits of a Registration Rights Agreement, dated as of October 5, 2005, among the Company and the Initial Purchasers (the “Registration Rights Agreement”). Pursuant to the
Registration Rights Agreement the Company has agreed for the benefit of the Holders of the Notes, that (i) it will, at its cost, within 90 days after the closing of the sale of the Notes (the “Closing”), file a shelf
registration statement (the “Shelf Registration Statement”) with the Securities and Exchange Commission (the “Commission”) 

  

 A-5 








 
with respect to resales of the Notes and the Common Stock issuable upon conversion thereof, (ii) it will use its best efforts to cause such Shelf
Registration Statement to be declared effective within 180 days after the Closing, and (iii) it will use its best efforts to keep such Shelf Registration Statement continuously effective under the Securities Act, subject to certain exceptions
specified in the Registration Rights Agreement until the earliest of the dates specified in the Registration Rights Agreement. As set forth in the Registration Rights Agreement, the Company will be permitted to suspend use of the prospectus that is
part of the Shelf Registration Statement during certain periods of time and in certain circumstances relating to pending corporate developments and public filings with the SEC and similar events. If (a) the Company fails to file the Shelf
Registration Statement required by the Registration Rights Agreement on or before the date specified above for such filing, (b) such Shelf Registration Statement is not declared effective by the Commission on or prior to the date specified
above for such effectiveness, (c) the Company fails to supplement or amend the Shelf Registration Statement or file a new Shelf Registration Statement when required pursuant to the Registration Rights Agreement, (d) the Company fails to
name a selling security holder in the Shelf Registration Statement that is entitled to be so named pursuant to the Registration Rights Agreement, or (e) the Shelf Registration Statement is declared effective but thereafter ceases to be
effective or useable in connection with resales of Transfer Restricted Securities (as defined in the Registration Rights Agreement) during the periods specified in the Registration Rights Agreement (each such event referred to in clauses
(a) through (c) above a “Registration Default”), then the Company will pay Additional Interest to those Holders of Transfer Restricted Securities who, solely as a result of such Registration Default, are unable to use such
Registration Statement to effect sales of Transfer Restricted Securities, with respect to the first 90-day period immediately following the occurrence of such Registration Default in an amount equal to an increase in the annual interest rate on the
Notes of 0.25% (“Additional Interest”) and thereafter at 0.50% per annum. All accrued Additional Interest shall be paid by the Company on each date on which regular interest is payable by wire transfer of immediately available funds
or by federal funds check to the holders of Global Securities and to holders of certificated Notes registered as such as of the preceding Regular Record Date by the means specified in the Indenture. Following the cure of any Registration Defaults,
the application of Additional Interest will cease in respect of all Holders of Transfer Restricted Securities who, solely as a result of such Registration Default, were unable to use such Registration Statement to effect sales of Transfer Restricted
Securities.]5 
  
 3. METHOD OF PAYMENT

  
 Except as provided herein, the Company shall pay interest
(including Additional Interest, if any) on this Note (except defaulted interest) to the person who is the Holder of this Note at the close of business on the Regular Record Date, next preceding the related Interest Payment Date. The Holder must
surrender this Note to a Paying Agent to collect payment of principal. The Company will pay principal and interest (including Additional Interest, if any) in money of the United States that at the time of payment is legal tender for payment of
public and private debts. The Company may, however, pay principal and interest (including Additional Interest, if any) in 
  


	5	These paragraphs to be included only if the Security is a Transfer Restricted Security. 

  

 A-6 








 respect of any Certificated Security by check or wire payable in such money; provided, however, that a
Holder with an aggregate principal amount in excess of $5,000,000 will be paid by wire transfer in immediately available funds at the election of such Holder if such Holder has provided wire transfer instructions to the Company at least 10 Business
Days prior to the payment date. 
  
 4. PAYING AGENT, REGISTRAR, BID SOLICITATION
AGENT AND CONVERSION AGENT 
  
 Initially, Wells Fargo Bank,
National Association (the “Trustee,” which term shall include any successor trustee under the Indenture hereinafter referred to) will act as Paying Agent, Registrar, Bid Solicitation Agent and Conversion Agent. The Company may change any
Paying Agent, Registrar, Bid Solicitation Agent or Conversion Agent without notice to the Holder. The Company or any of its Subsidiaries may, subject to certain limitations set forth in the Indenture, act as Paying Agent or Registrar. 
  
