Exhibit
4.1




 





 


HERTZ GLOBAL
HOLDINGS, INC.


 


[      ]% Convertible Senior Notes due
20[   ]


 


as Issuer


 






 


INDENTURE


 


Dated as of May [   ], 2009


 






 


[                                ]


 


as Trustee


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1

  	
  Definitions and Other Provisions of General
  Application

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
  Rules of Construction

  	
   

  	
  14

  
	
  SECTION 1.03.

  	
  Incorporation by Reference of TIA

  	
   

  	
  15

  
	
  SECTION 1.04.

  	
  Conflict with TIA

  	
   

  	
  15

  
	
  SECTION 1.05.

  	
  Compliance Certificates and Opinions

  	
   

  	
  15

  
	
  SECTION 1.06.

  	
  Form of Documents Delivered to Trustee

  	
   

  	
  16

  
	
  SECTION 1.07.

  	
  Acts of Holders; Record Dates

  	
   

  	
  16

  
	
  SECTION 1.08.

  	
  Notices, etc., to Trustee and Company

  	
   

  	
  19

  
	
  SECTION 1.09.

  	
  Notices to Holders; Waiver

  	
   

  	
  19

  
	
  SECTION 1.10

  	
  Effect of Headings and Table of Contents

  	
   

  	
  20

  
	
  SECTION 1.11.

  	
  Successors and Assigns

  	
   

  	
  20

  
	
  SECTION 1.12.

  	
  Separability Clause

  	
   

  	
  20

  
	
  SECTION 1.13.

  	
  Benefits of Indenture

  	
   

  	
  20

  
	
  SECTION 1.14.

  	
  GOVERNING LAW

  	
   

  	
  20

  
	
  SECTION 1.15.

  	
  Legal Holidays

  	
   

  	
  20

  
	
  SECTION 1.16.

  	
  No Personal Liability of Directors, Officers,
  Employees, Incorporators and Stockholders

  	
   

  	
  20

  
	
  SECTION 1.17.

  	
  Exhibits and Schedules

  	
   

  	
  21

  
	
  SECTION 1.18.

  	
  Counterparts

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  The Notes

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Designation, Amount and Issuance of Notes

  	
   

  	
  21

  
	
  SECTION 2.02.

  	
  Form of the Notes

  	
   

  	
  21

  
	
  SECTION 2.03.

  	
  Date and Denomination of Notes; Payment at Maturity;
  Payment of Interest

  	
   

  	
  22

  
	
  SECTION 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  25

  
	
  SECTION 2.05.

  	
  Outstanding Notes

  	
   

  	
  25

  
	
  SECTION 2.06.

  	
  Commission Reports

  	
   

  	
  25

  
	
  SECTION 2.07.

  	
  Execution, Authentication and Delivery

  	
   

  	
  26

  
	
  SECTION 2.08.

  	
  Temporary Notes.

  	
   

  	
  27

  
	
  SECTION 2.09.

  	
  Security Registrar and Paying Agent

  	
   

  	
  27

  
	
  SECTION 2.10.

  	
  Mutilated, Destroyed, Lost and Stolen Notes

  	
   

  	
  28

  
	
  SECTION 2.12.

  	
  Cancellation of Notes Paid, etc.

  	
   

  	
  29

  
	
  SECTION 2.13.

  	
  CUSIP Numbers

  	
   

  	
  29

  
	
  SECTION 2.14.

  	
  Repurchases

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  Repurchase of Notes

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Repurchase at Option of the Holder Upon a
  Fundamental Change

  	
   

  	
  29

  
	
  SECTION 3.02.

  	
  Withdrawal of Fundamental Change Repurchase Notice

  	
   

  	
  32

  
						



 


i

















 


	
  SECTION 3.03.

  	
  Deposit of Fundamental Change Repurchase Price

  	
   

  	
  32

  
	
  SECTION 3.04.

  	
  Notes Repurchased in Part

  	
   

  	
  33

  
	
  SECTION 3.05.

  	
  Covenant to Comply with Securities Laws Upon
  Repurchase of Notes

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  Covenants

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Principal, Premium and Interest

  	
   

  	
  33

  
	
  SECTION 4.02.

  	
  Maintenance of Office or Agency

  	
   

  	
  34

  
	
  SECTION 4.03.

  	
  Existence

  	
   

  	
  34

  
	
  SECTION 4.04.

  	
  Further Instruments and Acts

  	
   

  	
  34

  
	
  SECTION 4.05.

  	
  Additional Interest

  	
   

  	
  34

  
	
  SECTION 4.06.

  	
  Waiver of Stay Extension or Usury Laws

  	
   

  	
  34

  
	
  SECTION 4.07.

  	
  Repurchase and Cancellation

  	
   

  	
  34

  
	
  SECTION 4.08.

  	
  Provisions as to Paying Agent

  	
   

  	
  35

  
	
  SECTION 4.09.

  	
  Compliance Certificate; Statements as to Defaults

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  Consolidation, Merger and Sale of Assets

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  When Company May Merge or Transfer Assets

  	
   

  	
  36

  
	
  SECTION 5.02.

  	
  Successor to Be Substituted

  	
   

  	
  37

  
	
  SECTION 5.03.

  	
  Opinion of Counsel to Be Given Trustee

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  Defaults and Remedies

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
   

  	
  37

  
	
  SECTION 6.02.

  	
  Acceleration of Maturity; Recission and Annulment

  	
   

  	
  40

  
	
  SECTION 6.03.

  	
  Other Remedies; Collection Suit by Trustee

  	
   

  	
  40

  
	
  SECTION 6.04.

  	
  Trustee May File Proofs of Claim

  	
   

  	
  41

  
	
  SECTION 6.05.

  	
  Trustee May Enforce Claims Without Possession
  of Notes

  	
   

  	
  41

  
	
  SECTION 6.06.

  	
  Application of Money Collected

  	
   

  	
  41

  
	
  SECTION 6.07.

  	
  Limitation on Suits

  	
   

  	
  42

  
	
  SECTION 6.08.

  	
  Unconditional Right of Holders to receive Principal
  and Interest

  	
   

  	
  42

  
	
  SECTION 6.09.

  	
  Restoration of Rights and Remedies

  	
   

  	
  42

  
	
  SECTION 6.10.

  	
  Rights and Remedies Cumulative

  	
   

  	
  42

  
	
  SECTION 6.11.

  	
  Delay or Omission Not Waiver

  	
   

  	
  42

  
	
  SECTION 6.12.

  	
  Control by Holders

  	
   

  	
  42

  
	
  SECTION 6.13.

  	
  Waiver of Past Defaults

  	
   

  	
  43

  
	
  SECTION 6.14.

  	
  Undertaking for Costs

  	
   

  	
  43

  
	
  SECTION 6.15.

  	
  Failure to Comply with Reporting Covenant

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  Discharge

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Discharge of the Indenture

  	
   

  	
  44

  
	
  SECTION 7.02.

  	
  Application of Trust Money

  	
   

  	
  45

  
	
  SECTION 7.03.

  	
  Repayment to Company

  	
   

  	
  45

  
	
  SECTION 7.04.

  	
  Reinstatement

  	
   

  	
  45

  
						



 


ii

















 


	
  ARTICLE 8

  	
  Amendments

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Without Consent of Holders

  	
   

  	
  45

  
	
  SECTION 8.02.

