exv4w1






Exhibit 4.1




 





RightNow Technologies, inc.




as Issuer



2.50% Convertible Senior Notes Due November 15, 2030



 





INDENTURE



Dated as of November 22, 2010



 





The Bank of New York Mellon Trust Company, N.A.



as Trustee



 





 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

	Definitions and Incorporation by Reference

	 
	 	 	 	 
	Section 1.01 . Definitions
	 	 	1	 
	Section 1.02 . TIA Provisions
	 	 	9	 
	Section 1.03 . Rules of Construction
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 2

	The Securities

	 
	 	 	 	 
	Section 2.01 . Title and Terms; Principal and Interest
	 	 	10	 
	Section 2.02 . Denominations
	 	 	10	 
	Section 2.03 . Form and Dating
	 	 	10	 
	Section 2.04 . Execution and Authentication
	 	 	12	 
	Section 2.05 . Registrar, Paying Agent and Conversion Agent
	 	 	13	 
	Section 2.06 . Paying Agent to Hold Money and Securities in Trust
	 	 	14	 
	Section 2.07 . Holder Lists
	 	 	14	 
	Section 2.08 . Transfer and Exchange
	 	 	14	 
	Section 2.09 . Replacement Securities
	 	 	15	 
	Section 2.10 . Outstanding Securities
	 	 	16	 
	Section 2.11 . Treasury Securities
	 	 	16	 
	Section 2.12 . Temporary Securities
	 	 	17	 
	Section 2.13 . Cancellation
	 	 	17	 
	Section 2.14 . Additional Transfer and Exchange Requirements
	 	 	17	 
	Section 2.15 . CUSIP Numbers
	 	 	22	 
	Section 2.16 . Persons Deemed Owners
	 	 	22	 
	Section 2.17 . Ranking
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 3

	Redemption

	 
	 	 	 	 
	Section 3.01 . Optional Redemption
	 	 	23	 
	Section 3.02 . Selection of Securities to Be Redeemed
	 	 	23	 
	Section 3.03 . Notice of Redemption
	 	 	24	 
	Section 3.04 . Effect of Notice of Redemption
	 	 	25	 
	Section 3.05 . Deposit of Redemption Price
	 	 	25	 
	Section 3.06 . Securities Redeemed in Part
	 	 	25	 






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	 	 	Page	 
	ARTICLE 4

	Repurchase of Securities

	 
	 	 	 	 
	Section 4.01 . Repurchase of Securities at Option of Holders
	 	 	25	 
	Section 4.02 . Effect of Repurchase Notice; Withdrawal
	 	 	32	 
	Section 4.03 . Deposit of Repurchase Price
	 	 	33	 
	Section 4.04 . Securities Repurchased in Part
	 	 	33	 
	Section 4.05 . Repayment to the Company
	 	 	34	 
	Section 4.06 . Compliance with Securities Laws upon Repurchase of Securities
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 5

	Conversion

	 
	 	 	 	 
	Section 5.01 . Conversion Privilege
	 	 	34	 
	Section 5.02 . Conversion Procedures
	 	 	34	 
	Section 5.03 . Payment upon Conversion
	 	 	36	 
	Section 5.04 . Taxes on Conversion
	 	 	36	 
	Section 5.05 . Company to Provide Stock
	 	 	37	 
	Section 5.06 . Adjustment of Conversion Rate
	 	 	37	 
	Section 5.07 . No Adjustment
	 	 	44	 
	Section 5.08 . Adjustment for Tax Purposes
	 	 	45	 
	Section 5.09 . Notice of Adjustment
	 	 	45	 
	Section 5.10 . Adjustment to Conversion Rate upon
Certain Fundamental Changes
	 	 	46	 
	Section 5.11 . Notice of Certain Transactions
	 	 	47	 
	Section 5.12 . Effect of Reclassification,
Consolidation, Merger or Sale on Conversion Privilege
	 	 	48	 
	Section 5.13 . Trustee’s Disclaimer
	 	 	48	 
	Section 5.14 . Stockholder Rights Plan
	 	 	49	 
	Section 5.15 . Exchange in Lieu of Conversion
	 	 	49	 
	Section 5.16 . Company Determination Final
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 6

	Covenants

	 
	 	 	 	 
	Section 6.01 . Payment of Securities
	 	 	50	 
	Section 6.02 . Reports and Certain Information
	 	 	51	 
	Section 6.03 . Compliance Certificates
	 	 	52	 
	Section 6.04 . Maintenance of Corporate Existence
	 	 	52	 
	Section 6.05 . Stay, Extension and Usury Laws
	 	 	52	 
	Section 6.06 . Maintenance of Office or Agency of the
Trustee, Registrar, Paying Agent and Conversion Agent
	 	 	53	 
	Section 6.07 . Delivery of Certain Information
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 7

	Consolidation, Merger, Conveyance, Transfer or Lease

	 
	 	 	 	 
	Section 7.01 . Company May Consolidate, Etc., Only on Certain Terms
	 	 	53	 






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	 	 	Page	 
	Section 7.02 . Successor Substituted
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 8

	Default and Remedies

	 
	 	 	 	 
	Section 8.01 . Events of Default
	 	 	54	 
	Section 8.02 . Acceleration
	 	 	56	 
	Section 8.03 . Other Remedies
	 	 	57	 
	Section 8.04 . Waiver of Defaults and Events of Default
	 	 	57	 
	Section 8.05 . Control by Majority
	 	 	58	 
	Section 8.06 . Limitations on Suits
	 	 	58	 
	Section 8.07 . Rights of Holders to Receive Payment and to Convert
	 	 	58	 
	Section 8.08 . Collection Suit by Trustee
	 	 	58	 
	Section 8.09 . Trustee May File Proofs of Claim
	 	 	59	 
	Section 8.10 . Priorities
	 	 	59	 
	Section 8.11 . Undertaking for Costs
	 	 	60	 
	Section 8.12 . Notice of Defaults
	 	 	60	 
	 
	 	 	 	 
	ARTICLE 9

	Trustee

	 
	 	 	 	 
	Section 9.01 . Certain Duties and Responsibilities of Trustee
	 	 	60	 
	Section 9.02 . Certain Rights of Trustee
	 	 	61	 
	Section 9.03 . Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	63	 
	Section 9.04 . May Hold Securities
	 	 	63	 
	Section 9.05 . Moneys Held in Trust
	 	 	63	 
	Section 9.06 . Compensation and Reimbursement
	 	 	63	 
	Section 9.07 . Reliance on Officer’s Certificate
	 	 	64	 
	Section 9.08 . Disqualification; Conflicting Interests
	 	 	64	 
	Section 9.09 . Corporate Trustee Required; Eligibility
	 	 	65	 
	Section 9.10 . Resignation and Removal; Appointment of Successor
	 	 	65	 
	Section 9.11 . Acceptance of Appointment by Successor
	 	 	66	 
	Section 9.12 . Merger, Conversion, Consolidation or Succession to Business
	 	 	67	 
	Section 9.13 . Preferential Collection of Claims against the Company
	 	 	67	 
	Section 9.14 . Reports By Trustee To Holders
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 10

	Amendments, Supplements and Waivers

	 
	 	 	 	 
	Section 10.01 . Without Consent of Holders
	 	 	67	 
	Section 10.02 . With Consent of Holders
	 	 	69	 
	Section 10.03 . Revocation and Effect of Consents
	 	 	70	 
	Section 10.04 . Notation on or Exchange of Securities
	 	 	70	 
	Section 10.05 . Trustee to Sign Amendments, Etc
	 	 	70	 
	Section 10.06 . Effect of Supplemental Indentures
	 	 	70	 






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	 	 	Page	 
	ARTICLE 11

	[Reserved]

	 
	 	 	 	 
	ARTICLE 12

	Satisfaction and Discharge

	 
	 	 	 	 
	Section 12.01 . Satisfaction and Discharge of the Indenture
	 	 	71	 
	Section 12.02 . Repayment to the Company
	 	 	71	 
	 
	 	 	 	 
	ARTICLE 13

	Miscellaneous

	 
	 	 	 	 
	Section 13.01 . Indenture Controls
	 	 	72	 
	Section 13.02 . Notices
	 	 	72	 
	Section 13.03 . Communications by Holders with Other Holders
	 	 	73	 
	Section 13.04 . Certificate and Opinion as to Conditions Precedent
	 	 	73	 
	Section 13.05 . Record Date for Vote or Consent of Holders
	 	 	74	 
	Section 13.06 . Rules by Trustee, Paying Agent, Registrar and Conversion
Agent
	 	 	74	 
	Section 13.07 . Legal Holidays
	 	 	74	 
	Section 13.08 . Governing Law
	 	 	75	 
	Section 13.09 . No Adverse Interpretation of Other Agreements
	 	 	75	 
	Section 13.10 . No Recourse Against Others
	 	 	75	 
	Section 13.11 . Successors
	 	 	75	 
	Section 13.12 . Multiple Counterparts
	 	 	75	 
	Section 13.13 . Separability
	 	 	75	 
	Section 13.14 . Calculations in Respect of the Securities
	 	 	75	 
	Section 13.15 . Table of Contents, Headings, Etc
	 	 	75	 
	Section 13.16 . Force Majeure
	 	 	75	 
	Section 13.17 . Waiver of Jury Trial
	 	 	76	 






	 	 	 

	Exhibit A

	 	Form of Security:
	 

	 	- Assignment Form
	 

	 	- Form of Conversion Notice
	 

	 	- Form of Repurchase Notice
	Exhibit B

	 	Form of Restricted Stock Legend
	Exhibit C

	 	Form of Transfer Certificate






iv









 





     THIS INDENTURE, dated as of November 22, 2010, is between RightNow Technologies, Inc., a
Delaware corporation (the “Company”), and The Bank of New York Mellon Trust Company, N.A., a
national banking association, as trustee (the “Trustee”).



Recitals




     The Company has duly authorized the creation of an issue of its 2.50% Convertible Senior Notes
due November 15, 2030 (herein called the “Initial Securities” and together with any Additional
Securities, the “Securities”) of substantially the tenor and amount hereinafter set forth, and to
provide the terms and conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this Indenture.



     All things necessary to make the Securities, when executed by the Company and authenticated
and delivered as provided herein and duly issued by the Company, the valid obligations of the
Company, and to make this Indenture a valid agreement of the Company, in accordance with their and
its terms, have been done.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:



ARTICLE 1

Definitions and Incorporation by Reference




     Section 1.01. Definitions.



     “Additional Interest” means interest payable pursuant to Section 6.02(b) and Section 8.02, as
applicable.



     “Additional Securities” means an unlimited maximum aggregate principal amount of Securities
issued under this Indenture.



     “Additional Shares” has the meaning specified in Section 5.10.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the



 









 





possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.




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



     “Agent Members” has the meaning set forth in Section 2.03(c).



     “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.



     “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.



     “beneficially own” and “beneficially owned” have the meanings set forth in Section 4.01(a).



     “beneficial owner” has the meaning set forth in Section 4.01(a).



     “Board of Directors” means, with respect to any Person, either the board of directors of such
Person or any duly authorized committee of such board of directors.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to
be in full force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day” means each day that is not a Legal Holiday.



     “Capital Stock” has the meaning set forth in Section 4.01(a).



     “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 and 3 thereof.



     “Close of Business” means 5:00 p.m. New York City time.



     “Closing Sale Price” of the Common Stock on any Trading Day means the reported last sale price
per share (or, if no last sale price is reported, the average of the bid and ask prices per share
or, if more than one in either case, the average of the average bid and the average ask prices per
share) on such date reported by the NASDAQ Global Market or, if the Common Stock is not listed for
trading on the NASDAQ Global Market, as reported by the principal U.S. national or regional
securities exchange on which the Common Stock is listed or



2









 





if the Common Stock is not so listed for trading on a principal U.S. national or regional
securities exchange, on the primary other market on which the Common Stock is then traded.




     “Common Stock” means any stock of any class of the Company which has 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 is not subject to redemption by the Company.
Subject to the provisions of Section 5.12, however, shares issuable on conversion of Securities
shall include only shares of the class designated as Common Stock, par value $0.001, of the Company
at the date of this Indenture or shares of any class or classes 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 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.



     “Company Order” has the meaning specified in Section 2.04(d).



     “Company’s Filing Obligations” has the meaning specified in Section 8.02.



     “Conversion Agent” has the meaning set forth in Section 2.05.



     “Conversion Date” has the meaning set forth in Section 5.02(a).



     “Conversion Notice” has the meaning set forth in Section 5.02(a).



     “Conversion Price” means, per share of Common Stock, at any time, $1,000 divided by the
then-applicable Conversion Rate, rounded to the nearest cent, subject to adjustment as set forth
herein.



     “Conversion Rate” means initially 31.3588 shares of Common Stock per $1,000 principal amount
of Securities, subject to adjustment as set forth herein.



     “Corporate Trust Office” means the corporate trust office of the Trustee at which at any time
its corporate trust business shall be administered, which office at the date hereof is located at
700 South Flower Street, 5th Floor, Los Angeles, California 90017, Attention: Corporate Trust
Unit, or such other address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor Trustee (or such



3









 





other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company). Notwithstanding the foregoing, the address of The Bank of New York
Mellon Trust Company, N.A. in its capacity as Registrar and Paying Agent shall be c/o The Bank of
New York Mellon, 101 Barclay Street, Floor 8 West, New York, New York 10286.




     “Cure Period” has the meaning set forth in Section 6.02(b).



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



     “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.



     “Depositary” has the meaning set forth in Section 2.03(b).



     “Designated Institution” has the meaning set forth in Section 5.15(a).



     “Designated Repurchase Date” has the meaning set forth in Section 4.01(b).



     “Designated Repurchase Date Company Notice” has the meaning set forth in Section 4.01(b).



     “Designated Repurchase Price” has the meaning set forth in Section 4.01(b).



     “Event of Default” has the meaning set forth in Section 8.01.



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



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



     “Expiration Date” has the meaning set forth in Section 5.06(e).



     “Final Offering Circular” means the final offering circular, dated November 16, 2010, relating
to the Securities.



     “Free Trade Date” means the date that is one year after the last date of original issuance of
the Securities.



     “Freely Tradable” means, with respect to the Securities and the shares of Common Stock
issuable upon conversion of the Securities, if any, that such Securities or such shares of Common
Stock, if any, (i) are eligible to be sold by a



4









 





Person who has not been an Affiliate of the Company during the preceding three months without
any volume or manner of sale restrictions under the Securities Act, (ii) do not bear a Restricted
Security Legend or Restricted Stock Legend and (iii) with respect to Global Securities only, are
identified by an unrestricted CUSIP number in the facilities of the applicable depositary.




     “Fundamental Change” has the meaning set forth in Section 4.01(a).



     “Fundamental Change Company Notice” has the meaning set forth in Section 4.01(a).



     “Fundamental Change Repurchase Date” has the meaning set forth in Section 4.01(a).



     “Fundamental Change Repurchase Price” has the meaning set forth in Section 4.01(a).



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Public Company Accounting Oversight Board and statements and pronouncements
of the Financial Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which are in effect from
time to time and consistently applied.



     “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 3 thereof and which is deposited with the Depositary or its custodian and registered in the
name of the Depositary or its nominee.



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



     “Indenture” means this Indenture as amended or supplemented from time to time pursuant to the
terms of this Indenture, including the provisions of the TIA that are explicitly incorporated in
this Indenture by reference to the TIA.



     “Initial Securities” has the meaning set forth in the Recitals.



     “Interest Payment Date” means May 15 and November 15 of each year, beginning May 15, 2011.



     “Legal Holiday” has the meaning set forth in Section 13.07.



     “Make-Whole Effective Date” has the meaning set forth in Section 5.10(b).



     “Make-Whole Fundamental Change” has the meaning set forth in Section 5.10(a).



5









 





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



     “Maturity Date” means November 15, 2030.



     “Merger Event” has the meaning set forth in Section 5.12.



     “Notice of Default” means written notice provided to the Company by the Trustee or the Holders
of not less than 25% in aggregate principal amount of Securities then outstanding of a Default by
the Company, which notice must specify the Default, demand that it be remedied and expressly state
that such notice is a “Notice of Default.”



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, Assistant Secretary or any Vice President
of such Person.



     “Officer’s Certificate” means a certificate signed by at least one Officer of the Company;
provided, however, that for purposes of Sections 5.12 and 6.03, “Officer’s Certificate” means a
certificate signed by the principal executive officer, principal financial officer or principal
accounting officer of the Company.



     “Opening of Business” means 9:00 a.m., New York City time.



     “Opinion of Counsel” means a written opinion of counsel, who may be external counsel or an
employee of the Company, and who shall be reasonably acceptable to the Trustee.



     “Paying Agent” has the meaning set forth in Section 2.05.



     “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.



     “QIB” means a “qualified institutional buyer” as defined in Rule 144A.



     “Record Date” means, with respect to the payment of interest on the Securities, the May 1
(whether or not a Business Day) next preceding an Interest Payment Date on May 15 and the November
1 (whether or not a Business Day) next preceding an Interest Payment Date on November 15.



6









 





     “Redemption Date” means the date specified for redemption of the Securities in accordance with
the terms of the Securities and Article 3 hereof.



     “Redemption Price” has the meaning specified in Section 3.01(b).



     “Reference Property” has the meaning set forth in Section 5.12.



     “Register” has the meaning set forth in Section 2.05.



     “Registrar” has the meaning set forth in Section 2.05.



     “Repurchase Date” means a Fundamental Change Repurchase Date or a Designated Repurchase Date,
as applicable.



     “Repurchase Notice” has the meaning set forth in Section 4.01(c).



     “Repurchase Price” means the Fundamental Change Repurchase Price or the Designated Repurchase
Price, as applicable.