 5. INDENTURE, LIMITATIONS 
  
 This Note is one of a duly authorized issue of Securities of the Company designated as its 2.75% Convertible Senior Notes
due 2025 (the “Notes”), issued under an Indenture dated as of October 5, 2005 (together with any supplemental indentures thereto, the “Indenture”), between the Company and the Trustee. The terms of this Note include
those stated in the Indenture and those required by or made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect on the date of the Indenture. This Note is subject to all such terms, and the Holder of this
Note is referred to the Indenture and said Act for a statement of them. The Notes are senior unsecured obligations of the Company limited to $115,000,000 aggregate principal amount. The Indenture does not limit other debt of the Company, secured or
unsecured. 
  
 6. OPTIONAL REDEMPTION 
  
 The Notes are subject to redemption, at any time on or after October 5,
2010, as a whole or from time to time in part, at the election of the Company. The Redemption Price is 100% of the principal amount of the Notes to be redeemed, together under the circumstances described in section 3.1 of the Indenture with accrued
and unpaid interest (including Additional Interest, if any) thereon up to but not including the Redemption Date. 
  
 No sinking fund is provided for the Notes. 
  
 7. NOTICE OF REDEMPTION 
  
 Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to
be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part, but only in whole integral multiples of $1,000. On and after the Redemption Date, subject to the deposit with the Paying Agent of funds
sufficient to pay the Redemption Price, interest (including Additional Interest, if any) shall cease to accrue on Notes or portions of them called for redemption. 
  

 A-7 








 8. PURCHASE OF NOTES AT OPTION OF HOLDER OR UPON A FUNDAMENTAL CHANGE 
  
 Subject to the terms and conditions of the Indenture, the Company shall
become obligated to repurchase, at the option of the Holder, all or any portion of the Notes held by such Holder on October 1, 2010, October 1, 2015 and October 1, 2020 in integral multiples of $1,000 at a repurchase price equal
to 100% of the principal amount of those Notes plus accrued and unpaid interest (including Additional Interest, if any) to, but not including, such Repurchase Date (the “Repurchase Price”). To exercise such right, a Holder shall
deliver to the Paying Agent a Repurchase Notice containing the information set forth in the Indenture, at any time from 9:00 a.m., New York City time, on the date that is 20 Business Days immediately preceding such Repurchase Date until 5:00 p.m.,
New York City time, on the Business Day immediately preceding such Repurchase Date, and shall deliver the Securities to the Paying Agent as set forth in the Indenture. The Repurchase Price for Notes to be so repurchased must be paid in Cash.

  
 Subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase, at the option of the Holder, all or any portion of the Notes held by such Holder upon a Fundamental Change in integral multiples of $1,000 at the Fundamental Change Repurchase Price. 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 prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the
Fundamental Change Repurchase Date, and shall deliver the Notes to the Paying Agent as set forth in the Indenture. The Fundamental Change Repurchase Price must be paid in Cash. 
  
 Holders have the right to withdraw any Repurchase Notice or 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 Repurchase Price or Fundamental Change Repurchase Price, as the case may be, of all Notes or portions thereof to be repurchased with respect to a Repurchase Date or Fundamental Change
Repurchase Date, as the case may be, has been deposited with the Paying Agent, at 11:00 a.m., New York City time, on the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, then, on and after the Repurchase Date or Fundamental
Change Repurchase Date, as applicable, such Notes will cease to be outstanding and interest (including Additional Interest, if any) on such Notes will cease to accrue and the Holder thereof shall have no other rights as such other than the right to
receive the Repurchase Price or Fundamental Change Repurchase Price upon surrender of such Note. 
  
 9. CONVERSION 
  
 Subject to and
in compliance with the provisions of the Indenture (including, without limitation, the conditions to conversion of this Security set forth in Section 4.1 and Section 4.2 thereof), a Holder is entitled, at such Holder’s option, to
convert the Holder’s Note (or any portion of the principal amount thereof that is $1,000 or an integral multiple $1,000), into shares of Common Stock or, at the Company’s election, into Cash or a combination of shares of Common Stock and
Cash, at the Conversion Rate in effect on the date of conversion in accordance with Article 4 of the Indenture. 
  