  	
  With Consent of Holders

  	
   

  	
  46

  
	
  SECTION 8.03.

  	
  Execution of Amendments, Supplements or Waivers

  	
   

  	
  47

  
	
  SECTION 8.04.

  	
  Revocation and Effect of Consents and Waivers

  	
   

  	
  47

  
	
  SECTION 8.05.

  	
  Conformity with TIA

  	
   

  	
  48

  
	
  SECTION 8.06.

  	
  Notation on or Exchange of Notes

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  Conversion of Notes

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Right to Convert

  	
   

  	
  48

  
	
  SECTION 9.02.

  	
  Conversion Procedures; Settlement Upon Conversion;
  No Adjustment for Interest or Dividends; Cash Payments in Lieu of Fractional
  Shares

  	
   

  	
  50

  
	
  SECTION 9.03.

  	
  Increased Conversion Rate Applicable to Securities
  Converted in Connection With Make-Whole Fundamental Changes

  	
   

  	
  54

  
	
  SECTION 9.04.

  	
  Adjustment of Conversion Rate

  	
   

  	
  55

  
	
  SECTION 9.05.

  	
  Effect of Reclassification, Consolidation, Merger or
  Sale

  	
   

  	
  63

  
	
  SECTION 9.06.

  	
  Certain Covenants

  	
   

  	
  64

  
	
  SECTION 9.07.

  	
  Notice to Holders Prior to Certain Actions

  	
   

  	
  64

  
	
  SECTION 9.08.

  	
  Stockholder Rights Plans

  	
   

  	
  65

  
	
  SECTION 9.09.

  	
  Responsibility of Trustee

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  The Trustee

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Certain Duties and Responsibilities

  	
   

  	
  66

  
	
  SECTION 10.02.

  	
  Notice of Defaults

  	
   

  	
  67

  
	
  SECTION 10.03.

  	
  Certain Rights of Trustee

  	
   

  	
  68

  
	
  SECTION 10.04.

  	
  Not Responsible for Recitals or Issuance of Notes

  	
   

  	
  69

  
	
  SECTION 10.05.

  	
  May Hold Notes

  	
   

  	
  69

  
	
  SECTION 10.06.

  	
  Money Held in Trust

  	
   

  	
  69

  
	
  SECTION 10.07.

  	
  Compensation and Reimbursement

  	
   

  	
  69

  
	
  SECTION 10.08.

  	
  Disqualification; Conflicting Interests

  	
   

  	
  70

  
	
  SECTION 10.09.

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  70

  
	
  SECTION 10.10.

  	
  Resignation and Removal, Appointment of Successor

  	
   

  	
  70

  
	
  SECTION 10.11.

  	
  Acceptance of Appointment by Successor

  	
   

  	
  71

  
	
  SECTION 10.12.

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
   

  	
  72

  
	
  SECTION 10.13.

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  72

  
	
  SECTION 10.14.

  	
  Appointment of the Authenticating Agent

  	
   

  	
  72

  
	
  SECTION 10.15.

  	
  Trustee’s Application for Instructions from the
  Company

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  Holders’ Lists and Reports by Trustee and the
  Company

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  The Company to Furnish Trustee Names and Addresses
  of Holders

  	
   

  	
  74

  
					



 


iii

















 


	
  SECTION 11.02.

  	
  Preservation of Information; Communication to
  Holders

  	
   

  	
  74

  
	
  SECTION 11.03.

  	
  Reports by Trustee

  	
   

  	
  75

  



 


iv

















 


CROSS-REFERENCE TABLE*


 


	
  Trust
  Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  310

  	
  (a)(1)

  	
   

  	
  10.09

  
	
   

  	
  (a)(2)

  	
   

  	
  10.09

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  10.09

  
	
   

  	
  (b)

  	
   

  	
  10.08

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  10.13

  
	
   

  	
  (b)

  	
   

  	
  10.13

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  11.02

  
	
   

  	
  (b)

  	
   

  	
  11.02

  
	
   

  	
  (c)

  	
   

  	
  11.02

  
	
  313

  	
  (a)

  	
   

  	
  11.03

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  10.07

  
	
   

  	
  (c)

  	
   

  	
  1.09

  
	
   

  	
  (d)

  	
   

  	
  11.03

  
	
  314

  	
  (a)

  	
   

  	
  1.05; 2.06

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  1.05

  
	
   

  	
  (c)(2)

  	
   

  	
  1.05

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  1.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  10.01

  
	
   

  	
  (b)

  	
   

  	
  1.09; 10.02

  
	
   

  	
  (c)

  	
   

  	
  10.01

  
	
   

  	
  (d)

  	
   

  	
  10.01

  
	
   

  	
  (e)

  	
   

  	
  6.14

  
	
  316

  	
  (a)(last
  sentence)

  	
   

  	
  2.13

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.13

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.08

  
	
   

  	
  (c)

  	
   

  	
  8.04

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.03

  
	
   

  	
  (a)(2)

  	
   

  	
  6.04

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  1.04

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  1.04

  



 


N.A. means not
applicable.






*  This Cross-Reference Table is not part of
this Indenture.


 














 


INDENTURE,
dated as of May [   ], 2009 between the Company (as defined herein),  and
[                        ],
as trustee (the “Trustee”).


 


RECITALS
OF THE COMPANY


 


WHEREAS,
the Company desires to provide for the establishment of a new series of its
debt securities to be known as its “[   ]% Convertible Senior
Notes due 20[   ]” (the “Notes”), the form and
substance of the Notes and the terms, provisions and conditions thereof to be
set forth as provided in this Indenture;


 


WHEREAS, the Form of
Note, the certificate of authentication to be borne by each Note, the Form of
Conversion Notice, the Form of Fundamental Change Repurchase Notice and
the Form of Assignment to be borne by the Notes are to be substantially in
the forms hereinafter provided for;


 


WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done; and


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises
and the purchases of the Notes by the Holders thereof, it is mutually agreed,
for the benefit of the Company and the equal and proportionate benefit of all
Holders of the Notes, as follows:


 


ARTICLE 1


 


Definitions and
Other Provisions of General Application


 


SECTION 1.01.              Definitions.


 


“Act”
has the meaning specified in Section 1.07.


 


“Additional
Shares”  has the meaning specified in Section 9.03.


 


“Adjustment
Event”  has the meaning specified in Section 9.04(k).


 


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


 


“Agent
Members”  has the meaning specified in Section 2.03(d)(v).


 


“Authentication Order” has the
meaning specified in Section 2.07.


 


“Bankruptcy Law” has the meaning
specified in Section 6.01.


 

















 


“Bid Solicitation Agent”  means the financial institution
appointed by the Company to solicit bids for the Trading Price of the Notes in
accordance with Section 9.01(a)(2). 
The Bid Solicitation Agent appointed by the Company shall initially be
the Trustee.


 


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


 


“Business Day”  means, solely for purposes of the
Indenture, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New
York City are authorized or obligated by law or executive order to close.


 


“Capitalized
Lease Obligation” means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP.  The
stated maturity of any Capitalized Lease Obligation shall be the date of the last
payment of rent or any other amount due under the related lease.


 


“Capital Stock”  of any Person means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.


