Exhibit 4.1





EXHIBIT 4.1





PETROLEUM DEVELOPMENT CORPORATION




as the Company




to




THE BANK OF NEW YORK MELLON




as Trustee






Indenture




Dated as of November 23, 2010






$115,000,000




3.25% Convertible Senior Notes due 2016




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I

Definitions and Other Provisions of General Application

	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Compliance Certificates and Opinions
	 	 	13	 
	SECTION 1.03. Form of Documents Delivered to Trustee
	 	 	13	 
	SECTION 1.04. Acts of Holders; Record Dates
	 	 	14	 
	SECTION 1.05. Notices to Trustee or the Company
	 	 	16	 
	SECTION 1.06. Notice to Holders; Waiver
	 	 	17	 
	SECTION 1.07. Conflict with Trust Indenture Act
	 	 	17	 
	SECTION 1.08. Effect of Headings and Table of Contents
	 	 	17	 
	SECTION 1.09. Successors and Assigns
	 	 	17	 
	SECTION 1.10. Separability Clause
	 	 	17	 
	SECTION 1.11. Benefits of Indenture
	 	 	17	 
	SECTION 1.12. Governing Law
	 	 	17	 
	SECTION 1.13. Legal Holidays
	 	 	18	 
	SECTION 1.14. Waiver of Jury Trial
	 	 	18	 
	SECTION 1.15. Force Majeure
	 	 	18	 
	 
	 	 	 	 
	ARTICLE II

Security Forms

	 
	 	 	 	 
	SECTION 2.01. Form and Dating
	 	 	18	 
	 
	 	 	 	 
	ARTICLE III

The Securities

	 
	 	 	 	 
	SECTION 3.01. Title and Terms
	 	 	19	 
	SECTION 3.02. Denominations
	 	 	20	 
	SECTION 3.03. Execution and Authentication
	 	 	20	 
	SECTION 3.04. Temporary Securities
	 	 	20	 
	SECTION 3.05. Exchange and Registration of Transfer of Securities; Restrictions on Transfer; Depositary
	 	 	21	 
	SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	25	 
	SECTION 3.07. Payment of Interest; Rights Preserved
	 	 	26	 
	SECTION 3.08. Persons Deemed Owners
	 	 	27	 
	SECTION 3.09. Cancellation
	 	 	28	 
	SECTION 3.10. Computation of Interest
	 	 	28	 
	SECTION 3.11. CUSIP and ISIN Numbers
	 	 	28	 
	SECTION 3.12. Deposits of Monies
	 	 	28	 
	SECTION 3.13. Additional Securities; Repurchases
	 	 	29	 





 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE IV

Satisfaction and Discharge

	 
	 	 	 	 
	SECTION 4.01. Satisfaction and Discharge of Indenture
	 	 	30	 
	SECTION 4.02. Application of Trust Money
	 	 	30	 
	SECTION 4.03. Paying Agent to Repay Monies Held
	 	 	31	 
	SECTION 4.04. Reinstatement
	 	 	31	 
	 
	 	 	 	 
	ARTICLE V

Remedies

	 
	 	 	 	 
	SECTION 5.01. Events of Default
	 	 	31	 
	SECTION 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	33	 
	SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	34	 
	SECTION 5.04. Trustee May File Proofs of Claim
	 	 	35	 
	SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities
	 	 	35	 
	SECTION 5.06. Application of Money Collected
	 	 	35	 
	SECTION 5.07. Limitation on Suits
	 	 	36	 
	SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest and Amounts Due upon Conversion of the Securities
	 	 	36	 
	SECTION 5.09. Restoration of Rights and Remedies
	 	 	36	 
	SECTION 5.10. Rights and Remedies Cumulative
	 	 	37	 
	SECTION 5.11. Delay or Omission Not Waiver
	 	 	37	 
	SECTION 5.12. Control by Holders
	 	 	37	 
	SECTION 5.13. Waiver of Past Defaults
	 	 	37	 
	SECTION 5.14. Undertaking for Costs
	 	 	38	 
	SECTION 5.15. Waiver of Stay or Extension Laws
	 	 	38	 
	SECTION 5.16. Additional Interest
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VI

The Trustee

	 
	 	 	 	 
	SECTION 6.01. Certain Duties and Responsibilities
	 	 	39	 
	SECTION 6.02. Notice of Defaults
	 	 	40	 
	SECTION 6.03. Certain Rights of Trustee
	 	 	40	 
	SECTION 6.04. Not Responsible for Recitals or Issuance of Securities
	 	 	41	 
	SECTION 6.05. May Hold Securities
	 	 	41	 
	SECTION 6.06. Money Held in Trust
	 	 	42	 
	SECTION 6.07. Compensation and Reimbursement
	 	 	42	 
	SECTION 6.08. Conflicting Interests
	 	 	43	 






 





	 	 	 
	Note:	 	This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.




 


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	 	 	Page	 
	 
	 	 	 	 
	SECTION 6.09. Corporate Trustee Required; Eligibility
	 	 	43	 
	SECTION 6.10. Resignation and Removal; Appointment of Successor
	 	 	43	 
	SECTION 6.11. Acceptance of Appointment by Successor
	 	 	44	 
	SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	45	 
	SECTION 6.13. Preferential Collection of Claims Against the Company
	 	 	45	 
	SECTION 6.14. Appointment of Authenticating Agent
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VII

Holders’ Lists and Reports by Trustee and Company

	 
	 	 	 	 
	SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders
	 	 	46	 
	SECTION 7.02. Preservation of Information; Communications to Holders
	 	 	46	 
	SECTION 7.03. Reports by Trustee
	 	 	47	 
	SECTION 7.04. Reports by Company
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VIII

Consolidation, Merger, Conveyance, Transfer or Lease

	 
	 	 	 	 
	SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms
	 	 	48	 
	SECTION 8.02. Successor Substituted
	 	 	48	 
	 
	 	 	 	 
	ARTICLE IX

Amendments; Waivers; Supplemental Indentures

	 
	 	 	 	 
	SECTION 9.01. Amendments, Waivers and Supplemental Indentures Without Consent of Holders
	 	 	48	 
	SECTION 9.02. Modifications, Amendments and Supplemental Indentures with Consent of Holders
	 	 	49	 
	SECTION 9.03. Execution of Supplemental Indentures
	 	 	50	 
	SECTION 9.04. Effect of Supplemental Indentures
	 	 	50	 
	SECTION 9.05. Conformity with Trust Indenture Act
	 	 	50	 
	SECTION 9.06. Reference in Securities to Supplemental Indentures
	 	 	51	 
	SECTION 9.07. Waiver of Certain Covenants
	 	 	51	 
	SECTION 9.08. No Liability for Certain Persons
	 	 	51	 
	 
	 	 	 	 
	ARTICLE X

Covenants

	 
	 	 	 	 
	SECTION 10.01. Payment of Principal, Premium and Interest
	 	 	51	 
	SECTION 10.02. Maintenance of Office or Agency
	 	 	51	 
	SECTION 10.03. Money for Security Payments to be Held in Trust
	 	 	52	 
	SECTION 10.04. Existence; Activities
	 	 	53	 






 





	 	 	 
	Note:	 	This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.




 


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	 	 	Page	 
	 
	 	 	 	 
	SECTION 10.05. Statement by Officers as to Default; Compliance Certificates
	 	 	53	 
	SECTION 10.06. Provision of Financial Information
	 	 	54	 
	SECTION 10.07. Rule 144A Information Requirement and Annual Reports
	 	 	54	 
	SECTION 10.08. Subsidiary Guarantees
	 	 	55	 
	 
	 	 	 	 
	ARTICLE XI

Redemption of Securities; Fundamental Changes and Purchases Thereupon

	 
	 	 	 	 
	SECTION 11.01. No Right of Redemption
	 	 	55	 
	SECTION 11.02. Purchase at Option of Holders Upon a Fundamental Change
	 	 	56	 
	SECTION 11.03. Effect of Fundamental Change Purchase Notice
	 	 	58	 
	SECTION 11.04. Withdrawal of Fundamental Change Purchase Notice
	 	 	58	 
	SECTION 11.05. Deposit of Fundamental Change Purchase Price
	 	 	59	 
	SECTION 11.06. Securities Purchased in Whole or in Part
	 	 	59	 
	SECTION 11.07. Covenant to Comply With Applicable Laws Upon Purchase of Securities
	 	 	59	 
	SECTION 11.08. Repayment to the Company
	 	 	59	 
	 
	 	 	 	 
	ARTICLE XII

Conversion

	 
	 	 	 	 
	SECTION 12.01. Right to Convert
	 	 	60	 
	SECTION 12.02. Conversion Procedures; Settlement Upon Procedure
	 	 	62	 
	SECTION 12.03. Adjustment of Conversion Rate
	 	 	66	 
	SECTION 12.04. Certain Other Adjustments
	 	 	73	 
	SECTION 12.05. Adjustments Upon Certain Fundamental Changes
	 	 	73	 
	SECTION 12.06. Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale
	 	 	75	 
	SECTION 12.07. Shares to Be Fully Paid
	 	 	76	 
	SECTION 12.08. Taxes on Shares Issued
	 	 	77	 
	SECTION 12.09. Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock
	 	 	77	 
	SECTION 12.10. Responsibility of Trustee
	 	 	77	 
	SECTION 12.11. Notice to Holders Prior to Certain Actions
	 	 	78	 
	SECTION 12.12. Stockholder Rights Plan
	 	 	79	 
	 
	 	 	 	 
	ARTICLE XIII

Guarantee of Securities

	 
	 	 	 	 
	SECTION 13.01. Securities Guarantees
	 	 	79	 
	SECTION 13.02. Limitation on Guarantor Liability
	 	 	80	 
	SECTION 13.03. Execution and Delivery of Securities Guarantee Notation
	 	 	81	 






 





	 	 	 
	Note:	 	This table of contents shall
not, for any purpose, be deemed to be a part of the Indenture.



 


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	Schedule A
	 	 	 	 
	Appendix Provisions Relating to Securities
	 	 	 	 
	Exhibit A Form of Security
	 	 	 	 
	Exhibit B Form of Notice of Conversion
	 	 	 	 
	Exhibit C Form of Fundamental Changes Purchase Notice
	 	 	 	 
	Exhibit D Form of Supplemental Indenture to be Delivered by Subsequent Guarantors
	 	 	 	 






 





	 	 	 
	Note:	 	This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.





 


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INDENTURE, dated as of November 23, 2010, between PETROLEUM DEVELOPMENT CORPORATION, a
corporation duly organized and existing under the laws of the State of Nevada (herein called the
“Company”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (herein
called the “Trustee”).



RECITALS OF THE COMPANY




The Company has duly authorized the creation of an issue of 3.25% Convertible Senior Notes due
2016, initially in an aggregate principal amount not to exceed $115,000,000, and the Company has
duly authorized the execution and delivery of this Indenture.



All things necessary to make the Securities, when executed by the Company, authenticated and
delivered hereunder and duly issued by the Company, the valid and legally binding obligations of
the Company, and to make this Indenture a valid and legally binding agreement of the Company, in
accordance with 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 (as
defined herein) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities, as follows:



ARTICLE I




Definitions and Other Provisions of General Application




SECTION 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:



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



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



(c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP (whether or not such is indicated herein);



(d) 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;



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



(f) each reference herein to a rule or form of the Commission shall mean such rule or form
and any rule or form successor thereto, in each case as amended from time to time;


 


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(g) “or” is not exclusive;




(h) “including” means including without limitation;



(i) unsecured indebtedness shall not be deemed to be subordinate or junior to secured
indebtedness merely by virtue of its nature as unsecured indebtedness;



(j) the principal amount of any non-interest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP; and



(k) all references to the date the Securities were originally issued shall refer to the Issue
Date, except as otherwise specified.



Whenever this Indenture requires that a particular ratio or amount be calculated with respect
to a specified period after giving effect to certain transactions or events on a pro forma basis,
such calculation shall be made as if the transactions or events occurred on the first day of such
period, unless otherwise specified.



“2018 Senior Notes” means the 12% Senior Notes due 2018 issued by the Company under a base
indenture, dated as of February 8, 2008 between the Company as issuer and the Bank of New York
Mellon as trustee, and the first supplemental indenture thereto dated as of February 8, 2008.




“Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.



“Additional Interest” means the amounts, if any, payable pursuant to Section 5.16, Section
10.07(b) and Section 10.07(c), respectively. Whenever in this Indenture there is mentioned, in any
context, the payment of interest on, or in respect of, any Security, such mention shall be deemed
to include mention of the payment of Additional Interest to the extent that, in such context,
Additional Interest is, was or would be payable in respect thereof pursuant to the provisions of
this Indenture, and express mention of the payment of Additional Interest (if applicable) in any
provision shall not be construed as excluding Additional Interest in those provisions where such
express mention is not made.



“Additional Securities” means 3.25% Convertible Senior Notes due 2016 issued from time to time
after the Issue Date under the terms of this Indenture (other than pursuant to Section 3.04,
3.05(a), 3.06, 11.06 or 12.02(i).




“Additional Shares” has the meaning specified in Section 12.05(a).



“Affiliate” means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person.



“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate the Securities.


 


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“Bid Solicitation Agent” means the Company or such other Person (including the Trustee) as may
be appointed, from time to time, by the Company to solicit market bid quotations for the Securities
in accordance with Section 12.01(a)(ii). The Company shall initially act as the Bid Solicitation
Agent.



“Board of Directors” means the board of directors of a company or its equivalent, including
managers of a limited liability company, general partners of a partnership or trustees of a
business trust, or any duly authorized committee thereof.



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



“Capital Stock” means, with respect to any Person, any and all shares, interests,
participations, rights in or other equivalents (however designated) of such Person’s capital stock
or equity participations, and any rights (other than debt securities convertible into capital
stock), warrants or options exchangeable for or convertible into such capital stock and, including,
without limitation, with respect to partnerships, limited liability companies or business trusts,
ownership interests (whether general or limited) and 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, such partnerships, limited liability companies or business trusts.




“Cash Settlement” has the meaning specified in Section 12.02.




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




“Combination Settlement” has the meaning specified in Section 12.02.



“Commission” means the 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 such
commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



“Common Stock” means the shares of common stock, par value $0.01 per share, of the Company
authorized at the date of this Indenture as originally executed or as such stock may be constituted
from time to time. Subject to the provisions of Section 12.06, shares issuable on conversion of
Securities shall include only shares of Common Stock or shares of any class or classes of common
stock resulting from any reclassification or reclassifications thereof; provided, however, that if
at any time there shall be more than one such resulting class, the shares so issuable on conversion
of Securities shall include shares of all such classes, and 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.


 


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



“Company Order” or “Company Request” means a written order or request signed in the name of
the Company by its Chairman of the Board of Directors, its Chief Executive Officer, its Chief
Financial Officer, its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee or Paying Agent, as
applicable.



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



“Conversion Agent” means the Trustee or such other office or agency designated by the Company
where Securities may be presented for conversion. The Conversion Agent shall initially be the
Trustee.




“Conversion Date” has the meaning specified in Section 12.02(g).




“Conversion Notice” has the meaning specified in Section 12.02(g).



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



“Conversion Rate” means, initially, 23.5849 shares of Common Stock per $1,000 principal amount
of Securities, subject to adjustment as set forth herein.



“Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which address as of the date of this
Indenture is located at 101 Barclay Street, Floor 8 West, New York, New York 10286, Attention:
Corporate Trust Administration or such other address as the Trustee may designate from time to time
by notice to the Holders and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time to time by notice to
the Holders and the Company).



“corporation” means (except in the definition of “Subsidiary”) a corporation, association,
company, joint stock company or business trust.



“Daily Conversion Value” means, for each of the 40 consecutive Trading Days during the
Observation Period, one fortieth (1/40th) of the product of (1) the Conversion Rate on such Trading
Day and (2) the Daily VWAP on such Trading Day.




“Daily Measurement Value” means the Specified Dollar Amount (if any) divided by 40.


 


-4-









 





“Daily Settlement Amount,” means, for each of the 40 consecutive Trading Days during the
Observation Period:



(1) cash equal to the lesser of (i) the Daily Settlement Value and (ii) the Daily Conversion
Value; and



(2) if the Daily Conversion Value exceeds the Daily Measurement Value, a number of shares of
Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily
Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.



“Daily VWAP” means, for each of the 40 consecutive Trading Days during the applicable
Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “PETD.Q <equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from the scheduled open of trading until the
scheduled close of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one share of Common Stock on such
Trading Day determined, using a volume-weighted average method, by a nationally recognized
independent investment banking firm retained for such purpose by the Company). The “Daily VWAP”
will be determined without regard to after-hours trading or any other trading outside of the
regular trading session trading hours.



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




“Defaulted Interest” has the meaning specified in Section 3.07.




“Definitive Security” has the meaning specified in the Appendix.




“Depositary” means The Depository Trust Company, a New York corporation, or its successor.




“Effective Date” has the meaning specified in Section 12.05(c).




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




“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“Ex-Dividend Date” means, in respect of any dividend or distribution, the first date upon
which the shares of Common Stock trade on the applicable exchange or in the applicable market,
regular way, without the right to receive such dividend or distribution.