 A-8 








 The Company will notify Holders of any event triggering the right to convert the Notes as specified above
in accordance with the Indenture. 
  
 A Note in respect of which a
Holder has delivered a Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, exercising the right of such Holder to require the Company to repurchase such Note may be converted only if such Repurchase Notice or Fundamental
Change Repurchase Notice is withdrawn in accordance with the terms of the Indenture. 
  
 The initial Conversion Rate is 53.0504 shares per $1,000 principal amount of Notes, subject to adjustment in certain events as described in the Indenture. 
  
 To surrender a Note for conversion, a Holder must, in the case of Global Securities, comply with the Applicable Procedures
of the Depositary in effect at that time, and in the case of Certificated Notes, (1) surrender the Security to the Conversion Agent, (2) complete and manually sign the conversion notice below (or complete and manually sign a facsimile of
such notice) and deliver such notice to the Conversion Agent, and (3) furnish appropriate endorsements and transfer documents. Regarding conversions of both Global Securities and Certificated Notes, a Holder must pay all funds required, if any,
relating to interest (including Additional Interest, if any) and any withholding, transfer or similar tax, if required. 
  
 No fractional share of Common Stock shall be issued upon conversion of any Note. Instead, the Company shall pay a Cash adjustment as provided in the
Indenture. 
  
 No payment or adjustment will be made for accrued
and unpaid interest (including Additional Interest, if any) or dividends on the shares of Common Stock, except as provided in the Indenture. 
  
 The Conversion Rate is subject to adjustment as provided in Sections 4.3 and 4.13 of the Indenture. As further provided in Section 4.4 of the
Indenture and subject to Section 4.13 of the Indenture, if the Company (i) is a party to a consolidation, merger, statutory share exchange or combination of the Company with another corporation and as a result of which all the holders of
the outstanding Common Stock shall be entitled to receive stock, securities or other property or assets (including Cash or a combination thereof) with respect to or in exchange for all of their Common Stock, (ii) reclassifies or changes the
shares of Common Stock into another class of Capital Stock or (iii) sells, conveys, transfers, leases or otherwise disposes of its properties and assets as, or substantially as, an entirety to any person, the right to convert a Note into shares
of Common Stock, Cash or a combination of shares of Common Stock and Cash shall be changed as provided in said Section 4.4. If a Public Acquirer Fundamental Change occurs, the right to convert a Note into shares of Common Stock, Cash or a
combination of shares of Common Stock and Cash may be changed as provided in Section 4.13(c) of the Indenture at the election of the Company. 
  
 10. OTHER ARRANGEMENT ON CALL FOR REDEMPTION 
  
 Any Notes called for redemption, unless surrendered for conversion before the close of business on the Business Day immediately preceding the Redemption
Date, may be deemed to be purchased from the Holders of such Notes at an amount not less than the Redemption Price, 
  

 A-9 








 together with accrued interest (including Additional Interest, if any) to, but not including, the Redemption Date, by one
or more investment bankers or other purchasers who may agree with the Company to purchase such Notes from the Holders, and to make payment for such Notes to the Paying Agent in trust for such Holders. 
  
 11. [RESERVED] 
  
 12. DENOMINATIONS, TRANSFER, EXCHANGE 
  
 The Notes are in registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000. A Holder may register the transfer of or
exchange Notes 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 or other governmental charges that may be imposed in relation
thereto by law or permitted by the Indenture. 
  
 13. PERSONS DEEMED OWNERS

  
 The Holder of a Note may be treated as the owner of it for
all purposes. 
  
 14. UNCLAIMED MONEY 
  
 If money for the payment of principal or interest (including Additional
Interest, if any) remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its written request, subject to applicable unclaimed property law. After that, Holders entitled to money must look to the
Company for payment as general creditors unless an applicable abandoned property law designates another person. 
  
 15. AMENDMENT, SUPPLEMENT AND WAIVER 
  
 Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and an existing default or Event of Default and its consequence or compliance with any provision of the Indenture or the Notes may be waived in a particular instance with the consent of the
Holders of a majority in aggregate principal amount of the Notes then outstanding. Without the consent of or notice to any Holder, the Company and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency or make any other change that does not adversely affect the rights of any Holder in any material respect. 
  