 


“Carlyle
Investors” means collectively, (i) Carlyle IV, L.P.,
a Delaware limited partnership, or any successor thereto, (ii) CEP II
Participations S.ar.l, a Luxembourg limited liability company, or any successor
thereto, (iii) CP IV Co-investment L.P., a Delaware limited partnership,
or any successor thereto, (iv) CEP II U.S. Investments, L.P., a Delaware
limited partnership, or any successor thereto, (v) any Affiliate of any
thereof, and (vi) any successor in interest to any thereof.


 


“CDR
Investors” means collectively, (i) Clayton, Dubilier &Rice
Fund VII, L.P., a Cayman Islands exempted limited partnership, or any successor
thereto, (ii) CDR CCMG Co-Investor L.P., a Cayman Islands exempted limited
partnership, or any successor thereto, (iii) CD&R Parallel Fund VII,
L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (iv) any
Affiliate of any thereof, and (v) any successor in interest to any
thereof.


 


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


 


“Commission”
means the Securities and Exchange Commission.


 


“Commodities
Agreement” means, in respect of a Person, any commodity futures
contract, forward contract, option or similar agreement or arrangement
(including derivative agreements or arrangements), as to which such Person is a
party or beneficiary.


 


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


 


2

















 


“Common Stock”  means the Common Stock, par value
$0.01 per share, of the Company, or such other Capital Stock into which the
Company’s common stock is reclassified or changed.


 


“Company”
means Hertz Global Holdings, Inc., a Delaware corporation, 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
Request” and “Company Order”
mean, respectively, a written request or order signed in the name of the
Company by an Officer of the Company.


 


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


 


“Conversion Agent”  means the Person appointed by the
Company to which Notes may be presented for conversion.  The Conversion Agent appointed by the Company
shall initially be the Trustee.


 


“Conversion Date”  has the meaning specified in Section 9.02(a).


 


“Conversion Notice”  has the meaning specified in Section 9.02(a).


 


“Conversion Obligation”  has the meaning specified in Section 9.01(a).


 


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


 


“Conversion
Rate”  has the meaning specified in Section 9.01(a).


 


“Conversion
Value,”  for every $1,000 in principal amount of a Note
being converted, means an amount equal to the sum of the Daily Conversion
Values for each of the forty-five (45) Settlement Period Trading Days in the
Settlement Period.


 


“Corporate
Trust Office” means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office as of the date hereof is located at
[                        ],
Attention: [Corporate Trust Administration].


 


 “Currency Agreement”
means, in respect of a Person, any foreign exchange contract, currency swap
agreement or other similar agreement or arrangements (including derivative
agreements or arrangements), as to which such Person is a party or a
beneficiary.


 


3

















 


“Current
Market Price”  means the average of the Last Reported Sale
Prices of the Common Stock over the ten (10) consecutive Trading Day
period ending on the Trading Day immediately preceding the declaration date for
the distribution requiring such computation.


 


“Custodian” has the meaning specified
in Section 6.01.


 


“Daily Conversion Value”  for any Settlement Period Trading
Day equals 1/45th of (x) the Conversion Rate in effect on that Settlement
Period Trading Day, multiplied by (y) the
VWAP of the Common Stock on that Settlement Period Trading Day.


 


“Declaration
Date” shall
mean, with respect to a distribution by the Company to all or substantially all
of its holders of Common Stock, the date on which the distribution has been
authorized by the Board of Directors under applicable law.


 


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


 


“Depositary” means with
respect to Notes issuable in whole or in part in the form of one or more Global
Notes, a clearing agency registered under the Exchange Act that is designated
to act as Depositary for such Notes, which shall initially be DTC until
a successor shall have been appointed and become such pursuant to the
applicable provisions of the Indenture, and thereafter, “Depositary” shall
mean such successor.


 


“Determination
Date”  has the meaning specified in Section 9.04(k).


 


“Distributed
Property”  has the meaning specified in Section 9.04(c).


 


“Disqualified Stock” means, with
respect to any Person, any Capital Stock (other than Management Stock) that by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable) or upon the happening of any event
(other than following the occurrence of a Fundamental Change or other similar
event) (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof (other than following the occurrence of a Fundamental Change
or other similar event), in whole or in part, in each case on or prior to the
Maturity Date of the Notes.


 


“DTC”
means The Depository Trust
Company.


 


“Effective
Date”  has the meaning specified in Section 9.03.


 


“Event of Default”  has the meaning set forth in Section 6.01
hereof.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended from
time to time, and any successor legislation.


 


“Ex-Dividend Date”  means, in respect of a dividend or
distribution to holders of Common Stock, the first date upon which a sale of
the Common Stock does not automatically 


 


4

















 


transfer the right
to receive the relevant dividend or distribution from the seller of the Common
Stock to its buyer.


 


“Expiration
Date”  has the meaning specified in Section 9.04(e).


 


“Expiration
Time”  has the meaning specified in Section 9.04(e).


 


“Fair
Market Value”  means the amount that a willing buyer would
pay to a willing seller in an arms’ length transaction, as determined by the
Board of Directors (or any committee thereof).


 


“Fixed
Cash Amount”  has the meaning specified in Section 9.02(b).


 


“Fixed
Dollar Amount”  has the meaning specified in Section 9.02(b).


 


“Full
Interest Period”  means a period of days during which interest
accrues from, and including, an Interest Payment Date to, but excluding, the
next Interest Payment Date.


 


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


 


(i)            a “person”
or “group” (within the meaning of Section 13(d) of the Exchange Act),
other than the Company, its Subsidiaries or the employee benefit plans of the
Company or any such Subsidiary of the Company, files a Schedule TO or any
schedule, form or report under the Exchange Act disclosing that such person or
group has become the direct or indirect ultimate “beneficial owner,” as defined
in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity
representing more than 50% (or, in the case of the Investors, 60% or more) of
the voting power of the Company’s Common Equity or (ii) has acquired more
than 50% of the Company’s public float, defined as shares not held directly or
indirectly by any officer, director, 10% stockholder or the Investors, of at
least [      ] million shares;


 


(ii)           consummation
of (A) any recapitalization, reclassification or change of the Common
Stock (other than changes resulting from a subdivision or combination) as a
result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets or (B) any share
exchange, consolidation or merger of the Company pursuant to which the Common
Stock will be converted into cash, securities or other property or any
conveyance, transfer, sale, lease or other disposition in one transaction or a
series of transactions of all or substantially all of the consolidated assets
of the Company and its Subsidiaries, taken as a whole, to any Person other than
one of the Company’s Subsidiaries; provided, however, that a transaction
where the holders of 50% [or more] of all classes of the Company’s Common
Equity immediately prior to such transaction own, directly or indirectly, more
than 50% of all classes of Common Equity of the continuing or surviving
corporation or transferee immediately after such event shall not be a
Fundamental Change;


 


5

















 


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


 


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


 


(v)           the
Common Stock (or other common stock into which the Notes are then convertible)
ceases to be listed on at least one national securities exchange;


 


provided,
however, that a Fundamental Change shall not be deemed to have occurred
if at least 90% of the consideration, excluding cash payments for fractional
shares, in the transaction or transactions constituting the Fundamental Change
consists of shares of Publicly Traded Securities and as a result of such
transaction or transactions the Notes become convertible into such Publicly
Traded Securities in accordance with Section 9.05, subject to the
provisions of Section 9.02.