“FASB” means the Financial Accounting Standards Board.



“Federal Bankruptcy Code” means Title 11, U.S. Code.


 


-5-









 





A “Fundamental Change” will be deemed to have occurred at the time after the Issue Date if any
of the following occurs:




(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other
than the Company, its Subsidiaries and its and their employee benefit plans, has become the
direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the
Company’s common equity representing more than 50% of the voting power of the Company’s common
equity;




(2) consummation of any share exchange, consolidation or merger of the Company or any
other transaction or series of transactions pursuant to which the Common Stock will be
converted into cash, securities or other property or any sale, lease or other transfer in one
transaction or a series of transactions of all or substantially all of the consolidated assets
of the Company and its Subsidiaries, taken as a whole, to any Person other than one of its
Subsidiaries; provided, however, that a transaction where the holders of all classes of the
Company’s common equity immediately prior to such transaction that is a share exchange,
consolidation or merger own, directly or indirectly in substantially the same proportion as
such ownership immediately before such transaction, more than 50% of all classes of common
equity of the continuing or surviving corporation or transferee or the parent thereof
immediately after such event shall not be a Fundamental Change;




(3) during any consecutive two-year period, individuals who at the beginning of such
period constituted the Company’s Board of Directors (together with any new directors whose
election by the Company’s Board of Directors or whose nomination for election by its
stockholders was approved by a vote of the majority of the directors then still in office who
were either directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a majority of the
Company’s Board of Directors then in office;




(4) the Company’s stockholders approve any plan or proposal for the liquidation or
dissolution of the Company; or




(5) the Common Stock (or other common stock into which the Securities are then
convertible) ceases to be listed or quoted on a national securities exchange in the United
States.



A Fundamental Change as a result of clause (2) above will not be deemed to have occurred,
however, if 100% of the consideration received or to be received by the holders of the Common
Stock, excluding cash payments for fractional shares, in connection with the transaction or
transactions constituting the Fundamental Change consists of shares of common stock traded on the
New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of
their respective successors) or which will be so traded or quoted when issued or exchanged in
connection with a Fundamental Change (“publicly traded securities”) and as a result of such
transaction or transactions the Securities become convertible into such publicly traded securities,
excluding cash payments for fractional shares, subject to the provisions regarding payment upon
conversion set forth in Section 12.02(n) of this Indenture.



As used in clause (3) above the term “Board of Directors” does not include a duly authorized
committee of the Company’s board of directors.


 


-6-









 






“Fundamental Change Company Notice” has the meaning specified in Section 11.02(b).




“Fundamental Change Purchase Date” has the meaning specified in Section 11.02(a).




“Fundamental Change Purchase Notice” has the meaning specified in Section 11.02(a)(ii).




“Fundamental Change Purchase Price” has the meaning specified in Section 11.02(a).



“GAAP” means generally accepted accounting principles set forth in the FASB codification,
which represents the source of authoritative U.S. GAAP recognized by the FASB to be applied by
non-governmental entities. Rules and interpretive releases of the Commission under authority of
federal securities laws are also sources of authoritative GAAP for Commission registrants. The
codification supersedes all non-Commission accounting and reporting standards which existed prior
to the codification. All other nongrandfathered, non-Commission accounting literature not included
in the codification is non-authoritative. GAAP is determined as of the date of any calculation or
determination required hereunder; provided, however, that the Company, on any date, may
elect to establish that GAAP shall mean GAAP as in effect on such date; provided,
further, that any such election, once made, shall be irrevocable. The Company shall give
notice of any such election to the Trustee and the Holders of the Securities.




“Global Security” has the meaning specified in the Appendix.



“guarantee” means, as applied to any obligation, (i) a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of all or any part of such
obligation, including, without limiting the foregoing, the payment of amounts available to be drawn
down under letters of credit of another Person. The term “guarantee” used as a verb has a
corresponding meaning. The term “guarantor” shall mean any Person providing a guarantee of any
obligation.



“Guarantor” means each Person that becomes a guarantor of any Securities pursuant to the
applicable provisions of this Indenture (including any provisions that become a part of this
Indenture pursuant to any supplemental indenture).



“Holder” means a Person in whose name a Security is registered in the Security Register.



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


 


-7-









 





“Interest Payment Date” means the Stated Maturity of an installment of interest on the
Securities.




“Issue Date” means November 23, 2010.



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



“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change (determined after giving effect to any exceptions or exclusions to such definition, but
without regard to the proviso in clause (2) of the definition thereof).



“Market Disruption Event” means (i) a failure by the primary U.S. national securities or
regional securities exchange or market on which the Common Stock is listed or admitted for trading
to open for trading during its regular trading session or (ii) the occurrence or existence prior to
1:00 pm., New York City time, on any Scheduled Trading Day for the Common Stock for more than a one
half-hour period in the aggregate during regular trading hours of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the relevant
stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock.




“Measurement Period” has the meaning specified in Section 12.01(a)(ii).




“Merger Event” has the meaning specified in Section 12.06(a).




“Notice of Default” means a written notice of the kind specified in Section 5.02.



“Observation Period” with respect to any Security surrendered for conversion means (i) if the
relevant Conversion Date occurs prior to November 15, 2015, the 40 consecutive Trading Day period
beginning on and including the second Trading Day after such Conversion Date, and (ii) if the
relevant Conversion Date occurs on or after November 15, 2015, the 40
consecutive Trading Days beginning on and including the 42nd Scheduled Trading Day immediately
preceding May 15, 2016.


 


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“Offering Memorandum” means the final offering memorandum dated November 18, 2010, relating to
the offering and sale of the Securities.



“Officer’s Certificate” means a certificate signed by the Chairman of the Board of Directors,
the Chief Executive Officer, the President or a Vice President, the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officer’s Certificate given pursuant to
Section 10.05 shall be the principal executive, financial or accounting officer of the Company.




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



“Opinion of Counsel” means a written opinion of counsel reasonably acceptable to the Trustee,
who may be external or in-house counsel for the Company.



“Outstanding,” when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




(ii) Securities for whose payment or purchase money or securities in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; and




(iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;



provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date,
Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding (it being
understood that Securities to be acquired by the Company pursuant to an offer to purchase shall not
be deemed to be owned by the Company until legal title to such Securities passes to the Company),
except that, in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other action, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.


 


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“Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company. The Company has initially
appointed the Trustee as its Paying Agent pursuant to Section 10.02 hereof.



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




“Physical Settlement” shall have the meaning specified in Section 12.02.



“principal” of a Security means the principal of the Security plus the premium, if any,
payable on that Security which is due or overdue or is to become due at the relevant time.



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




“Record Expiration Date” has the meaning specified in Section 1.04.



“Regular Record Date” for the interest payable on any Interest Payment Date means May 1 or
November 1 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date.




“Reference Property” has the meaning specified in Section 12.06(a).




“Required Filing Dates” has the meaning specified in Section 10.06.



“Responsible Officer,” when used with respect to the Trustee, means any officer assigned to
the Corporate Trust Division — Corporate Finance Unit (or any successor division or unit) of the
Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility
for the administration of this Indenture, and for the purposes of Section 6.01(c) and Section 6.02
shall also include any other officer of the Trustee to whom any corporate trust matter is referred
because of such officer’s knowledge of and familiarity with the particular subject.




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



“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal
U.S. national or regional securities exchange or market on which the Common
Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for
trading, “Scheduled Trading Day” means a Business Day.


 


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“Securities” means the 3.25% Convertible Senior Notes due 2016 issued on the Issue Date and
any Additional Securities.



“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case, as amended from time to time.




“Securities Custodian” has the meaning specified in the Appendix.



“Securities Guarantee” means each guarantee of the obligations of the Company under this
Indenture and the Securities by a Guarantor in accordance with the provisions hereof.




“Security Register” or “Security Registrar” has the meaning specified in Section 3.05.




“Settlement Amount” has the meaning specified in Section 12.02(d).



“Settlement Method” means, with respect to any conversion of Securities, Physical Settlement,
Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the
Company.




“Settlement Election” has the meaning specified in Section 12.02(c)




“Settlement Election Notice” has the meaning specified in Section 12.02(c).



“Significant Subsidiary” means any Subsidiary of the Company that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
Commission.



“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.



“Specified Dollar Amount” means the maximum cash amount per $1,000 principal amount of
Securities to be received upon conversion as specified in the Settlement Notice related to any
converted Securities.




“Spin-Off” has the meaning specified in Section 12.03(c).



“Stated Maturity” means, when used with respect to any Security or any installment of interest
thereon, the date specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable, and when used with respect to any
other indebtedness, means the date specified in the instrument governing such indebtedness as the
fixed date on which the principal of such indebtedness, or any installment of interest thereon, is
due and payable.



“Stock Price” has the meaning specified in Section 12.05(c).


 


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




“Surviving Entity” has the meaning specified in Section 8.01(a)(ii).



“Trading Day” means, except as otherwise provided in Section 12.02(o), a day on which (i)
trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common
Stock is not then listed on The NASDAQ Global Select Market, on the principal other United States
national or regional securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a United States national or regional securities exchange, in the
principal other market on which the Common Stock is then traded, and (ii) a Last Reported Sale
Price for the Common Stock is available on such securities exchange or market. If the Common Stock
(or other security for which a closing sale price must be determined) is not so listed or traded,
“Trading Day” means a Business Day.



“Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Bid Solicitation Agent for $2.0 million principal
amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date
from three independent nationally recognized securities dealers selected by the Company; provided
that, if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such
bids are obtained, then the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid
Solicitation Agent cannot reasonably obtain at least one bid for $2.0 million principal amount of
the Securities from a nationally recognized securities dealer, then the Trading Price per $1,000
principal amount of Securities will be deemed to be less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the applicable Conversion Rate. If (x) the
Company is not acting as the Bid Solicitation Agent, and the Company does not, when required to do
so instruct the Bid Solicitation Agent to obtain bids when required, or if the Company gives such
instruction to the Bid Solicitation Agent, and the Bid Solicitation Agent fails to make such
determination, or (y) the Company is acting as Bid Solicitation Agent, and the Company fails to
make such determination, then, in either case, the Trading Price per $1,000 principal amount of the
Securities will be deemed to be less than 98% of the product of the Last Reported Sale Price of the
Common Stock and the applicable Conversion Rate on each Trading Day such failure continues.




“Trading Price Condition” has the meaning specified in Section 12.01(a)(ii).



“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.


 


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“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee.




“Valuation Period” has the meaning specified in Section 12.03(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.”



SECTION 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officer’s Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in this Indenture;
provided that no such Opinion of Counsel shall be delivered on the Issue Date in connection with
the original issuance of the initial Global Security.



Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



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



(b) 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;



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



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



SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with respect to some matters and
one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.


 


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Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel (who may be an
employee of the Company), unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with
respect to such matters are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of, or representations
by, an accountant (who may be an employee of the Company) or firm of accountants, unless such
counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.



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



SECTION 1.04. Acts of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company. The Trustee
shall, as soon as practicable, deliver to the Company copies of all such instrument or instruments
and records delivered to the Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section.



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



The ownership of Securities shall be proved exclusively by the Security Register for all
purposes.



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


 


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The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities; provided, however, that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided, however,, that no
such action shall be effective hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall prevent the Company from setting a new record date
for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), nor shall anything in this paragraph be construed to render
ineffective any action taken pursuant to or in accordance with any other provision of this
Indenture by Holders of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at
its own expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Record Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 1.06.



The Trustee may but need not set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to
institute proceedings referred to in Section 5.07(ii) or (iv) any direction referred to in
Section 5.12. If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders after such record
date; provided, however, that no such action shall be effective hereunder unless
taken on or prior to the applicable Record Expiration Date by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed
to prevent the Trustee from setting a new record date for any action (whereupon the record date
previously set shall automatically and without any action by any Person be cancelled and of no
effect), nor shall anything in this paragraph be construed to render ineffective any action taken
pursuant to or in accordance with any other provision of this Indenture by Holders of the requisite
principal amount of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the matter(s) to be submitted for potential action by
Holders and the applicable Record Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 1.06.


 


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With respect to any record date set pursuant to this Section 1.04, the party hereto that sets
such record date may designate any day as the “Record Expiration Date” and from time to time may
change the Record Expiration Date to any earlier or later day; provided, however,
that no such change shall be effective unless notice of the proposed new Record Expiration Date is
given to the other party hereto in writing, and to each Holder of Securities in the manner set
forth in Section 1.06, on or before the existing Record Expiration Date. If a Record Expiration
Date is not designated with respect to any record date set pursuant to this Section, the party
hereto that sets such record date shall be deemed to have initially designated the 180th day after
such record date as the Record Expiration Date with respect thereto, subject to its right to change
the Record Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Record
Expiration Date shall be later than the 180th day after the applicable record date.



Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



SECTION 1.05. Notices to Trustee or the Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,



(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing and mailed, first-class postage prepaid, to
or with the Trustee at its Corporate Trust Office, or



(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of the Company’s principal office
specified in the first paragraph of this Indenture, or at any other address previously furnished in
writing to the Trustee by the Company.



The Trustee shall have the right, but shall not be required, to rely upon and comply with
instructions and directions sent by e-mail, facsimile and other similar unsecured electronic
methods by persons believed by the Trustee to be authorized to give instructions and directions on
behalf of the Company. The Trustee shall have no duty or obligation to verify or confirm that the
person who sent such instructions or directions is, in fact, a person authorized to give
instructions or directions on behalf of the Company; and the Trustee shall have no liability for
any losses, liabilities, costs or expenses incurred or sustained by the Company as a result of such
reliance upon or compliance with such instructions or directions. 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 of interception and misuse by third parties.


 


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SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail or receive such notice, nor any defect in any such
notice, to any particular Holder shall affect the sufficiency or validity of such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.



In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



SECTION 1.07. Conflict with Trust Indenture Act. Notwithstanding that this Indenture has not been qualified nor is expected to be
qualified under the Trust Indenture Act, the parties agree that the Trust Indenture Act shall apply
to the Indenture as if it were so qualified. Accordingly, if any provision hereof limits, qualifies
or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be part of and govern an indenture qualified thereunder, such provision of the Trust
Indenture Act shall control; and if any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, such provision shall be
deemed to be so modified or excluded, as the case may be.



SECTION 1.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.



SECTION 1.09. Successors and Assigns. Without limiting Article VIII hereof, all covenants and agreements in this
Indenture by the Company shall bind its respective successors and assigns, whether so expressed or
not.



SECTION 1.10. Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall
not in any way be affected or impaired thereby, and such provision shall be ineffective only
to the extent of such invalidity, illegality or unenforceability.



SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.



SECTION 1.12. Governing Law. This Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York.


 


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The Company submits to the jurisdiction of the courts of the State of New York sitting in the
County of New York, and of the United States District Court for the Southern District of New York
sitting in the Borough of Manhattan, The City of New York, in any action or proceeding to enforce
any of its obligations under this Indenture or with regard to the Securities, and agrees not to
seek a transfer of any such action or proceeding on the basis of inconvenience of the forum or
otherwise (but the Company will not be prevented from removing any such action or proceeding from a
state court to the United States District Court for the Southern District of New York sitting in
the Borough of Manhattan, the City of New York). The Company agrees that process in any such
action or proceeding may be served upon it by registered mail or in any other manner permitted by
the rules of the court in which the action or proceeding is brought. The Company irrevocably
waives, to the fullest extent permitted by law, any objection to any such suit, action or
proceeding that may be brought in such courts whether on the grounds of venue, residence or
domicile or on the ground that any such suit, action or proceeding has been brought in an
inconvenient forum.



SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date, required repurchase date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of interest or principal (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day with the same force
and effect (including with respect to the accrual of interest) as if made on the Interest Payment
Date, required repurchase date or at the Stated Maturity.



SECTION 1.14. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS
ACCEPTANCE THEREOF, 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 OR THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.



SECTION 1.15. 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, any provision of any law or regulation or
any act of any governmental authority, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



ARTICLE II




Security Forms




SECTION 2.01. Form and Dating. Provisions relating to the Securities and, if applicable, the notation thereon
relating to the Securities Guarantee, are set forth in the Appendix, which is hereby incorporated
in and expressly made a part of this Indenture. The Securities and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto, the Form of Notice of
Conversion shall be substantially in the form of Exhibit B hereto and the Form of Fundamental
Change Purchase Notice shall be substantially in the form of Exhibit C hereto, each of which are
hereby incorporated in and expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in
a form acceptable to the Company). Each Security shall be dated the date of its authentication.


 


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ARTICLE III




The Securities




SECTION 3.01. Title and Terms. The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture on the Issue Date is limited to $115,000,000. Additional Securities
may be issued, authenticated and delivered pursuant to Section 3.13, and Securities may be
authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Sections 3.04, 3.05(a), 3.06, 9.06, 11.06 or 12.02(i).



The Securities shall be known and designated as the “3.25% Convertible Senior Notes due 2016”
of the Company. Their Stated Maturity for payment of principal shall be May 15, 2016. Interest on
the Securities shall accrue at the rate of 3.25% per annum and shall be payable semiannually in
arrears on each May 15 and November 15, commencing May 15, 2011 to the Holders of record of
Securities at the close of business on May 1 and November 1, respectively, immediately preceding
such Interest Payment Date. Subject to Section 3.13(c), interest on the Securities will accrue
from the most recent date to which interest has been paid or,
if no interest has been paid, from November 23, 2010. Interest on the Securities will be
computed on the basis of a 360-day year composed of twelve 30-day months.