 16. SUCCESSOR ENTITY 
  
 When a successor entity assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms and conditions of
the Indenture, the predecessor entity (except in certain circumstances specified in the Indenture) shall be released from those obligations. 
  

 A-10 








 17. DEFAULTS AND REMEDIES 
  
 Under the Indenture, an Event of Default includes: (i) default for 30 days in payment of any interest (including Additional Interest, if any) on any
Notes; (ii) default in payment of any principal on the Notes when due; (iii) failure by the Company to satisfy its Conversion Obligation following the exercise by the Holder of the right to convert all or a portion of this Note into shares
of Common Stock, Cash or a combination of shares of Common Stock and Cash; (iv) default in the payment of the Repurchase Price or the Fundamental Change Repurchase Price when due; (v) failure by the Company for 30 days after notice to it
to comply with any of its other agreements contained in the Indenture or the Notes; (vi) default on the payment or acceleration of the maturity of certain indebtedness of the Company or a Subsidiary under the circumstances set forth in the
Indenture; (vii) failure to deliver a Repurchase Notice, a Fundamental Change Repurchase or a notice relating to a Make-Whole Fundamental Change; and (vii) certain events of bankruptcy, insolvency or reorganization of the Company or any
Significant Subsidiary. If an Event of Default (other than as a result of certain events of bankruptcy, insolvency or reorganization of the Company) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding may declare all unpaid principal to the date of acceleration on the Notes then outstanding to be due and payable immediately, all as and to the extent provided in the Indenture. If an Event of Default occurs as a result
of certain events of bankruptcy, insolvency or reorganization of the Company, unpaid principal of the Notes then outstanding shall become due and payable immediately without any declaration or other act on the part of the Trustee or any Holder, all
as and to the extent provided in the Indenture. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding notice is in their interests. The Company is required to file periodic reports with the Trustee as to the absence of default. 
  
 18. TRUSTEE DEALINGS WITH THE COMPANY 
  
 Wells Fargo Bank, National Association, the Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from and perform services for the Company or an Affiliate of the Company, and may otherwise deal with the Company or an Affiliate of the Company, as if it were not the Trustee.

  
 19. NO RECOURSE AGAINST OTHERS 
  
 A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Notes or the Indenture nor for any claim based on, in respect of or by reason of such obligations or their creation. The Holder of this Note by accepting this Note waives and
releases all such liability. The waiver and release are part of the consideration for the issuance of this Note. 
  

 A-11 








 20. AUTHENTICATION 
  
 This Note shall not be valid until the Trustee or an authenticating agent manually signs the certificate of authentication on the other side of this Note.

  
 21. ABBREVIATIONS AND DEFINITIONS 
  
 Customary abbreviations may be used in the name of the Holder 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 UGMA (= Uniform Gifts to Minors Act). 
  
 All terms defined in the Indenture and used in this Note but not specifically
defined herein are defined in the Indenture and are used herein as so defined. 
  
 22. INDENTURE TO CONTROL; GOVERNING LAW 
  
 In the case
of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. This Note shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principals
of conflicts of law. 
  
 The Company will furnish to any Holder,
upon written request and without charge, a copy of the Indenture. Requests may be made to: The TriZetto Group, Inc., 567 Nicolas Drive, Suite 360, Newport Beach, CA 92661, Attention: Chief Financial Officer. 
  

 A-12 








 ASSIGNMENT FORM 
  
 To assign this Note, fill in the form below: 
  
 I or we assign and transfer this Note to 
  
 _____________________________________________________________________________________________________ 
 (Insert assignee’s soc. sec. or tax I.D. no.) 
  
 _____________________________________________________________________________________________________ 
  
 _____________________________________________________________________________________________________ 
  
 _____________________________________________________________________________________________________ 
  
 _____________________________________________________________________________________________________ 
 (Print
or type assignee’s name, address and zip code) 
  
 and irrevocably appoint 
  
 _____________________________________________________________________________________________________ 
  
 agent to transfer this Note on the books of the Company. The agent may substitute another to act for him or her. 
  