 


For purposes of this
definition, whether a “person” is a “beneficial owner” shall be determined in
accordance with Rule 13d-3 under the Exchange Act and “person” includes
any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of
the Exchange Act.  In addition, solely for purposes of clause (iii) above,
the phrase “or any duly authorized committee of that board” in the definition
of “Board of Directors” shall be disregarded.


 


“Fundamental
Change Company Notice”  has the meaning specified in Section 3.01(b).


 


“Fundamental
Change Repurchase Date”  has the meaning specified in Section 3.01(a).


 


“Fundamental
Change Repurchase Expiration Time”  has the
meaning specified in Section 3.01(a)(1).


 


“Fundamental
Change Repurchase Notice”  has the meaning specified in Section 3.01(a)(1).


 


“Fundamental
Change Repurchase Price”  has the meaning specified in Section 3.01(a).


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board as in effect from time to time.


 


“Global
Note”  means any Note that evidences all or part of
the Notes and is authenticated and delivered to, and registered in the name of,
the Depositary for such Notes or a nominee thereof.


 


“Guarantee” means any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person; provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.  The term “Guarantee” used
as a verb has a corresponding meaning.


 


6

















 


“Hedging Obligations” of any Person
means the obligations of such Person pursuant to any Interest Rate Agreement,
Currency Agreement or Commodities Agreement.


 


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


 


“Indebtedness”  for purposes of Section 6.01(g) hereof,
means, with respect to any Person on any date of determination (without
duplication):


 


(i)            the
principal of indebtedness of such Person for borrowed money;


 


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


 


(iii)          all
reimbursement obligations of such Person in respect of letters of credit,
bankers’ acceptances or other similar instruments (the amount of such
obligations being equal at any time to the aggregate then undrawn and unexpired
amount of such letters of credit, bankers’ acceptances or other instruments
plus the aggregate amount of drawings thereunder that have not then been
reimbursed);


 


(iv)          all
obligations of such Person to pay the deferred and unpaid purchase price of
property (except Trade Payables), which purchase price is due more than one
year after the date of placing such property in final service or taking final
delivery and title thereto;


 


(v)           all
Capitalized Lease Obligations of such Person,


 


(vi)          the
redemption, repayment or other repurchase amount of such Person with respect to
any Disqualified Stock of such Person or (if such Person is a Subsidiary of the
Company) any Preferred Stock of such Subsidiary, but excluding, in each case,
any accrued dividends (the amount of such obligation to be equal at any time to
the maximum fixed involuntary redemption, repayment or repurchase price for
such Capital Stock, or if less (or if such Capital Stock has no such fixed
price), to the involuntary redemption, repayment or repurchase price therefor
calculated in accordance with the terms thereof as if then redeemed, repaid or
repurchased, and if such price is based upon or measured by the fair market
value of such Capital Stock, such fair market value shall be as determined in
good faith by the Board of Directors or the board of directors or other
governing body of the issuer of such Capital Stock),


 


(vii)         all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided that the
amount of Indebtedness of such Person shall be the lesser of (A) the fair
market value of such asset at such date of determination (as determined in good
faith by the Company) and (B) the amount of such Indebtedness of such
other Persons,


 


(viii)        all
Guarantees by such Person of Indebtedness of other Persons, to the extent so
Guaranteed by such Person, and


 


7

















 


(ix)           to
the extent not otherwise included in this definition, net Hedging Obligations
of such Person (the amount of any such obligation to be equal at any time to
the termination value of such agreement or arrangement giving rise to such
Hedging Obligation that would be payable by such Person at such time).


 


The amount of
Indebtedness of any Person at any date shall be determined as set forth above,
or otherwise shall equal the amount thereof that would appear as a liability on
a balance sheet of such Person (excluding any notes thereto) prepared in
accordance with GAAP.


 


“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, the
provisions of the TIA that are deemed to be a part of and govern this
instrument.


 


“Interest
Payment Date”  has the meaning specified in Section 2.03(c).


 


“Interest Rate Agreement” means, with
respect to any Person, any interest rate protection agreement, future
agreement, option agreement, swap agreement, cap agreement, collar agreement,
hedge agreement or other similar agreement or arrangement (including derivative
agreements or arrangements), as to which such Person is party or a beneficiary.


 


“Investors”
means the CDR Investors, Carlyle Investors and Merrill Lynch Investors, and any
of their respective affiliates and successors-in-interest.


 


“Last
Reported Sale Price”  of the Common Stock on any date means:


 


(i)            the
closing sale price per share (or if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either
case, the average of the average last bid and the average last ask prices) on
that date as reported by the New York Stock Exchange; or


 


(ii)           if
the Common Stock is not listed for trading on the New York Stock Exchange, the
closing sale price per share (or if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either
case, the average of the average last bid and the average last ask prices) on
that date as reported in composite transactions for the principal U.S. national
or regional securities exchange on which the Common Stock is traded; or


 


(iii)          if
the Common Stock is not listed for trading on a U.S. national or regional
securities exchange, the closing sale price per share (or if no closing sale
price is reported, the average of the last bid and last ask prices or, if more
than one in either case, the average of the average last bid and the average
last ask prices) for the Common Stock on that date as reported by the OTC
Bulletin Board (or successor thereto); or


 


(iv)          if
not so reported by the OTC Bulletin Board (or successor thereto), the last
quoted bid price for the Common Stock in the over-the-counter market on that
date as reported by Pink OTC Market Inc. or similar organization; or


 


8

















 


(v)           if
the Common Stock is not so quoted by Pink OTC Market Inc. or similar
organization, the average of the mid-point of the last bid and ask prices for
the Common Stock on the relevant date from a nationally recognized independent
investment banking firm, which may be one of the underwriters, selected by the
Company for this purpose.


 


The
Last Reported Sale Price of the Common Stock will be determined without
reference to extended or after-hours trading. 
If, during a period applicable for calculating the Last Reported Sale
Price of the Common Stock, an event occurs that requires an adjustment to the
Conversion Rate, the Last Reported Sale Price shall be calculated for such
period in a manner determined by the Company to appropriately reflect the
impact of such event on the price of the Common Stock during such period.


 


“Lien” means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).


 


“Make-Whole
Fundamental Change”  means any transaction or event that
constitutes a Fundamental Change pursuant to clause (i), (ii) (disregarding
the proviso in clause (ii)), (iv) and (v) under the definition
thereof.


 


“Management Investors” means the
officers, directors, employees and other members of the management of the
Company or any of its Subsidiaries, or family members or relatives thereof, or
trusts, partnerships or limited liability companies for the benefit of any of
the foregoing, or any of their heirs, executors, successors and legal
representatives, who at any date beneficially own or have the right to acquire,
directly or indirectly, Capital Stock of the Company or any Subsidiary.


 


“Management Stock” means Capital
Stock of the Company (including any options, warrants or other rights in
respect thereof) held by any of the Management Investors.


 


“Market
Disruption Event”  means, if the Common Stock is listed for
trading on the New York Stock Exchange or listed on another U.S. national or
regional securities exchange, the occurrence or existence during the one-half
hour period ending on the scheduled close of trading on any Trading Day of any
material suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in the
Common Stock or in any options, contracts or future contracts relating to the
Common Stock.


 


“Maturity Date”  means
[                ],
20[   ].