     “Restricted Securities Legend” means a legend that includes the information called for by
footnote 2 of Exhibit A.



     “Restricted Security” has the meaning set forth in Section 2.14(e)(i).



     “Restricted Stock Legend” means a legend in the form set forth in Exhibit B, or any
other substantially similar legend indicating the restricted status of the shares of Common Stock
issued upon conversion of the Securities.



     “Rights Plan” has the meaning set forth in Section 5.14.



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



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



     “Rule 144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4)
under the Securities Act.



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



     “SEC” means the United States Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this
Indenture the SEC is not existing and performing the duties now assigned to it under the TIA, then
the body performing such duties at such time.



7









 





     “Security” and “Securities” have the meaning set forth in the Recitals and include the Initial
Securities and any Additional Securities. The Initial Securities and Additional Securities shall be
treated as a single series for all purposes under this Indenture.



     “Securities Act” means the United States 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 Global Securities,
or any successor thereto.



     “Significant Subsidiary” means a Subsidiary that is a significant subsidiary as defined under
Rule 1-02(w) of Regulation S-X under the Exchange Act.



     “Spin-Off” has the meaning set forth in Section 5.06(c).



     “Stock Price” has the meaning set forth in Section 5.10(b).



     “Subsidiary” means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than 50% of the outstanding Voting 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 United States Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture 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.



     “Trading Day” means a day on which (i) trading in the Common Stock generally occurs on the
NASDAQ Global Market or, if the Common Stock is not then listed on the NASDAQ Global Market, on the
primary other U.S. national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the primary other market on which the Common Stock is then traded and (ii) there is no
Market Disruption Event. If the Common Stock is not so listed or traded, “Trading Day” shall mean a
Business Day.



     “transfer” has the meaning set forth in Section 2.14(e).



     “Trigger Event” has the meaning set forth in Section 5.06(b).



8









 





     “Trustee” 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
“Trustee” should mean such successor Trustee.



     “Trust Officer” means, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, senior associate, trust officer or any other officer of the Trustee
who customarily performs functions similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



     “Valuation Period” has the meaning set forth in Section 5.06(c).



     “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” has the meaning set forth in Section 4.01(a).



     Section 1.02. TIA 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.



     Section 1.03. Rules of Construction. Unless the context otherwise requires:



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



     (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 masculine gender includes the feminine and the neuter;



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



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



     (h) unless the context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or Section, as the case may be, of this Indenture.



9









 





ARTICLE 2

The Securities




     Section 2.01. Title and Terms; Principal and Interest. The aggregate principal amount of Initial
Securities which may be authenticated and delivered under this Indenture is limited to $175,000,000
and the aggregate amount of Additional Securities is unlimited. Securities may also be
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Sections 2.08, 2.09, 2.12, 2.14, 3.06, 4.04 and 5.02.



     The Initial Securities and the Additional Securities, if any, shall be known and designated as
the “2.50% Convertible Senior Notes due November 15, 2030” of the Company.



     The Securities shall mature November 15, 2030.



     The Securities shall bear interest at the rate of 2.50% per annum, from November 22, 2010 or
from the most recent Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, semi-annually in arrears, on May 15 and November 15 of each year, commencing on
May 15, 2011, until the principal thereof is paid or made available for payment. Interest
(including Additional Interest, if any) will be computed on the basis of a 360-day year comprised
of twelve 30-day months. Interest will cease to accrue on a Security upon the Maturity Date or
upon its earlier conversion, redemption or repurchase.



     Principal and interest (including Additional Interest, if any) on Global Securities shall be
payable in the manner set forth in Section 6.01.



     The Securities shall be convertible as provided in Article 5.



     Section 2.02. Denominations. The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any multiple thereof.



     Section 2.03. Form and Dating. (a) The Securities and the corresponding 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, exchange rule, Applicable
Procedures 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 terms and provisions contained in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby; provided, however, to the extent permitted by
applicable law, if any provision of any Security conflicts with the



10









 







express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.



     (b) Global Securities.




     (i) All of the Securities shall be issued initially in the form of one or more 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 (such depositary, or any successor thereto, being
hereinafter referred to as the “Depositary”), and registered in the name of its nominee,
Cede & Co., or as otherwise instructed by the Depositary duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Securities Custodian and the Depositary as hereinafter provided,
subject in each case to compliance with the Applicable Procedures and the provisions of
this Indenture.




     (ii) 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, repurchases 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 written instructions
given by the Holder thereof as required by Section 2.14 hereof and shall be made on the
records of the Trustee and the Depositary.




     (iii) The Company shall issue and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver without unreasonable delay), authenticate and deliver
in accordance with Section 2.04, initially one or more Global Securities that (i) shall be
registered in the name of Cede & Co. or as otherwise instructed by the Depositary, (ii)
shall be delivered by the Trustee to the Depositary or to the Securities Custodian
pursuant to the Depositary’s instructions and (iii) shall bear legends required for Global
Securities as set forth on Exhibit A hereto.



     (c) Book Entry Provisions. 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



11









 







whatsoever. Notwithstanding the
foregoing, nothing herein shall (i) 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 (ii) impair, as between the Depositary
and its Agent Members, the Applicable Procedures or the operation of customary practices governing
the exercise of the rights of a Holder of any Security.



     (d) Certificated Securities. Certificated Securities will be issued only under the
limited circumstances provided in Section 2.14(a)(i).



     (e) Restrictive Legends. Each Restricted Security shall bear the Restricted
Securities Legend. Each stock certificate representing the shares of Common Stock issued upon
conversion of a Restricted Security shall bear the Restricted Stock Legend unless removed in
accordance with the provisions of Section 2.14(f) or Section 2.14(i) or otherwise at the direction
of the Company.



     Section 2.04. Execution and Authentication. (a) An Officer of the Company shall sign the
Securities for the Company by manual or facsimile signature. Typographic and other minor errors or
defects in any such facsimile signature shall not affect the validity or enforceability of any
Security that has been authenticated and delivered by the Trustee.



     (b) If an Officer of the Company 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.



     (c) 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.



     (d) The Trustee shall initially authenticate and make available for delivery Securities for
original issue in the aggregate principal amount of up to $175,000,000 upon receipt of a written
order or orders of the Company signed by an Officer of the Company (a “Company Order”). Each
Company Order shall specify the amount of Securities to be authenticated, shall provide that all
such Securities be represented by a Global Security and the date on which each original issue of
Securities is to be authenticated. The Company may, without the consent of the Holders, issue
Additional Securities with the same terms and with the same CUSIP number as the Initial Securities
in an unlimited aggregate principal amount; provided, however that no such Additional Securities
may be issued unless fungible with the Initial Securities for U.S. federal income tax purposes (as
determined by the Company); and provided, further, that the Additional Securities have the same
CUSIP number as the Initial Securities. The Trustee shall authenticate Additional Securities
thereafter in unlimited aggregate principal
amount (so long as permitted by the terms of this Indenture) for original issue upon a Company
Order of the Company in aggregate principal
amount as



12









 







specified in such Company Order (except as
provided in Section 2.09). Such Additional Securities shall have identical terms to the Initial
Securities except for issuance dates and prices and with respect to interest accruing prior to
their date of issuance, and will constitute the same series as the Initial Securities for all
purposes hereunder, including, without limitation, waivers, amendments and offers to repurchase.



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



     Section 2.05. Registrar, Paying Agent and Conversion Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer or for exchange
(the “Registrar”), an office or agency where
Securities may be presented for redemption, repurchase or payment
(the “Paying Agent”), an office or agency where Securities may be presented for conversion
(the “Conversion Agent”) 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. Pursuant to Section 6.06, the
Company shall at all times maintain a Paying Agent, Conversion Agent and 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. The Registrar shall keep a register of the Securities (the “Register”)
and of their transfer and exchange.



     The Company may have one or more co-registrars, one or more additional paying agents and one
or more additional conversion agents. The term Registrar includes any co-registrar, including any
named pursuant to Section 6.06. The term Paying Agent includes any additional paying agent,
including any named pursuant to Section 6.06. The term Conversion Agent includes any additional
conversion agent, including any named pursuant to Section 6.06.



     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 in writing 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.



     The Company hereby initially appoints the Trustee as Registrar, Paying Agent and Conversion
Agent in connection with the Securities.



13









 





     Section 2.06. Paying Agent to Hold Money and Securities in Trust. Prior to 10:00 a.m., New
York City time, on each due date of payments in respect of any Security, the Company shall deposit
with the Paying Agent cash (in immediately available funds if deposited on the due date) sufficient
to make such payments when so becoming due. The Company shall require each Paying Agent to agree
in writing that such Agent shall hold in trust for the benefit of Holders or the Trustee all cash
held by such Agent for the making of payments in respect of the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company or an Affiliate
of the Company acts as Paying Agent it shall segregate the cash held by it as Paying Agent and hold
it as a separate trust fund.



     The Company at any time may require the Paying Agent to pay all cash held by it to the
Trustee, and the Trustee may at any time during the continuance of any default, upon written
request to the Paying Agent require such Paying Agent to pay forthwith to the Trustee all cash so
held in trust by such Paying Agent. Upon doing so, the Paying Agent shall have no further
liability for the cash.



     Section 2.07. Holder 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 the Holders. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee on or before each Interest
Payment Date, and at such other times as the Trustee may request in writing, a list of the names
and addresses of the Holders in such form and as of such date as the Trustee may reasonably
request.




     Section 2.08. Transfer and Exchange.



     (a) Subject to compliance with any applicable additional requirements contained in Section
2.14, 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;
provided, however, that every Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by an assignment form, in the form included in
Exhibit A attached hereto, 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 2.05, 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, assessment or other governmental charge that may be imposed in relation thereto.



14









 





     None of the Company, any Registrar or the Trustee shall be required to register a transfer or
exchange of any Securities for which the Holder has delivered, and not validly withdrawn, a
Repurchase Notice, except, in the case of a partial repurchase, with respect to that portion of the
Securities not being repurchased.



     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.



     (b) Any Registrar appointed pursuant to Section 2.05 hereof shall provide to the Trustee such
information as the Trustee may reasonably request in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.



     (c) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any applicable federal or state or other securities and tax laws (including with
respect to any transfers between or among Agent Members or other beneficial owners of interests in
any Global Security) and shall have no duty to obtain documentation relating to any transfers or
exchanges other than as specifically required hereunder.



     Section 2.09. Replacement Securities. If (a) any mutilated Security is surrendered to the
Company, a Registrar or the Trustee, or (b) the Company, the Registrar and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Security, and, in either
case, there is delivered to the Company, the Registrar and the Trustee such security or indemnity
as shall 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 bona fide or
protected purchaser, the Company shall issue, and the Trustee shall, upon receipt of a Company
Order (which the Company agrees to deliver without unreasonable delay), 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, repurchased by the Company pursuant to Article 3 or
Article 4, the Company in its discretion (but subject to any conversion rights) may, instead of
issuing a new Security, pay, redeem or repurchase such Security, as the case may be.



     Upon the issuance of any new Securities under this Section 2.09, the Company may require the
payment of a sum sufficient to cover any tax, assessment 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.



15









 





     Every new Security issued pursuant to this Section 2.09 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.



     The provisions of this Section 2.09 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 2.10. Outstanding Securities. Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those
paid, redeemed or repurchased pursuant
to Section 2.09, those delivered to it for cancellation and those described in this Section 2.10 as
not outstanding.



     If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives, subsequent to the new Security’s authentication, proof satisfactory to the
Company that the replaced Security is held by a bona fide or protected purchaser.



     If the Paying Agent holds, in accordance with the terms of this Indenture, prior to 10:00
a.m., New York City time, on the Maturity Date, the Redemption Date or the Repurchase Date, as the
case may be, cash or securities, sufficient to pay Securities payable, then immediately after such
Maturity Date, Redemption Date or Repurchase Date, as the case may be, such Securities shall cease
to be outstanding and interest (including Additional Interest, if any) shall cease to accrue.



     If a Security is converted in accordance with Article 5, then from and after the Close of
Business on the Conversion Date, such Security shall cease to be outstanding and interest
(including Additional Interest, if any) shall cease to accrue, unless there shall be a default in
the delivery of the consideration payable hereunder upon such conversion.



     Subject to the restrictions contained in Section 2.11, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Security.



     Section 2.11. Treasury Securities. In determining whether the Holders of the required
principal amount of Securities have given or concurred in any notice, request, demand,
authorization, 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
and deemed not to be outstanding, 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 actually knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith shall not



16









 







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 2.12. 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 considers appropriate for
temporary Securities. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the
office or agency of the Company designated for such purpose pursuant to Section 2.05, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver without unreasonable delay), authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.



     Section 2.13. 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, payment,
redemption, repurchase, conversion or cancellation. The Trustee and no one else shall cancel, in
accordance with its standard procedures, all Securities surrendered for transfer, exchange,
payment, redemption, repurchase, conversion or cancellation and shall deliver the cancelled
Securities to the Company.



     All Securities that are redeemed pursuant to Article 3, repurchased pursuant to Article 4 or
otherwise acquired by the Company shall be delivered to the Trustee for cancellation. If the
Company shall acquire any of the Securities, such acquisition shall not operate as a repurchase or
satisfaction of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.



     Section 2.14. Additional Transfer and Exchange Requirements.



     (a) Transfer and Exchange of Global Securities.




     (i) Certificated Securities may be issued in exchange for interests in the Global
Securities only (x) if the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for the Global Securities or if it at any time ceases to be a
“clearing agency” registered under the Exchange Act, if so required by applicable law or
regulation, and a successor Depositary is not appointed by the Company within 90 days, (y)
if an Event of Default has occurred and is continuing,



17









 







or (z) by the Company in accordance
with the Applicable Procedures. In any such case, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver
without unreasonable delay), authenticate and deliver Certificated Securities in an
aggregate principal amount equal to the principal amount of such Global Securities in
exchange therefor. Certificated Securities issued in exchange for beneficial interests in
Global Securities shall be registered in such names and shall be in such authorized
denominations as the Depositary, pursuant to instructions from its Agent Members or
otherwise in accordance with the Applicable Procedures, shall instruct the Trustee. The
Trustee shall deliver or cause to be delivered such Certificated Securities to the Persons
in whose name such Securities are so registered. Such exchange shall be effected in
accordance with the Applicable Procedures.




     (ii) Notwithstanding any other provisions of this Indenture other than the provisions
set forth in Section 2.14(a)(i), a Global 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.



     (b) Transfer and Exchange of Certificated Securities. If Certificated Securities are
issued in exchange for beneficial interests in Global Securities in accordance with Section
2.14(a)(i), and, on or after such event, Certificated Securities are presented by a Holder to the
Registrar with a request:




     (i) to register the transfer of the Certificated Securities to a Person who will take
delivery thereof in the form of Certificated Securities only; or




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



such Registrar shall register the transfer or make the exchange as requested; provided, however,
that the Certificated Securities presented or surrendered for
register of transfer or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in accordance with the proviso to Section 2.08(a).




     (c) Transfers of Certificated Securities for Beneficial Interest in Global Securities.
If Certificated Securities are issued in exchange for beneficial interests in Global Securities
and, thereafter, the events or conditions specified in Section 2.14(a)(i) which required such
exchange shall cease to exist, the Company shall mail notice to the Trustee and to the Holders
stating that Holders may exchange Certificated Securities for interests in Global Securities by
complying with the procedures set forth in this Indenture and briefly describing such procedures
and



18









 







the events or circumstances requiring that such notice be given. Thereafter, if Certificated
Securities are presented by a Holder to a Registrar with a request:




     (i) to register the transfer of such Certificated Securities to a Person who will
take delivery thereof in the form of a beneficial interest in a Global Security, or




     (ii) to exchange such Certificated Securities for an equal principal amount of
beneficial interests in a Global Security, which beneficial interests will be owned by the
Holder transferring such Certificated Securities,



the Registrar shall register the transfer or make the exchange as requested by cancelling such
Certificated Security and causing the aggregate principal amount of the applicable Global Security
to be increased accordingly and, if no such Global Security is then outstanding, the Company shall
issue and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver
without unreasonable delay) authenticate and deliver a new Global Security; provided, however, that
the Certificated Securities presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso
to Section 2.08(a).




     (d) Transfers to the Company. Nothing contained in this Indenture or in the
Securities shall prohibit the sale or other transfer of any Securities (including beneficial
interests in Global Securities) to the Company or any of its Subsidiaries.



     (e) Transfer Restrictions.




     (i) Every Security that bears or is required under this Section 2.14(e) to bear the
Restricted Securities Legend (the “Restricted Securities”) shall be subject to the
restrictions on transfer set forth in the Restricted Securities Legend unless such
restrictions on transfer shall be eliminated pursuant to the terms hereof or otherwise
waived by written consent of the Company, and the Holder of each such Restricted Security,
by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 2.14(e), and Sections 2.14(f), 2.14(j) and 2.14(k), the
term “transfer” encompasses any sale, pledge, transfer, loan, hypothecation or other
disposition whatsoever of
any Restricted Security. Except as otherwise provided in this Indenture with respect
to any Restricted Security (including, without limitation, Section 2.14(h) below) if a request is made to
remove the legend on any Restricted Security, the legend shall not be removed unless there
is delivered to the Company, the Trustee and the Registrar such satisfactory evidence that
neither the Restricted Securities Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the
provisions of Rule 144, that such Securities are not “restricted securities” within the meaning
of Rule 144 and that



19









 







transfers thereof comply with all other applicable securities laws
and regulations. In such a case, upon (i) provision of such satisfactory evidence, or
(ii) notification by the Company to the Trustee and Registrar of the sale of such Security
pursuant to a registration statement that is effective at the time of such sale, the
Trustee, pursuant to a Company Order, shall authenticate and deliver a Security that does
not bear the Restricted Securities Legend.