The Company shall pay the principal of and interest on any Global Security in immediately
available funds to the Depositary or its nominee, as the case may be, as the registered Holder of
such Global Security. The Company shall pay the principal of any Definitive Security at the office
or agency designated by the Company for that purpose. The Company has initially designated the
Trustee as its Paying Agent and Security Registrar in respect of the Securities and its agency in
New York City, New York as a place where Securities may be presented for payment or for
registration of transfer. The Company may, however, change the Paying Agent or Security Registrar
for the Securities without prior notice to the Holders thereof and the Company may act as Paying
Agent or Security Registrar for the Securities. Interest on any Definitive Securities will be
payable (i) to Holders of Definitive Securities having an aggregate principal amount of Securities
of $2,000,000 or less, by check mailed to the Holders of such Securities at their address in the
Security Register and (ii) to Holders having an aggregate principal amount of Definitive Securities
in excess of $2,000,000, by either check mailed to each Holder at its address in the Security
Registrar or, upon application by a Holder to the Security Register not later than the relevant
Regular Record Date, by wire transfer in immediately available funds to that Holder’s account
within the United States, which application shall remain in effect until that Holder notifies, in
writing, the Security Registrar to the contrary.


 


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SECTION 3.02. Denominations. The Securities shall be issuable only in registered form without coupons and only
in denominations of $1,000 principal amount and any integral multiple of $1,000 thereof.



SECTION 3.03. Execution and Authentication. The terms and provisions contained in the Form of Securities annexed hereto as
Exhibit A shall constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. The Securities shall be
executed on behalf of the Company by its Chief Executive Officer, Chief Financial Officer, General
Counsel, Treasurer or any Executive or Senior Vice President. The signature of any of these
officers on the Securities may be manual or facsimile.



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



At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, which shall specify
the amount of the Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and, in the case of an issuance of
Additional Securities pursuant to Section 3.13 after the Issue Date, shall certify that such
issuance is in compliance with this Indenture; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as provided in this Indenture and not
otherwise.




Each Security shall be dated the date of its authentication.



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



Authentication by counterpart shall satisfy the requirements of this Section 3.03 and the
requirements of the Securities.



SECTION 3.04. Temporary Securities. Pending the preparation of Definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such Securities.


 


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If temporary Securities are issued, the Company will cause Definitive Securities to be
prepared without unreasonable delay. After the preparation of Definitive Securities, the temporary
Securities shall be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section 10.02, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Securities of authorized denominations and of a like tenor. Until
so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as Definitive Securities.



SECTION 3.05. Exchange and Registration of Transfer of Securities; Restrictions on
Transfer; Depositary.



(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or agency designated
pursuant to Section 10.02 being herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as the Company may prescribe, the
Company shall provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed (a) the initial “Security Registrar” for the purpose of
registering Securities and transfers of Securities as herein provided and (b) the Securities
Custodian with respect to the Global Securities.



The Securities shall be issued in registered form and shall be transferable only upon the
surrender of a Security for registration of transfer and in compliance with the Appendix. When a
Security is presented to the Security Registrar with a request to register a transfer, the Security
Registrar shall register the transfer as requested if its requirements therefor are met. When
Securities are presented to the Security Registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Security Registrar shall make the
exchange as requested if the same requirements are met. To permit registration of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Securities at the Security
Registrar’s request.



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



No service charge shall be made for any registration of transfer or exchange of Securities
except as provided in Section 3.06, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06, 11.06
or 12.02(i), and in any such case not involving any transfer.



Prior to the due presentation for registration of transfer of any Security, the Company, the
Trustee, the Paying Agent, and the Security Registrar may deem and treat the Person in whose name a
Security is registered as the absolute owner of such Security for the purpose of receiving payment
of principal of and interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the Trustee, the Paying Agent, or
the Security Registrar shall be affected by notice to the contrary.


 


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Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interest in such Global Security may be effected only through a book-entry
system maintained by (a) the Holder of such Global Security (or its agent) or (b) any Holder of a
beneficial interest in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.



(b) Every Security that bears or is required under this Section 3.05(b) to bear the legend
set forth in this Section (together with any Common Stock issued upon conversion of the Securities
and required to bear the legend set forth in Section 3.05(c), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 3.05(b)
(including the legend set forth below), unless such restrictions on transfer shall be eliminated or
otherwise waived by written consent of the Company, and the Holder of each such Restricted
Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 3.05(b) and Section 3.05(c), the term “transfer”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted
Security.



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



THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


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(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS
THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:




(A) TO PETROLEUM DEVELOPMENT CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.



PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.



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



Any Security (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may, upon surrender of
such Security for exchange to the Security Registrar in accordance with the provisions of this
Section 3.05, be exchanged for a new Security or Securities, of like tenor and aggregate principal
amount, which shall not bear the restrictive legend required by this Section 3.05(b). The Company
shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date
and promptly after a registration statement, if any, with respect to the Securities or any Common
Stock issued upon conversion of the Securities has been declared effective under the Securities
Act.


 


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




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION
WITH RESPECT TO EACH SUCH ACCOUNT, AND




(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS
THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:




(A) TO PETROLEUM DEVELOPMENT CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.




PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY
AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT
THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


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Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 3.05(c).



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



(e) None of the Trustee, the Paying Agent or the Security Registrar shall have any obligation
or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among DTC participants, members or beneficial owners
in any Global Security) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.



SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor
and principal amount and bearing a number not contemporaneously outstanding.



If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of each of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and 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, the Company in its discretion may, instead of issuing a new Security, pay
such Security.


 


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



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



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



SECTION 3.07. Payment of Interest; Rights Preserved. Interest on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one
or more predecessor securities) is registered at the close of business on the Regular Record Date
for such interest payment.



Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
paragraph (a) or (b) below:



(a) the Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities (or their respective predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner: the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 15 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder in the manner specified in Section 1.06, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).


 


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



Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.



SECTION 3.08. 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 shall 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 premium, if any) and (subject to Section 3.07) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.



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


 


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Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security or shall impair, as between such
Depositary and owners of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of
such Global Security.



SECTION 3.09. Cancellation. All Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company shall promptly deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of by the Trustee in its customary
manner. Copies of all cancelled Securities shall be provided to the Company by the Trustee, as soon
as practicable following cancellation of such Securities.



SECTION 3.10. Computation of Interest. Interest on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.



SECTION 3.11. CUSIP and ISIN Numbers. The Company in issuing the Securities may use “CUSIP,” “ISIN” or similar numbers
(if then generally in use), and, if so, the Trustee shall use the CUSIP, ISIN or other similar
numbers in notices of redemption or repurchase as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption or repurchase shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change
in the CUSIP,
ISIN or other similar numbers.



SECTION 3.12. Deposits of Monies. Except to the extent payment of interest is made by the Company’s check pursuant to
Section 3.01, prior to 11:00 a.m., New York City time, on each Interest Payment Date and Stated
Maturity, the Company shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or Stated Maturity in a
timely manner which permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date or Stated Maturity.


 


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SECTION 3.13. Additional Securities; Repurchases. The Company shall be entitled without the consent of any Holder of a Security,
subject to its compliance with this Indenture, to issue Additional Securities under this Indenture
which shall have identical terms as the Securities issued on the Issue Date, other than with
respect to the date of issuance and issue price provided that if such Additional Securities
have the same CUSIP number as the Securities issued under this Indenture, such Additional
Securities must be fungible with the Securities issued under this Indenture for U.S. Federal income
tax purposes. The Securities issued on the Issue Date and any Additional Securities shall be
treated as a single class for all purposes under this Indenture.



With respect to any Additional Securities, the Company shall set forth in a resolution of its
Board of Directors and an Officer’s Certificate, a copy of each which shall be delivered to the
Trustee, the following information:



(a) whether such Additional Securities shall be issued as part of a new or existing series of
Securities and the title of such Additional Securities (which shall distinguish the Additional
Securities of the series from Securities of any other series);



(b) the aggregate principal amount of such Additional Securities which may be authenticated
and delivered under this Indenture, which may be in an unlimited aggregate principal amount;



(c) the issue price and issuance date of such Additional Securities, including the date from
which interest on such Additional Securities shall accrue; and



(d) if applicable, that such Additional Securities shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective depositaries for such
Global Securities, the form of any legend or legends which shall be borne by such Global Securities
in addition to or in lieu of those set forth in Exhibit A hereto and any circumstances in addition
to or in lieu of those set forth in Section 2.4 of the Appendix in which any such Global Security
may be exchanged in whole or in part for Additional Securities registered, or any transfer of such
Global Security in whole or in part may be registered, in the name or names of Persons other than
the depositary for such Global Security or a nominee thereof.



(e) The Company may, to the extent permitted by law, and directly or indirectly (regardless
of whether such Securities are surrendered to the Company), repurchase Securities in the open
market or otherwise, whether by the Company or its Subsidiaries or through a private or public
tender or exchange offer or through counterparties to private agreements, including by cash-settled
swaps or other derivatives. The Company shall cause any Securities so repurchased (other than
Securities repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to
the Trustee for cancellation in accordance with Section 3.09.


 


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ARTICLE IV




Satisfaction and Discharge




SECTION 4.01. Satisfaction and Discharge of 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:




(i) the Company shall deliver to the Registrar for cancellation all Securities
theretofore authenticated (other than any Securities that have been
destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled; or




(ii) all Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable (whether at Stated Maturity for the
payment of the principal amount thereof, on any Fundamental Change Purchase Date or
following the last day of the applicable Observation Period upon conversion or
otherwise),



and the Company shall deposit with the Trustee, in trust, or deliver to the Holders, as applicable,
cash, shares of Common Stock or a combination thereof, as applicable, sufficient to pay all amounts
due (and shares of Common Stock deliverable following conversion, if applicable) on all of such
Securities (other than any Securities that shall have been mutilated, destroyed, lost or stolen and
in lieu of or in substitution for which other Securities shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for cancellation, including
principal and interest due, accompanied, except in the event the Securities are due and payable
solely in cash at the Stated Maturity of the Securities or upon an earlier Fundamental Change
Purchase Date, by a verification report as to the sufficiency of the deposited amount from an
independent certified accountant or other financial professional reasonably satisfactory to the
Trustee, and if the Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect (except as to (A) rights
hereunder of Holders of the Securities to receive all amounts owing upon the Securities and the
other rights, duties and obligations of Holders of the Securities, as beneficiaries hereof with
respect to the amounts, if any, so deposited with the Trustee and (B) the rights, obligations and
immunities of the Trustee hereunder), and the Trustee, on written demand of the Company accompanied
by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture.



Notwithstanding the satisfaction and discharge of this Indenture pursuant to this Article IV,
the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to
any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to the preceding paragraph of this Section 4.01, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive such satisfaction and
discharge.



SECTION 4.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with the Trustee.


 


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SECTION 4.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this Indenture, all monies then held by any
Paying Agent (if other than the Trustee) shall, upon written request of the Company, be repaid to
it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.



SECTION 4.04. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with
Section 4.02 by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.01 until such time as the Trustee or the Paying Agent is permitted to apply
all such money in accordance with Section 4.02; provided, however, that if the
Company makes any payment of interest on or principal of any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE V




Remedies




SECTION 5.01. Events of Default. “Event of Default,” wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):



(a) default in the payment of the principal of or premium, if any, when due and payable, on
any of the Securities (at Stated Maturity, upon required repurchase or otherwise); or



(b) default for 30 days in the payment of an installment of interest on any of the
Securities, when due and payable; or



(c) failure by the Company to comply with its obligation to convert any Security in
accordance with this Indenture upon exercise of a Holder’s conversion right in accordance with
Article XII hereof; or



(d) failure by the Company to provide a Fundamental Change Company Notice pursuant to Section
11.02(b) or notice of a specified corporate transaction required by Section 12.01(a)(iii) or
Section 12.01(a)(iv) in accordance with the relevant Section, in each case when due; or




(e) default in the performance or breach of the provisions of Article VIII; or


 


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(f) default in the performance, or breach, of any covenant or agreement of the Company under
this Indenture (other than a default in the performance or breach of a covenant or agreement which
is specifically dealt with in clauses (a) through (e) above) and such default
or breach shall continue for a period of 60 days after written notice has been given, by
certified mail:




(x) to the Company by the Trustee; or




(y) to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities;



(g) default or defaults under one or more agreements, instruments, mortgages, bonds,
debentures or other evidences of indebtedness under which the Company or any Subsidiary of the
Company then has outstanding indebtedness in excess of $20,000,000 in each case, individually or in
the aggregate, and either:




(x) such indebtedness is already due and payable in full; or




(y) such default or defaults have resulted in the acceleration of the maturity
of such cash indebtedness; or



(h) one or more judgments, orders or decrees of any court or regulatory or administrative
agency of competent jurisdiction for the payment of money in excess of $20,000,000 in each case,
either individually or in the aggregate, shall be entered against the Company or any Subsidiary of
the Company or any of their respective properties and shall not be discharged and there shall have
been a period of 60 days after the date on which any period for appeal has expired and during which
a stay of enforcement of such judgment, order or decree, shall not be in effect; or



(i) the entry of a decree or order by a court having jurisdiction in the premises (A) for
relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding
under the Federal Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency,
reorganization or similar law or (B) adjudging the Company or any Significant Subsidiary bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under the Federal Bankruptcy Code or any other similar
federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or any Significant Subsidiary or of any
substantial part of any of their properties, or ordering the winding up or liquidation of any of
their affairs, and the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or


 


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(j) the institution by the Company or any Significant Subsidiary of a voluntary case or
proceeding under the Federal Bankruptcy Code or any other similar federal, state or foreign law or
any other case or proceedings to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any Significant Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Significant Subsidiary in any involuntary case or proceeding under the Federal
Bankruptcy Code or any other similar federal, state or foreign law or to the institution of
bankruptcy or insolvency proceedings against the Company or any Significant Subsidiary, or the
filing by the Company or any Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other similar federal, state or
foreign law, or the consent by it to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of any of the Company or any Significant Subsidiary or of
any substantial part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts generally as they
become due or the taking of corporate action by the Company or any Significant Subsidiary in
furtherance of any such action



SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than those covered by clause (i) or (j) of
Section 5.01 with respect to the Company) shall occur and be continuing, the Trustee, by notice to
the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then
Outstanding, by notice to the Trustee and the Company, may declare the principal of, premium, if
any, and accrued and unpaid interest, if any, on all of the Outstanding Securities due and payable
immediately, upon which declaration, all amounts payable in respect of the Securities shall be due
and payable as of the date which is five Business Days after the giving of such notice. If an
Event of Default specified in clause (i) or (j) of Section 5.01 with respect to the Company occurs
and is continuing, then the principal of, premium, if any, and accrued and unpaid interest, if any,
on all the Outstanding Securities 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 of Securities.



After a declaration of acceleration under this Indenture, but before a judgment or decree for
payment of the money due has been obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by written notice to the Company and the Trustee,
may rescind such declaration if:




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




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




(ii) all overdue interest on all Securities;




(iii) the principal of and premium, if any, on any Securities which have become
due otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Securities; and




(iv) to the extent that payment of such interest is lawful, interest upon
overdue interest and overdue principal at the rate set forth in the Securities which
have become due otherwise than by such declaration of acceleration;



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


 


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(c) all Events of Default, other than the non-payment of principal of, premium, if any, and
interest on the Securities that have 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.



SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:



(a) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or



(b) default is made in the payment of the principal of (or premium, if any, on) any Security
on the due date for payment thereof, including, with respect to any Security required to have been
purchased pursuant to a Fundamental Change offer on the Fundamental Change Purchase Date,



the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal (and premium, if
any) and interest, and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.



In addition to the rights and powers set forth in Section 317(a) of the Trust Indenture Act,
the Trustee shall be entitled to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Holders of the Securities allowed
in any judicial proceeding relative to the Company or any other obligor upon the Securities, its
creditors, or its property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for compensation and expenses, including counsel fees incurred by it up to the
date of such distribution.



If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.


 


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SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company (or any other obligor
upon the Securities), any of its property or any of its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.07.



No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other
similar committee.



SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses,
distributions and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been recovered.



SECTION 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article and any money or other
property distributable in respect of the Company’s obligations under this Indenture after the
occurrence of an Event of Default shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:




FIRST: To the payment of all amounts due the Trustee under Section 6.07;




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




THIRD: To the payment of any and all other amounts due under this Indenture or the
Securities; and


 


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FOURTH: To the Company (or such other Person as a court of competent jurisdiction may
direct).



SECTION 5.07. Limitation on Suits. Subject to Section 5.08, no Holder of any Security shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless



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



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



(c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to
the Trustee against the costs, expenses and liabilities to be incurred in compliance with such
request;



(d) the Trustee for 45 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and



(e) no direction inconsistent with such written request has been given to the Trustee during
such 45-day period by the Holders of a majority in aggregate principal amount of the Outstanding
Securities; it being understood and intended that no one or more Holders shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the Holders.



SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest
and Amounts Due upon Conversion of the Securities. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Security or the payment of
amounts due upon conversion of such Security in each case when due and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.



SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted, subject to the determination in such proceeding.


 


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SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.



SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise
any right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.



SECTION 5.12. Control by Holders. The Holders of a majority in aggregate principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee,
provided that:




(a) such direction shall not be in conflict with any rule of law or with this Indenture, and



(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive any past default
hereunder and its consequences, except a default



(a) in the payment of the principal of (or premium, if any) or interest on any Security
(including any Security which is required to have been purchased pursuant to a Fundamental Change
offer) or



(b) in respect of a covenant or provision hereof which under Article IX cannot be modified or
amended without the consent of the Holder of each Outstanding Security affected.



Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.


 


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SECTION 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant, other than the Trustee, in such suit to file an undertaking to pay the costs of
such suit (including reasonable counsel fees and expenses), and may assess costs against any such
party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the Company, in any
suit instituted by the Trustee, in any suit instituted by any Holder or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding Securities, or in any suit
instituted by any Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security on or after the Stated Maturity expressed in such Security (or, in
the case of a Fundamental Change offer, on or after the Fundamental Change Purchase Date).



SECTION 5.15. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it shall not hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power as though no such law
had been enacted.



SECTION 5.16. Additional Interest. Notwithstanding any provisions of this Indenture to the contrary, if the Company so
elects, the sole remedy for an Event of Default relating to any obligation to file documents and
reports with the Trustee as required by Section 314(a)(1) of the Trust Indenture Act, Section 7.04
of this Indenture or Section 10.06 of this Indenture shall for the first 180 days following the
occurrence of such Event of Default consist exclusively of the right to receive
Additional Interest on the Securities equal to 0.50% per annum of the principal amount of the
Securities. In order to elect to pay Additional Interest as the sole remedy during the first 180
days after the occurrence of an Event of Default described in the preceding sentence, the Company
must (i) give notice to Holders of the Securities, the Trustee and the Paying Agent of such
election on or before the close of business on the 5th Business Day after the date on which such
Event of Default occurs and (ii) pay such Additional Interest on or before the date on which such
Event of Default first occurs. Upon the failure to timely give all Holders, the Trustee and the
Paying Agent such notice or to pay such Additional Interest, the Securities will be subject to
immediate acceleration as provided in this Indenture. On the 180th day after such Event of Default
occurs (if such Event of Default is not cured or waived prior to such 180th day), the Securities
shall be subject to acceleration as provided in this Indenture. This Section 5.16 shall not affect
the rights of Holders of Securities in the event of the occurrence of any other Event of Default.


 


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ARTICLE VI




The Trustee




SECTION 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default,




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




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



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



(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligence or willful misconduct, except that: (i) no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its rights or powers
under this Indenture, unless the Trustee has received security and indemnity satisfactory to it
against any loss, liability or expense; (ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless the Trustee was
negligent in ascertaining the pertinent facts; and (iii) this Subsection (c) shall not be construed
to limit the effect of Subsections (a) and (e) of this Section.



(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 6.01.



(e) 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 a majority in aggregate
principal amount of the Outstanding Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.


 


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SECTION 6.02. Notice of Defaults. If a Default or an Event of Default occurs and is continuing and is actually known
to the Trustee, the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such Default or Event of Default hereunder actually
known to the Trustee within 90 days after obtaining such actual knowledge, unless such Default
shall have been cured or waived; provided, however, that, except in the case of a
Default or an Event of Default in the payment of the principal of, premium, if any, or interest on
any Security, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is in the interest of the
Holders.



SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of Section 6.01:



(a) the Trustee may conclusively rely as to the truth of the statements and correctness of
the opinions expressed therein and shall be fully protected in acting or refraining from acting
upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it in good
faith to be genuine and to have been signed or presented by the proper party or parties;



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



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



(d) 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, suffered or omitted by it hereunder in good faith and in reliance thereon;



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



(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, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to reasonable confidentiality arrangements as may be
proposed by the Company) to make reasonable examination (upon prior notice and during regular
business hours) of the books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation;


 


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(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 or custodians or nominees and the
Trustee shall not be responsible for the supervision of, or any misconduct or negligence on the
part of, any agent or attorney appointed with due care by it hereunder and shall not be responsible
for the supervision of officers and employees of such agents or attorneys;



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



(i) in the event that the Trustee is also acting as Authenticating Agent, Paying Agent,
Security Registrar or Securities Custodian hereunder, the rights and protections afforded to the
Trustee pursuant to this Article VI, including its right to be indemnified, shall also be afforded
to such Authenticating Agent, Paying Agent, Security Registrar and Securities Custodian;



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



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



(l) 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 6.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company, and the Trustee or
any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of Securities or the
proceeds thereof.



SECTION 6.05. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar,
any Securities Custodian or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar, Securities Custodian or such other agent.


 


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SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust hereunder 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 money received by it hereunder except as otherwise agreed in writing with the Company.



SECTION 6.07. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein,
to promptly reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may have been caused by its gross
negligence or willful misconduct; and (3) to indemnify the Trustee, its directors, officers, agents
and employees for, and to hold them harmless against, any and all loss, damage, claim, liability or
expense incurred without gross negligence or willful misconduct on its part, including taxes (other
than taxes based upon, measured by or determined by the revenue or income of the Trustee), arising
out of or in connection with the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim
(whether asserted by the Company, a Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.



The Trustee shall have a lien prior to the Securities as to all property and funds held by it
hereunder for any amount owing to it pursuant to this Section 6.07, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.



Without limiting any rights available to the Trustee under this Indenture or applicable law,
when the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(i) or Section 5.01(j), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency or other similar
law.



Notwithstanding any provisions of this Indenture, the provisions of this Section shall survive
the resignation or removal of the Trustee and any satisfaction and discharge, or termination, of
this Indenture.



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


 


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SECTION 6.08. Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.



SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has, or is a wholly owned
subsidiary of a bank holding company that has, a combined capital and surplus of at least
$50,000,000 and a Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of a Federal or State supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.



SECTION 6.10. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 6.11.



(b) The Trustee may resign at any time by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee in accordance with the applicable requirements
of Section 6.11 shall not have been delivered to the Company and the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment of a successor
Trustee.



(c) The Trustee may be removed at any time by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and to the Company. If an
instrument of acceptance by a successor Trustee in accordance with the applicable requirements of
Section 6.11 shall not have been delivered to the Company and the Trustee being removed within 30
days after the giving of such notice of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment of a successor
Trustee.




(d) If at any time:




(i) the Trustee shall fail to comply with Section 6.08 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 under Section 6.09 and shall fail
to resign after written request therefor by the Company or by any such Holder, or




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


 


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then, in any such case, (A) the Company, by a Board Resolution, may remove the Trustee, or
(B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in aggregate principal amount of the Outstanding Securities delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee and supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in accordance with the applicable requirements of Section 6.11, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor
Trustee.



(f) The Company shall give notice of each resignation and each removal of the Trustee and
each appointment of a successor Trustee to all Holders in the manner provided in Section 1.06.
Each notice shall include the name of the successor Trustee and the address of its Corporate Trust
Office.



(g) The resignation or removal of the Trustee pursuant to this Section 6.10 shall not affect
the obligation of the Company to indemnify the Trustee pursuant to Section 6.07(3) in connection
with the exercise or performance by the Trustee prior to its resignation or removal of any of its
powers or duties hereunder.



(h) No Trustee under this Indenture shall be liable for any action or omission of any
successor Trustee.



SECTION 6.11. Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, 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. 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.



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.




 


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SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. Any Person
into which the Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, however, that
such Person shall be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto. 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 6.13. Preferential Collection of Claims Against the Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).



SECTION 6.14. Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents, reasonably acceptable to the Company, which shall be authorized to
act on behalf of the Trustee to authenticate Securities issued upon original issue and upon
exchange or registration of transfer or partial purchase or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.



Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.


 


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An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.06, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all of the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.



The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.



If an appointment is made pursuant to this Section, the Securities may have endorsed thereon,
in addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:




This is one of the Securities described in the within-mentioned Indenture.



Dated:                                         




	 	 	 
	 

	 	The Bank of New York Mellon, as Trustee
	 

	 	By
	 

	 	As Authentication Agent
	 
	 	 
	 

	 	By
	 

	 	Authorized Signatory






ARTICLE VII




Holders’ Lists and Reports by Trustee and Company




SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. The Company
will furnish or cause to be furnished to the Trustee a list of the names and addresses of the
Holders in such form as the Trustee may reasonably request in writing, within 30 days after the
receipt by the Company of any such request, as of a date not more than 15 days prior to the time
such list is furnished; excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.



SECTION 7.02. Preservation of Information; Communications to Holders. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses
of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01
and the names and addresses of Holders received by the Trustee in its capacity as Security
Registrar, if so acting.


 


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(b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.



(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of any of them shall be held
accountable by reason of any disclosure of information as to the names and addresses of Holders
made pursuant to the Trust Indenture Act.



SECTION 7.03. Reports by Trustee. (a) Within 60 days after June 15 of each year
commencing June 15, 2011, the Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture to the extent required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.



(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which the Securities are listed (if any), with the
Commission and with the Company. The Company will promptly notify the Trustee when the Securities
are listed on any stock exchange and of any delisting thereof.



SECTION 7.04. Reports by Company. The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to the Trust Indenture Act; provided that any such information, documents
or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act shall be filed with the Trustee within 15 days after the same is so required to be filed with
the Commission. The availability of the foregoing reports on the Commission’s EDGAR service (or
successor thereof) shall be deemed to satisfy the Company’s delivery obligations to the Trustee and
the Holders.



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


 


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ARTICLE VIII




Consolidation, Merger, Conveyance, Transfer or Lease




SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms. The Company will
not, in any transaction or series of transactions, merge or consolidate with or into, or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties
and assets as an entirety to, any Person or Persons unless at the time and after giving effect
thereto:



(a) either:




(i) if the transaction or transactions is a merger or consolidation, the
Company shall be the surviving Person of such merger or consolidation, or




(ii) the Person formed by such consolidation or into which the Company is
merged or to which the properties and assets of the Company, substantially as an
entirety, are transferred (any such surviving Person or transferee Person being the
“Surviving Entity”) shall be a corporation organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia and
shall expressly assume by a supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture, and in each case, this Indenture and the
Securities shall remain in full force and effect; and



(b) immediately after giving effect to such transaction or series of transactions on a pro
forma basis, no Default or Event of Default shall have occurred and be continuing.



In connection with any consolidation, merger, transfer, lease, assignment or other disposition
contemplated by the foregoing provisions of this Section 8.01, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
transfer, lease, assignment, or other disposition and the supplemental indenture in respect thereof
(required under Section 8.01(a)(ii)) comply with the requirements of this Indenture.



SECTION 8.02. Successor Substituted. Upon any consolidation or merger, or any sale,
assignment, conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 8.01, the successor Person formed
by such consolidation or into which the Company is merged or the successor Person to which such
sale, assignment, conveyance, transfer, lease or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of the Company under the Securities and
this Indenture, as applicable, with the same effect as if such successor had been named as the
Company in the Securities and this Indenture, as the case may be, and, except in the case of a
lease, the Company shall be released and discharged from its obligations thereunder.



ARTICLE IX




Amendments; Waivers; Supplemental Indentures




SECTION 9.01. Amendments, Waivers and Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, when authorized by a Board Resolution, the
Company and the Trustee, at any time and from time to time, may together amend, waive or supplement
this Indenture or the Securities, for any of the following purposes:



(a) to evidence the succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities and to evidence the
assumption of obligations under this Indenture;


 


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(b) to add to the covenants of the Company for the benefit of the Holders, or to surrender any
right or power herein conferred upon the Company;




(c) to secure the Securities;




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



(e) to cure any ambiguity or omission or to correct or supplement any provision herein which
may be defective or inconsistent with any other provision herein that does not adversely affect
Holders;




(f) to make any change that does not adversely affect the rights of the Holders; or



(g) to
conform the provisions of this Indenture to the “Description of the Notes” section of
the Offering Memorandum;



provided, however, that (i) such amendment, waiver or supplement does not adversely
affect the rights of any Holder of Securities and (ii) the Company shall have delivered to the
Trustee an Opinion of Counsel and Officer’s Certificate stating that such action pursuant to
clauses (a) to (f) above is permitted by this Indenture. The Trustee shall not be obligated to
enter into any such amendment, waiver or supplemental indenture that adversely affects its own
rights, duties or immunities under this Indenture or otherwise.



SECTION 9.02. Modifications, Amendments and Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee may together modify,
amend or supplement this Indenture or the Securities for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders under this Indenture; provided, however, that
no such modification, amendment or supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,



(a) reduce the principal amount of, extend the Stated Maturity of or alter the repurchase
provisions of, the Securities;



(b) change the currency in which any Securities or any premium or the interest thereon is
payable;



(c) reduce the percentage in principal amount of Outstanding Securities that must consent to
an amendment, supplement or waiver or consent to take any action under this Indenture or the
Securities;



(d) impair the right to institute suit for the enforcement of any payment on or with respect
to the Securities;



(e) waive a default in payment with respect to the Securities;


 


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(f) reduce or change the rate or time for payment of interest on the Securities;




(g) make any change that adversely affects the conversion rights of any Security;



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



(i) other than in accordance with the provisions of this Indenture, eliminate any existing
Subsidiary Guarantee of the Securities.



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



The Trustee shall join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amendment or supplemental indenture.



After an amendment or supplemental indenture under this Indenture becomes effective, the
Company shall mail to the Holders a notice briefly describing such amendment. However, the failure
to give such notice to all the Holders, or any defect in the notice, will not impair or affect the
validity of the amendment.



SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be given, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and an
Officer’s Certificate stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise; provided that the Trustee shall enter into and execute all other
supplemental indentures which satisfy all applicable conditions under this Article IX.



SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.



SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.


 


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SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture, provided that any failure by the
Trustee to make such notation shall not affect the validity of the matter provided for in such
supplemental indenture or any Security hereunder. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities.



SECTION 9.07. Waiver of Certain Covenants. The Company may omit in any particular
instance to comply with any covenant or condition set forth in Section 8.01 and pursuant to
Section 9.01(ii), if before the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or condition shall remain in
full force and effect.



SECTION 9.08. No Liability for Certain Persons. No director, officer, employee, or
stockholder of the Company, as such, shall have any liability for any obligations of the Company
under the Securities or this Indenture based on or by reason of such obligations or their creation.
Each Holder by accepting a Security waives and releases all such liability. The foregoing waiver
and release are an integral part of the consideration for the issuance of the Securities.



ARTICLE X




Covenants




SECTION 10.01. Payment of Principal, Premium and Interest. The Company shall duly and
punctually pay the principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture. The Company will deposit or cause to be
deposited with the Trustee or its nominee, no later than the opening of business on the date of the
Stated Maturity of any Security or no later than the opening of business on the due date for any
installment of interest, all payments so due, which payments shall be in immediately available
funds on the date of such Stated Maturity or due date as the case may be.



SECTION 10.02. Maintenance of Office or Agency. The Company shall maintain in the
Borough of Manhattan, The City of New York, an office or agency where Securities may be presented
or surrendered for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at a Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands. In the event any such notice or demands are so made or served on the Trustee,
the Trustee shall as soon as practicable forward copies thereof to the Company.


 


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The Company may also from time to time designate one or more other offices or agencies (in or
outside the Borough of Manhattan, The City of New York) where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other
office or agency.



The Company hereby initially designates the Trustee as Paying Agent and Security Registrar,
and the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of New York,
located at 101 Barclay Street, Floor 8 West, New York, New York 10286, Attention: Corporate Trust
Administration, as one such office or agency of the Company for each of the aforesaid purposes.



SECTION 10.03. Money for Security Payments to be Held in Trust. If the Company shall
at any time act as its own Paying Agent, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of
as herein provided and will promptly notify the Trustee of its action or failure so to act.



Whenever the Company shall have one or more Paying Agents, the Company will, prior to 11:00
a.m., New York City time, on each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.



The Company shall cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will: (i) comply with the provisions of the
Trust Indenture Act applicable to it as Paying Agent and (ii) during the continuance of any default
by the Company (or any other obligor upon the Securities) in the making of any payment in respect
of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.



The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were held by such
Paying Agent; and, upon such payment by any Paying Agent (other than the Company) to the Trustee,
such Paying Agent shall be released from all further liability with respect to such money.


 


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Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.



SECTION 10.04. Existence; Activities. Subject to Article VIII, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and material franchises; provided,
however, that the Company shall not be required to preserve any such right or franchise if
the Board of Directors of the Company in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that the loss thereof is
not disadvantageous in any material respect to the Holders.



SECTION 10.05. Statement by Officers as to Default; Compliance Certificates. (a) The
Company shall deliver to the Trustee, prior to March 31 in each year commencing with the year
beginning on January 1, 2011, an Officer’s Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder), and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which he or she may have knowledge.