 


“Merrill
Lynch Investors” means, collectively, (i) ML Global Private
Equity Fund, L.P., a Cayman Islands exempted limited partnership, or any
successor thereto, (ii) Merrill Lynch Ventures L.P. 2001, a Delaware
limited partnership, or any successor thereto, (iii) CMC-Hertz thereto, (v) any
Affiliate or any thereof, and (vi) any successor in interest to any
thereof.


 


“Notes”
has the meaning set forth in the first paragraph of the recitals of this
Indenture.


 


9

















 


“Officer” means, with respect to the
Company or any other obligor upon the Notes, the Chairman of the Board, the
President, the Chief Executive Officer, the Chief Financial Officer, any Vice
President, the Controller, the Treasurer or the Secretary (a) of such
Person or (b) if such Person is owned or managed by a single entity, of
such entity (or any other individual designated as an “Officer” for the
purposes of this Indenture by the Board of Directors).


 


“Officer’s Certificate” means, with
respect to the Company or any other obligor upon the Notes, a certificate
signed by one Officer of such Person.


 


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


 


“Opinion of Counsel” means a written
opinion from legal counsel who is reasonably acceptable to the Trustee.  The counsel may be an employee of or counsel
to the Company or the Trustee.


 


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


 


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


 


(ii)           Notes for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent in trust for the Holders of such Notes, provided that, if
such Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory to the
Trustee has been made; and


 


(iii)          Notes in exchange for or in lieu of
which other Notes have been authenticated and delivered pursuant to this
Indenture.


 


A
Note does not cease to be Outstanding because the Company or any Affiliate of
the Company holds the Note, provided that in determining whether the Holders of
the requisite amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any Affiliate of the Company shall be disregarded and deemed not
to be Outstanding, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee actually
knows are so owned shall be so disregarded. 
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee’s right to act with respect to such Notes and that the
pledgee is not the Company or an Affiliate of the Company.


 


“Paying Agent”  shall initially be the Trustee, and
shall be the Person authorized by the Company to pay the principal amount of,
interest on, or Fundamental Change Repurchase Price of, any Notes on behalf of
the Company.


 


10

















 


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


 


“Place of Payment”  means, for purposes of the Notes,
New York, New York.


 


“Preferred Stock” as applied to the Capital
Stock of any corporation means Capital Stock of any class or classes (however
designated) that by its terms is preferred as to the payment of dividends, or
as to the distribution of assets upon any voluntary or involuntary liquidation
or dissolution of such corporation, over shares of Capital Stock of any other
class of such corporation.


 


“Publicly Traded Securities”  means shares of common stock listed
on a national securities exchange, which will be so listed when issued or
exchanged in connection with an event that would be a Fundamental Change but
for the second proviso in the definition of such term.


 


“Record Date”  means, in respect of any dividend
or distribution, the date fixed for determination of holders of Capital Stock
entitled to receive such distribution or, if earlier, the first date on which
the shares of the Common Stock trade on the applicable exchange or in the
applicable market, regular way, without the right to receive such dividend or
distribution.


 


“Record
Expiration Date”  has the meaning specified in Section 1.07(e)(iii).


 


“Reference
Property”  has the meaning specified in Section 9.05(a)(3).


 


“Regular Record Date”  means, with respect to any Interest
Payment Date of the Notes, the
[                ]
and
[                ]
preceding the applicable
[                ]
and
[                ]
Interest Payment Date, respectively.


 


“Reorganization
Event”  has the meaning specified in Section 9.05(a)(3).


 


“Reporting
Additional Interest”  has the meaning specified in Section 6.15.


 


“Reporting Date” has the meaning
specified in Section 2.06.


 


“Schedule
TO”  means a Tender Offer Statement under Section 14(d)(1) or
13(e)(1) of the Exchange Act.


 


“Scheduled
Trading Day”  means any day that is scheduled to be a
Trading Day on the primary U.S. national or regional securities exchange or
market on which our Common Stock is listed or admitted for trading or,
if our Common Stock is not listed or admitted for trading on any exchange or
market, a business day.


 


“Securities
Act”  means the Securities Act of 1933, as amended
from time to time, and any successor legislation.


 


11














 


“Security Register” and “Security Registrar” have the
respective meanings specified in Section 2.09.


 


“Settlement
Period”  means the forty-five [(45)] consecutive
Settlement Period Trading Days:


 


(i)            with
respect to Conversion Dates occurring during the period beginning fifty (50)
Scheduled Trading Days preceding the Maturity Date, beginning on and including
the forty-seventh (47th)
Scheduled Trading Day immediately preceding the Maturity Date; and


 


(ii)           in
all other cases, beginning on and including the third (3rd) Trading Day following the
Conversion Date.


 


“Settlement Period Market Disruption Event”  means:


 


(i)            a
failure by the primary U.S. national or regional securities exchange or market
on which the Common Stock is listed or admitted to trading to open for trading
during its regular trading session; or


 


(ii)           the
occurrence or existence prior to 1:00 p.m. on any Trading Day for the
Common Stock of an aggregate of at least one half-hour period, of any
suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the stock exchange or otherwise) in the Common
Stock or in any options, contracts or future contracts relating to the Common
Stock.


 


“Settlement
Period Trading Day”  means a day during which:


 


(i)            trading
in the Common Stock generally occurs on the primary U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted
for trading; and


 


(ii)           there
is no Settlement Period Market Disruption Event;


 


provided, however, that
if on any Trading Day the Common Stock is not traded on any market, then that
Trading Day shall nevertheless be a “Settlement Period Trading Day”  so long as the Company is able to
obtain the market value per share of the Common Stock on that Trading Day from
a nationally recognized independent investment banking firm retained by the
Company for this purpose (which may be one of the underwriters).


 


“Significant
Subsidiary”  means any Subsidiary that would be a “significant
subsidiary” of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission, as such Regulation is in effect
on the Issue Date.


 


“Spin-off”  has the meaning specified in Section 9.04(c).


 


“Stock
Price”  means:


 


12

















 


(i)            in
the case of a Make-Whole Fundamental Change in which holders of the Common
Stock receive only cash as consideration for their shares of Common Stock, the
amount of cash paid per share of the Common Stock in connection with such
Make-Whole Fundamental Change; or


 


(ii)           in
the case of all other Make-Whole Fundamental Changes, the average of the Last
Reported Sale Prices of Common Stock over the five (5) consecutive Trading
Day period ending on the Trading Day immediately preceding the Effective Date
of such Make-Whole Fundamental Change.


 


“Subsidiary”
means a corporation of which more than 50% of the outstanding voting stock is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting
stock” means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.


 


“Successor
Company”  has the meaning specified in Section 5.01(a).


 


“TIA” means  the Trust Indenture Act of 1939 (15 U.S.C.
§§77aaa-7bbbb) as in effect on the date of this Indenture.


 


“Trade Payables” means, with respect
to any Person, any accounts payable or any indebtedness or monetary obligation
to trade creditors created, assumed or guaranteed by such Person arising in the
ordinary course of business in connection with the acquisition of goods or
services.


 


“Trading
Day”  means a day during which:


 


(i)            the
New York Stock Exchange is open for trading, or if the Common Stock is not
listed for trading on the New York Stock Exchange, the principal U.S. national
or regional securities exchange on which the Common Stock is listed is open for
trading, or if the Common Stock is not so quoted or listed, any Business Day;
and


 


(ii)           there
is no Market Disruption Event.