     (ii) Until the Free Trade Date, any certificate evidencing such Securities (and all
Securities issued in exchange therefor or substitution thereof, other than Common Stock,
if any, issued upon conversion thereof, which shall bear the Restricted Stock Legend, if
applicable) shall bear the Restricted Securities Legend unless such Securities have been
transferred (A) under a registration statement that has been declared effective under the
Securities Act, or (B) pursuant to and in compliance with Rule 144 and satisfactory evidence of such compliance is provided to the Company.



     (f) Legends on the Common Stock.




     (i) Each share of Common Stock that is represented by a certificate that bears or is
required to bear a Restricted Stock Legend shall be subject to the restrictions on
transfer set forth therein, and each holder of such share, by acceptance thereof, agrees
to be bound by all such restrictions on transfer. Until the Free Trade Date, any stock
certificate representing shares of the Common Stock issued upon conversion of a Restricted
Security shall bear the Restricted Stock Legend unless the Restricted Security or such
Common Stock, as applicable, has been transferred (a) under a registration statement that
has been declared effective under the Securities Act; or (b) pursuant to and in compliance
with Rule 144 and satisfactory evidence of such compliance is provided to the Company.




     (ii) Any such shares of Common Stock as to which such legend requirements shall have
expired in accordance with their terms may, subject to applicable securities laws and
regulations and upon surrender of the certificates representing such shares of Common
Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like
aggregate number of shares of Common Stock which shall not bear the Restricted Stock
Legend.



     (g) Reserved.



     (h) So long as and to the extent that any Securities are represented by one or more Global
Securities held by or on behalf of the Depositary only, the Company shall cause the removal of the
Restricted Securities Legend from such Securities on or promptly after the Free Trade Date by:



20









 






     (i) providing to the Trustee (A) written notice stating that the Free Trade Date has
occurred and instructing the Trustee to remove the Restricted Securities Legend from such
Securities and (B) an Officer’s Certificate and Opinion of Counsel as required by Section 13.04;




     (ii) providing to the Holders of such Securities written notice that the Restricted
Securities Legend has been removed or deemed removed;




     (iii) providing to the Trustee and the Depositary written notice to change the CUSIP
number for the Securities to the applicable unrestricted CUSIP number; and




     (iv) complying with any Applicable Procedures for delegending;



whereupon the Restricted Securities Legend shall be deemed removed from any Global Securities
without further action on the part of Holders.




     (i) On or promptly after the Free Trade Date, the Company shall also (i) instruct the transfer
agent for the Common Stock to remove the Restricted Stock Legend from any shares of Common Stock
issued upon conversion of the Securities that bear the Restricted Stock Legend; (ii) notify the
holders of any shares of Common Stock issued upon conversion of the Securities that such Restricted
Stock Legend has been removed; (iii) if relevant, notify the transfer agent for the Common Stock to
change the CUSIP number for any shares of Common Stock issued upon conversion of the Securities to
the applicable unrestricted CUSIP number; and (iv) comply with any Applicable Procedures that apply
to the delegending of any shares of Common Stock issued upon conversion of a Security.



     (j) Whenever any Restricted Security is presented or surrendered for registration of transfer
or for exchange for a Security registered in a name other than that of the Holder, such Security
must be accompanied by a certificate in substantially the form set forth in Exhibit C,
dated the date of such surrender and signed by the Holder of such Security, as to compliance with
such restrictions on transfer. The Registrar shall not be required to accept for such registration
of transfer or exchange any Security not so accompanied by a properly completed certificate.



     (k) The restrictions imposed by Section 2.14(e) 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, transferred in compliance with Rule 144 (provided that satisfactory evidence of such compliance is provided to the Company) or the Free Trade Date has occurred. 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 2.14, be exchanged for a new Security, of like tenor and aggregate
principal amount, which shall not bear



21









 







the legends required by Section 2.14. The Company shall
inform the Trustee in writing upon the occurrence of the Free Trade Date.



     Section 2.15. CUSIP Numbers.



     (a) The Company, in issuing the Securities, shall use restricted CUSIP and ISIN numbers for
such Securities (if then generally in use) until such time as the Restricted Securities Legend is
removed pursuant to Section 2.14. At such time as the legend is removed from such Securities
pursuant to Section 2.14, the Company will use an unrestricted CUSIP number for such Security, but
only with respect to the Securities where so removed. The Trustee may use CUSIP and ISIN numbers
in notices as a convenience to Holders; provided, however, that neither the Company nor the Trustee
shall have any responsibility for any defect in the CUSIP or ISIN number that appears on any
Security, check, advice of payment or notice, and any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Securities or as contained
in any notice and that reliance may be placed only on the other identification numbers printed on
the Securities, and any action taken in connection with such a notice shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the Trustee, in writing,
in the event of any change in the CUSIP or ISIN numbers.



     (b) Until such time as the Restricted Stock Legend is no longer required to be borne by any
shares of Common Stock issued upon the conversion of the Securities pursuant to Section 2.14 or
otherwise, any shares of Common Stock issued upon conversion of the Securities shall bear a
restricted CUSIP number. At such time as the Restrictive Stock Legend is no longer required to be
borne by any shares of Common Stock issued upon the conversion of the Securities pursuant to
Section 2.14 or otherwise, any shares of Common Stock issued upon conversion of the Securities
shall bear an unrestricted CUSIP number.



     Section 2.16. Persons Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of, and interest (including Additional Interest, if any)
on such Security, for the purpose of receiving shares of Common Stock upon conversion and for all
other purposes whatsoever, whether or not such Security is overdue, and none of the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.



     Section 2.17. Ranking. The obligations of the Company arising under or in connection with this
Indenture and every outstanding Security issued under this Indenture from time to time constitute
and shall constitute a general unsecured senior obligation of the Company.



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ARTICLE 3

Redemption




     Section 3.01. Optional Redemption. (a) The Securities may be redeemed in whole or in part at the
option of the Company at any time on or after November 20, 2015.



     (b) The redemption price at which the Securities are redeemable (the “Redemption Price”) shall
be payable in cash and shall be equal to 100% of the principal amount of Securities being redeemed,
together with accrued and unpaid interest, including Additional Interest, if any, to, but
excluding, the Redemption Date; provided, however, that if Securities are redeemed during the
period from the Close of Business of any Record Date to the Opening of Business on the
corresponding Interest Payment Date, the interest (including Additional Interest, if any) payable
in respect of such Interest Payment Date shall be payable to the Holders of record at the Close of
Business on the corresponding Record Date and not to the Holders submitting Securities for
redemption.



     (c) The Company may not redeem any Securities unless all accrued and unpaid interest
(including Additional Interest, if any) thereon has been or is simultaneously paid for all
semi-annual periods or portions thereof terminating prior to the Redemption Date.



     (d) Except as provided in this Section 3.01, the Securities shall not be redeemable by the
Company.



     Section 3.02. Selection of Securities to Be Redeemed. (a) If fewer than all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by any other method the Trustee considers fair and appropriate
(so long as such method is not prohibited by the rules of the NASDAQ Global Market or any stock
exchange on which the Securities are then listed, as applicable).




     (b) Securities and portions thereof that the Trustee selects shall be in principal amounts of
$1,000 or multiples of $1,000. Provisions of this Indenture that apply to Securities called for
redemption in whole also apply to Securities called for redemption in part.



     (c) If any Security is selected for partial redemption, a new Security in principal amount
equal to the unredeemed principal portion will be issued to the Holder. If a Security is selected
for partial redemption and a Conversion Notice has been submitted for such Security after the
Company delivers notice of redemption and prior to the Redemption Date, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be redeemed may be treated
by the Trustee as outstanding for the purpose of such selection.



23









 





     Section 3.03. Notice of Redemption. Not less than 20 days but not more than 60 days before a
Redemption Date, the Company shall, or shall cause the Trustee to, deliver a notice of redemption
by first-class mail, postage prepaid, or pursuant to Applicable Procedures, as applicable, to the
Trustee, the Paying Agent and each Holder of Securities (which notice shall be prepared by the
Company and given in a manner reasonably calculated by the Company to inform all beneficial owners
as required by applicable law) to be redeemed.



     The notice shall specify the Securities to be redeemed and shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price;




     (iii) the then-applicable Conversion Price;




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




     (v) that Securities called for redemption may be converted at any time before the
Close of Business on the Business Day immediately preceding the Redemption Date;




     (vi) that Holders who want to convert Securities must satisfy the requirements set
forth therein and in this Indenture;




     (vii) that Securities called for redemption must be surrendered to the Paying Agent
for cancellation to collect the Redemption Price;




     (viii) if fewer than all the outstanding Securities are to be redeemed, the
certificate numbers (if such Securities are held other than in global form) and principal
amounts of the particular Securities to be redeemed as determined pursuant to Section
3.02(a);




     (ix) that, unless the Company defaults in making payment of such Redemption Price,
interest (including Additional Interest, if any) will cease to accrue on and after the
Redemption Date; and




     (x) the CUSIP number of the Securities.



     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 delivered at least 15 days prior to the
date such notice is to be given (unless a shorter time period shall be acceptable to the Trustee),
the Trustee shall give the notice of redemption to each Holder of Securities to be redeemed in the
Company’s name and at the Company’s expense.



24









 





     Section 3.04. Effect of Notice of Redemption. Once notice of redemption is given, Securities
called for redemption become due and payable on the Redemption Date and at the Redemption Price
stated in the notice except for Securities that are converted in accordance with the terms of this
Indenture. Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price stated in the notice.



     Section 3.05. Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on a
Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior thereto 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
because of conversion of Securities pursuant to Article 5. If such money is then held by the
Company in trust and is not required for such purpose it shall be discharged from such trust.



     If the Paying Agent holds money sufficient to pay the Redemption Price with respect to the
Securities to be redeemed on the Redemption Date in accordance with the terms of this Indenture
then, immediately on and after the Redemption Date, interest on such Securities shall cease to
accrue, whether or not
the Securities are delivered to the Paying Agent, and all other rights of the Holders of such
Securities shall terminate, other than the right to receive the Redemption Price upon delivery of
such Security.



     Section 3.06. Securities Redeemed in Part. In case of any redemption of Securities in part, the
Company shall not be required to (a) issue, register the transfer of or exchange any Security
during a period of 15 days before the mailing of the notice of redemption; or (b) register the
transfer of or exchange any Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part. Any Security which is to be redeemed
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, upon presentation and surrender of a Security that is redeemed in part,
the Company shall execute and, upon the Company’s written request, the Trustee shall authenticate
and deliver to the Holder, at the expense of the Company, a new Security equal in principal amount
to the unredeemed portion of the Security surrendered.



ARTICLE 4

Repurchase of Securities




     Section 4.01. Repurchase of Securities at Option of Holders.



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     (a) Repurchase of Securities at Option of Holders upon a Fundamental Change. In the
event of a Fundamental Change at any time that Securities remain outstanding, Securities shall be
repurchased by the Company, at the option of any Holder thereof, on a date specified by the Company
that is not less than 20 nor more than 45 Business Days after the date the Company delivers the
Fundamental Change Company Notice to the Holders (the “Fundamental Change Repurchase Date”), at a
repurchase price in cash for each $1,000 principal amount of the Securities tendered for repurchase
equal to 100% of the principal amount of such Securities, plus accrued and unpaid interest thereon,
including Additional Interest, if any, to, but excluding, the Fundamental Change Repurchase Date
(the “Fundamental Change Repurchase Price”), subject to satisfaction by or on behalf of any Holder
of the requirements set forth in Section 4.01(c); provided, however, that if any Security is
repurchased pursuant to this Section 4.01(a) during the period from the Close of Business of any
Record Date to the Opening of Business on the corresponding Interest Payment Date, the interest,
including Additional Interest, if any, payable with respect to such Security on such Interest
Payment Date shall be payable on the Fundamental Change Repurchase Date to the Holders of record at
the Close of Business on the corresponding Record Date and not to the Holders submitting Securities
for repurchase.



     A “Fundamental Change” shall be deemed to have occurred upon the occurrence of any of the
following:




     (1) any person or group (other than the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or any of its Subsidiaries) files a Schedule 13D or
Schedule TO, or any successor schedule, form or report under the Exchange Act, disclosing,
or the Company otherwise becomes aware, that such person is or has become the beneficial
owner, directly or indirectly, of shares of the Company’s Voting Stock representing 50% or
more of the total voting power of all outstanding classes of the Company’s Voting Stock or
has the power, directly or indirectly, to elect a majority of the members of the board of
directors of the Company;




     (2) the Company consolidates with, or merges with or into, another Person or the
Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the Company’s assets, or any Person consolidates with, or merges with
or into, the Company; provided, however, that any such transaction (a) solely for purposes
of changing the jurisdiction of organization of the Company and pursuant to which the
Common Stock is not changed or exchanged except to the extent necessary to reflect a
change in the jurisdiction of organization or (b) pursuant to which the Persons that
beneficially owned, directly or indirectly, shares of the Company’s Voting Stock
immediately prior to such transaction beneficially own, directly or indirectly, shares of
Voting Stock representing a majority of the total voting power of all outstanding classes
of Voting Stock of the surviving or transferee Person or the parent



26









 







entity thereof
immediately after such transaction, shall not be a Fundamental Change pursuant to this
clause (2);




     (3) the Common Stock, or other common stock into which the Securities are then
convertible, ceases to be listed on a U.S. national securities exchange for a period of
three (3) consecutive Trading Days; or




     (4) the adoption of any plan relating to the liquidation or dissolution of the
Company.



     Notwithstanding anything to the contrary set forth in this Section 4.01(a), a Fundamental
Change as a result of clause (2) of the definition thereof shall not be deemed to have occurred if
at least 90% of the consideration (excluding cash payments for fractional shares and cash payments
pursuant to dissenters’ appraisal rights) in the merger or consolidation otherwise constituting the
Fundamental Change consists of common stock or depositary receipts traded or quoted on a U.S.
national securities exchange (or which shall be so traded or quoted when issued or exchanged in
connection with such Fundamental Change) and as a result of such transaction or transactions the
Securities become convertible solely into shares of such common stock.



     For purposes of this Section 4.01(a):



     (i) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange
Act, as in effect on the date of this Indenture;



     (ii) “beneficially own” and “beneficially owned” have meanings correlative to that of
beneficial owner;



     (iii) “board of directors” means the board of directors or other governing body charged with
the ultimate management of any person;



     (iv) “Capital Stock” means: (i) in the case of a corporation, corporate stock; (ii) in the
case of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or
limited liability company, partnership interests (whether general or limited) or membership
interests; or (iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the issuing Person;



     (v) “person” and “group” shall have the meanings given to them for purposes of Sections 13(d)
and 14(d) of the Exchange Act or any successor provisions, and the term “group” includes any group
acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, or any successor provision; and



     (vi) “Voting Stock” means any class or classes of Capital Stock or other interests then
outstanding and normally entitled (without regard to the



27









 







occurrence of any contingency) to vote in
the election of the board of directors, managers or trustees of a Person.



     The Company shall provide written notice to the Trustee and each Holder (in a manner
reasonably calculated by the Company to inform all beneficial owners as required by applicable law)
in accordance with Section 13.02 within 15 Business Days after the effective date of a Fundamental
Change (the “Fundamental Change Company Notice”). The Fundamental Change Company Notice delivered
pursuant to the immediately preceding sentence shall include the form of a Repurchase Notice to be
completed by the Holder and shall state, as applicable:



     (1) the events causing a Fundamental Change;



     (2) the effective date of such Fundamental Change;



     (3) that the Holder has a right to require the Company to repurchase the Holder’s Securities;



     (4) the date by which the Repurchase Notice must be delivered to the Paying Agent in order for
a Holder to exercise the Fundamental Change repurchase right;



     (5) the Fundamental Change Repurchase Price;



     (6) the Fundamental Change Repurchase Date;



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



     (8) that the Securities must be surrendered to the Paying Agent to collect payment of the
Fundamental Change Repurchase Price;



     (9) that the Fundamental Change Repurchase Price for any Security as to which a Repurchase
Notice has been duly given and not withdrawn shall be paid promptly following the later of the
Fundamental Change Repurchase Date and the time of surrender of such Security;



     (10) the then-applicable Conversion Rate and any adjustments to the Conversion Rate that will
result from the Fundamental Change;



     (11) that the Securities with respect to which a Repurchase Notice has been given may be
converted pursuant to Article 5 of this Indenture only if the Repurchase Notice has been withdrawn
in accordance with the terms of this Indenture;



     (12) the procedures that the Holder must follow to exercise its Fundamental Change repurchase
right under this Section 4.01(a);



28









 





     (13) the procedures for withdrawing a Repurchase Notice;



     (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, shall cease to accrue on and after the Fundamental Change Repurchase Date; and



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



     If any of the Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures applicable to
repurchases.



     At the Company’s request, the Trustee shall give the Fundamental Change Company Notice on
behalf of the Company and at the Company’s expense; provided, however, that the Company makes such
request at least three (3) 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 4.01(a); provided further, however, that the text of such
notice shall be prepared by the Company.



     No failure of the Company to give the foregoing notices and no defect therein shall limit any
Holder’s repurchase rights or affect the validity of the proceedings for the repurchase of the
Securities pursuant to this Section 4.01(a).