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


 


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SECTION 10.06. Provision of Financial Information. For so long as the Securities are
outstanding, whether or not the Company is subject to Section 13(a) or 15(d) of the Exchange Act,
or any successor provision thereto, the Company shall file with the Commission (if permitted by
Commission practice and applicable law and regulations) the annual reports, quarterly reports and
other documents which the Company would have been required to file with
the Commission pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Company were so subject, such documents to be filed with the Commission on or prior to the
respective dates (the “Required Filing Dates”) by which the Company would have been required so to
file such documents if the Company were so subject. If, notwithstanding the preceding sentence,
filing such documents by the Company with the Commission is not permitted by Commission practice or
applicable law or regulations, the Company will transmit (or cause to be transmitted) by mail to
the Trustee and all Holders of the Securities, as their names and addresses appear in the
Securities Register, copies of such documents on or prior to the Required Filing Date.




SECTION 10.07. Rule 144A Information Requirement and Annual Reports.



(a) At any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, so long as any of the Securities or any shares of Common Stock issuable upon
conversion thereof shall, at such time, constitute “restricted securities” within the meaning of
Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and shall, upon written
request, provide to any Holder, beneficial owner or prospective purchaser of such Securities or any
shares of Common Stock issued upon conversion of such Securities, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such
Securities or shares of Common Stock pursuant to Rule 144A under the Securities Act. The Company
shall take such further action as any Holder or beneficial owner of such Securities or such Common
Stock may reasonably request to the extent required from time to time to enable such Holder or
beneficial owner to sell such Securities or shares of Common Stock in accordance with Rule 144A
under the Securities Act, as such rule may be amended from time to time.



(b) If, at any time during the six-month period beginning on, and including, the date that is
six months after the last date of original issuance of the Securities, the Company fails to timely
file any document or report that it is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
thereunder and other than reports on Form 8-K), or the Securities are not otherwise freely tradable
by Holders other than the Company’s Affiliates (as a result of restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Securities), the Company shall pay Additional
Interest on the Securities. Such Additional Interest shall accrue on the Securities at the rate of
0.50% per annum of the principal amount of the Securities outstanding for each day during such
period for which the Company’s failure to file has occurred and is continuing. As used in this
Section 10.07(b), documents or reports that the Company is required to “file” with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the
Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.



(c) If, and for so long as, the restrictive legend on the Securities specified in Section
3.05(b) has not been removed, the Securities are assigned a restricted CUSIP or the Securities are
not otherwise freely tradable by Holders other than the Company’s Affiliates (without restrictions
pursuant to U.S. securities law or the terms of this Indenture or the Securities) as of the 365th
day after the last date of original issuance of the Securities, the Company shall pay Additional
Interest on the Securities at a rate equal to 0.50% per annum of
the principal amount of Securities outstanding until the restrictive legend on the Securities
has been removed in accordance with Section 3.05(b) and the Securities are freely tradable by
Holders other than the Company’s Affiliates (without restrictions pursuant to U.S. securities law
or the terms of this Indenture or the Securities).


 


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(d) Such Additional Interest will be payable in arrears on each Interest Payment Date
following accrual in the same manner as regular interest on the Securities.



(e) The Additional Interest that is payable in accordance with Section 10.07(b) or Section
10.07(c) shall be in addition to, and not in lieu of, any Additional Interest that may be payable
as a result of the Company’s election pursuant to Section 5.16.



(f) If Additional Interest is payable by the Company pursuant to Section 10.07(b) or Section
10.07(c), the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating
(i) the amount of such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at
the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting
forth the particulars of such payment.



SECTION 10.08. Subsidiary Guarantees. If, on any date after the Issue Date, any
Subsidiary that is not already a Guarantor guarantees obligations under the indenture governing the
2018 Senior Notes, then the provisions of Article XIII shall apply to the Securities and such
Subsidiary and the Company shall cause such Subsidiary to execute and deliver a supplemental
indenture in the form attached as Exhibit D hereto and deliver an Opinion of Counsel to the Trustee
within 10 Business Days of the date on which such Subsidiary was required to guarantee the
Securities to the effect that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and constitutes a valid and binding agreement of such Subsidiary,
enforceable in accordance with its terms (subject to customary exceptions). The Subsidiary
Guarantee of a Subsidiary Guarantor shall be released at such time as such Subsidiary Guarantor
ceases to guarantee obligations under the indenture governing the 2018 Senior Notes.



ARTICLE XI




Redemption of Securities; Fundamental Changes and Purchases Thereupon




SECTION 11.01. No Right of Redemption. The Securities are not redeemable at the
election of the Company prior to the Stated Maturity.


 


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SECTION 11.02. Purchase at Option of Holders Upon a Fundamental Change:



(a) If a Fundamental Change occurs at any time, then each Holder of Securities shall have the
right, at such Holder’s option, to require the Company to purchase for cash any or all of such
Holder’s Securities, or any portion of the principal amount thereof, that is equal to $1,000 or a
multiple of $1,000, on a date specified by the Company that is no earlier than the
20th calendar day following the date of, and no later than the 35th calendar day following the
date of, delivery of the Fundamental Change Company Notice (the “Fundamental Change Purchase
Date”), at a purchase price equal to 100% of the principal amount thereof, together with accrued
and unpaid interest thereon to, but excluding, the Fundamental Change Purchase Date (the
“Fundamental Change Purchase Price”); provided, however, that if a Fundamental
Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to
which such Regular Record Date relates, the interest payable in respect of such Interest Payment
Date shall be payable to the Holders of record as of the corresponding Regular Record Date and the
Fundamental Change Purchase Price shall be equal to 100% of the principal amount of the Securities
to be purchased pursuant to this Article XI. The requirement for the Company to purchase any
Securities on the Fundamental Change Purchase Date will be subject to extension to comply with
applicable law.



Purchases of Securities under this Section 11.02 shall be made, at the option of the Holder
thereof, upon:




(i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Purchase Notice”) in the form set forth on the reverse of the
Security as Exhibit C thereto, if the Securities are Definitive Securities, or in
compliance with the Depositary’s procedures for tendering interests in Global
Securities, if the Securities are not Definitive Securities, in each case prior to
the close of business on the Business Day immediately preceding the Fundamental
Change Purchase Date; and




(ii) delivery of the Securities, in the case of Definitive Securities, to the
Paying Agent appointed by the Company (together with all necessary endorsements for
transfer), or book-entry transfer of the Securities, in compliance with the
procedures of the Depositary, such delivery or transfer being a condition to receipt
by the Holder of the Fundamental Change Purchase Price therefor.



The Fundamental Change Purchase Notice in respect of any Securities to be purchased shall
state:




(i) if such Securities are Definitive Securities, the certificate numbers of
such Securities;




(ii) the portion of the principal amount of such Securities, which must be
$1,000 or a multiple thereof; and




(iii) that such Securities are to be purchased by the Company pursuant to the
applicable provisions of the Securities and this Indenture;



provided, however, that if such Securities are in global form, the Fundamental
Change Purchase Notice must also comply with appropriate procedures of the Depositary.


 


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Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 11.02 shall have the right to
withdraw, in whole or in part, such Fundamental Change Purchase Notice at any
time prior to the close of business on the Business Day immediately preceding the Fundamental
Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 11.04 below. The Paying Agent shall promptly notify the Company of the
receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof.



(b) Fundamental Change Company Notice. On or before the 20th calendar day after the
occurrence of a Fundamental Change, the Company shall provide to all Holders, the Trustee and the
Paying Agent (in the case of any Paying Agent other than the Trustee) a notice (the “Fundamental
Change Company Notice”) of the occurrence of such Fundamental Change and of the purchase right at
the option of the Holders arising as a result thereof. Such notice shall be sent by first class
mail or, in the case of any Global Securities, in accordance with the procedures of the Depositary
for providing notices. Simultaneously with providing such Fundamental Change Company Notice, the
Company shall publish a notice containing the information included therein in a newspaper of
general circulation in New York, New York or shall publish such information on the Company’s
website or through such other public medium as the Company may use at such time. Each Fundamental
Change Company Notice shall specify:




(i) the events causing a Fundamental Change;




(ii) the date of the Fundamental Change;




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




(iv) the Fundamental Change Purchase Price;




(v) the Fundamental Change Purchase Date;




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




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




(viii) if applicable, that the Securities with respect to which a Fundamental
Change Purchase Notice has been delivered by a Holder may be converted only if the
Holder withdraws the Fundamental Change Purchase Notice in accordance with this
Indenture; and




(ix) the procedures that Holders must follow to require the Company to purchase
their Securities.



No failure of the Company to give the foregoing notices and no defect therein shall limit the
purchase rights of the Holders of Securities or affect the validity of the proceedings for the
purchase of the Securities pursuant to this Section 11.02.


 


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(c) No Payment During Events of Default. There shall be no purchase of any Securities
pursuant to this Section 11.02 if there has occurred and is continuing an Event of Default with
respect to the Securities (other than an Event of Default that is cured by the payment of the
Fundamental Change Purchase Price of the Securities). The Paying Agent will promptly return to the
respective Holders thereof any Definitive Securities held by it during the continuance of an Event
of Default (other than an Event of Default that is cured by the payment of the Fundamental Change
Purchase Price with respect to the Securities) and shall deem canceled any instructions for
book-entry transfer of the Securities in compliance with the procedures of the Depositary, in which
case, upon such return and cancelation, the Fundamental Change Purchase Notice with respect thereto
shall be deemed to have been withdrawn.



SECTION 11.03. Effect of Fundamental Change Purchase Notice. Upon receipt by the
Paying Agent of the Fundamental Change Purchase Notice specified in Section 11.02 hereof, the
Holder of the Security in respect of which such Fundamental Change Purchase Notice was given shall
(unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 11.04
hereof) thereafter be entitled to receive solely the Fundamental Change Purchase Price in cash with
respect to such Security. Such Fundamental Change Purchase Price shall be paid to such Holder,
subject to receipt of funds by the Paying Agent, on the later of (x) the Fundamental Change
Purchase Date with respect to such Security (provided, the conditions in Section 11.02
hereof have been satisfied) and (y) the time of delivery or book-entry transfer of such Security to
the Paying Agent by the Holder thereof in the manner required by Section 11.02 hereof.



SECTION 11.04. Withdrawal of Fundamental Change Purchase Notice. A Fundamental Change
Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Paying Agent in accordance with the Fundamental Change Company Notice at any time
prior to the close of business on the Business Day immediately preceding the Fundamental Change
Purchase Date, specifying:




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




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




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



provided, however, that if Definitive Securities have not been issued, the notice
must comply with appropriate procedures of the Depositary.



The Paying Agent will promptly return to the respective Holders thereof any Definitive
Securities with respect to which a Fundamental Change Purchase Notice has been withdrawn in
compliance with the provisions of this Section 11.04.


 


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SECTION 11.05. Deposit of Fundamental Change Purchase Price. Prior to 11:00 a.m.
(local time in The City of New York) on the Fundamental Change Purchase Date, the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as
provided herein) an amount of money (in immediately available funds if deposited on such Business
Day) sufficient to pay the Fundamental Change Purchase Price of all the Securities or portions
thereof that are to be purchased as of the Fundamental Change Purchase Date. If the Paying Agent
holds cash or securities sufficient to pay the Fundamental Change Purchase Price of the Securities
for which a Fundamental Change Purchase Notice has been tendered and not withdrawn in accordance
with this Indenture on the Fundamental Change Purchase Date, then as of such Fundamental Change
Purchase Date, (a) such Securities will cease to be outstanding and interest will cease to accrue
thereon (whether or not book-entry transfer of such Securities is made or such Securities have been
delivered to the Paying Agent) and (b) all other rights of the Holders in respect thereof will
terminate (other than the right to receive the Fundamental Change Purchase Price and previously
accrued and unpaid interest upon delivery or book-entry transfer of such Securities).



SECTION 11.06. Securities Purchased in Whole or in Part. Any Security that is to be
purchased, whether in whole or in part, shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires in the case of Definitive Securities, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion
of the principal amount of the Security so surrendered that is not purchased.



SECTION 11.07. Covenant to Comply With Applicable Laws Upon Purchase of Securities.
In connection with any offer to purchase Securities under Section 11.02 hereof, the Company shall,
in each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required
schedule under the Exchange Act and (iii) otherwise comply with all federal and state securities
laws so as to permit the rights and obligations under Section 11.02 to be exercised in the time and
in the manner specified in Section 11.02.



SECTION 11.08. Repayment to the Company. To the extent that the aggregate amount of
cash deposited by the Company pursuant to Section 11.05 exceeds the aggregate Fundamental Change
Purchase Price of the Securities or portions thereof that the Company is obligated to purchase as
of the Fundamental Change Purchase Date, then, following the Fundamental Change Purchase Date, the
Paying Agent shall promptly return any such excess to the Company.


 


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ARTICLE XII




Conversion




SECTION 12.01. Right to Convert. (a) Subject to and upon compliance with the
provisions of this Indenture, each Holder of Securities shall have the right, at such
Holder’s option, to convert the principal amount of any such Securities, or any portion of
such principal amount equal to $1,000 or a multiple of $1,000 thereof, at the Conversion Rate in
effect on the Conversion Date for such Securities, (x) prior to the close of business on the
Business Day immediately preceding November 15, 2015, only upon satisfaction of one or more of the
conditions described in clauses (i) through (iv) below and (y) on or after November 15, 2015, at
any time prior to the close of business on the second Scheduled Trading Day immediately preceding
May 15, 2016, irrespective of the conditions described in clauses (i) through (iv) below:




(i) Prior to the close of business on the Business Day immediately preceding
November 15, 2015, a Holder of Securities may surrender all or a portion of its
Securities for conversion during any fiscal quarter (and only during such fiscal
quarter) commencing after March 31, 2011 if the Last Reported Sale Price of the
Common Stock for at least 20 Trading Days (whether or not consecutive) during the
period of 30 consecutive Trading Days ending on the last Trading Day of the
immediately preceding fiscal quarter is greater than or equal to 130% of the
applicable Conversion Price in effect on each applicable Trading Day. The Company
shall notify the Trustee and the Conversion Agent if the Securities become
convertible in accordance with this Section 12.01(a)(i).




(ii) Prior to the close of business on the Business Day immediately preceding
November 15, 2015, a Holder of Securities may surrender its Securities for
conversion during the five Business Day period after any 10 consecutive Trading Day
period (the “Measurement Period”) in which the Trading Price per $1,000 principal
amount of Securities, as determined following a request by a Holder of Securities in
accordance with the procedures set forth in this Section 12.01(a)(ii), for each
Trading Day of such period was less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the Conversion Rate on such Conversion Date (the
“Trading Price Condition”). The Bid Solicitation Agent, if other than the Company,
shall have no obligation to determine the Trading Price of the Securities in
accordance with this Section 12.01(a)(ii) unless requested by the Company, and the
Company shall have no obligation to make such request (or, if the Company is acting
as Bid Solicitation Agent, will have no obligation to determine the Trading Price)
unless a Holder of Securities provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Securities would be less than 98% of
the product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate. The Company shall instruct the Bid Solicitation Agent to determine
(or, if the Company is then acting as Bid Solicitation Agent, the Company shall
determine) the Trading Price of the Securities beginning on the next Trading Day
promptly following the receipt of such evidence and on each successive Trading Day
until such Trading Day on which the Trading Price per $1,000 principal amount of
Securities is greater than or equal to 98% of the product of the Last Reported Sale
Price of the Common Stock and the applicable Conversion Rate. If the Company does
not so instruct the Bid Solicitation Agent to obtain (or, if the Company is then
acting as Bid Solicitation Agent, the Company does not obtain)


 


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bids when required,
the Trading Price per $1,000 principal amount of the Securities will be deemed to be
less than 98% of the product of the Last Reported Sale Price of the Common Stock and the
applicable Conversion Rate on each day the Company fails to do so. If the Trading
Price Condition has been met, the Company shall so notify Holders, the Trustee and
the Conversion Agent within one Business Day. If, at any time after the Trading
Price Condition has been met, the Trading Price per $1,000 principal amount of
Securities is greater than or equal to 98% of the product of the Last Reported Sale
Price of the Common Stock and the Conversion Rate for such date, the Company shall
so notify the holders of the Securities, the Trustee and the Conversion Agent within
one Business Day.




(iii) If the Company elects to:




	 	(A)	 	issue to all or substantially all holders of
Common Stock certain rights or warrants entitling them to purchase, for
a period expiring within 60 days after the announcement date of such
issuance, shares of Common Stock at less than the average of the Last
Reported Sale Prices of a share of Common Stock for the 10 consecutive
Trading Day period ending on the Trading Day immediately preceding the
date of announcement of such issuance; or







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







then, in each case, the Company shall notify the Holders of the Securities at least
50 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or
distribution. Once the Company has given such notice, Holders may surrender
Securities for conversion at any time until the earlier of the close of business on
the Business Day immediately prior to such Ex-Dividend Date or the Company’s
announcement that such issuance or distribution will not take place, even if the
Securities are not otherwise convertible at such time. Notwithstanding the
foregoing, a Holder of Securities may not convert its Securities under the
provisions of this Section 12.01(a)(iii) if such Holder will participate in such
issuance or distribution, at the same time and upon the same terms as a holder of
Common Stock, as if such Holder held, for each $1,000 principal amount of
Securities, a number of shares of Common Stock equal to the Conversion Rate in
effect immediately prior to the Ex-Dividend Date.