 


“Trading
Price”  per $1,000 in principal amount of the Notes on
any date of determination shall be calculated based on the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for $[5,000,000]
aggregate principal amount of Notes 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, which may include nay,
or, all of the underwriters; provided that, if only two such bids can
reasonably be obtained, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained, then that one bid shall be
used.  If the Company or the Bid
Solicitation Agent, as applicable, cannot reasonably obtain at least one bid
for $[5,000,000] aggregate principal amount of the Notes or in the
Company’s reasonable judgment the bid quotations are not indicative of the
secondary market value of the Notes ,
then the Trading Price per $1,000 in principal amount 


 


13

















 


of Notes 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. Any
such determination will be conclusive absent manifest error.


 


“Trading
Price Measurement Period”  has the meaning specified in Section 9.01(a)(2).


 


“Trigger
Event”  has the meaning specified in Section 9.04(c).


 


“VWAP” for the Common Stock means,
with respect to any Settlement Period Trading Day during the Settlement Period,
the per share volume-weighted average price of the Common Stock as displayed
under the heading “Bloomberg VWAP” on Bloomberg page TXT. N <equity>
AQR in respect of the period from 9:30 a.m. to 4:00 p.m., New York
City time, on such Settlement Period Trading Day; or if such volume-weighted
average price is unavailable, the market value per share of the Common Stock on
such Settlement Period Trading Day as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.


 


SECTION 1.02.              Rules of Construction.  For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


(1)           the terms defined in this Indenture
have the meanings assigned to them in this Indenture;


 


(2)           “or” is not exclusive;


 


(3)           all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with GAAP;


 


(4)           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;


 


(5)           all references to “$” or “dollars”
shall refer to the lawful currency of the United States of America;


 


(7)           the words “include,” “included” and “including,”
as used herein, shall be deemed in each case to be followed by the phrase “without
limitation,” if not expressly followed by such phrase or the phrase “but not
limited to;”


 


(8)           words in the singular include the
plural, and words in the plural include the singular;


 


(9)           references to sections of, or rules under,
the Securities Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the Commission from time to time;
and


 


14

















 


(10)         any reference to a Section, Article or
clause refers to such Section, Article or clause of this Indenture.


 


SECTION 1.03.      Incorporation by Reference of TIA.  Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of
this Indenture.  This Indenture is
subject to the mandatory provisions of the TIA, which are incorporated by reference
in and made a part of this Indenture. 
Any terms incorporated by reference in this Indenture that are defined
by the TIA, defined by any TIA reference to another statute or defined by
Commission rule under the TIA, have the meanings so assigned to them
therein.  The following TIA terms have
the following meanings:


 


“indenture securities” means the
Notes.


 


“indenture security holder” means a
Holder.


 


“indenture to be qualified” means
this Indenture.


 


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


 


“obligor” on the indenture securities
means the Company and any successor or other obligor on the indenture
securities.


 


SECTION 1.04.              Conflict with TIA.  If any provision hereof limits, qualifies or
conflicts with a provision of the TIA that is required under the TIA to be a
part of and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed (i) to apply to this Indenture as so
modified or (ii) to be excluded, as the case may be.


 


SECTION 1.05.              Compliance Certificates and
Opinions.  Upon any application or
request by the Company or by any other obligor upon the Notes to the Trustee to
take any action under any provision of this Indenture, the Company or such
other obligor, as the case may be, shall furnish to the Trustee such
certificates and opinions as may be required under the TIA.  Each such certificate or opinion shall be
given in the form of one or more Officer’s Certificates, if to be given by an
Officer, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the TIA and any other requirements set forth in this
Indenture.  Notwithstanding the
foregoing, in the case of any such request or application as to which the
furnishing of any Officer’s Certificate or Opinion of Counsel is specifically
required by any provision of this Indenture relating to such particular request
or application, no additional certificate or opinion need be furnished.


 


Every certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture (except for certificates provided for in Section 4.09)
shall include:


 


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


 


15

















 


(2)           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;


 


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


 


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


 


SECTION 1.06.              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.


 


Any certificate or
opinion of an Officer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
Officer knows 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 to
the effect that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows 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 1.07.              Acts of Holders; Record Dates.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company, as the case may be. 
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 10.01)
conclusive in favor of the Trustee, the Company and any other obligor upon the
Notes, if made in the manner provided in this Section 1.07.


 


16

















 


(b)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by the certificate of any 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 an
officer of a corporation or a member of a partnership or other legal entity
other than an individual, on behalf of such corporation or partnership or
entity, such certificate or affidavit shall also constitute sufficient proof of
such Person’s authority.  The fact and
date of the execution of any such instrument or writing, or the authority of
the person executing the same, may also be proved in any other manner that the
Trustee deems sufficient.


 


(c)           The ownership of Notes shall be
proved by the Security Register.


 


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


 


(e)           (i)  The Company may set any day
as a record date for the purpose of determining the Holders of Outstanding
Notes entitled to give, make or take 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 of Notes, provided 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 Notes on such record date (or their duly
designated proxies), and no other Holders, shall be entitled to take the
relevant action, whether or not such Persons remain Holders after such record
date; provided 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 Notes on such record date.  Nothing in this paragraph shall be construed
to 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), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set pursuant
to this paragraph, the Company, at its 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 Notes in the manner set forth in Section 1.08.


 


(ii) 
The Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Notes entitled to join in the giving or making of (A) any
Notice of Default, (B) any declaration of acceleration referred to in Section 6.02,
(C) any request to institute proceedings referred to in Section 6.07(ii) or
(D) any direction referred to in Section 6.12, in each case with
respect to Notes.  If any record date is
set 


 


17

















 


pursuant to this
paragraph, the Holders of Outstanding Notes 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 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 Notes on such record date.  Nothing in this paragraph shall be construed
to prevent the Trustee 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), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Notes 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 proposed action by Holders and the applicable
Record Expiration Date to be given to the Company in writing and to each Holder
of Notes in the manner set forth in Section 1.09.


 


(iii) 
With respect to any record date set pursuant to this Section 1.07, the
party hereto that sets such record dates 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 that no such change shall be effective unless notice of the proposed
new Record Expiration Date is given to the Company or the Trustee, whichever
such party is not setting a record date pursuant to this Section 1.07(e) in
writing, and to each Holder of Notes in the manner set forth in Section 1.09,
on or prior to 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 set 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.


 


(iv) 
Without limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Note may do so with regard to all or
any part of the principal amount of such Note 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.


 


(v) 
Without limiting the generality of the foregoing, a Holder, including the
Depositary, that is the Holder of a Global Note, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture
to be made, given or taken by Holders or the Depositary, as the Holder of a
Global Note, may provide its proxy or proxies to the beneficial owners of
interest in any such Global Note through such depositary’s standing
instructions and customary practices.


 


(vi) 
The Company may fix a record date for the purpose of determining the persons
who are beneficial owners of interests in any Global Note held by the
Depositary 


 


18

















 


entitled under the
procedures of such depositary to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders.  If such a record date
is fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such persons, shall be entitled to make, give or take such
request, demand, authorization direction, notice consent, waiver or other
action, whether or not such Holders remain Holders after such record date.  No such request, demand, authorization,
direction, notice, consent, waiver or other action shall be valid or effective
if made, given or taken more than 90 days after such record date.