     (b) Repurchase of Securities at Option of Holders on Certain Dates. On November 15,
2015, November 15, 2020 and November 15, 2025 (each a “Designated Repurchase Date”), Securities
shall be repurchased by the Company, at the option of any Holder thereof, at a repurchase price in
cash for each $1,000 principal amount of the Securities tendered for repurchase equal to 100% of
the principal amount of such Securities, plus accrued and unpaid interest thereon, including
Additional Interest, if any, to, but excluding, the Designated Repurchase Date (the “Designated
Repurchase Price”), subject to satisfaction by or on behalf of any Holder of the requirements set
forth in Section 4.01(c); provided, however, that if any Security is repurchased pursuant to this
Section 4.01(b) during the period from the Close of Business of any Record Date to the Opening of
Business on the corresponding Interest Payment Date, the interest, including Additional Interest,
if any, payable with respect to such Security on such Interest Payment Date shall be payable to the
Holders of record at the Close of Business on the corresponding Record Date and not to the Holders
submitting Securities for repurchase.



     The Company shall provide written notice to the Trustee, any Paying Agent and each Holder (in
a manner reasonably calculated to inform all beneficial owners as by applicable law) in accordance
with Section 13.02 on or prior to the 20th Business Day prior to the applicable
Designated Repurchase Date (the “Designated Repurchase Date Company Notice”). The Designated
Repurchase



29









 







Date Company Notice delivered to each Holder shall include the form of a Repurchase
Notice to be completed by the Holder and shall state, as applicable:



     (1) that the Holder has a right to require the Company to repurchase the Holder’s Securities;



     (2) the date by which the Repurchase Notice must be delivered to the Paying Agent in order for
a Holder to exercise the repurchase right;



     (3) the Designated Repurchase Price;



     (4) the Designated Repurchase Date;



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



     (6) that the Securities must be surrendered to the Paying Agent to collect payment of the
Designated Repurchase Price;



     (7) that the Designated Repurchase Price for any Security as to which a Repurchase Notice has
been duly given and not withdrawn shall be paid
promptly following the later of the Designated Repurchase Date and the time of surrender of
such Security;



     (8) the then-applicable Conversion Rate;



     (9) that the Securities with respect to which a Repurchase Notice has been given may be
converted pursuant to Article 5 of this Indenture only if the Repurchase Notice has been withdrawn
in accordance with the terms of this Indenture;



     (10) the procedures that the Holder must follow to exercise its repurchase right under this
Section 4.01(b);



     (12) the procedures for withdrawing a Repurchase Notice;



     (13) that, unless the Company defaults in making payment of such Designated Repurchase Price,
interest, including Additional Interest, if any, on Securities surrendered for repurchase by the
Company, shall cease to accrue on and after the Designated Repurchase Date; and



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



     If any of the Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures applicable to
repurchases.



     At the Company’s request, the Trustee shall give the Designated Repurchase Date Company Notice
on behalf of the Company and at the



30









 







Company’s expense; provided, however, that the Company makes
such request at least three (3) Business Days (unless a shorter period shall be satisfactory to the
Trustee) prior to the date by which such Designated Repurchase Date Company Notice must be given to
the Holders in accordance with this Section 4.01(b); provided further, however, that the text of
such notice shall be prepared by the Company.



     The Company shall also disseminate a press release through Dow Jones & Company, Inc. or
Bloomberg Business News containing the information specified in the Designated Repurchase Date
Company Notice or publish such information in The Wall Street Journal or another newspaper of
general circulation in The City of New York or through such other public medium as the Company
deems appropriate at that time.



     No failure of the Company to give the foregoing notices and no defect therein shall limit any
Holder’s repurchase rights or affect the validity of the proceedings for the repurchase of the
Securities pursuant to this Section 4.01(b).



     No Securities may be repurchased by the Company pursuant to this Section 4.01(b) if the
principal amount of the Securities has been accelerated, and
such acceleration has not been rescinded or cured, on or prior to applicable Designated
Repurchase Date.



     (c) Repurchase Notice. A Holder may exercise its right specified in Section 4.01(a)
or Section 4.01(b), as applicable, upon delivery of a written notice (which shall be in
substantially the form included in Exhibit A hereto and which may be delivered by letter,
overnight courier, hand delivery, facsimile transmission or in any other written form and, in the
case of Global Securities, may be delivered electronically or by other means in accordance with the
Applicable Procedures) of the exercise of such rights (a “Repurchase Notice”), to the Paying Agent,
and such Repurchase Notice must be received by the Paying Agent, (i) with respect to a Fundamental
Change repurchase right under Section 4.01(a), no later than the Close of Business on the Business
Day immediately preceding the Fundamental Change Repurchase Date or (ii) with respect to a
repurchase right under Section 4.01(b), during the period from the Opening of Business on the date
that is 20 Business Days prior to the Designated Repurchase Date until the Close of Business on the
second Business Day prior to the Designated Repurchase Date. The Repurchase Notice must state:




	 	(1)	 	if Certificated Securities are to be delivered, the certificate numbers of
the Securities that the Holder shall deliver to be repurchased or, if such Securities
are represented by a Global Security, that such notice complies with the Applicable
Procedures;
	 
	 	(2)	 	the portion of the principal amount of the Securities that the Holder shall
deliver to be repurchased, which portion must be in principal amounts of $1,000 or a
multiple thereof; and




31









 






	 	(3)	 	that such Securities shall be repurchased by the Company on the Repurchase
Date pursuant to the terms and conditions specified in this Indenture.





     The delivery of such Security to the Paying Agent (together with all necessary endorsements)
at the office of such Paying Agent shall be a condition to the receipt by the Holder of the
Repurchase Price.



     The Company shall repurchase from the Holder thereof, pursuant to this Section 4.01, a portion
of a Security if the principal amount of such portion is $1,000 or a multiple of $1,000.
Provisions of this Section 4.01(c) that apply to the repurchase of all of a Security also apply to
the repurchase of such portion of such Security.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 4.01(c) shall have the right to withdraw such
Repurchase Notice in accordance with Section 4.02(b).



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



     (d) Notwithstanding anything herein to the contrary, in the case of Global Securities, any
Repurchase Notice must be delivered or withdrawn and such Securities must be surrendered or
delivered for repurchase in accordance with the Applicable Procedures.



     Section 4.02. Effect of Repurchase Notice; Withdrawal. (a) Upon receipt by the Paying Agent
of the Repurchase Notice specified in Section 4.01(c) and the delivery to the Paying Agent of the
Security in respect of which such Repurchase Notice was given, in the manner required by Section
4.01(c), the Holder of such Security shall (unless such Repurchase Notice is withdrawn as specified
below) thereafter be entitled to receive the Repurchase Price with respect to such Security. Such
Repurchase Price shall be paid to such Holder promptly following the later of (i) the Repurchase
Date with respect to such Security (provided the conditions in Section 4.01(c) have been satisfied)
and (ii) the time of delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by Section 4.01(c). Securities in respect of which a Repurchase Notice has been
given by the Holder thereof may not be converted into shares of Common Stock pursuant to Article 5
hereof on or after the date of the delivery of such Repurchase Notice, unless such Repurchase
Notice has first been validly withdrawn in accordance with Section 4.02(b).



     (b) A Repurchase Notice may be withdrawn (in whole or in part) upon delivery of a written
notice of withdrawal (which may be delivered by mail, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global Securities, must be delivered
electronically or by other means in accordance with the Applicable Procedures) to the Paying Agent,



32









 







and such written notice of withdrawal must be received by the Paying Agent, at any time prior to
the Close of Business on the Business Day immediately preceding the Repurchase Date, specifying:




     (i) the principal amount of the Securities in respect of which such notice of
withdrawal is being submitted;




     (ii) if Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted or that the
withdrawal notice complies with the Applicable Procedures with respect to all withdrawn
Securities represented by a Global Security; and




     (iii) the principal amount, if any, of the Securities that remains subject to the
original Repurchase Notice and that has been or shall be delivered for repurchase by the
Company.



     Section 4.03. Deposit of Repurchase Price. Prior to 10:00 a.m., New York City time, on the
Repurchase Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.06) an amount in cash (in immediately available funds if
deposited on such Repurchase Date) sufficient to pay the aggregate Repurchase Price of all the
Securities or portions thereof that are to be repurchased on that Repurchase Date.



     If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City
time, on the applicable Repurchase Date, cash sufficient to pay the Repurchase Price of any
Security for which a Repurchase Notice has been delivered and not validly withdrawn in accordance
with Section 4.02(b) of this Indenture, then, on and after such Repurchase Date, such Securities
shall cease to be outstanding and interest (including Additional Interest, if any) shall cease to
accrue thereon, 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 by the Holders to the Paying Agent).



     Section 4.04. Securities Repurchased in Part. Any Certificated Security that 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 promptly after the Repurchase Date, the Company shall
issue and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver
without unreasonable delay), authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of such authorized denomination or denominations as
may be requested by such Holder, in aggregate principal amount equal to, and in



33









 







exchange for, the
portion of the principal amount of the Security so surrendered that is not repurchased.



     Section 4.05. Repayment to the Company. To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 4.03 exceeds the aggregate Repurchase Price of the
Securities or portions thereof that the Company is obligated to repurchase on the Repurchase Date,
then, promptly after the Repurchase Date, the Paying Agent shall return any such excess cash to the
Company.



     Section 4.06. Compliance with Securities Laws upon Repurchase of Securities. When complying
with the provisions of this Article 4, the Company shall to the extent applicable:




	 	(a)	 	comply with the provisions of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act that may then be applicable; and
	 
	 	(b)	 	otherwise comply with all federal and state securities laws so as to
permit the rights and obligations in connection with any repurchase
pursuant to Section 4.01 to be exercised in the time and in the manner specified
therein.





ARTICLE 5

Conversion




     Section 5.01. Conversion Privilege. Subject to and upon compliance with the further
provisions of this Article 5 and Paragraph 7 of the Securities, a Holder may convert its Securities
(or any portion thereof equal to $1,000 principal amount or a multiple of $1,000 principal amount
in excess thereof) at the Conversion Rate, subject to adjustments as set forth in this Article 5,
by delivering a Conversion Notice no later than the Close of Business on the Business Day
immediately preceding the Maturity Date.



     Section 5.02. Conversion Procedures. (a) The right of conversion attaching to any Security may
be exercised (i) if such Security is represented by a Global Security, by book-entry transfer to
the Conversion Agent through the facilities of the Depositary in accordance with the Applicable
Procedures, or (ii) if such Security is represented by a Certificated Security, by delivery of such
Security at the specified office of the Conversion Agent, accompanied, in either case, by: (1) a
duly signed and completed conversion notice, in the form as set forth on the reverse of Security
attached hereto as Exhibit A (a “Conversion Notice”), which once delivered, shall be
irrevocable; (2) if such Certificated Security has been lost, stolen, destroyed or mutilated, a
notice to the Conversion Agent in accordance with Section 2.09 regarding the loss, theft,
destruction or mutilation of the Security; (3) appropriate endorsements and transfer documents if
required by the Registrar or the Conversion Agent; (4) payment of any tax or duty,



34









 







in accordance
with Section 5.04; and (5) payment of any interest (including Additional Interest, if any) payable
on the Securities in accordance with Section 5.03(b). The date on which the Holder satisfies all of
the requirements specified in this Section 5.02 shall be the “Conversion Date.”



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



     (c) Upon conversion of the Securities, the Company shall deliver and shall issue to such
Holder a certificate or certificates for the number of full shares of Common Stock issuable in
respect of such conversion in accordance with the provisions of this Article 5, no later than the
third Trading Day following the
Conversion Date. In case any Securities of a denomination greater than $1,000 shall be
surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of the Securities so surrendered, without charge to such Holder, new
Securities in authorized denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Securities.



     Each conversion shall be deemed to have been effected as to any such Securities (or portion
thereof) immediately prior to the Close of Business on the Conversion Date, and the Person in whose
name any certificate or certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become on said date the holder of record of the shares of Common
Stock represented thereby; provided, however, that if a Conversion Date occurs on a date when the
stock transfer books of the Company shall be closed, the Person or Persons in whose name the
certificate or certificates for such shares of Common Stock are to be issued shall be deemed to
have become the record holder or holders thereof for all purposes on the next day on which such
stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the
Conversion Date.



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



     (e) No Conversion Notice with respect to any Securities may be delivered by a Holder thereof
if such Holder also has delivered a Repurchase Notice and not validly withdrawn such Repurchase
Notice in accordance with the applicable provisions of Section 4.02(b).



35









 





     Section 5.03. Payment upon Conversion. (a) Upon conversion, Holders shall not receive
any separate cash payment or adjustment for accrued and unpaid interest, including Additional
Interest, if any, unless such conversion occurs during the period from the Close of Business on any
Record Date to the Opening of Business on the corresponding Interest Payment Date, in which case
such payment shall be payable to the Holder of the converted Securities as of the Record Date.



     (b) Securities surrendered for conversion during the period from the Close of Business of any
Record Date to the Opening of Business on the corresponding Interest Payment Date, must be
accompanied by funds equal to the amount of interest (including any Additional Interest, if any)
payable on the Securities being converted; provided, however, that such payment is not required to
be made (i) if the conversion is in connection with a redemption pursuant to Article 3 hereof and
the Company has specified a Redemption Date that is after a Record Date and on or prior to the
corresponding Interest Payment Date; (ii) if the conversion is in connection with a Fundamental
Change and the Company has
specified a Fundamental Change Repurchase Date that is after a Record Date and prior to the
corresponding Interest Payment Date; (iii) if the conversion is prior to a Designated Repurchase
Date that is after a Record Date and on or prior to the corresponding Interest Payment Date; (iv)
with respect to any Securities converted after the Record Date immediately preceding the Maturity
Date of the Securities; or (v) to the extent of any overdue interest (including overdue Additional
Interest, if any), if overdue interest exists at the time of conversion with respect to the
Securities being converted.



     (c) The Company shall not issue fractional shares of Common Stock upon conversion of
Securities. If multiple Securities shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions thereof to the
extent permitted hereby) so surrendered. If any fractional share of Common Stock would be issuable
upon the conversion of any Securities, the Company shall make payment therefor in cash equal to the
fraction of a share of Common Stock otherwise issuable multiplied by the Closing Sale Price on the
Conversion Date.



     Section 5.04. Taxes on Conversion. If a Holder converts a Security, the Company shall pay
any documentary, stamp or similar issue or transfer taxes or duties relating to the issuance or
delivery of shares of Common Stock, if any, upon exercise of such conversion rights. However, the
Holder shall pay any tax or duty which may be payable relating to any transfer involved in the
issuance or delivery of the Common Stock in a name other than the Holder’s name. The Company may
refuse to deliver the certificate representing the Common Stock being issued in a name other than
the Holder’s name until the Company receives a sum sufficient to pay any tax or duties which will
be due because the shares are to be issued in a name other than the Holder’s name. Nothing herein
shall preclude any tax withholding required by law or regulation.



36









 





     Section 5.05. Company to Provide Stock. (a) The Company shall, prior to the issuance of any
Securities hereunder, and from time to time as may be necessary, reserve at all times and keep
available, free from preemptive rights, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit delivery upon conversion of all of the
Securities.



     (b) All shares of Common Stock that may be issued upon conversion of the Securities shall be
newly issued shares or shares held in the treasury of the Company, shall be duly authorized,
validly issued, fully paid and nonassessable and shall be free of any preemptive rights and free of
any lien or adverse claim.



     (c) The Company shall comply with all applicable securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Securities and shall list or cause to have
quoted such shares of Common Stock on the national securities exchange on which the Common Stock is
then listed or quoted; provided, however, that, if the rules of such exchange permit the Company to
defer the listing of such Common Stock until the first conversion of
the Securities into Common Stock in accordance with the provisions of this Indenture, the
Company covenants to list such Common Stock issuable upon conversion of the Securities in
accordance with the requirements of such exchange at such time.



     Section 5.06. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company will not
make any adjustment if Holders of Securities may participate, as a result of holding the
Securities, in the transactions described in this Section 5.06 without having to convert their
Securities:



     (a) If the Company issues shares of Common Stock as a dividend or distribution on shares of
Common Stock, which dividend or distribution consists exclusively of shares of Common Stock, or
subdivides or combines the outstanding Common Stock, the Conversion Rate will be adjusted based on
the following formula:








   where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the Opening of
Business on the Ex Date of such dividend or distribution, or the effective date of
such subdivision or combination, as applicable;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the Opening of Business
on such Ex Date or effective date;






37









 






	 	 	 	 	 	 	 

	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the
Opening of Business on such Ex Date or effective date; and
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock outstanding immediately after the
Opening of Business on such Ex Date or effective date after giving effect to such
dividend, distribution, subdivision or combination.






   Any adjustment to the Conversion Rate made pursuant to this Section 5.06(a) shall become
effective immediately after the Opening of Business on the Ex Date for such dividend or
distribution, or the effective date for such subdivision or combination. If any dividend or
distribution of the type described in this Section 5.06(a) is declared but not paid or made, or the
outstanding shares of Common Stock are not subdivided or combined, as the case may be, the
Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors of
the Company determines not to pay such dividend or distribution, or to effect such subdivision or
combination, to the Conversion Rate that would then be in effect if
such dividend or distribution, or such subdivision or combination, had not been declared or
announced.



     (b) If the Company issues to all or substantially all holders of the Common Stock rights,
warrants or options (other than pursuant to a Rights Plan) entitling such holders for a period of
not more than 60 calendar days after the announcement of such issuance to subscribe for or purchase
shares of Common Stock, at a price per share or a Conversion Price per share less than the average
of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days immediately
preceding the date that such distribution was first publicly announced, the Conversion Rate will be
adjusted based on the following formula (provided that the Conversion Rate will be readjusted to
the extent that such rights, warrants or options are not exercised prior to their expiration):








   where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the Opening of
Business on the Ex Date for such issuance;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the Opening of Business
on such Ex Date for such issuance;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the
Opening of Business on such Ex Date;






38









 






	 	 	 	 	 	 	 

	 

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

	 	Y
	 	=
	 	the number of shares of Common Stock equal to the aggregate price payable
to exercise such rights or warrants divided by the average of the Closing Sale Prices
of the Common Stock for the 10 consecutive Trading Days immediately preceding the
date that the distribution of such rights, warrants or options was first publicly
announced.