(iv) If a transaction or event that constitutes a Fundamental Change or a
Make-Whole Fundamental Change occurs, regardless of whether a Holder has the right
to require the Company to purchase the Securities pursuant to Article XI hereof, or
if the Company is a party to a consolidation, merger, binding share exchange, or
sale, transfer or lease of all or substantially all of the Company’s assets, in each
case, pursuant to which the Common Stock would be converted into cash,
securities or other assets, Holders may surrender Securities for conversion at
any time from or after the date which is 50 Scheduled Trading Days prior to the
anticipated effective date of such transaction until 35 Trading Days after the
actual effective date of such transaction (or, if such transaction also constitutes
a Fundamental Change, until the related Fundamental Change Purchase Date). The
Company shall notify Holders and the Trustee as promptly as practicable following
the date the Company publicly announces such transaction, but in no event less than
50 Scheduled Trading Days prior to the anticipated effective date of such
transaction.


 


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(b) Securities may not be converted after the close of business on the second Scheduled
Trading Day immediately preceding May 15, 2016.




SECTION 12.02. Conversion Procedures; Settlement Upon Procedure.



Subject to this Section 12.02, Section 12.05(b) and Section 12.06, upon conversion of any
Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in
respect of each $1,000 principal amount of Securities being converted, cash (“Cash Settlement”),
shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of
Common Stock in accordance with Section 12.02(n) (“Physical Settlement”) or a combination of cash
and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of
Common Stock in accordance with Section 12.02(n) (“Combination Settlement”), at its election, as
set forth in this Section 12.02.



(a) All conversions occurring on or after November 15, 2015 shall be settled using the same
Settlement Method.



(b) Prior to November 15, 2015, the Company shall use the same Settlement Method for all
conversions occurring on the same Conversion Date, but the Company shall not have any obligation to
use the same Settlement Method with respect to conversions that occur on different Trading Days.



(c) The Company shall from time to time make an election with respect to the Settlement Method
it chooses to satisfy its Conversion Obligation (a “Settlement Election”). Each Settlement Election
shall be effective until the Company provides a notice of a different Settlement Election (each
such notice, a “Settlement Election Notice”), and such different Settlement Election becomes
effective. As of the date of this Indenture, the Company has made a Settlement Election of
Combination Settlement with a Specified Dollar Amount equal to $1,000. If the Company makes a
different Settlement Election, the Company shall provide to all Holders, the Trustee and the
Conversion Agent a Settlement Election Notice with respect to each Settlement Election specifying
the newly chosen Settlement Method, the effective date of such Settlement Election (which cannot be
earlier than the third Scheduled Trading Day following the delivery of such Settlement Election
Notice) and in the case of Combination Settlement, the Specified Dollar Amount. If the Company
makes a Settlement Election specifying Combination Settlement in respect of its Conversion
Obligation but does not specify a Specified Dollar Amount in the notice of such Settlement
Election, the Specified Dollar Amount shall be deemed to be equal to $1,000. The Company may not
change the Settlement Election after November 15,
2015. Prior to such date, the Company shall have the right to irrevocably elect Combination
Settlement with a Specified Dollar Amount of $1,000, by complying with the following sentence.
Simultaneously with providing a Settlement Election Notice, the Company shall issue a press release
containing the relevant information and make such information available on its website.


 


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(d) The cash, shares of Common Stock or combination of cash and shares of Common Stock in
respect of any conversion of Securities (the “Settlement Amount”) shall be computed as follows:




(i) if the Company elects Physical Settlement, the Company shall deliver to the
converting Holder in respect of each $1,000 principal amount of Securities being
converted a number of shares of Common Stock equal to the Conversion Rate in effect
on the Conversion Date, together with cash in lieu of fractional shares as set forth
in Section 12.02(n);




(ii) if the Company elects Cash Settlement, the Company shall pay to the
converting Holder in respect of each $1,000 principal amount of Securities being
converted cash in an amount equal to the sum of the Daily Conversion Values for each
of the 40 consecutive Trading Days during the related Observation Period; and




(iii) if the Company elects (or is deemed to have elected) Combination
Settlement, the Company shall pay or deliver, as the case may be, to the converting
Holder in respect of each $1,000 principal amount of Securities being converted, a
Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the
40 consecutive Trading Days during the related Observation Period.



(e) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the Observation
Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion
Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the
Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily
Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash
payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if
other than the Trustee) shall have no responsibility for any such determination.



(f) Each Security shall be convertible at the office of the Conversion Agent and, if
applicable, in accordance with the procedures of the Depositary.


 


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(g) In order to exercise the conversion privilege with respect to any interest in a Global
Security, the Holder must complete the appropriate instruction form for conversion pursuant to the
Depositary’s book-entry conversion program, furnish appropriate endorsements and transfer documents
if required by the Company or the Conversion Agent, and pay the funds, if any, required by Section
12.02(l) and any taxes or duties if required pursuant to Section 12.08,
and the Conversion Agent must be informed of the conversion in accordance with the customary
practice of the Depositary. In order to exercise the conversion privilege with respect to any
Definitive Securities, the Holder of any such Securities to be converted, in whole or in part,
shall:




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




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




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




(iv) make any payment required under Section 12.02(e); and




(v) if required, pay all transfer or similar taxes as set forth in Section
12.08.



The date on which the Holder satisfies all of the applicable requirements set forth above is the
Conversion Date (the “Conversion Date”). Except as set forth in Section 12.05 and Section 12.06,
the Company shall pay or deliver, as the case may be, the consideration due in respect of any
conversion of the Securities on the third Business Day immediately following the relevant
Conversion Date, if the Company elects Physical Settlement, or on the third Business Day
immediately following the last Trading Day of the Observation Period, in the case of any other
Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall
issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such
Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the
full number of shares of Common Stock to which such Holder shall be entitled.



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



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



(j) 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.


 


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



(l) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest, if any, except as set forth below. The Company’s delivery to the Holder of cash
or a combination of cash and Common Stock, if applicable, together with any cash payment for any
fractional share of Common Stock, into which a Security is convertible shall be deemed to satisfy
in full its obligation to pay the principal amount of the Security and accrued and unpaid interest,
if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if
any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited. Upon a conversion of Securities into a combination of cash
and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the
cash paid upon such conversion. Notwithstanding the foregoing, if Securities are converted after
the close of business on a Regular Record Date, Holders of such Securities as of the close of
business on such Regular Record Date will receive the full amount of interest payable on such
Securities on the corresponding Interest Payment Date notwithstanding the conversion. Securities
surrendered for conversion during the period from the close of business on any Regular Record Date
to the open of business on the immediately following Interest Payment Date must be accompanied by
funds equal to the amount of interest payable on the Securities so converted; provided that no such
payment shall be required (1) for conversions following the Regular Record Date immediately
preceding May 15, 2016; (2) if the Company has specified a Fundamental Change Purchase Date that is
after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (3) to
the extent of any overdue interest, if any overdue interest exists at the time of conversion with
respect to such Security.



(m) The Person in whose name the certificate for any shares of Common Stock delivered upon
conversion is registered shall be treated as a stockholder of record as of the close of business on
the relevant Conversion Date (if the Company elects Physical Settlement) or the last Trading Day of
the relevant Observation Period (if the Company elects Combination Settlement), as the case may be.
Upon a conversion of Securities, such Person shall no longer be a Holder of such Securities
surrendered for conversion.



(n) The Company shall not issue any fractional share of Common Stock upon conversion of the
Securities and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon
conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical
Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period
(in the case of Combination Settlement). For each Security surrendered for conversion, if the
Company has elected Combination Settlement, the full number of shares that shall be issued upon
conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the
applicable Observation Period and any fractional shares remaining after such computation shall be
paid in cash.


 


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(o) Solely for purposes of determining the payments and deliveries due upon conversion under
this Section 12.02, and notwithstanding the definition of “Trading Day” contained in Section 1.01,
“Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in the
Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not
then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common Stock is not then
listed on a U.S. national or regional securities exchange, on the principal other market on which
the Common Stock is then traded. If the Common Stock (or other security for which a Daily VWAP must
be determined) is not so listed or traded, “Trading Day” means a Business Day.



SECTION 12.03. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted
from time to time by the Company if any of the following events occurs, except that the Company
will not make any adjustment to the Conversion Rate if Holders of Securities participate at the
same time and on the same terms as holders of Common Stock and solely, as a result of holding the
Securities, in any of the transactions described under Section 12.03(a) (but only with respect to
stock dividends or distributions), Section 12.03(b), Section 12.03(c), and Section 12.03(d), at the
same time as holders of the Common Stock participate, without having to convert their Securities as
if such Holders held a number of shares of Common Stock equal to (i) the Conversion Rate in effect
for such Securities immediately prior to the Ex-Dividend Date for such event multiplied by (ii)(x)
the principal amount of Securities held by such a Holder divided by (y) $1,000.



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








where




	 	 	 	 	 
	CR0

	 	=
	 	The Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date of
such dividend or distribution, or immediately
prior to the open of business on the effective
date of such share split or share combination, as
applicable;
	 
	 	 	 	 
	CR1

	 	=
	 	The Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date or
such effective date;
	 
	 	 	 	 
	OS0

	 	=
	 	The number of shares of Common Stock outstanding
immediately prior to the open of business on such
Ex-Dividend Date or such effective date; and
	 
	 	 	 	 
	OS1

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





 


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Such adjustment shall become effective immediately after the open of business on the Ex-Dividend
Date for such dividend or distribution or the effective date for such share split or share
combination. If any dividend or distribution of the type described in this Section 12.03(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate which would then be in effect if such dividend or distribution had not been declared.



(b) If the Company issues to all or substantially all holders of the Common Stock any rights
or warrants entitling them for a period of not more than 60 calendar days after the announcement
date of such issuance to subscribe for or purchase shares of the Common Stock at a price per share
less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such
issuance, the Conversion Rate shall be adjusted based on the following formula:








where




	 	 	 	 	 
	CR0

	 	=
	 	The Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend
Date for such issuance;
	 
	 	 	 	 
	CR1

	 	=
	 	The Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 
	 	 	 	 
	OS0

	 	=
	 	The number of shares of Common Stock outstanding immediately prior to the open of business on
such Ex-Dividend Date;
	 
	 	 	 	 
	X

	 	=
	 	The total number of shares of Common Stock issuable pursuant to such rights or warrants; 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 Last Reported Sale Prices of the Common
Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the date of announcement of the issuance of such rights or warrants.






To the extent such rights or warrants are not exercised prior to their expiration or termination,
the Conversion Rate shall be readjusted to the Conversion Rate that would be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the basis of the
delivery of only the number of shares of Common Stock actually delivered. In the event that such
rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if the date fixed for the determination of
shareholders entitled to receive such rights or warrants had not been fixed. For the purposes of
this Section 12.03(b), in determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale
Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the date of announcement of such issuance, and in determining the aggregate
exercise price payable for such shares of Common Stock, there shall be taken into account any
consideration received by the Company for such rights or warrants and any amount payable on the
exercise thereof, with the value of such consideration, if other than cash, as shall be determined
in good faith by the Board of Directors.


 


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(c) If the Company distributes shares of any class of Capital Stock of the Company, evidences
of its indebtedness, other assets or property of the Company or rights or warrants to acquire the
Company’s Capital Stock or other securities to all or substantially all holders of its Common
Stock, excluding:




(i) dividends or distributions and rights or warrants as to which an adjustment
was effected pursuant to Section 12.03(a) or Section 12.03(b);




(ii) dividends or distributions paid exclusively in cash; and




(iii) Spin-Offs to which the provisions set forth below in this Section
12.03(c) shall apply;



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








where




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend
Date for such distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 
	 	 	 	 
	SP0

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

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






Such adjustment shall become effective immediately after the open of business on the Ex-Dividend
Date for such distribution. If the Company’s Board of Directors determines the “FMV” (as defined
above) of any distribution for purposes of this Section 12.03(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 Last Reported Sale Prices of the Common
Stock. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing adjustment, each Holder of Securities
shall receive, in respect of each $1,000 principal amount of its Securities at the same time and
upon the same terms as holders of the Common Stock, the amount and kind of securities, assets and
other property such Holder would have received if such Holder owned on the relevant Record Date for
such distribution a number of shares of Common Stock equal to the Conversion Rate in effect on such
Record Date for the distribution of the securities or assets.


 


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With respect to an adjustment pursuant to this Section 12.03(c) where there has been a payment of a
dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit and such
dividend or distribution is listed for trading on a securities exchange (a “Spin-Off”), the
Conversion Rate shall be increased 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 Last Reported Sale Prices of the Capital Stock or similar equity
interest distributed to holders of Common Stock applicable to one share of Common
Stock (determined for purposes of the definition of Last Reported Sale Price as if
such Capital Stock or similar equity interest were the Common Stock) over the first
ten consecutive Trading Day period after, and including, the Ex-Dividend Date of the
Spin-Off (the “Valuation Period”); and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported 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 during the Valuation
Period, references above to ten Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date
in determining the applicable Conversion Rate; provided further that if the Ex-Dividend
Date for the Spin-Off is less than 10 consecutive Trading Days before, and including, the end of
the Observation Period in respect of any conversion, references in this clause (c) related to
Spin-Offs to 10 consecutive Trading Days shall be deemed replaced, for purposes of calculating the
Daily Conversion Values or Daily Settlement Amounts in respect of that conversion, with such lesser
numbers of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off
to, and including, the last Trading Day of such Observation Period.


 


-69-









 





(d) If the Company pays any cash dividend or distribution to all or substantially all holders
of Common Stock, the Conversion Rate shall be adjusted based on the following formula:








where




	 	 	 	 	 
	CR0

	 	=
	 	The Conversion Rate in effect immediately prior to the open of business on the
Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	The Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 
	SP0

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

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






Such adjustment shall become effective immediately after the open of business on the Ex-Dividend
Date for such distribution. Notwithstanding the foregoing, if “C” (as defined above) is equal to
or greater than “SP0” (as defined above), in lieu of the foregoing adjustment, each
Holder of Securities shall receive, in respect of each $1,000 principal amount of its Securities at
the same time and upon the same terms as holders of the Common Stock, the amount of the cash
dividend or distribution such Holder would have received if such Holder owned on the relevant
Record Date for such dividend or distribution a number of shares of Common Stock equal to the
Conversion Rate in effect on such Record Date.



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








where




	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the open of business on the Trading Day next
succeeding the date such tender or exchange offer
expires;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the open of business on the Trading Day next
succeeding the date such tender or exchange offer
expires;
	 
	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other
consideration (as determined by the Company’s
Board of Directors) 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 Last Reported Sale Price of the Common Stock
on the Trading Day next succeeding the date such
tender or exchange offer expires.





 


-70-









 





The adjustment to the Conversion Rate under this Section 12.03(e) will be determined immediately
after the close of business on the Trading Day next succeeding the date such tender or exchange
offer expires, but will be given effect immediately after the open of business on such Trading Day.



(f) Notwithstanding the above, certain listing standards of The NASDAQ Global Select Market
may limit the amount by which the Company may increase the conversion rate pursuant to the events
described in clauses (b) through (e), (g) and (h) in this Section. These standards generally
require the Company to obtain the approval of its stockholders before entering into certain
transactions that potentially result in the issuance of 20% or more of the
Common Stock outstanding on the Issue Date unless the Company obtains stockholder approval of
issuances in excess of such limitations. In accordance with these listing standards, these
restrictions will apply at any time when the Securities are outstanding, regardless of whether the
Company then has a class of securities listed on The NASDAQ Global Select Market. Accordingly, in
the event of an increase in the Conversion Rate above that which would result in the Securities, in
the aggregate, becoming convertible into shares in excess of such limitations, the Company shall,
at its discretion, either obtain stockholder approval of such issuances or deliver cash in lieu of
any shares otherwise deliverable upon conversions in excess of such limitations based on the daily
VWAP on each Trading Day of the relevant Observation Period in respect of which, in lieu of
delivering shares of Common Stock, the Company delivers cash pursuant to this Section 12.03(f).



(g) The Company from time to time may increase the Conversion Rate by any amount for any
period of time of at least 20 Business Days, so long as the Company’s Board of Directors shall have
made a determination that such increase would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to this
Section 12.03(f), the Company shall mail to Holders of record of the Securities a notice of the
increase at least one day prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it will be in effect.



(h) The Company may (but shall not be required to) increase the Conversion Rate, in addition
to any adjustments pursuant to Section 12.03(a), 12.03(b), 12.03(c), 12.03(d), 12.03(e) or
12.03(f), if the Company’s Board of Directors considers such increase to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection
with a dividend or distribution of shares (or rights to acquire shares) or similar event.


 


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(i) All calculations under this Article XII shall be made by the Company and shall be made to
the nearest cent (including, in the case of any adjustment to the Conversion Rate, the resulting
adjustment to the Conversion Price) or to the nearest one ten-thousandth of a share. No adjustment
shall be required to be made for the Company’s issuance of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock or rights to purchase shares of Common
Stock or such convertible or exchangeable securities, other than as provided in this Section 12.03
and in Section 12.05 hereof.