			
	 	 	Your Signature:
	Date:
                                	 	  
  


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


  

	*	Signature guaranteed by: 

  

			
	 By:
	 	  



  


	*	The signature must be guaranteed by an institution which is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion
Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. 

  

 A-13 








 CONVERSION NOTICE 
  
 To convert this Note, check the box:   ̈ 
  
 To convert only part of this
Note, state the principal amount to be converted (must be $1,000 or a integral multiple of $1,000): $                    . 
  
 If you want the Cash paid to another person or the stock certificate, if any,
made out in another person’s name, fill in the form below: 
  
 _____________________________________________________________________________________________________ 
 (Insert assignee’s soc.
sec. or tax I.D. no.) 
  
 _____________________________________________________________________________________________________ 
  
 _____________________________________________________________________________________________________ 
  
 _____________________________________________________________________________________________________ 
  
 _____________________________________________________________________________________________________ 
 (Print or type assignee’s name, address and zip code) 
  

			
	 	 	Your Signature:
	Date:
                                	 	  
  


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


  
 * Signature guaranteed by: 

 

			
	 By:
	 	  



  


	*	The signature must be guaranteed by an institution which is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion
Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. 

  

 A-14 








 SCHEDULE OF EXCHANGES OF NOTES6 
  
 The following exchanges, redemptions, repurchases or conversions of a part of
this Global Security have been made: 
  

					
	 Principal Amount
 of this Global Security
 Following Such
 Decrease Date
     of Exchange (or
Increase)    

	 	 Authorized
 Signatory of
 Securities
         Custodian        

	 	 Amount of Decrease in
 Principal Amount
     of this Global
Security    



  


	6	This schedule should be included only if the Security is a Global Security. 

  

 A-15 








 EXHIBIT B 
  

CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION 
 OF TRANSFER OF TRANSFER RESTRICTED SECURITIES7 
  

	Re:	2.75% Convertible Senior Notes due 2025 (the “Notes”) of The TriZetto Group, Inc. 

  
 This certificate relates to $             principal
amount of Notes owned in (check applicable box) 
  
  ̈     book-entry or      ̈     definitive form by
                             (the “Transferor”). 
  
 The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Notes. 
  
 In connection with such
request and in respect of each such Note, the Transferor does hereby certify that the Transferor is familiar with transfer restrictions relating to the Notes as provided in Section 2.12 of the Indenture dated as of October 5, 2005 between
The TriZetto Group, Inc. and Wells Fargo Bank, National Association, as trustee (the “Indenture”), and the transfer of such Note is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”) (check applicable box) or the transfer or exchange, as the case may be, of such Note does not require registration under the Securities Act because (check applicable box): 
  
  ̈  Such Note is being transferred pursuant to an effective registration statement under the Securities Act. 
  
  ̈  Such Note is being acquired for the
Transferor’s own account, without transfer. 
  
  ̈  Such Note is being transferred to the Company or a Subsidiary (as defined in the Indenture) of the Company. 
  
  ̈  Such Note is being transferred to a person the Transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A or any successor provision thereto
(“Rule 144A”) under the Securities Act) that is purchasing for its own account or for the account of a “qualified institutional buyer,” in each case to whom notice has been given that the transfer is being made in reliance
on such Rule 144A, and in each case in reliance on Rule 144A. 
  
  ̈  Such Note is being transferred pursuant to and in compliance with an exemption from the registration requirements under
the Securities Act in accordance with Rule 144 (or any successor thereto) (“Rule 144”) under the Securities Act. 
  
 Such Note is being transferred pursuant to and in compliance with an exemption from the registration requirements of the Securities Act (other than an
exemption referred to above) and as a result of which such Note will, upon such transfer, cease to be a “restricted security” within the meaning of Rule 144 under the Securities Act. 
  


	7	This certificate should only be included if this Security is a Transfer Restricted Security. 








 The Transferor acknowledges and agrees that, if the transferee will hold any such Notes in the form of
beneficial interests in a global Note which is a “restricted security” within the meaning of Rule 144 under the Securities Act, then such transfer can only be made pursuant to Rule 144A under the Securities Act and such
transferee must be a “qualified institutional buyer” (as defined in Rule 144A). 
  

			
	 Date:                                   
 
	 	  
  


	 	 	(Insert Name of Transferor)

  

 B-2