     Any adjustment to the Conversion Rate made pursuant to this Section 5.06(b) shall be
successively made whenever any such rights, warrants or options are issued and shall become
effective immediately after the Opening of Business on the Ex Date for such issuance. If such
rights, warrants or options are not so issued, the Conversion Rate shall be immediately readjusted
to the Conversion Rate that would then be in effect if such Ex Date for such issuance had not been
fixed. In addition, to the extent that such rights, warrants or options are not exercised prior to
their expiration and shares of Common Stock are not delivered upon exercise of such rights,
warrants or options, the Conversion Rate shall be
immediately readjusted to the Conversion Rate that would then be in effect had the adjustments made
upon the issuance of such rights, warrants or options been made on the basis of only the number of
shares of Common Stock actually delivered.



     In determining whether any rights, warrants or options entitle the Holders to subscribe for or
purchase shares of Common Stock at less than such average of the Closing Sale Prices, and in
determining the aggregate offering price of such shares of Common Stock, there shall be taken into
account any consideration received by the Company for such rights, warrants or options and any
amount payable on exercise or conversion thereof, with the value of such consideration, if other
than cash, to be determined by the Board of Directors of the Company.



     (c) If the Company distributes to all or substantially all holders of the Common Stock shares
of the Company’s Capital Stock, evidences of indebtedness or other non-cash assets, including
securities, rights or warrants, but excluding:




     (i) dividends or distributions and rights, warrants or options referred to in Section
5.06(a) or Section 5.06(b);




     (ii) the initial distribution of rights issued pursuant to a stockholder rights plan;
provided that such rights plan provides for the issuance of such rights with respect to
the Common Stock issued upon conversion of the Securities;




     (iii) distributions in connection with any liquidation, dissolution or winding-up;



39









 






     (iv) dividends or distributions paid exclusively in cash referred to in Section
5.06(d); and




     (v) Spin-Offs to which the provisions of this Section 5.06(c) apply,



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








   where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the Opening of
Business on the Ex Date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the Opening of Business
on such Ex Date;
	 
	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the average of the Closing Sale Prices of the Common Stock over the 10
consecutive Trading Day period ending on the Trading Day immediately preceding the Ex
Date for such distribution; and
	 
	 	 	 	 	 	 
	 

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






     If the Board of Directors of the Company determines the fair market value of any distribution
for purposes of this Section 5.06(c) by reference to the actual or when issued trading market for
any securities, it must in doing so consider the prices in such market over the same period used in
computing the average of the Closing Sale Prices of the Common Stock.



     For the purposes of this Section 5.06(c), rights or warrants distributed by the Company to all
or substantially all holders of its Common Stock entitling them to subscribe for or purchase shares
of the Company’s Capital Stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events (a “Trigger Event”): (1) are deemed
to be transferred with such shares of Common Stock; (2) are not exercisable; and (3) also are
issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed
for purposes of this Section 5.06(c) and no adjustment to the Conversion Rate under this Section
5.06(c) shall be required until the occurrence of the earliest Trigger Event, whereupon such rights
or warrants shall be deemed to have been distributed and an appropriate adjustment



40









 







(if any is
required) to the Conversion Rate shall be made under this Section 5.06(c).



     If any such rights or warrants are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase or exchangeable for additional or different securities,
evidences of indebtedness or other assets, then the date of the occurrence of any and each such
event shall be deemed to be the date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the existing rights or warrants to
the extent not exercised by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under
this Section 5.06(c) was made, (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants
(assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been issued.



     With respect to an adjustment to the Conversion Rate pursuant to this Section 5.06(c) where
there has been a payment of a dividend or other distribution on the Common Stock or shares of
Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or
other business unit (a “Spin-Off”), that are or, when issued, will be listed or quoted on a
national securities exchange or market, the Conversion Rate will instead be adjusted based on the
following formula:








   where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the end of the
Valuation Period (as defined below);
	 
	 	 	 	 	 	 
	 

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

	 	FMV0
	 	=
	 	the average of the Closing Sale Prices of the Capital Stock or similar
equity interest distributed to holders of Common Stock applicable to one share of
Common Stock over the






41









 






	 	 	 	 	 	 	 

	 

	 	 
	 	 
	 	first 10 consecutive Trading Days after, and including, the
effective date of the Spin-Off (the “Valuation Period”); and
	 
	 

	 	MP0
	 	=
	 	the average of the Closing Sale Prices of Common Stock over the Valuation
Period.






     The adjustment to the Conversion Rate under the preceding paragraph will occur on the last day
of the Valuation Period; provided that in respect of any conversion prior to the last day of the
Valuation Period, the adjustment to the Conversion Rate shall be given effect for purposes of such
conversion and for such purposes references with respect to the last day of the Valuation Period
shall be deemed replaced with such lesser number of Trading Days as have elapsed between the
effective date of the Spin-Off and the Conversion Date in determining the applicable Conversion
Rate.



     If any dividend or distribution described in this Section 5.06(c) is not so paid or made, the
Conversion Rate shall again be immediately readjusted to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.



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








  where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the Opening of
Business on the Ex Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the Opening of Business
on the Ex Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the Closing Sale Price of a share of Common Stock on the Trading Day
immediately preceding the Ex Date for such dividend or distribution; and
	 
	 	 	 	 	 	 
	 

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






     Any adjustment to the Conversion Rate made pursuant to this Section 5.06(d) will become
effective immediately after the Opening of Business on the



42









 







Ex Date for such dividend or
distribution. If such dividend or distribution is not so paid or made, the Conversion Rate shall
again be immediately readjusted to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.



     (e) If the Company or any of its Subsidiaries purchases shares of Common Stock pursuant to a
tender offer or exchange offer made at a price per share in excess of the Closing Sale Price for
one share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”)
on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion
Rate will be increased based on the following formula:








   where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the Expiration Date;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the Expiration Date;
	 
	 	 	 	 	 	 
	 

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

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

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

	 	SP1
	 	=
	 	the average of the Closing Sale Prices of Common Stock over the 10
consecutive Trading Day period commencing on the Trading Day next succeeding the date
such tender or exchange offer expires.






     Any adjustment to the Conversion Rate made pursuant to this Section 5.06(e) shall occur at the
Close of Business on the 10th Trading Day from, and including the Trading Day next succeeding the
date such tender or exchange offer expires; provided, that in respect of any conversion within 10
Trading Days immediately following, and including, the expiration date of any tender or



43









 







exchange
offer, the adjustment to the Conversion Rate shall be given effect for purposes of such conversion
and for such purposes references within this Section 5.06(e) to 10 Trading Days shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the expiration date of
such tender or exchange offer and the Conversion Date in determining the applicable Conversion
Rate.



     In the event that the Company is obligated to purchase shares of Common Stock pursuant to any
such tender or exchange offer, but is permanently prevented under applicable law or otherwise from
effecting any such purchase or exchange, or all such purchases or exchanges are rescinded, then the
Conversion Rate shall be immediately readjusted to the Conversion Rate that would then be in effect
if such tender or exchange offer had not been made.



     (f) Except as set forth in Sections 5.06(a), 5.06(b), 5.06(c), 5.06(d) or 5.06(e), the Company
shall not be required to adjust the Conversion Rate for the issuance of its Common Stock or any
securities convertible or exchangeable for its Common Stock or the right to purchase its Common
Stock or such convertible or exchangeable securities. If, however, application of the formulas
provided in
Sections 5.06(b), 5.06(c), 5.06(d) or 5.06(e) would result in a decrease in the Conversion
Rate, no adjustment to the Conversion Rate shall be made.



     (g) To the extent permitted by applicable law and to the extent in compliance with NASDAQ Rule
5635, or a successor to such rule, as may be then in effect and interpreted by NASDAQ, the Company
from time to time may increase the Conversion Rate by any amount for any period of time of at least
20 days if the Board of Directors of the Company determines that such increase would be in the best
interest of the Company.



     (h) For purposes of this Section 5.06, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury
of the Company.



     Section 5.07. No Adjustment. (a) Adjustments to the applicable Conversion Rate under this
Article 5 shall be calculated to the nearest 1/10,000th of a share. No adjustment in the
Conversion Rate shall be required unless the adjustment would result in a change in the Conversion
Rate of at least 1.0%; provided that any adjustment which by reason of this Section 5.07(a) is not
required to be made shall be carried forward and taken into account in determining any subsequent
adjustment and in connection with any conversion of Securities. Notwithstanding the foregoing,
upon any conversion of Securities (solely with respect to the Securities to be converted), the
Company shall give effect to all adjustments that have otherwise been deferred pursuant to this
Section 5.07(a).



     (b) By delivering to the Holder the shares of Common Stock issuable upon conversion, together
with a cash payment in lieu of fractional shares, if any,



44









 







the Company will satisfy its obligation
with respect to the conversion of the Securities. Upon conversion of Securities, all accrued but
unpaid interest, including Additional Interest, if any, with respect to the converted Securities
will be deemed to be paid in full rather than cancelled, extinguished or forfeited, unless such
conversion occurs during the period from the Close of Business on any Record Date to the Opening of
Business on the corresponding Interest Payment Date, in which case such payment shall be payable to
the Holder of converted Securities as of the Record Date in accordance with Section 5.03(a).



     (c) No adjustment to the Conversion Rate shall be made (1) upon the issuances of any shares of
Common Stock pursuant to any existing or future Company plan for reinvestment of dividends or
interest payable on the Company’s securities or the investment of additional optional amounts
thereunder in shares of Common Stock; (2) upon the issuance of any shares of Common Stock or
options or rights to purchase shares of Common Stock pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries; (3) upon the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security outstanding as of the date the
Securities
were first issued; (4) upon a change in the par value of the Common Stock; or (5) for accrued
and unpaid dividends or interest (including Additional Interest, if any).



     (d) No adjustment to the Conversion Rate will be made if it results in a Conversion Price that
is less than the par value of the Common Stock. The Company hereby agrees not to take any action
that would increase the par value of its Common Stock to an amount greater than the then-current
Conversion Price.



     Section 5.08. Adjustment for Tax Purposes. To the extent in compliance with NASDAQ Rule
5635, or a successor to such rule, as may be then in effect and interpreted by NASDAQ, the Company
shall be entitled to make such increases in the Conversion Rate, in addition to those required by
Section 5.06, as it in its discretion shall determine to be advisable in order to avoid or diminish
any tax to stockholders in connection with any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or securities or distributions of securities convertible
into or exchangeable for stock hereafter made by the Company to its stockholders.



     Section 5.09. Notice of Adjustment. (a) Whenever the Conversion Rate or settlement
provisions are adjusted, the Company shall promptly deliver to Holders a notice of the adjustment
in accordance with Section 13.02, and file with the Trustee an Officer’s Certificate briefly
stating the facts requiring the adjustment and the manner of computing it. Unless and until the
Trustee shall receive an Officer’s Certificate setting forth an adjustment of the Conversion Rate,
the Trustee may assume without inquiry that the Conversion Rate has not been adjusted and that the
last Conversion Rate of which it has knowledge remains in effect.



45









 





     (b) The Company shall provide the Holders 15 days prior notice of any increase in the
Conversion Rate pursuant to Section 5.06(g).



     Section 5.10. Adjustment to Conversion Rate upon Certain Fundamental Changes. (a) If a Holder
elects to convert its Securities in connection with a Fundamental Change described under clause (1)
or (2) of the definition of Fundamental Change in Section 4.01(a) (without giving effect to the
proviso in clause (2) of such definition but subject to the paragraph immediately following clause
(4) of the definition thereof) (each such Fundamental Change, a “Make-Whole Fundamental Change”)
occurring prior to November 15, 2015, then the Conversion Rate of such Securities shall be
increased by an additional number of shares of Common Stock (the “Additional Shares”) as described
below. A conversion shall be deemed to be in connection with a Make-Whole Fundamental Change if
the Conversion Notice is received by the Conversion Agent during the period that begins on (and
includes) the first public announcement of an event constituting a Make-Whole Fundamental Change
and ends at the Close of
Business on the Business Day immediately preceding the related Fundamental Change Repurchase Date.



     (b) The number of Additional Shares issuable upon conversion shall be determined by reference
to the table attached as Schedule A hereto, which Schedule is incorporated in and made part
of this Indenture, based on the date on which the Make-Whole Fundamental Change becomes effective
(the “Make-Whole Effective Date”) and the price (the “Stock Price”) paid, or deemed to be paid, per
share of Common Stock in such transaction or series of related transactions constituting the
Make-Whole Fundamental Change, subject to adjustment as described in Section 5.10(c). If the
holders of Common Stock receive only cash in such Make-Whole Fundamental Change, the Stock Price
shall be the cash amount paid per share of Common Stock. Otherwise, the Stock Price will be the
average of the Closing Sale Prices of Common Stock on the five Trading Days prior to but excluding
the Make-Whole Effective Date. The Company shall notify the Holders and the Trustee in writing of
the anticipated Make-Whole Effective Date of a Make-Whole Fundamental Change resulting in an
adjustment to the Conversion Rate as soon as practicable and if possible at least 10 Trading Days
prior to the Make-Whole Effective Date.



     (c) The number of Additional Shares issuable upon conversion shall be adjusted in the same
manner as and as of any date on which the Conversion Rate of the Securities is adjusted as set
forth in Section 5.06. The Stock Prices set forth in the first row of the table attached as
Schedule A shall be simultaneously adjusted as of any date on which the Conversion Rate is adjusted
to 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.



46









 





     (d) If the exact Stock Prices and Make-Whole Effective Dates relating to a Make-Whole
Fundamental Change are not set forth in the table in Schedule A, then:




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




     (ii) If the Stock Price is greater than $70.00 per share (subject to adjustment as
set forth in Section 5.10(c)), no Additional Shares will be issued upon
conversion.




     (iii) If the Stock Price is less than $24.53 per share (subject to adjustment as set
forth in Section 5.10(c)), no Additional Shares will be issued upon conversion.



     (e) Notwithstanding the foregoing, in no event will the total number of Additional Shares
issuable upon conversion exceed 9.4076 per $1,000 principal amount of Securities (subject to
adjustment as set forth in Section 5.10(c)) and no Additional Shares will be payable upon a
Make-Whole Fundamental Change occurring after November 15, 2010.



     (f) For the avoidance of doubt, the increases provided for in this Section 5.10 shall only be
made with respect to the Securities being converted in connection with such Make-Whole Fundamental
Change and shall not be effective as to any Securities not so converted.



     Section 5.11. Notice of Certain Transactions. If not otherwise required in connection with
a Fundamental Change, if:



     (a) the Company takes any action which would require an adjustment in the Conversion Rate;



     (b) the Company consolidates or merges with, or transfers all or substantially all of its
property and assets to, another corporation and stockholders of the Company must approve the
transaction; or



     (c) there is a dissolution or liquidation of the Company,



the Company shall deliver to Holders and file with the Trustee a notice stating the proposed record
or effective date, as the case may be. The Company shall deliver the notice at least ten days
before such date. Failure to deliver such notice or any defect therein shall not affect the
validity of any transaction referred to in subsection (a), (b) or (c) of this Section 5.11.




47









 








     Section 5.12. Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege.
In the event of: (a) any reclassification of the Company’s Common Stock; (b) any consolidation,
merger or combination involving the Company; (c) a sale or conveyance to another Person of all or
substantially all of the property and assets of the Company, directly or indirectly; or (d) a
statutory share exchange (any such event a “Merger Event”), in which holders of Common Stock would
be entitled to receive shares of stock, or other securities, property, assets or cash (or any
combination thereof) for their shares of Common Stock, then, at the effective time of any such
Merger Event, the Company, or such successor, purchasing or transferee Person, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each
Security then outstanding shall have the right to convert such Security into a right to the kind
and amount of shares of stock, or other securities, property, assets or cash (or combination
thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate in effect
immediately prior to the
consummation of such Merger Event would have owned or been entitled to receive (the “Reference
Property”) in connection with such Merger Event. If the Merger Event causes the Common Stock to be
converted into the right to receive more than a single type of consideration (determined based in
part upon any form of stockholder election), the Reference Property into which the Securities will
be convertible will be deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock that affirmatively make such election. The provisions of
this Section 5.12 shall similarly apply to successive Merger Events. The Company hereby agrees
that it shall not become a party to any Merger Event unless its terms are consistent with this
Section 5.12.



     If the Company shall execute a supplemental indenture pursuant to this Section 5.12, the
Company shall promptly file with the Trustee (x) an Officer’s Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or other securities or property (including
cash) receivable by Holders of the Securities upon the conversion of their Securities after any
such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent
have been satisfied and (y) an Opinion of Counsel that all conditions precedent have been
satisfied, and the Company shall promptly deliver notice thereof to all Holders.



     Section 5.13. Trustee’s Disclaimer. The Trustee shall have no duty to determine when an
adjustment under this Article 5 should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness of any such
adjustment, and shall be protected in relying upon, an Officer’s Certificate, including the
Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 5.09. The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee shall not be responsible
for the Company’s failure to comply with any provisions of this Article 5.



48









 





     The Trustee shall not be responsible for determining the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 5.12, but may accept as
conclusive evidence of the correctness thereof, and shall be fully protected in relying upon, the
Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 5.12. Each Conversion Agent shall have the same protection under this Section
5.13 as the Trustee.