 


SECTION 1.08.              Notices, etc., to Trustee and
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,


 


(1)           the Trustee by any Holder or by the
Company or by any other obligor upon the Notes shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at [                                ],
Attention:  [Corporate Trust Department]
(telephone: 
(      )
      -        ;
telecopier:  (      )
      -        
or at any other address furnished in writing to the Company by the Trustee, or


 


(2)           the Company by the Trustee or by any
Holder shall be sufficient for every purpose hereunder if in writing and
mailed, first-class postage prepaid, to the Company at The Hertz Corporation,
225 Brae Boulevard, Park Ridge, New Jersey 07666, Attention: Chief Financial
Officer (telephone: (201) 307-2000; telecopier: (201) 307-2748),
with a copy to The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New
Jersey 07666, Attention: General Counsel (telephone: (201) 307-2000;
telecopier: (201) 594-3122, and to Debevoise & Plimpton LLP, 919
Third Avenue, New York, New York 10022, Attention: David A. Brittenham, Esq.
and Steven J. Slutzky, Esq. (telephone: (212) 909-6000; telecopier:
(212) 909-6836), or at any other address previously furnished in writing
to the Trustee by the Company.


 


(3)           The Issuer or the Trustee, by notice
to the other, may designate additional or different addresses for subsequent
notices or communications.


 


SECTION 1.09.              Notices 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, or by overnight air courier guaranteeing next day delivery, to each
Holder affected by such event, at such Holder’s address as it appears in the
Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.  In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders.


 


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 


 


19

















 


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 impossible to mail notice of any event as required by any provision of
this Indenture, then such notification as shall be made with the approval of
the Trustee (such approval not to be unreasonably withheld) shall constitute a
sufficient notification for every purpose hereunder.


 


SECTION 1.10.              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 1.11.              Successors and Assigns.  All covenants and agreements in this
Indenture by the Company shall bind its respective successors and assigns,
whether so expressed or not.  All
agreements of the Trustee in this Indenture shall bind its successors.


 


SECTION 1.12.              Separability Clause.  In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


SECTION 1.13.              Benefits of Indenture.  Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 


SECTION 1.14.              GOVERNING LAW.  THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.  THE TRUSTEE, THE COMPANY, ANY
OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES)
THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR
STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.


 


SECTION 1.15.              Legal Holidays.  In any case where any Interest Payment Date,
Fundamental Change Repurchase Date or Maturity Date of any Note shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Notes) payment of interest or principal and premium
(if any) need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Fundamental Change
Repurchase Date or at the Maturity Date, and no interest shall accrue on such
payment for the intervening period.


 


SECTION 1.16.              No Personal Liability of
Directors, Officers, Employees, Incorporators and Stockholders.  No director, officer, employee, incorporator
or stockholder of the Company or any Subsidiary of the Company shall have any
liability for any obligation of the 


 


20

















 


Company under this
Indenture or the Notes, or for any claim based on, in respect of, or by reason
of, any such obligation or its creation. 
Each Holder, by accepting the Notes, waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.


 


SECTION 1.17.              Exhibits and Schedules.  All exhibits and schedules attached hereto
are by this reference made a part hereof with the same effect as if herein set
forth in full.


 


SECTION 1.18.              Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.


 


SECTION 1.19.              Calculations.  The Company may be responsible for making
certain calculations called for hereunder and under the Notes or in connection
with a conversion.  These calculations
include, but are not limited to, determinations of the Last Reported Sale
Price, accrued interest payable on the Notes and the applicable Conversion Rate
on the Notes.  Absent manifest error, all
calculations, including those performed by the Company, will be final and
binding on the Holders.


 


ARTICLE 2


 


The Notes


 


SECTION 2.01.              Designation, Amount and
Issuance of Notes.  The Notes shall
be designated as “[      ]% Convertible Senior
Notes due 20[   ].”  The
Notes will initially not exceed the aggregate principal amount of
$[                ],
except for Notes authenticated and delivered upon registration of transfer of,
in exchange for, or in lieu of, other Notes pursuant to Section 2.08,
2.10, 3.04, 5.02 and 9.02(d) of this Indenture.  Upon the execution of this Indenture, or from
time to time thereafter,
Notes may be executed by the Company and delivered to the Trustee for
authentication.


 


SECTION 2.02.              Form of the Notes.  The Notes and the Trustee’s certificate of
authentication to be borne by such Notes, the Conversion Notice, Fundamental Change
Repurchase Notice and Form of Assignment shall be substantially in the
forms set forth in Exhibits A, B, C and D, respectively, hereto.  The terms and provisions contained in the
form of Notes attached as Exhibit A hereto shall constitute, and are hereby
expressly 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.


 


Any of the Notes may have
such letters, numbers or other marks of identification and such notations,
legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of the Indenture, or as may be required by the
custodian for the Global Notes, the Depositary or as may be required to comply
with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or
automated quotation system on which the Notes may be listed, or to conform to 


 


21

















 


usage, or to
indicate any special limitations or restrictions to which any particular Notes
are subject.


 


So long as the Notes are
eligible for book-entry settlement with the Depositary, or unless otherwise
required by law, or otherwise contemplated by Section 2.03(d), all of the
Notes will be represented by one or more Global Notes.  The transfer and exchange of beneficial
interests in any such Global Notes shall be effected through the Depositary in
accordance with the Indenture and the applicable procedures of the
Depositary.  Except as provided in Section 2.03(d),
beneficial owners of a Global Note shall not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered holders
of such Global Note.


 


Any Global Notes shall
represent such of the outstanding Notes as shall be specified therein and shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be increased or reduced to
reflect repurchases, conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the custodian for the
Global Note, at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Notes in accordance with this
Indenture.  Payment of principal of,
interest on and premium, if any, on any Global Notes shall be made to the
Depositary in immediately available funds.


 


SECTION 2.03.              Date
and Denomination of Notes; Payment at Maturity; Payment of Interest.


 


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


 


(b)           Payment at Maturity.  The Notes shall mature on
[                ],
20[   ], unless earlier converted or repurchased in accordance
with the provisions hereof.  On the
Maturity Date, each Holder shall be entitled to receive on such date $1,000 in
cash for each $1,000 in principal amount of Notes, together with accrued and
unpaid interest to, but not including, the Maturity Date.  With respect to Global Notes, principal and
interest will be paid to the Depositary in immediately available funds.  With respect to any certificated Notes,
principal and interest will be payable at the Company’s office or agency in New
York City, which initially will be the Corporate Trust Office.  If the Maturity Date is not a Business Day,
payment shall be made on the next succeeding Business Day, and no additional
interest shall be accrue thereon.