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



(k) For purposes of this Section 12.03, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury
of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.



(l) Notwithstanding anything in this Section 12.03 or any other provision in this Indenture or
the Securities, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a
Holder that has converted its Securities on or after such Ex-Dividend Date and on or prior to the
related Record Date would be treated as the record holder of the shares of Common Stock as of the
related Conversion Date as described under Section 12.02(m) based on an adjusted Conversion Rate
for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this
Section 12.03, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made
for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record
owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend,
distribution or other event giving rise to such adjustment.



(m) Notwithstanding the foregoing, if the application of the foregoing formulas set forth in
this Section 12.03 would result in a decrease in the Conversion Rate, no adjustment to the
Conversion Rate shall be made (other than as a result of a share combination).


 


-72-









 





(n) Notwithstanding anything to the contrary in this Article XII, no adjustment to the
Conversion Rate shall be made:




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




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




(iii) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in
clause (ii) above and outstanding as of the Issue Date;




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




(v) for accrued and unpaid interest on the Securities.



(o) The Company shall not be required to make an adjustment in the Conversion Rate unless the
adjustment would require a change of at least 1% in the Conversion Rate. However, the Company will
carry forward any adjustments that are less than 1% of the Conversion Rate and make such carried
forward adjustment, regardless of whether the aggregate
adjustment is less than 1%, (i) upon any Conversion Date for any Securities and (ii) on each
Trading Day of any Observation Period.



SECTION 12.04. Certain Other Adjustments. Whenever a provision of this Indenture
requires the calculation of Last Reported Sale Prices or Daily VWAP over a span of multiple days,
the Board of Directors will make appropriate adjustments to such Last Reported Sale Prices or Daily
VWAP, the Conversion Rate, or the amount due upon conversion to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, at any time during the period from which such Last
Reported Sale Prices or Daily VWAP are to be calculated.



SECTION 12.05. Adjustments Upon Certain Fundamental Changes. (a) If a Make-Whole
Fundamental Change occurs and a Holder elects to convert its Securities in connection with such
Make-Whole Fundamental Change, the Company shall, under certain circumstances, increase the
Conversion Rate for the Securities so surrendered for conversion by a number of additional shares
of Common Stock (the “Additional Shares”) as described below. A conversion of Securities shall be
deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the
notice of conversion of the Securities is received by the Conversion Agent from, and including, the
Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day
immediately prior to the related Fundamental Change Purchase Date (or, in the case of an event that
would have been a Fundamental Change but for the proviso in clause (2) of the definition thereof,
the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental
Change).


 


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(b) Upon surrender of Securities for conversion in connection with a Make-Whole Fundamental
Change, the Company shall, at its option, satisfy the related Conversion Obligation by Physical
Settlement, Cash Settlement or Combination Settlement in accordance with Section 12.02;
provided, however, that if, at the effective time of a Make-Whole Fundamental
Change, the Reference Property is comprised entirely of cash, then, for any conversion of
Securities following the Effective Date of such Make-Whole Fundamental Change, the amounts
deliverable by the Company shall be calculated based solely on the “Stock Price” (as defined below)
for the Make-Whole Fundamental Change and shall be deemed to be an amount equal to the Conversion
Rate (including any adjustment for Additional Shares) multiplied by such Stock Price. In such
event, the amounts deliverable by the Company shall be determined and paid to holders in cash on
the third Business Day following the Conversion Date.



(c) The number of Additional Shares, if any, by which the Conversion Rate will be increased
will be determined by reference to the table attached as Schedule A hereto, based on the date on
which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the
price (the “Stock Price”) paid (or deemed paid) per share of the Common Stock in the Fundamental
Change. If the holders of the Common Stock receive only cash in a Make-Whole Fundamental Change
described in clause (2) of the definition of Fundamental Change, the Stock Price shall be the cash
amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale
Prices of the Common Stock over the ten Trading-Day period ending on, and including, the Trading
Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.



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




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




(ii) If the Stock Price is greater than $120.00 per share (subject to
adjustment in the same manner as the Stock Prices set forth in the column headings
of the table in Schedule A pursuant to subsection (d) below), no Additional Shares
shall be added to the Conversion Rate.




(iii) If the Stock Price is less than $32.00 per share (subject to adjustments
in the same manner as the Stock Prices set forth in the column headings of the table
in Schedule A pursuant to subsection (d) below), no Additional Shares shall be added
to the Conversion Rate.



Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 31.2500 shares of
Common Stock per $1,000 principal amount of Securities, subject to adjustments in the same manner
as the Conversion Rate as set forth in Section 12.03.


 


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(d) The Stock Prices set forth in the column headings of the table in Schedule A hereto shall
be adjusted as of any date on which the Conversion Rate of the Securities is otherwise adjusted.
The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately
prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is
the Conversion Rate as so adjusted. The number of Additional Shares set forth in such table shall
be adjusted in the same manner as the Conversion Rate as set forth in Section 12.03.



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



SECTION 12.06. Effect of Recapitalization, Reclassification, Consolidation, Merger or
Sale.




(a) If any of the following events occur:




(i) any recapitalization or reclassification of, or change in, the Common Stock
(other than changes resulting from a subdivision or combination);




(ii) a consolidation, merger or combination involving the Company;




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




(iv) any statutory share exchange;



in each case as a result of which the Common Stock would be converted into, or exchanged for, or
would be reclassified or changed into, stock, other securities, other property or assets (including
cash or any combination thereof) (any such event, a “Merger Event”), then at the effective time of
such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act
as in force at the date of execution of such supplemental indenture) providing that at and after
the effective time of such Merger Event, the right to convert a Security will be changed into a
right to convert such Security as set forth in this Indenture into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any combination thereof)
that a holder of a number of shares of Common Stock equal to the Conversion Rate prior to such
Merger Event would have owned or been entitled to receive (the “Reference Property”, with each
“unit of Reference Property” meaning the type and amount of Reference Property that a holder of one
share of Common Stock is entitled to receive) upon such Merger Event; provided,
however, (A) the Company shall continue to have the right to determine the form of
consideration to be paid or delivered, as the case may be, upon conversion of Securities in
accordance with Section 12.02 and (B) (I) any amount payable in cash upon conversion of the
Securities in accordance with Section 12.02 shall continue to be payable in cash, (II) any shares
of Common Stock that the Company would have been required to deliver upon conversion of the
Securities in accordance with Section 12.02 shall instead be deliverable in the amount and type of
Reference Property that a holder of that number of shares of Common Stock would have been entitled
to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of
a unit of Reference Property.


 


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If, as a result of the Merger Event, each share of Common Stock is converted into the right to
receive more than a single type of consideration (determined based in part upon any form of
stockholder election), then (x) 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 an election, and (y) the unit
of Reference Property for purposes of the foregoing sentence shall refer to the consideration
referred to in clause (x) attributable to one share of Common Stock. If the holders receive only
cash in such Merger Event, then for all conversions that occur after the effective date of such
Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of
Securities shall be solely cash in an amount equal to the Conversion Rate in effect on the
Conversion Date (as may be increased by any Additional Shares pursuant to Section 12.03),
multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company
shall satisfy the conversion obligation by paying cash to converting Holders on the third Business
Day immediately following the Conversion Date. The Company shall notify Holders, the Trustee and
the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable
after such determination is made.



The Company shall not become a party to any such Merger Event unless its terms are consistent
with this Section 12.06. Such supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in this Article XII in
the judgment of the Company’s Board of Directors or the Board of Directors of the successor Person.
If, in the case of any such recapitalization, reclassification, change,
consolidation, merger, combination, sale, lease, other transfer or statutory share exchange,
the Reference Property receivable thereupon by a holder of Common Stock includes shares of stock,
securities or other property or assets (including cash or any combination thereof) of a Person
other than the successor or purchasing Person, as the case may be, in such reorganization,
reclassification, change, consolidation, merger, combination, sale, lease, other transfer or
statutory share exchange, then such supplemental indenture shall also be executed by such other
Person. None of the foregoing provisions shall affect the right of a holder of Securities to
convert its Securities into cash, shares of Common Stock or a combination of cash and shares of
Common Stock, as applicable, as set forth in Section 12.01 and Section 12.02 prior to the effective
date of such Merger Event



(b) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder, at the address of such Holder as it appears on the register of the
Securities maintained by the Registrar, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental indenture. The above
provisions of this Section 12.06 shall similarly apply to successive reclassifications, changes,
consolidations, mergers, combinations, sales and conveyances. If this Section 12.06 applies to any
Merger Event, Section 12.03 shall not apply.



SECTION 12.07. Shares to Be Fully Paid. The Company shall provide, free from
preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient
shares of Common Stock to provide for conversion of the Securities from time to time as such
Securities are presented for conversion (assuming that at the time of computation of such number of
shares, all such Securities would be converted by a single Holder and that Physical Settlement is
applicable).


 


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SECTION 12.08. Taxes on Shares Issued. The Company will pay any documentary, stamp or
similar issue or transfer tax due on the issue or delivery of shares of Common Stock on conversion
of Securities pursuant hereto; provided, however, that if such documentary, stamp
or similar issue or transfer tax is due because the Holder of such Securities has requested that
shares of Common Stock be issued in a name other than that of the Holder of the Securities
converted, then such taxes will be paid by the Holder, and the Company shall not be required to
issue or deliver any stock certificate evidencing such shares unless and until the Holder shall
have paid to the Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.



SECTION 12.09. Reservation of Shares; Shares to be Fully Paid; Compliance With
Governmental Requirements; Listing of Common Stock. The Company shall reserve, out of its
authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to
satisfy conversion of the Securities from time to time as such Securities are presented for
conversion (assuming that, at the time of the computation of such number of shares or securities,
all such Securities would be converted by a single Holder).



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



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



SECTION 12.10. Responsibility of Trustee. The Trustee and any Conversion Agent shall
not at any time be under any duty or responsibility to any Holder of Securities to determine or
calculate the Conversion Rate, to determine whether any facts exist which may require any
adjustment of the Conversion Rate, or to confirm the accuracy of any such adjustment when made or
the appropriateness of the method employed, or herein or in any supplemental indenture provided to
be employed, in making the same. The Trustee and any other Conversion Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any shares of Common
Stock or of any other securities or property that may at any time be issued or delivered upon the
conversion of any Securities; and the Trustee and the Conversion Agent make no representations with
respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure
of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or
other securities or property or cash upon the surrender of any Securities for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article XII. The rights, privileges, protections, immunities and benefits given
to the Trustee, including without limitation its right to be compensated, reimbursed, and
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, including its capacity as Conversion Agent and if it is so appointed by the Company and
accepts such appointment, as Bid Solicitation Agent.


 


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Neither the Trustee nor any Conversion Agent shall be responsible for determining whether any
event contemplated by Section 12.01 has occurred which makes the Securities eligible for conversion
until the Company has delivered to the Trustee and any Conversion Agent an Officer’s Certificate
stating that such event has occurred, on which Officer’s Certificate the Trustee and any such
Conversion Agent may conclusively rely, and the Company agrees to deliver such Officer’s
Certificate to the Trustee and any such Conversion Agent immediately after the occurrence of any
such event.




SECTION 12.11. Notice to Holders Prior to Certain Actions. In case:



(a) the Company shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 12.03; or



(b) the Company shall authorize the granting to the holders of all or substantially all of its
Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other
rights or warrants that would require an adjustment in the Conversion Rate pursuant to Section
12.03 or Section 12.11 hereof; or



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



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



then, in each case (unless notice of such event is otherwise required pursuant to another provision
of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent
and to be mailed to each Holder of Securities at such Holder’s address appearing on a list of
Holders of Securities, which the Company shall provide to the Trustee, as promptly as practicable
but in any event at least 10 days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such dividend (or any
other distribution) or rights or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend, distribution or rights or
warrants are to be determined, or (y) the date on which such reclassification, reorganization,
consolidation, merger, sale, lease, transfer, dissolution, liquidation or winding up is expected to
become effective or occur, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend (or any other distribution), reclassification,
reorganization, consolidation, merger, sale, transfer, dissolution, liquidation or winding up.


 


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SECTION 12.12. Stockholder Rights Plan. Each share of Common Stock issued upon
conversion of Securities pursuant to this Article XII shall be entitled to receive the appropriate
number of rights, if any, and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by the terms of any
stockholder rights plan adopted by the Company, as the same may be amended from time to time.
Notwithstanding the foregoing, if prior to any conversion such rights have separated from the
shares of Common Stock in accordance with the provisions of the applicable stockholder rights
agreement, the Conversion Rate shall be adjusted at the time of separation as if the Company had
distributed to all holders of the Common Stock, shares of the Company’s Capital Stock, evidences of
indebtedness, assets, property, rights or warrants as described in Section 12.03(c) above, subject
to readjustment in the event of the expiration, termination or redemption of such right.



ARTICLE XIII




Guarantee of Securities





SECTION 13.01. Securities Guarantees



(a) Subject to the other provisions of this Article XIII, each Guarantor identified and made a
party to this Indenture pursuant to Section 10.08 hereby jointly and severally, guarantees to each
Holder of the Securities, and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture, the Securities,
the obligations of the Company hereunder or thereunder, that:




(i) the principal of, premium, if any, and interest on the Securities will be
promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Securities,
if any, if lawful, and all other obligations of the Company to the Holders of
Securities, or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and




(ii) in case of any extension of time of payment or renewal of any Securities
or any of such other obligations, that same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.



(b) To the extent permissible under applicable law, the obligations of the Guarantors under
this Securities Guarantee are unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. To the extent permitted by applicable law, each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Securities Guarantee will not be
discharged except by complete performance of the obligations contained in the Securities and this
Indenture.


 


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(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Securities Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.



(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, to the extent permitted by
applicable law, as between the Guarantors, on the one hand, and the Holders of Securities and the
Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article V hereof for the purposes of this Securities Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article V hereof, such obligations (regardless of whether due and
payable) will forthwith become due and payable by the Guarantors for the purpose of this Securities
Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so
long as the exercise of such right does not impair the rights of the Holders under the Securities
Guarantee.



SECTION 13.02. Limitation on Guarantor Liability. Each Guarantor, and by its
acceptance of Securities, each Holder thereof, hereby confirms that it is the intention of all such
parties that the Securities Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Securities Guarantee. To effectuate the foregoing intention, to the extent permitted under
applicable law, the Trustee, the Holders and each Guarantor hereby irrevocably agree that the
obligations of such Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are
relevant under such laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article XIII, result in the obligations of such
Guarantor under its Securities Guarantee not constituting a fraudulent transfer or conveyance.


 


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SECTION 13.03. Execution and Delivery of Securities Guarantee Notation. To evidence
its Securities Guarantee set forth in Section 13.01 hereof, each Guarantor hereby agrees that a
notation of such Securities Guarantee substantially in the form set forth in Section 2.01 will be
endorsed by an officer of such Guarantor on each Security authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its
officers.



Each Guarantor hereby agrees that its Securities Guarantee set forth in Section 13.01 hereof
will remain in full force and effect notwithstanding any failure to endorse on each Security a
notation of such Securities Guarantee.



If an officer whose signature is on this Indenture or on the Securities Guarantee no longer
holds that office at the time the Trustee authenticates the Security on which a Securities
Guarantee is endorsed, the Securities Guarantee will be valid nevertheless.



The delivery of any Security by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Securities Guarantee of such Security set forth in this Indenture on
behalf of the Guarantors.


 


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This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.



[SIGNATURE PAGE FOLLOWS]



 


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



	 	 	 	 	 
	 	PETROLEUM DEVELOPMENT CORPORATION

 	 
	 	By:  	/s/ Daniel W. Amidon
 	 
	 	 	Name:  	Daniel W. Amidon 	 
	 	 	Title:  	General Counsel and Secretary 	 
	 
	 	THE BANK OF NEW YORK MELLON, as Trustee

 	 
	 	By:  	/s/ Beata Harvin
 	 
	 	 	Name:  	Beata Harvin 	 
	 	 	Title:  	Vice President 	 



 












 







SCHEDULE A





The following table sets forth the amount, if any, by which the Conversion Rate per $1,000
principal amount of Securities will increase pursuant to Section 12.05 of this Indenture for each
Stock Price and Effective Date set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective date	 	$32.00	 	 	$35.00	 	 	$40.00	 	 	$45.00	 	 	$50.00	 	 	$60.00	 	 	$70.00	 	 	$80.00	 	 	$90.00	 	 	$100.00	 	 	$110.00	 	 	$120.00	 
	November 23, 2010
	 	 	7.6651	 	 	 	6.4354	 	 	 	4.9445	 	 	 	3.9134	 	 	 	3.1753	 	 	 	2.2177	 	 	 	1.6434	 	 	 	1.2697	 	 	 	1.0104	 	 	 	0.8210	 	 	 	0.6769	 	 	 	0.5639	 
	May 15, 2011
	 	 	7.6651	 	 	 	6.4240	 	 	 	4.8783	 	 	 	3.8200	 	 	 	3.0700	 	 	 	2.1115	 	 	 	1.5483	 	 	 	1.1882	 	 	 	0.9417	 	 	 	0.7634	 	 	 	0.6288	 	 	 	0.5235	 
	May 15, 2012
	 	 	7.6651	 	 	 	6.3502	 	 	 	4.6851	 	 	 	3.5682	 	 	 	2.7960	 	 	 	1.8460	 	 	 	1.3166	 	 	 	0.9935	 	 	 	0.7803	 	 	 	0.6300	 	 	 	0.5183	 	 	 	0.4318	 
	May 15, 2013
	 	 	7.6651	 	 	 	6.1751	 	 	 	4.3694	 	 	 	3.1914	 	 	 	2.4043	 	 	 	1.4882	 	 	 	1.0174	 	 	 	0.7502	 	 	 	0.5835	 	 	 	0.4701	 	 	 	0.3875	 	 	 	0.3240	 
	May 15, 2014
	 	 	7.6651	 	 	 	5.8486	 	 	 	3.8662	 	 	 	2.6251	 	 	 	1.8405	 	 	 	1.0102	 	 	 	0.6421	 	 	 	0.4595	 	 	 	0.3557	 	 	 	0.2886	 	 	 	0.2403	 	 	 	0.2030	 
	May 15, 2015
	 	 	7.6651	 	 	 	5.3228	 	 	 	3.0528	 	 	 	1.7355	 	 	 	0.9994	 	 	 	0.3846	 	 	 	0.2056	 	 	 	0.1449	 	 	 	0.1161	 	 	 	0.0972	 	 	 	0.0827	 	 	 	0.0707	 
	May 15, 2016
	 	 	7.6651	 	 	 	4.9558	 	 	 	1.4194	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






 












 







APPENDIX

PROVISIONS RELATING TO SECURITIES




1. Definitions





1.1 Definitions




For the purposes of this Appendix the following terms shall have the meanings indicated below:



“Definitive Security” means a certificated Security that does not include the Global
Securities Legend.