     Section 5.14. Stockholder Rights Plan. If, at the time of any conversion of the Securities
pursuant to this Article 5, the Company has in effect a stockholder rights plan (a “Rights Plan”),
each share of Common Stock issued upon such conversion shall be entitled to receive the appropriate
number of rights, if any, and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by the terms of the
Rights Plan; provided, however, if the rights
under any Rights Plan have separated from the shares of Common Stock in accordance with the
provisions of the Rights Plan prior to such conversion, the Conversion Rate will be adjusted
at the time of separation as if the Company distributed to all or substantially all holders of
Common Stock, shares of Capital Stock, evidences of indebtedness or other non-cash assets as
described in Section 5.06(c) (with such separation being deemed the occurrence of a Trigger Event for
purposes of Section 5.06(c)). For purposes of calculating the per share fair market value of the
shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to
each outstanding share of Common Stock under Section 5.06(c), any shares of Common Stock held by
any Person who is ineligible to receive such distribution under the terms of the Rights Plan shall
not be deemed outstanding. The Company agrees that any Rights Plan adopted by the Company shall
provide for the foregoing rights upon conversion of the Securities, and any distribution of rights
or warrants pursuant to any such Rights Plan shall not constitute a distribution of rights or
warrants described in Section 5.06 that would require an adjustment to the Conversion Rate.



     Section 5.15. Exchange in Lieu of Conversion.



     (a) If at any time when a Holder surrenders Securities for conversion prior to the Maturity
Date of the Securities the Company:




     (i) has designated a financial institution, which shall be a direct or indirect
Depositary participant (a “Designated Institution”), to accept such Securities in exchange
for shares of Common Stock equal to the consideration due upon conversion; and




     (ii) notifies the Holder surrendering such Securities for conversion by the second
Trading Day after the applicable Conversion Date, that it has directed the Designated
Institution to make an exchange in lieu of conversion,



49









 





then, notwithstanding anything in this Indenture to the contrary, the Company may direct the
Conversion Agent to surrender such Securities, on the Conversion Date, to the Designated
Institution for exchange in lieu of conversion.




     (b) If the Designated Institution accepts Securities surrendered for exchange, the Company
shall deliver shares of Common Stock to such Holder on the third Trading Day immediately following
the Conversion Date. Any Securities so exchanged by such Designated Institution shall remain
outstanding for all purposes under this Indenture.



     (c) If the Designated Institution agrees to accept any Securities for exchange but does not
timely deliver the related consideration to the Holder, or if the Designated Institution
does not accept such Securities for exchange, the Company shall, within the time period specified
in Section 5.02(c), convert such Securities shares of Common Stock in accordance with the
provisions of Section 5.02 and Section 5.03.



     For the avoidance of doubt, in no event will the Company’s designation of a financial
institution pursuant to this Section 5.14 require such financial institution to accept any
Securities for exchange.



     Section 5.16. Company Determination Final. Any determination that the Company or its Board of
Directors must make pursuant to this Article 5 shall be conclusive if made in good faith and in
accordance with the provisions of this Article 5, absent manifest error, and set forth in a Board
Resolution.



ARTICLE 6

Covenants




     Section 6.01. 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, including payments of shares of Common Stock upon conversion. Principal amount and
accrued and unpaid interest (including Additional Interest, if any) shall be considered paid on the
date it is due if the Paying Agent holds by 10:00 a.m., New York City time, on such date, in
accordance with this Indenture, cash designated and sufficient for the payment of all such amounts
then due.



     Payment of the principal of the Securities shall be made at the Corporate Trust Office of the
Trustee in cash. Payment of accrued and unpaid interest, including Additional Interest, if any, on
Certificated Securities shall be made by check mailed to the address of the Holder entitled thereto
as such address appears in the Register; provided, however, that Holders with Securities in an
aggregate principal amount in excess of $2.0 million shall be paid, at their written election, by
wire transfer of immediately available funds. Notwithstanding the foregoing, so long as the
Securities are registered in the name of a Depositary or its nominee,



50









 







all payments with respect to
the Securities shall be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee.



     Section 6.02. Reports and Certain Information. (a) The Company shall file with the Trustee,
within 15 days after it is required to file them with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act, copies of its annual report and the information, documents and other reports
which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act; provided, however, that any such reports, information or documents filed with the SEC pursuant
to its Electronic Date Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed filed
with the Trustee. Notwithstanding anything to the contrary herein, the Trustee shall have no duty
to review such documents for purposes of determining compliance with any provisions of this
Indenture or any applicable law.



     (b) If, at any time during the period beginning six months from the last date of original
issuance of the Securities and ending on the Free Trade Date, the Company fails to make available
adequate current public information in accordance with Rule 144(c), and the Company does not cure
such failure within 14 calendar days (the “Cure Period”), the Company shall pay Additional Interest
on the Securities, accruing from and including the last day of the Cure Period and continuing until
the earlier of (i) the Free Trade Date and (ii) the date on which the Company corrects such
failure. During the first 90 days on which such Additional Interest is payable, such Additional
Interest shall accrue at a rate of 0.25% per annum; thereafter, such Additional Interest shall
accrue at a rate of 0.50% per annum.



     (c) In addition, if the Company fails to cause the Securities or any shares of the Common
Stock issuable upon conversion of the Securities to become Freely Tradable on and at all times
after the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a
Business Day), the Company will pay Additional Interest on the Securities accruing from and
including the Free Trade Date and until the date on which the Securities and any shares of Common
Stock issuable upon the conversion of the Securities become Freely Tradable. During the first 90
days on which such Additional Interest is payable, such Additional Interest will accrue at a rate
of 0.25% per annum; thereafter, such Additional Interest will accrue at a rate of 0.50% per annum.



     (d) Notwithstanding anything else in this Indenture, in no event will the combined rate of any
Additional Interest payable under this Section 6.02 and Section 8.02 exceed 0.50% per annum.



     (e) Whenever Additional Interest is accruing on a Record Date, the Company will pay all
accrued and unpaid Additional Interest to the Holders of record on such Record Date on the
corresponding Interest Payment Date. If Additional Interest is not accruing on a Record Date, but
has accrued since the immediately preceding Record Date, the Company shall pay any accrued and



51









 







unpaid Additional Interest on the Interest Payment Date corresponding to the latter Record Date to
Holders of record on the latter Record Date.



     (f) If the Company is required to pay Additional Interest to Holders (whether pursuant to this
Section 6.02 or Section 8.02), the Company shall provide a direction or order in the form of a
written notice to the Trustee (and if the Trustee is not the Paying Agent, to the Paying Agent) of
the Company’s obligation to pay such Additional Interest no later than three Business Days prior to
the date on which any such Additional Interest is scheduled to be paid. Such notice shall set
forth the amount of Additional Interest to be paid by the Company on such payment date and direct
the Trustee (or, if the Trustee is not the Paying Agent, to the Paying Agent) to make payment to
the extent it receives funds from the Company to do so. The Trustee shall not at any time be under
any duty or responsibility to any Holder to determine whether the Additional Interest is payable,
or with respect to the nature, extent, or calculation of the amount of the
Additional Interest owed, or with respect to the method employed in such calculation of the
Additional Interest.



     Section 6.03. Compliance Certificates. The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s
Certificate signed by the principal executive officer, principal financial officer or principal
accounting officer, as to his or her knowledge (i) of the Company’s compliance with all conditions
and covenants under the Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, (ii) if the Company shall be in Default, specifying all such Defaults and
the nature and status thereof of which they may have knowledge.



     Section 6.04. Maintenance of Corporate Existence. Subject to Article 7, the Company shall
do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence.



     Section 6.05. Stay, Extension and Usury Laws. The Company covenants, to the extent 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 amount, Redemption
Price or Repurchase Price in respect of Securities or any 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 shall not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee or any Agent, but shall suffer and permit the execution
of every such power as though no such law had been enacted.



52









 





     Section 6.06. Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and
Conversion Agent. The Company shall maintain an office or agency of the Trustee, Registrar, Paying
Agent and Conversion Agent where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange, repurchase or conversion and
where notices and demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company hereby designates the Corporate Trust Office as one such office or
agency for all of the aforesaid purposes. The Company shall give prompt written notice to the
Trustee of the location, and of any change in the location, of any such office or agency (other
than a change in the location of the office of the Trustee). If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.



     Section 6.07. Delivery of Certain Information. If, at any time that any of the Securities are
“restricted securities” within the meaning of Rule 144, the Company is not subject to Sections 13
or 15(d) of the Exchange Act, upon the request of a Holder, or any beneficial owner of, or
prospective purchaser of, the Securities or a holder of, beneficial owner of, or prospective
purchaser of, any shares of Common Stock issued upon the conversion of Securities, the Company will
promptly furnish or cause to be furnished Rule 144A Information to such Holder, or any beneficial
owner of, or prospective purchaser of, the Securities or holder of, beneficial owner of, or
prospective purchaser of, shares of Common Stock issued upon the conversion of Securities, as the
case may be, to the extent required to facilitate resale by such
Holder or holder pursuant to Rule 144A. Whether a Person is a beneficial owner shall be
determined by the Company to the Company’s reasonable satisfaction.



ARTICLE 7

Consolidation, Merger, Conveyance, Transfer or Lease




     Section 7.01. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not, in a
single transaction or a series of related transactions, consolidate with or merge into any other
Person or sell, convey, transfer or lease all or substantially all of its properties and assets to
any successor Person, unless:



     (a) the Company is the surviving Person, or the resulting, surviving or transferee Person, if
other than the Company, is organized and validly existing under the laws of the United States of
America, 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 this Indenture;



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



53









 





     (c) the Company and the resulting, surviving or transferee Person, if applicable, has
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease 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 complied
with.



     Section 7.02. Successor Substituted. Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company in accordance with Section 7.01, the successor
Person formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.



ARTICLE 8

Default and Remedies




     Section 8.01. Events of Default. An “Event of Default” shall occur if:



     (a) the Company defaults in the payment of any principal of any of the Securities when the
same becomes due and payable (whether at the Maturity Date, Redemption Date, Repurchase Date or
otherwise);



     (b) the Company defaults in the payment of any interest (including Additional Interest, if
any) on any of the Securities, when due and payable under the Securities, and such default
continues for a period of 30 days;



     (c) the Company fails to deliver shares of Common Stock (including any Additional Shares
payable as a result of a conversion in connection with a Make-Whole Fundamental Change), when
required to be delivered upon the Conversion of any Security and such failure continues for five
(5) days following the scheduled settlement date for such conversion;



     (d) the Company fails to provide a Fundamental Change Company Notice when required by Section
4.01(a);



     (e) the Company fails to comply with any of its obligations set forth in Article 7;



     (f) the Company fails to comply with any of its other agreements contained in the Securities
or in this Indenture (other than those referred to in



54









 







clauses (a) through (e) above) for 60 days
after receipt by the Company of a Notice of Default;



     (g) an event of default as defined under any mortgage, indenture or instrument under which
there may be issued, or by which there may be secured or evidenced, any indebtedness (including by
guarantee) of the Company or any such indebtedness of any of the Company’s Significant Subsidiaries
for borrowed money, whether such indebtedness now exists or shall hereafter be created, if that
default (i) constitutes the failure to pay when due (at express maturity, upon acceleration as a
result of an event of default or otherwise) indebtedness in an aggregate principal amount in excess
of $15,000,000, and (ii) such default continues for period of ten days after receipt by the Company
of a Notice of Default, without such default having been cured or waived, such acceleration
having been rescinded or annulled (if applicable) and such indebtedness not having been paid
or discharged;



     (h) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of
any Bankruptcy Law:




     (i) commences a voluntary case or proceeding;




     (ii) consents to the entry of an order for relief against it in an involuntary case
or proceeding;




     (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its properties and assets; or




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



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




     (i) is for relief against the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding;




     (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries for
all or substantially all of the property of the Company; or




     (iii) orders the winding up or liquidation of the Company or any of its Significant
Subsidiaries;



and in each case of this clause (i) the order or decree remains unstayed and in effect for 60
consecutive days.




     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



55









 







Corporate Trust Office of the Trustee by
the Company, the Paying Agent or any Holder.



     Section 8.02. Acceleration. If an Event of Default (other than an Event of Default
specified in clause (h) or (i) of Section 8.01 involving the Company) 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 of plus accrued and unpaid interest, including Additional Interest, if any, on all
the Securities then outstanding to be due and payable upon any such declaration, and the same shall
become and be immediately due and payable.



     If an Event of Default specified in clause (h) or (i) of Section 8.01 occurs with respect to
the Company, all unpaid principal of plus accrued and unpaid
interest, including Additional Interest, if any, on all the Securities then outstanding 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 and annul an acceleration of Securities pursuant to the first
paragraph of this Section 8.02 and its consequences before a judgment or decree for the payment of
money has been obtained by the Trustee if all existing Events of Default, other than the nonpayment
of the principal of and accrued and unpaid interest, including Additional Interest, if any, on the
Securities that has become due solely by such declaration of acceleration, have been cured or
waived. No such rescission shall affect any subsequent Default or impair any right consequent
thereto.



     Notwithstanding anything to the contrary in the Securities or elsewhere in this Indenture, at
the election of the Company, the sole remedy for an Event of Default specified in Section 8.01(f)
relating to the failure by the Company to comply with Section 6.02(a) (the “Company’s Filing
Obligations”), shall consist exclusively of the right to receive Additional Interest on the
Securities. For the first 90 days after the occurrence of such an Event of Default, the Additional
Interest will accrue at a rate equal to 0.25% per annum, and (ii) for the 120 days immediately
following such 90 day period, the Additional Interest will accrue at a rate equal to 0.50% per
annum. The Additional Interest will be in addition to any Additional Interest that the Company is
required to pay under Section 6.02 and will be payable in the same manner as such Additional
Interest; provided, however, that in no event will the combined rate of the Additional Interest due
pursuant to this Section 8.02 and any Additional Interest due under Section 6.02 exceed 0.50% per
annum. This Additional Interest will accrue on the Securities from and including the date on which
an Event of Default relating to a failure to comply with the Company’s Filing Obligations first
occurs to but not including the 210th day thereafter (or such earlier date on which the Event of
Default relating to such obligations shall have been cured or waived pursuant to Section 8.04). On
such 210th day (or earlier, if such Event of Default is cured or waived pursuant to Section 8.04
prior to such 210th day), such Additional Interest will



56









 







cease to accrue and, if such Event of
Default has not been cured or waived pursuant to Section 8.04 prior to such 210th day, then the
Trustee or the Holders of not less than 25% in principal amount of the Securities may declare the
principal of and accrued and unpaid interest on all Securities to be due and payable immediately.
This provision shall not affect the rights of Holders in the event of the occurrence of any other
Event of Default. If the Company elects to pay the Additional Interest as the sole remedy for an
Event of Default specified in Section 8.01(f) relating to the failure by the Company to comply with
the Company’s Filing Obligations, the Company shall notify the Holders, the Paying Agent and the
Trustee of such election at any time on or before the Close of Business on the Business Day on
which such Event of Default would otherwise occur (which notice shall include a statement as to the
date from which Additional Interest is payable). If the Company elects to pay such Additional
Interest, it shall
provide a direction or notice to the Trustee in the manner set forth in Section 6.02(f).
Unless and until a Trust Officer receives at the Corporate Trust Office such direction or notice,
the Trustee may assume without inquiry that no Additional Interest is payable. Such Additional
Interest shall be payable in the manner provided for in Section 6.02(e).



     Section 8.03. 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 accrued and unpaid interest (including Additional
Interest, if any) 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 Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative to the extent permitted by law.



     Section 8.04. Waiver of Defaults and Events of Default. Subject to Section 8.07 and 10.02,
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 amount of, or accrued and unpaid
interest (including Additional Interest, if any) on any Security, the payment of any applicable
Redemption Price, the payment of any applicable Repurchase Price, or a failure by the Company to
deliver shares of Common Stock upon conversion in accordance with Article 5 or any Default or Event
of Default in respect of any provision of this Indenture or the Securities that, under Section
10.02, cannot be modified or amended without the consent of the Holder of each Security affected.
When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or impair any consequent right.



57









 





     Section 8.05. Control by Majority. The Holders of a majority in aggregate principal amount
of the Securities then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it
with respect to the Securities. 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 or security reasonably satisfactory to Trustee against any
loss, liability or expense to the Trustee to institute such proceeding as Trustee; provided that
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction.



     Section 8.06. Limitations on Suits. A Holder of a Security may not pursue any remedy with
respect to this Indenture or the Securities unless:



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



     (b) 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;



     (c) such Holder or Holders offer to the Trustee indemnity or security reasonably satisfactory
to the Trustee against any loss, liability or expense;



     (d) the Trustee does not comply with the request within 60 days after receipt of the request
and the offer of indemnity; and



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



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



     Section 8.07. 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 amount of, and interest (including Additional Interest, if any) on any Security, on or
after the respective due dates expressed in the Security and this Indenture, to convert such
Security in accordance with Article 5 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 8.08. Collection Suit by Trustee. If an Event of Default in the payment of
principal or interest (including Additional Interest, if any) specified in clause (a) or (b) of
Section 8.01 occurs and is continuing, the Trustee may recover



58









 







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 owing with respect to the Securities and the amounts provided for in Section 9.06.



     Section 8.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (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, if 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 9.06, 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.



     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 9.06;




     Second, to Holders for amounts due and unpaid on the Securities for the
principal amount, accrued interest (including Additional Interest, if any), Redemption
Price or Repurchase Price, as the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the Securities; and




     Third, the balance, if any, to the Company.



     The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 8.10. At least 15 days before such record date, the Trustee shall mail to each Holder and
the Company a notice that states the record date, the payment date and the amount to be paid.



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     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 8.07, or a suit by Holders of more than 10% in aggregate principal amount of
the Securities then outstanding.



     Section 8.12. Notice of Defaults. The Company shall give written notice to the Trustee
promptly upon becoming aware of any Default under this Indenture. If an Event of Default occurs
and is continuing with respect to the Securities and if it is actually known to a Trust Officer of
the Trustee, the Trustee shall mail to each Holder of such Securities notice of the Event of
Default within 90 days after it occurs. The Trustee may withhold notice to the Holders of the
Securities of any Event of Default, except defaults in payment of principal amount or interest,
including Additional Interest, if any, on the Securities, if and so long as a committee of the
Trust Officers of the Trustee in good faith determines that the withholding of such notice is in
the interest of the Holders of the Securities.



ARTICLE 9

Trustee




     Section 9.01. Certain Duties and Responsibilities of Trustee. (a) Prior to the occurrence
of an Event of Default with respect to the Securities and after the curing or waiving of all such
Events of Default that may have occurred:




     (i) the duties and obligations of the Trustee shall with respect to the Securities be
determined solely by the express provisions of this Indenture, and the Trustee shall not
be liable with respect to the Securities except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and




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



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     (b) In case an Event of Default with respect to the Securities has occurred (that has not been
cured or waived), the Trustee shall exercise with respect to Securities such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct of his or her own
affairs.



     (c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, bad faith or its own willful
misconduct, except that:




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




     (ii) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of not less
than a majority in principal amount of the Securities at the time outstanding (determined
as provided in Section 2.10) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Securities;




     (iii) none of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it; and




     (iv) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section 9.01.



     (d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.



     Section 9.02. Certain Rights of Trustee. Subject to the provisions of Section 9.01:



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



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     (b) Any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company, by
one or more Officers thereof (unless other evidence in respect thereof is specifically prescribed
herein);



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



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



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



     (f) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, bond, security, or other papers or documents, unless requested in writing
so to do by the Holders of not less than a majority in principal amount of the outstanding
Securities affected thereby (determined as provided in Section 2.10) and such Holders have offered
to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities that may be incurred therein or thereby;



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



     (h) The Trustee shall 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 any Default or Event of Default occurring pursuant to
Section 8.01(a) or 8.01(b) or any Default of Event of Default of which a Trust Officer of the
Trustee shall have received written notification or obtained actual knowledge. Delivery of
reports, information and documents to the Trustee under Sections 6.02 and 6.03 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 their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officer’s Certificates);



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



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



     (k) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.



     Section 9.03. Trustee Not Responsible for Recitals or Issuance or Securities.



     (a) The recitals contained herein and in the Securities shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same.



     (b) The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Securities.



     (c) The Trustee shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds of such Securities, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this Indenture or for the use or
application of any moneys received by any paying agent other than the Trustee.



     Section 9.04. May Hold Securities.



     The Trustee or any Agent, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not Trustee or Agent.



     Section 9.05. Moneys Held in Trust.



     All moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with the Company to pay thereon.



     Section 9.06. Compensation and Reimbursement.



     (a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such compensation (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as



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the Company, and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents, counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may arise from its
negligence, willful misconduct or bad faith. The Company
also covenants to indemnify the Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, damage, claim, liability or expense (including
taxes) incurred without negligence, willful misconduct or bad faith on the part of the Trustee and
arising out of or in connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim (including any claim asserted
by the Company) of liability. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity; provided that the failure of the Trustee to so
notify the Company shall not relieve the Company of its indemnifications obligations hereunder.
The Company need not pay for any settlement without its written consent, which shall not be
unreasonably withheld.



     (b) The obligations of the Company under this Section 9.06 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture and the resignation or removal of the Trustee. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities.



     Section 9.07. Reliance on Officer’s Certificate. Whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence, willful misconduct or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence, willful misconduct or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken
by it under the provisions of this Indenture upon the faith thereof.



     Section 9.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire
any “conflicting interest” within the meaning of Section 310(b) of the TIA, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of the TIA.



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     Section 9.09. Corporate Trustee Required; Eligibility. There shall at all times be a
Trustee with respect to the Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the SEC, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus, or being a member of a bank holding company with a combined capital
and surplus, of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 9.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as Trustee. In case at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section
9.09, the Trustee shall resign immediately in the manner and with the effect specified in Section
9.10.



     Section 9.10. Resignation and Removal; Appointment of Successor.



     (a) The Trustee or any successor hereafter appointed may at any time resign with respect to
the Securities by giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Holders, as their names and addresses
appear upon the Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities by or pursuant to a resolution of its Board
of Directors. If no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee with respect to
Securities, or any Holder who has been a bona fide Holder of a Security or Securities for at least
six months may on behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.



     (b) In case at any time any one of the following shall occur:




     (i) the Trustee shall fail to comply with the provisions of Section 9.08 after
written request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security or Securities for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 9.09 and shall fail to resign after written request therefor by the Company or by
any such Holder; or



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     (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, the Company may
remove the Trustee with respect to the Securities and appoint a successor trustee by or
pursuant to a Board Resolution, or, unless the Trustee’s duty to resign is stayed as
provided herein, any
Holder who has been a bona fide Holder of a Security or Securities for at least six
months may, on behalf of that Holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.



     (c) The Holders of a majority in aggregate principal amount of the Securities at the time
outstanding may at any time remove the Trustee by so notifying the Trustee and the Company and may
appoint a successor Trustee with the written consent of the Company.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee with
respect to the Securities pursuant to any of the provisions of this Section 9.10 shall become
effective upon acceptance of appointment by the successor trustee as provided in Section 9.11.



     (e) At any time there shall be only one Trustee with respect to the Securities.



     Section 9.11. Acceptance of Appointment by Successor.



     (a) In case of the appointment hereunder of a successor trustee with respect to the
Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges (including, but not limited to,
attorneys’ fees and expenses), execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such retiring Trustee
hereunder.



     (b) Upon request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) of this Section 9.11.



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     (c) No successor trustee shall accept its appointment unless at the time of such acceptance
such successor trustee shall be qualified and eligible under this Article 9.



     (d) Upon acceptance of appointment by a successor trustee as provided in this Section 9.11,
the Company shall transmit notice of the succession of such trustee hereunder by mail, first class
postage prepaid, to the Holders, as their names and addresses appear upon the Register. If the
Company fails to transmit
such notice within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense of the Company.



     Section 9.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the corporate trust business of
the Trustee (including the administration of the trust created by this Indenture), shall be the
successor of the Trustee hereunder, provided that such corporation shall be qualified under the
provisions of Section 9.08 and eligible under the provisions of Section 9.09, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities.



     Section 9.13. Preferential Collection of Claims against the Company. The Trustee shall
comply with Section 311(a) of the TIA, excluding any creditor relationship described in Section
311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a)
of the TIA to the extent included therein.



     Section 9.14. Reports By Trustee To Holders. Within 60 days after each May 15, beginning with
May 15, 2011, the Trustee will mail to each Holder, as provided in TIA Section 313(c), a brief
report dated as of such May 15, if required by TIA Section 313(a), and file such reports with each
stock exchange, if any, upon which the Securities are listed and with the SEC as required by TIA
Section 313(d).



ARTICLE 10

Amendments, Supplements and Waivers




     Section 10.01. 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 Holder to:



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     (a) provide for conversion rights of Holders of the Securities and the Company’s repurchase
obligations in connection with a Fundamental Change, in the event of any reclassification of the
Common Stock, merger or consolidation, or sale, conveyance, transfer or lease of the Company’s
properties and assets substantially as an entirety;



     (b) secure the Securities;



     (c) provide for the assumption of the Company’s obligations to Holders of Securities in the
event of a merger or consolidation or sale, conveyance, transfer or lease of all or substantially
all of the Company’s properties and assets;



     (d) surrender any right or power conferred upon the Company;



     (e) add to the Company’s covenants for the benefit of the Holders of the Securities;



     (f) cure any ambiguity or correct or supplement any inconsistent or otherwise defective
provision contained in this Indenture, so long as such modification or amendment does not adversely
affect the interests of the Holders of the Securities in any material respect as evidenced by an
Officer’s Certificate; provided that any such modification or amendment made solely to conform the
provisions of this Indenture to the section of the Final Offering Circular captioned “Description
of the Notes” shall be deemed not to adversely affect the interests of the Holders;



     (g) make any provision with respect to matters or questions arising under this Indenture that
the Company may deem necessary or desirable and that shall not be inconsistent with provisions of
this Indenture; provided that such change or modification does not adversely affect the interests
of the Holders of the Securities in any material respect as evidenced by an Officer’s Certificate;
provided, further, that any amendment made solely to conform the provisions of this Indenture to
the section of the Final Offering Circular captioned “Description of the Notes” shall be deemed not
to adversely affect the interests of the Holders;



     (h) increase the Conversion Rate;



     (i) comply with the requirements of the SEC in order to effect or maintain the qualifications
of the Indenture under the TIA;



     (j) comply with the rules of any applicable securities depositary, including the Depositary;



     (k) add guarantees of obligations under the Securities; and



     (l) provide for a successor Trustee in accordance with the terms of this Indenture or to
otherwise comply with any requirement of this Indenture.



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     Section 10.02. With Consent of Holders. The Company and the Trustee may amend or supplement
the Securities or this Indenture with the 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 any
instance by the Company with any provision of the Securities or this Indenture without notice to
any Holder. However, notwithstanding the foregoing but subject to Section 10.03,
without the consent of the Holders of each Security then outstanding, an amendment, supplement
or waiver may not:



     (a) change the Maturity Date of the principal of the Securities;



     (b) reduce the rate or extend the time for payment of interest, including any Additional
Interest, if any, on any Securities;



     (c) reduce the principal amount of any Securities;



     (d) reduce any amount payable upon redemption or repurchase of any Securities;



     (e) impair the right of a Holder to institute suit for payment of any Securities;



     (f) change the currency in which the principal, Redemption Price, Repurchase Price or rate of
interest, including Additional Interest, if any, with respect to the Securities is payable;



     (g) change the Company’s obligation to repurchase any Securities at the option of the Holder
after the occurrence of a Fundamental Change or upon a Designated Repurchase Date in a manner
adverse to the Holders;



     (h) subject to the provisions set forth in Section 5.12, affect the right of a Holder to
convert any Securities into shares of Common Stock or reduce the number of shares of Common Stock
receivable upon conversion pursuant to the terms of this Indenture; or



     (i) modify any of the provisions of the first three paragraphs of Section 8.02, Section 8.04
or this Section 10.02, or reduce the percentage of the Securities required for consent to any
modification of this Indenture that does not require the consent of each affected Holder.



     It shall not be necessary for the consent of the Holders under this Section 10.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.



     After an amendment, supplement or waiver under Section 10.01 or this Section 10.02 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,



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however, in any way impair or affect the validity of any such amendment,
supplement or waiver.



     Section 10.03. 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 applicable
Holder.



     Section 10.04. 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 such
Security 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.



     Section 10.05. Trustee to Sign Amendments, Etc. The Trustee shall sign any amendment or
supplemental indenture authorized pursuant to this Article 10 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 9.01, shall be fully protected in relying upon, an Officer’s Certificate and an
Opinion of Counsel stating that such amendment or supplemental indenture is authorized or permitted
by this Indenture.



     Section 10.06. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article 10, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



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ARTICLE 11

[Reserved]




ARTICLE 12

Satisfaction and Discharge



     Section 12.01. Satisfaction and Discharge of the Indenture. This Indenture shall cease to
be of further effect (except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when



     (a) either




     (i) all Securities theretofore authenticated and delivered (other than Securities
that have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.09) have been delivered to the Trustee for cancellation; or




     (ii) all such Securities not theretofore delivered to the Trustee for cancellation
have become due and payable or shall become due and payable within one year, in each case
whether at the Maturity Date or with respect to any Redemption Date or Repurchase Date or
by delivery of a Conversion Notice or otherwise, and the Company deposits with the Paying
Agent or Conversion Agent, as the case may be, cash or a combination of cash and Common
Stock, as applicable, sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.09);



     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and



     (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for 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 as to conversion of the Securities under Article 5 of this Indenture and to the Trustee
under Section 9.06 and, if money shall have been deposited with the Trustee pursuant to Section
12.01(a)(ii), the obligations of the Trustee under Section 12.02 shall survive.



     Section 12.02. Repayment to the Company. The Trustee and the Paying Agent shall return to
the Company upon written request any cash or securities held by them for the payment of any amount
with respect to the Securities that



71









 







remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to the cash or securities
must look to the Company for payment as general creditors unless an applicable abandoned property
law designates another Person and the Trustee and the Paying Agent shall have no further liability
to the Holders with respect to such cash or securities for that period commencing after the return
thereof.



ARTICLE 13

Miscellaneous




     Section 13.01. Indenture Controls. If any provision of this Indenture limits, qualifies or
conflicts with the duties of the TIA specifically incorporated into this Indenture, the Indenture
shall control.



     Section 13.02. Notices. Any demand, authorization notice, request, consent or communication
to the Company or the Trustee, as the case may be, 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:


RightNow Technologies, Inc.

136 Enterprise Blvd.

Bozeman, Montana 59718




			
	     Attention:	 	Jeffrey C. Davison, Chief Financial Officer and

Alan A. Rassaby, Senior Vice President, General Counsel and Secretary




Facsimile No.: (406)522-4227


if to the Trustee, to:


The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, 5th Floor

Los Angeles, California 90017

Attention: Corporate Trust Unit

Facsimile No.: (213) 630-6298



     All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five calendar days after being
deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged,
if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier



72









 







guaranteeing next day delivery; provided that any notice or communication delivered to the
Trustee shall be deemed effective upon actual receipt thereof.



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



     The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail or other similar unsecured electronic methods, provided,
however, that the Trustee shall have received an incumbency certificate listing persons designated
to give such instructions or directions and containing specimen signatures of such designated
persons, which such incumbency certificate shall be amended and replaced whenever a person is to be
added or deleted from the listing. If the Company elects to give the Trustee e-mail (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon
such instructions, the Trustee’s reasonable understanding of such instructions shall be deemed
controlling. The Trustee shall
not be liable, in the absence of willful misconduct, bad faith or gross negligence, for any
losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and
compliance with such instructions to the extent that such instructions are not inconsistent with
this Indenture. The Company agrees to assume all risks arising out of the use of such electronic
methods to submit instructions and directions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by
third parties.



     Any notice or communication to be given hereunder to a Holder shall be mailed by first-class
mail, postage prepaid, or delivered by an overnight delivery service to it at its address shown on
the Register.



     Failure to give a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication to a Holder is mailed or
delivered in the manner provided above, it is duly given, whether or not the addressee receives it.



     Section 13.03. Communications by Holders with Other Holders. Holders may communicate
pursuant to TIA Section 312(b) with other Holders 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 13.04. 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 Officer’s Certificate stating that, in the opinion of the signers, all
conditions precedent (including any covenants, compliance



73









 







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.



     (b) Each Officer’s 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 that with respect to matters of fact an Opinion of Counsel may rely on an Officer’s
Certificate or certificates of public officials.




     Section 13.05. Record Date for Vote or Consent of Holders. The Company 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 30 days prior to the date of the commencement of solicitation of such action.
Notwithstanding the provisions of Section 10.03, 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 13.06. 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 13.07. 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



74









 







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 (including Additional Interest, if any) shall accrue for the intervening period.



     Section 13.08. Governing Law. This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.



     Section 13.09. No Adverse Interpretation of Other Agreements. This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the
Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.



     Section 13.10. No Recourse Against Others All liability described in paragraph 14 of the
Securities of any incorporator or past, present or future
director, officer, employee or stockholder, as such, of the Company and any successor is
waived and released.



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



     Section 13.12. Multiple Counterparts. The parties may sign multiple counterparts of this
Indenture. Each signed counterpart shall be deemed an original, but all of them together represent
the same agreement.



     Section 13.13. 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 13.14. Calculations in Respect of the Securities. The Company or its agents shall make
all calculations under this Indenture and the Securities in good faith. In the absence of manifest
error, such calculations shall be final and binding on all Holders. The Company or its agents
shall provide a copy of such calculations to the Trustee as required hereunder, and the Trustee
shall be entitled to conclusively rely on the accuracy of any such calculation without independent
verification.



     Section 13.15. Table of Contents, Headings, Etc. The table of contents 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 13.16. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or



75









 







acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



     Section 13.17. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.



[Signature Page Follows]




76









 





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



	 	 	 	 	 
	 	RIGHTNOW TECHNOLOGIES, INC.