“Global Securities Legend” means the legend set forth under that caption in Exhibit A to this
Indenture.



“Securities Custodian” means the custodian with respect to a Global Security (as appointed by
the Depositary) or any successor person thereto, who shall initially be the Trustee.




1.2 Other Definitions



	 	 	 	 	 
	Term:	 	Defined in Section:
	 
	 	 	 	 
	“Agent Members”

	 	 	2.1	(c)
	“Global Security”

	 	 	2.1	(b)






2. The Securities





2.1 Form and Dating.



(a) Global Securities. The Securities shall be issued initially in the form of one or
more global Securities in definitive, fully registered form (each, a “Global Security”)
without interest coupons and bearing the Global Securities Legend, which shall be deposited on
behalf of the Holders of the Securities represented thereby with the Securities Custodian, and
registered in the name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture. The aggregate principal
amount of any Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee and on the schedules thereto as
hereinafter provided.



(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Security
deposited with or on behalf of the Depositary.



The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b) and
Section 2.2 and pursuant to an order of the Company signed by one officer of the Company,
authenticate and deliver initially one or more Global Securities that (i) shall be registered in
the name of the Depositary for such Global Security or Global Securities or the
nominee of such Depositary and (ii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary’s instructions or held by the Trustee as Securities Custodian.


 


A-1









 





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
by the Trustee as Securities Custodian or under such Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the operation of customary
practices of such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.



(c) Definitive Securities. Except as provided in Section 2.3 or 2.4, owners of
beneficial interests in Global Securities will not be entitled to receive physical delivery of
certificated Securities.



2.2 Authentication. The Trustee shall authenticate and make available for delivery
upon a written order of the Company signed by one Officer of the Company (a) Securities for
original issue on the date hereof in an aggregate principal amount of $115,000,000 and (b) subject
to the terms of this Indenture, Additional Securities in an unlimited aggregate principal amount.
Such order shall specify the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated and, in the case of an issuance of Additional
Securities pursuant to Section 3.13 of this Indenture after the Issue Date, shall certify that such
issuance is in compliance with this Indenture.




2.3 Transfer and Exchange.



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




(i) to register the transfer of such Definitive Securities; or




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



the Security Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided, however, that the
Definitive Securities surrendered for transfer or exchange shall be duly endorsed or accompanied by
a written instrument of transfer in form reasonably satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.


 


A-2









 





(b) Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a
Global Security. A Definitive Security may not be exchanged for a beneficial interest in a
Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Security Registrar, together with
written instructions directing the Trustee to make, or to direct the Securities Custodian to
make, an adjustment on its books and records with respect to the applicable Global Security to
reflect an increase in the aggregate principal amount of the Securities represented by such Global
Security, such instructions to contain information regarding the Depositary account to be credited
with such increase, then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate principal amount of Securities
represented by such Global Security to be increased by the aggregate principal amount of the
Definitive Security to be exchanged and shall credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in such Global Security equal to the
principal amount of the Definitive Security so canceled. If no applicable Global Securities are
then outstanding and the applicable Global Security has not been previously exchanged for
certificated securities pursuant to Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officer’s Certificate, a new
applicable Global Security in the appropriate principal amount.




(c) Transfer and Exchange of Global Securities.




(i) The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depositary therefor. A transferor of a beneficial interest in a
Global Security shall deliver a written order given in accordance with the
Depositary’s procedures containing information regarding the participant account of
the Depositary to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Security and the account
of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Security being transferred.




(ii) If the proposed transfer is a transfer of a beneficial interest in one
Global Security to a beneficial interest in another Global Security, the Security
Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Global Security to which such interest is being transferred
in an amount equal to the principal amount of the interest to be so transferred, and
the Security Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from which such
interest is being transferred.




(iii) Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.4), a Global Security may not be transferred as a
whole except 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.


 


A-3









 





(d) Cancelation or Adjustment of Global Security. At such time as all beneficial
interests in a Global Security have either been exchanged for Definitive Securities, transferred,
redeemed, repurchased or canceled, such Global Security shall be returned by the Depositary to the
Trustee for cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for Definitive
Securities, transferred in exchange for an interest in another Global Security, redeemed,
repurchased or canceled, the principal amount of Securities represented by such Global Security
shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is
then the Securities Custodian for such Global Security) with respect to such Global Security, by
the Trustee or the Securities Custodian, to reflect such reduction.




(e) Obligations with Respect to Transfers and Exchanges of Securities.




(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Definitive Securities and Global
Securities at the Security Registrar’s request.




(ii) No service charge shall be made for any registration of transfer or
exchange of Securities except as provided in Section 3.06 of this Indenture, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 3.04,
9.06, 11.06 or 12.02(i) of this Indenture, and in any such case not involving any
transfer.




(iii) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent or the Security Registrar may
deem and treat the person in whose name a Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying Agent or the
Security Registrar shall be affected by notice to the contrary.




(iv) All Securities issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer or
exchange.


 


A-4









 






(f) No Obligation of the Trustee.




(i) The Trustee shall have no responsibility or obligation to any beneficial
owner of a Global Security, a member of, or a participant in the Depositary or any
other Person with respect to the accuracy of the records of the Depositary or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of any notice
(including any Fundamental Change Company Notice) or the
payment of any amount, under or with respect to such Securities. All notices
and communications to be given to the Holders and all payments to be made to Holders
under the Securities shall be given or made only to the registered Holders (which
shall be the Depositary or its nominee in the case of a Global Security). The
rights of beneficial owners in any Global Security shall be exercised only through
the Depositary subject to the applicable rules and procedures of the Depositary.
The Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any
beneficial owners.




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




2.4 Definitive Securities



(a) A Global Security deposited with the Depositary or with the Trustee as Securities
Custodian pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form
of Definitive Securities in an aggregate principal amount equal to the principal amount of such
Global Security, in exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security or if at any time the Depositary ceases to be a “clearing
agency” registered under the Exchange Act, and a successor depositary is not appointed by the
Company within 60 days of such notice or after the Company becomes aware of such cessation or (ii)
an Event of Default has occurred and is continuing.



(b) Any Global Security that is transferable to the beneficial owners thereof pursuant to this
Section 2.4 shall be surrendered by the Depositary to the Trustee, to be so transferred, in whole
or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate principal amount of
Definitive Securities of authorized denominations. Any portion of a Global Security transferred
pursuant to this Section shall be executed, authenticated and delivered only in denominations of
$1,000 and any integral multiple thereof and registered in such names as the Depositary shall
direct.



(c) Subject to the provisions of Section 2.4(b), the registered Holder of a Global Security
may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is entitled to take under
this Indenture or the Securities.



(d) In the event of the occurrence of any of the events specified in Section 2.4(a)(i), (ii)
or (iii), the Company will promptly make available to the Trustee a reasonable supply of Definitive
Securities in fully registered form without interest coupons.



 


A-5









 







EXHIBIT A




[FORM OF SECURITY]




[Global Securities Legend]




UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR 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.



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]




[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS
THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:




(A) TO PETROLEUM DEVELOPMENT CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR


 


 









 






(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.]



Petroleum Development Corporation


3.25% Convertible Senior Note due 2016




	 	 	 
	No.                     

	 	$                    
	 

	 	CUSIP No.:
	 

	 	ISIN No.:






Petroleum Development Corporation, a corporation duly organized and existing under the laws of
the State of Nevada (herein called the “Company”, which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, $                     (                     DOLLARS) or such other amount shown on
the Schedule of Increases or Decreases attached hereto on November 15, 2015 and to pay interest
thereon from November 23, 2010 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semiannually in arrears on May 15 and November 15 in each year,
commencing May 15, 2011 at the rate of 3.25% per annum, until the principal hereof is paid or duly
provided for; provided, however, that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate borne by the Securities
plus one percent per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly provided for.
Additional Interest shall be payable as set forth in Section 5.16, Section 10.07(b) or Section
10.07(c) of the Indenture, and any reference to interest on, or in respect of, any Security shall
be deemed to include Additional Interest if, in such context, Additional Interest is, was or would
be payable pursuant to Section 5.16, Section 10.07(b) or Section 10.07(c) and any express mention
of the payment of Additional Interest in any provision therein shall not be construed as excluding
Additional Interest in those provisions thereof where such express


 


A-2









 






mention is not made. The
interest so payable and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the May 1 and November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of securities not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more fully provided in
said Indenture.



The Company shall pay the principal of and interest on any Global Security in immediately
available funds to the Depositary or its nominee, as the case may be, as the registered Holder of
such Global Security. The Company shall pay the principal of any Definitive Security at the office
or agency designated by the Company for that purpose. The Company has initially designated the
Trustee as its Paying Agent and Security Registrar in respect of the Securities and its agency in
New York, New York as a place where Securities may be presented for payment or for registration of
transfer. The Company may, however, change the Paying Agent or Security Registrar for the
Securities without prior notice to the Holders thereof and the Company may act as Paying Agent or
Security Registrar for the Securities. Interest on any Definitive Securities will be payable
(i) to Holders of Definitive Securities having an aggregate principal amount of Securities of
$2,000,000 or less, by check mailed to the Holders of such Securities at their address in the
Security Register and (ii) to Holders having an aggregate principal amount of Definitive Securities
in excess of $2,000,000, by either check mailed to each Holder at its address in the Security
Register or, upon application by a Holder to the Registrar not later than the relevant Regular
Record Date, by wire transfer in immediately available funds to that Holder’s account within the
United States, which application shall remain in effect until that Holder notifies, in writing, the
Registrar to the contrary.



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



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


 


A-3









 






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



	 	 	 	 	 	 	 
	 	 	PETROLEUM DEVELOPMENT CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Attest:	 	 
	 
	 	 	 	 	 	 
	 

	 		 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION



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



Dated:



THE BANK OF NEW YORK MELLON, AS TRUSTEE



By:




Authorized Signatory



[Each of the Guarantors (which term includes any successor Person in such capacity under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities of this series and all other
amounts due and payable under the Indenture and the Securities of this series by the Company.


 


A-4









 





The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the
Securities Guarantee and the Indenture are expressly set forth in Article XIII of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Securities Guarantee.]



	 	 	 	 	 
	 	[NAME OF GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


A-5









 







FORM OF REVERSE OF SECURITY





This Security is one of a duly authorized issue of Securities of the Company designated as
3.25% Convertible Senior Notes due 2016 (herein called the “Securities”), limited in aggregate
principal amount on the Issue Date to $115,000,000 issued and to be issued under an Indenture,
dated as of November 23, 2010 (herein called the “Indenture,” which term shall have the meaning
assigned to it in such instrument), among the Company and The Bank of New York Mellon, as Trustee
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. The Company shall be entitled, subject to its compliance with the terms of the
Indenture, to issue Additional Securities pursuant to Section 3.13 of the Indenture. The
Securities include the Securities issued on the Issue Date and any Additional Securities. The
Securities issued on the Issue Date and any Additional Securities are treated as a single class of
securities under the Indenture.




This Security is not redeemable at the election of the Company prior to the Stated Maturity.



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



As provided in and subject to the provisions of the Indenture, the Holder hereof has the
right, at its option, during certain periods and upon the occurrence of certain conditions
specified in the Indenture, prior to the close of business on the Scheduled Trading Day immediately
preceding November 15, 2015, to convert this Security or a portion thereof that is $1,000 or an
integral multiple thereof, into cash, shares of Common Stock or a combination thereof, as
applicable, at the applicable Conversion Rate specified in the Indenture, as adjusted from time to
time as provided in the Indenture.



As provided in and subject to the provisions of the Indenture, the Company shall deposit with
the Paying Agent or Trustee, as applicable, in immediately available funds money sufficient to pay
the Fundamental Change Purchase Price and the principal amount on the Stated Maturity thereof, as
the case may be, to the Holder who surrenders a Security to the Paying Agent to collect such
payments in respect of the Security.



If an Event of Default shall occur and be continuing, there may be declared due and payable
the principal of, premium, if any, and accrued and unpaid interest, if any, on all of the
outstanding Securities, in the manner and with the effect provided in the Indenture.


 


A-6









 





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



As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the Securities at the time
Outstanding shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to the
Trustee and the Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding for 45 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the respective due dates
expressed herein.



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



As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



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



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


 


A-7









 





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



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



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



The Indenture and this Security shall be governed by the laws of the State of New York.


 


A-8









 





ASSIGNMENT FORM





To assign this Security, fill in the form below:




I or we assign and transfer this Security to



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




(Insert assignee’s soc. sec. or tax I.D. No.)




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



Date: Your Signature:




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



 


A-9









 







TO BE ATTACHED TO GLOBAL SECURITIES SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY




The initial principal amount of this Global Security is $115,000,000. The following increases or
decreases in this Global Security have been made:



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





 


A-10









 





EXHIBIT B




[FORM OF NOTICE OF CONVERSION]




To: Petroleum Development Corporation




The undersigned registered Holder of this Security hereby irrevocably exercises the option to
convert this Security, or a portion hereof (which is $1,000 or an integral multiple hereof) below
designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock,
as applicable, and directs that cash payable and any shares of Common Stock issuable and
deliverable upon conversion, together with any check in payment for fractional shares of Common
Stock, and any Securities representing any unconverted principal amount hereof, be paid or issued
and delivered, as the case may be, to the registered Holder hereof unless a different name has been
indicated below. Subject to certain exceptions set forth in the Indenture, if this notice is being
delivered on a date after the close of business on a Regular Record Date and prior to the opening
of business on the related Interest Payment Date, this notice is accompanied by payment of an
amount equal to the interest payable on such Interest Payment Date of the principal of this
Security to be converted. If any shares of Common Stock or any portion of this Security not
converted are to be issued in the name of a Person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect hereto. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.




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




Signature(s)




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




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




Signature Guarantee


 


B-1









 





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



(Name)




(Address)




Please print Name and Address

(including zip code number)




Social Security or other Taxpayer

Identifying Number




                                        




 


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EXHIBIT C




[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]




To: Petroleum Development Corporation




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



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



Dated:




	 	 	 
	 

	 	Signature(s)
	 
	 	 
	 

	 	Social Security or Other Taxpayer Identification Number
	 
	 	 
	 

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

	 	$                    , 000
	 
	 	 
	 

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






 


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EXHIBIT D




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]




SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                     , 201___,
among                      (the “Guaranteeing Subsidiary”), a subsidiary of Petroleum Development
Corporation, a Nevada corporation (or its permitted successor, the “Company”), the Company, the
existing Guarantors (as defined in the Indenture referred to herein), if any, and The Bank of New
York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (or
its permitted successor, the “Trustee”).



W I T N E S S E T H




WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of November 23, 2010, by and between the Company and the Trustee (the “Indenture”), providing
for the issuance of the Company’s 3.25% Convertible Senior Notes due 2016 (the “Notes”).



WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall become a Guarantor (as defined in the Indenture); and



WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the
Company, the other Guarantors (if any) and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as follows:



1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.



2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture
including but not limited to Article XIII thereof.



3. Execution and Delivery. The Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee.


 


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4. No Recourse Against Others. No past, present or future director, officer, employee,
incorporator, member, partner or stockholder of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.



5. New York Law to Govern. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE AND ENFORCE THIS SUPPLEMENTAL INDENTURE.



6. Counterparts. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.



7. Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.



8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Company.


 


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



Dated:                     , 20__




	 	 	 	 	 
	 	[GUARANTEEING SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[COMPANY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[EXISTING GUARANTORS, IF ANY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[TRUSTEE], as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




 


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