 	 
	 	By:  	/s/
Jeffrey C. Davidson	 
	 	 	Name:  	Jeffrey C. Davidson	 
	 	 	Title:  	Chief Financial Officer, Senior Vice President
and Treasurer	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON 
TRUST COMPANY, N.A.,
as Trustee

 
	 
	 	By:  	/s/
Raymond Torres	 
	 	 	Name:  	Raymond Torres	 
	 	 	Title:  	Senior Associate	 
	 





 









 








SCHEDULE A





     The following table sets forth an indicative number of additional shares to be received per
$1,000 principal amount of notes:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Make-Whole	 	Stock Price
	Effective Date	 	$24.53	 	$27.00	 	$30.00	 	$31.89	 	$35.00	 	$40.00	 	$45.00	 	$50.00	 	$55.00	 	$60.00	 	$65.00	 	$70.00
	November 22, 2010
	 	 	9.4076	 	 	 	7.6986	 	 	 	6.1384	 	 	 	5.3717	 	 	 	4.3731	 	 	 	3.2420	 	 	 	2.4824	 	 	 	1.9512	 	 	 	1.5666	 	 	 	1.2796	 	 	 	1.0596	 	 	 	0.8869	 
	November 15, 2011
	 	 	9.4076	 	 	 	7.7340	 	 	 	6.0494	 	 	 	5.2311	 	 	 	4.1789	 	 	 	3.0132	 	 	 	2.2533	 	 	 	1.7373	 	 	 	1.3738	 	 	 	1.1094	 	 	 	0.9107	 	 	 	0.7577	 
	November 15, 2012
	 	 	9.4076	 	 	 	7.6239	 	 	 	5.7960	 	 	 	4.9222	 	 	 	3.8184	 	 	 	2.6354	 	 	 	1.8979	 	 	 	1.4198	 	 	 	1.0977	 	 	 	0.8719	 	 	 	0.7082	 	 	 	0.5852	 
	November 15, 2013
	 	 	9.4076	 	 	 	7.2928	 	 	 	5.2966	 	 	 	4.3647	 	 	 	3.2211	 	 	 	2.0600	 	 	 	1.3910	 	 	 	0.9913	 	 	 	0.7421	 	 	 	0.5793	 	 	 	0.4669	 	 	 	0.3859	 
	November 15, 2014
	 	 	9.4076	 	 	 	6.5641	 	 	 	4.3339	 	 	 	3.3403	 	 	 	2.1951	 	 	 	1.1715	 	 	 	0.6865	 	 	 	0.4511	 	 	 	0.3297	 	 	 	0.2603	 	 	 	0.2158	 	 	 	0.1838	 
	November 15, 2015
	 	 	9.4076	 	 	 	5.6712	 	 	 	2.2681	 	 	 	0.9960	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






 









 





EXHIBIT A




[FORM OF FACE OF SECURITY]




     [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO RIGHTNOW TECHNOLOGIES, INC. (THE “COMPANY”) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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, AS AMENDED (THE “SECURITIES ACT”), AND
THIS SECURITY AND ANY 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





 




			
	1	 	This legend is to be included only if the
Security is a Global Security.





A-1









 





FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




     THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE
COMMON STOCK ISSUABLE UPON CONVERSION HEREOF 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 TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT (INCLUDING RULE 144 THEREUNDER (IF AVAILABLE)) OR (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) 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 OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN
ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS
WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.]2 






 




			
	2	 	This legend is to be included only if the
Security is a Restricted Security.




A-2









 










RightNow Technologies, Inc.




2.50% Convertible Senior Notes due November 15, 2030



			
	 	 	 
	No. [                    ]
	 	U.S. $[  ]






CUSIP: [                    ]

ISIN: [______]




     RightNow Technologies, Inc., a Delaware corporation (the “Company”, which term shall include
any successor Person under the Indenture referred to on the reverse hereof), for value received,
promises to pay to Cede & Co., or registered assigns, the principal amount of _____ Dollars ($            ), or such greater or lesser amount as is indicated on the Schedule of Exchanges of Securities
on the reverse side of this Security on November 15, 2030 unless earlier converted, redeemed or
repurchased, and to pay interest thereon as set forth in the manner, at the rates and to the
Persons set forth in the Indenture and the reverse hereof. Payment of the principal of this
Security shall be made in the form and manner set forth in the Indenture and the reverse hereof.



     Reference is hereby made to the further provisions of this Security set forth on the reverse
side of this Security, including, without limitation, provisions giving the Holder the right to
convert this Security into shares of Common Stock of the Company and to require the Company to
repurchase this Security upon certain events, in each case, on the terms and subject to the
limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such
further provisions shall for all purposes have the same effect as though fully set forth at this
place. Capitalized terms used but not defined herein shall have such meanings as are ascribed to
such terms in the Indenture.



     This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with and governed by the laws of said State.



     This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.



[Signature page follows]




A-3









 








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




	 	 	 	 	 
	 	RIGHTNOW TECHNOLOGIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	Date: 	 	 
	 



TRUSTEE’S CERTIFICATION OF

AUTHENTICATION




THE BANK OF NEW YORK MELLON 

TRUST
COMPANY, N.A.,

as Trustee, certifies that this is
one of the 

Securities described in
the within-mentioned 

Indenture.




	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Authorized Signatory

	 
	

Date: 	 	 
	 





A-4









 








[FORM OF REVERSE SIDE OF SECURITY]




RightNow Technologies, Inc.



2.50% Convertible Senior Notes due November 15, 2030




     This Security is one of a duly authorized issue of 2.50% Convertible Senior Notes due November
15, 2030 (the “Securities”) of the Company issued under an Indenture, dated as of November 22, 2010
(the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “Trustee”). The terms of the Security include those stated in the Indenture, those
specifically made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(the “TIA”), and those set forth in this Security. This Security is subject to all such terms, and
Holders are referred to, the Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, if any provision of this Security conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture
unless otherwise indicated.




	 	1.	 	Interest.





     Subject to adjustment under Section 6.02 and Section 8.02 of the Indenture, this Security
shall bear interest at a rate of 2.50% per annum on the principal amount. Interest on this
Security shall accrue from the most recent date to which interest has been paid or, if no interest
has been paid, from November 22, 2010. Interest will be payable semi-annually, in arrears, on each
May 15 and November 15, beginning on May 15, 2011, to holders of record at the Close of Business on
the immediately preceding May 1 and November 1, respectively; provided that on the Maturity Date,
interest will be paid to the holder to whom the principal amount, regardless of whether such person
is the holder of record. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. If a payment date is not a Business Day, payment will be made on the next
succeeding Business Day, and no interest (including Additional Interest, if any) will accrue for
the intervening period.



     Interest (including Additional Interest, if any) will cease to accrue on the Securities upon
the Maturity Date, their redemption by the Company or their conversion or repurchase by the Company
at the option of the Holder.




	 	2.	 	Method of Payment.





     Payment of the principal of the Securities shall be made at the Corporate Trust Office of the
Trustee in cash. The Holder must surrender this Security to the Paying Agent to collect payment of
principal. Payment of interest, including Additional Interest, if any, on Certificated Securities
shall be made by check



A-5









 





mailed to the address of the Holder entitled thereto as such address appears in the Register;
provided, however, that Holders with Securities in an aggregate principal amount in excess of $2.0
million shall be paid, at their written election, by wire transfer of immediately available funds.
Notwithstanding the foregoing, so long as the Securities are registered in the name of a Depositary
or its nominee, all payments with respect to the Securities shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.





	 	3.	 	Paying Agent, Registrar and Conversion Agent.





     Initially, the Trustee will act as Paying Agent, Registrar and Conversion Agent. The Company
or any Affiliate of the Company may act as Paying Agent, Registrar or Conversion Agent.




	 	4.	 	Indenture.





     The Securities are general unsecured senior obligations of the Company. The Indenture does
not limit the ability of the Company to incur other debt, secured or unsecured.




	 	5.	 	Redemption at the Option of the Company.





     The Securities are redeemable in whole, or from time to time in part, at any time on or after
November 20, 2015, at the option of the Company. The redemption price at which the Securities are
redeemable (the “Redemption Price”) shall be payable in cash and shall be equal to 100% of the
principal amount of Securities being redeemed, together with accrued and unpaid interest, including
Additional Interest, if any, to, but excluding, the Redemption Date. No sinking fund is provided
for the Securities.




	 	6.	 	Repurchase by the Company at the Option of the Holder upon a Fundamental
Change and upon Certain Dates.





     Subject to the terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of any Holder, all or any portion of the Securities held by such Holder
upon a Fundamental Change in principal amounts of $1,000 or multiples of $1,000 at the Fundamental
Change Repurchase Price. To exercise such right, a Holder shall deliver to the Paying Agent, and
the Paying Agent must receive, a Repurchase Notice containing the information set forth in the
Indenture, at any time prior to the Close of Business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, and shall deliver the Securities to the Paying Agent as set
forth in the Indenture.



     Subject to the terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of any Holder, all or any portion of the Securities held by such Holder
upon each Designated Repurchase Date in



A-6









 





principal amounts of $1,000 or multiples of $1,000 at the Designated Repurchase Price. To
exercise such right, a Holder shall deliver to the Paying Agent, and the Paying Agent must receive,
a Repurchase Notice containing the information set forth in the Indenture, during the period from
the Opening of Business on the date that is 20 Business Days prior to the Designated Repurchase
Date until the Close of Business on the second Business Day prior to the Designated Repurchase
Date, and shall deliver the Securities to the Paying Agent as set forth in the Indenture.




     Holders have the right to withdraw (in whole or in part) any 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 of all Securities or portions thereof to be
repurchased with respect to a Repurchase Date is deposited with the Paying Agent by 10:00 a.m., New
York City time, on the Repurchase Date, then, immediately after such Repurchase Date, such
Securities shall cease to be outstanding and interest (including Additional Interest, if any) on
such Securities shall cease to accrue, whether or not such Securities are delivered by the Holders
to the Paying Agent, and the Holders thereof shall have no other rights as such (other than the
right to receive the Repurchase Price upon delivery of such Securities by the Holders to the Paying
Agent).




	 	7.	 	Conversion.





     Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, to
convert the principal amount hereof or any portion of such principal which is $1,000 or a multiple
thereof, into shares of Common Stock at an initial Conversion Rate of 31.3588 shares of Common
Stock per $1,000 principal amount of Securities (equivalent to a Conversion Price of approximately
$31.89 per share of Common Stock), subject to adjustment in certain events described in the
Indenture.



     No fractional shares will be issued upon any conversion, but payment in cash will be made, as
provided in the Indenture, in respect of any fraction of a share which would otherwise be issuable
upon the surrender of any Securities for conversion. Securities in respect of which a Holder is
exercising its right to require repurchase on a Repurchase Date may be converted only if such
Holder withdraws its election to exercise such right in accordance with the terms of the Indenture.




	 	8.	 	Denominations; Transfer; Exchange.





     The Securities are in registered form, without coupons, in denominations of $1,000 and
multiples of $1,000. A Holder may register the transfer of or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer



A-7









 





documents and to pay any taxes, assessments or other governmental charges that may be imposed
in relation thereto by law or permitted by the Indenture.





	 	9.	 	Persons Deemed Owners.





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




	 	10.	 	Unclaimed Money or Securities.





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




	 	11.	 	Amendment, Supplement and Waiver.





     Subject to certain exceptions, the Securities or the Indenture may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default with respect to the
Securities and its consequence or compliance with any provision of the Securities or the Indenture
may be waived in any instance with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding. Without the consent of or notice to any
Holder, the Company and the Trustee may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect, omission, mistake or inconsistency or make any
change that does not adversely affect in any material respect the legal rights under the Indenture
of any Holder.




	 	12.	 	Additional Securities.





     Subject to the terms of the Indenture, Additional Securities may be issued by the Company,
without the consent of the Holders, with the same terms and with the same CUSIP number as the
Securities in an unlimited aggregate principal amount; provided, however, that no such Additional
Securities may be issued unless fungible with this Security for United States Federal income tax
purposes (as determined by the Company); provided, further, that the Additional Securities have the same CUSIP number as the
Securities.




	 	13.	 	Defaults and Remedies.





     If any Event of Default other than as a result of certain events of bankruptcy, insolvency or
reorganization of the Company occurs and is continuing, the principal of all the Securities then
outstanding plus accrued and



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unpaid interest (including Additional Interest, if any), may be declared due and payable in
the manner and with the effect provided in the Indenture. If an Event of Default occurs as a
result of certain events of bankruptcy, insolvency or reorganization of the Company, the principal
amount of the Securities plus accrued and unpaid interest (including Additional Interest, if any)
shall become due and payable immediately without any declaration or other act on the part of the
Trustee or any Holder, all to the extent provided in the Indenture.




     Notwithstanding the foregoing, at the election of the Company, the sole remedy for an Event of
Default relating to the Company’s Filing Obligations shall consist of the right to receive
Additional Interest on the Securities as set forth in the Indenture.




	 	14.	 	No Recourse Against Others.





     No recourse under or upon any obligation, covenant or agreement contained in the Indenture, or
in this Security, or because of any indebtedness evidenced thereby or hereby, shall be had against
any incorporator, as such, or against any past, present or future employee, 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 issuance of the Securities.




	 	15.	 	Trustee Dealings with the Company.





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




	 	16.	 	Authentication.





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




	 	17.	 	Abbreviations.





     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).



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	 	18.	 	Indenture to Control; Governing Law.





     To the extent permitted by applicable law, if any provision of this Security conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. This Security shall be governed by, and construed in accordance with, the laws of the
State of New York.




	 	19.	 	Copies of Indenture.





     The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: RightNow Technologies, Inc., 136 Enterprise Blvd., Bozeman,
Montana 59718, Facsimile No.: (406) 522-4227, Attention: Jeffrey C. Davison, Chief Financial
Officer and Alan A. Rassaby, Senior Vice President, General Counsel and Secretary.





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SCHEDULE OF EXCHANGES OF SECURITIES3




     The following exchanges, purchases or conversions of a part of this Global Security have been
made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Principal
	 	 	 	 	 	 	 	 	Amount of this
	 	 	Authorized	 	Decrease in	 	Increase in	 	Global Security
	Date of	 	Signatory of	 	Principal	 	Principal	 	Following Such
	Decrease or	 	Securities	 	Amount of this	 	Amount of this	 	Decrease or
	Increase	 	Custodian	 	Global Security	 	Global Security	 	Increase
	 	 	 	 	 	 	 	 	 







 




			
	3	 	This schedule is to be included only if the
Security is a Global Security.




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ASSIGNMENT FORM




     To assign this Security, fill in the form below:



     I or we assign and transfer this Security to



 

(Insert assignee’s soc. sec. or tax ID no.)




 

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



and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.




	 	 	 	 	 

	 

	 	 	 	Your Signature
	 
	Date: 

	 	 	 	 
	 

	 	 	 	 
	 

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






Signature Guaranteed




	 	 	 	 	 

	 
	Participant in a Recognized Signature 

Guarantee Medallion Program	 	 
	 
	 	 	 	 
	By

	 	  

Authorized
Signatory
	 	 








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FORM OF CONVERSION NOTICE




     To convert this Security, check the box o



     To convert only part of this Security, state the principal amount to be converted (which must
be $1,000 or a multiple of $1,000):



     If you want the stock certificate, if any, made out in another Person’s name fill in the form
below:



 

(Insert assignee’s soc. sec. or tax ID no.)




 

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



Dated                                         




	 	 	 

	Your Signature:

	 	 
	 

	 	 
	 

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






Signature Guaranteed




	 	 	 	 	 

	 
	Participant in a Recognized Signature 

Guarantee Medallion Program	 	 
	 
	 	 	 	 
	By

	 	  

Authorized
Signatory
	 	 








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FORM OF REPURCHASE NOTICE




The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, 5th Floor

Los Angeles, California 90017

Attention: Corporate Trust Unit





			
	      Re:	 	RightNow Technologies, Inc. (the “Company”)

2.50% Convertible Senior Notes due November 15, 2030





     This is a Repurchase Notice as defined in Section 4.01(c) of the Indenture, dated as of
November 22, 2010 (the “Indenture”), between the Company and The Bank of New York Mellon Trust
Company, N.A., as Trustee. Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.



Certificate No(s). of Securities: ________________________




     I intend to deliver the following aggregate principal amount of Securities for repurchase by
the Company pursuant to Section 4.01 of the Indenture (in multiples of $1,000):



$                     




     I hereby agree that the Securities will be repurchased on the Repurchase Date pursuant to the
terms and conditions specified in the Securities and in the Indenture.



Signed:                                                             




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EXHIBIT B




Form of Restricted Stock Legend




     THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM.



     THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF RIGHTNOW TECHNOLOGIES, INC. THAT (A) THIS
SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (INCLUDING RULE 144 THEREUNDER (IF AVAILABLE))
OR (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) AND (II) 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 OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY EXCEPT
AS PERMITTED UNDER THE SECURITIES ACT.




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EXHIBIT C




Form of Transfer Certificate




2.50% Convertible Senior Notes due November 15, 2030



Transfer Certificate



     In connection with any transfer of any of the Securities prior to the Free Trade Date, the
undersigned registered owner of this Security hereby certifies with respect to
$           principal amount of the above-captioned Securities presented or
surrendered on the date hereof (the “Surrendered Securities”) for registration of transfer, or for
exchange or conversion where the securities issuable upon such exchange or conversion are to be
registered in a name other than that of the undersigned registered owner (each such transaction
being a “transfer”), that such transfer complies with the restrictive legend set forth on the face
of the Surrendered Securities for the reason checked below:



     o The transfer of the Surrendered Securities is to the Company; or



     o The transfer of the Surrendered Securities complies with Rule 144A under the
Securities Act; or



     o The transfer of the Surrendered Securities complies with Rule 144 under the Securities
Act; or



     o The transfer of the Surrendered Securities is pursuant to another available exemption
from the registration requirement of the Securities Act; or



     o The transfer of the Surrendered Securities is pursuant to an effective registration
statement under the Securities Act.



     Unless the applicable box below is checked, the undersigned confirms that (i) the undersigned
is not an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an
“Affiliate”) and has not been an Affiliate of the Company during the preceding three months and
(ii) to the undersigned’s knowledge, such Securities are not being transferred to an Affiliate of
the Company.



     o The undersigned is an Affiliate of the Company or was an Affiliate of the Company
during the preceding three months.



     o The transferee is an Affiliate of the Company.



Date:                                                             




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By:                                         




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



Signature Guaranteed




	 	 	 	 	 

	 
	Participant in a Recognized Signature	 	 
	 
	 	 	 	 
	Guarantee Medallion Program	 	 
	 
	 	 	 	 
	 
	By:

	 	  

Authorized
Signatory
	 	 







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