 


(c)           Payment of Interest.  Interest on the Notes will accrue at the rate
of [      ]% per annum, from
[                ],
2009 until the principal thereof is paid or made available for payment.  Interest shall be payable on
[                ]
and [                ]
of each year (each, an “Interest Payment Date”), commencing
on
[                ],
2009, to the Holder at the close of business on 


 


22

















 


any Regular Record Date
with respect to the applicable Interest Payment Date, except that the interest
payable on the Maturity Date will be paid to the Person to whom the principal
amount is paid.  Notwithstanding the
foregoing, any Notes or portion thereof surrendered for conversion after the
close of business on the Regular Record Date for an Interest Payment Date but
prior to the applicable Interest Payment Date shall be accompanied by payment,
in immediately available funds or other funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such Interest Payment Date on
the principal amount of the Notes being converted; provided that no such
payment need be made:


 


(i)            with
respect to Notes converted after the close of business on
[                ],
20[   ];


 


(ii)           with
respect to Notes converted during the period commencing on the date the Company
gives notice of a Fundamental Change pursuant to Section 9.01(a)(4) to,
and including, the second Trading Day immediately preceding the Fundamental
Change Repurchase Date; or


 


(iii)          with
respect to any overdue interest, if any overdue interest remains unpaid at the
time of conversion with respect to the Notes surrendered for conversion.


 


Interest
on the Notes for a Full Interest Period will be computed on the basis of a
three hundred sixty (360)-day year comprised of twelve (12) thirty (30)-day
months.  Interest on the Notes for any
period other than a Full Interest Period will be computed on the basis of the
actual number of days elapsed during the period and a three hundred sixty-five
(365)-day year.


 


The
Company shall pay interest on:


 


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


 


(ii)           any
Notes in certificated form having a principal amount of less than $5,000,000,
by check mailed to the address of the Holder, provided, however,
on the Maturity Date, interest will be payable as described in Section 2.03(b);
and


 


(iii)          any
Notes in certificated form having a principal amount of $5,000,000 or more, by
wire transfer in immediately available funds at the election of the Holders of
such Notes duly delivered to the Trustee at least five (5) Business Days
prior to the relevant Interest Payment Date, provided, however,
on the Maturity Date, interest will be payable as described in Section 2.03(b).


 


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


 


All
references to “interest” in this Indenture shall be deemed to include Reporting
Additional Interest, if any, that accrues in connection with the Company’s
failure to comply with Section 2.06, if applicable, as provided by Section 6.15.


 


23














 


(d)           The following provisions shall apply
only to Global Notes:


 


(i)            Notwithstanding
any other provision in the Indenture, no Global Note may be exchanged in whole
or in part for Notes registered, and no transfer of a Global Note in whole or
in part may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (A) the Depositary (x) has notified the
Company that it is unwilling or unable to continue as Depositary for such
Global Note or (y) has ceased to be a clearing agency registered under the
Exchange Act, and in each case a successor Depositary has not been appointed by
the Company within ninety (90) calendar days, or (B) the Company, at its
option, notifies the Trustee in writing that it no longer wishes to have all the
Notes represented by Global Notes.  Any
Global Note exchanged pursuant to this Section 2.03(d)(i) shall be so
exchanged in whole and not in part.


 


(ii)           In
addition, certificated Notes will be issued in exchange for beneficial
interests in a Global Note upon request by or on behalf of the Depositary in
accordance with customary procedures following the request of a beneficial
owner seeking to enforce its rights under the Notes or the Indenture, including
its rights following the occurrence of an Event of Default.


 


(iii)          Notes
issued in exchange for a Global Note or any portion thereof pursuant to clause (i) or
(ii) above shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that of
such Global Notes or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall designate and shall bear any
legends required hereunder.  Any Global
Notes to be exchanged shall be surrendered by the Depositary to the Trustee, as
Registrar; provided that pending completion of the exchange of a Global Note,
the Trustee acting as custodian for the Global Notes for the Depositary or its
nominee with respect to such Global Notes, shall reduce the principal amount
thereof, by an amount equal to the portion thereof to be so exchanged, by means
of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Notes issuable
on such exchange to or upon the written order of the Depositary or an
authorized representative thereof.


 


(iv)          In
the event of the occurrence of any of the events specified in clause (i) above
or upon any request described in clause (ii) above, the Company will
promptly make available to the Trustee a sufficient supply of certificated
Notes in definitive, fully registered form, without interest coupons.


 


(v)           Neither
any members of, or participants in, the Depositary (the “Agent Members”) nor
any other Persons on whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global Notes registered in the name of
the Depositary or any nominee thereof, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner and holder of such Global
Notes for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,



 


24

















 


the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other Person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of the
rights of a holder of any Notes.


 


(vi)          At
such time as all interests in a Global Note have been repurchased, converted,
cancelled or exchanged for Notes in certificated form, such Global Note shall,
upon receipt thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the custodian
for the Global Note.  At any time prior
to such cancellation, if any interest in a Global Note is repurchased,
converted, cancelled or exchanged for Notes in certificated form, the principal
amount of such Global Note shall, in accordance with the standing procedures
and instructions existing between the Depositary and the custodian for the
Global Note, be appropriately reduced, and an endorsement shall be made on such
Global Note, by the Trustee or the custodian for the Global Note, at the
direction of the Trustee, to reflect such reduction.


 


SECTION 2.04.      Paying Agent to Hold Money in Trust. 
Prior to each due date of the principal and interest on any Note, the
Company shall deposit with the Paying Agent (or if the Company or a Subsidiary of
the Company is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due.  The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Notes and shall notify the Trustee of any Default by the
Company in making any such payment.  If
the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund.  The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying Agent.  Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.


 


SECTION 2.05.      Outstanding Notes.  If the Paying Agent segregates and holds in
trust, in accordance with the Indenture, on a Fundamental Change Repurchase
Date or Maturity Date cash sufficient to pay all principal and interest payable
on that date with respect to the Notes (or portions thereof) to be repurchased
or maturing, as the case may be, and the Paying Agent is not prohibited from
paying such money to the Noteholders on that date pursuant to the terms of the
Indenture, then on and after that date such Notes (or portions thereof) cease
to be “Outstanding” for purposes of the Indenture and interest on them ceases
to accrue.


 


SECTION 2.06.      Commission Reports.  The Company will deliver to the Trustee,
within 15 calendar days after it would have been required to file with the
Commission (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act), copies of its annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. Documents filed by the Company with the
Commission via its EDGAR system (or any successor 


 


25

















 


thereto) will be deemed to be filed with the Trustee
as of the time such documents are so filed. In the event the Company is at any
time no longer subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company shall continue to provide the Trustee (or make
available on a Company website) reports containing substantially the same
information (without exhibits) as would have been required to be filed with the
Commission the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to file the reports with the Commission
(giving effect to any grace period provided by Rule 12b-25 under the
Exchange Act) had the Company continued to have been subject to such reporting
requirements.  Notwithstanding the
foregoing, if any audited or reviewed financial statements or information
required to be included in any Commission filing are not reasonably available
on a timely basis as a result of the Company’s accountants not being “independent”
(as defined pursuant to the Exchange Act and the rules and regulations of
the Commission thereunder), the Company may, in lieu of making such filing or
transmitting or making available the information, documents and reports so
required to be filed, elect to make a filing on an alternative form or transmit
or make available unaudited or unreviewed financial statements or information
substantially similar to such required audited or reviewed financial statements
or information, provided that the Company shall in any event be required
to make such filing and so transmit or make available such audited or reviewed
financial statements or information no later than the 180th day after the
date on which the same was otherwise required pursuant to the preceding
provisions of this paragraph (such date, the “Reporting
Date”) and provided, further, during the period
that such filing has not been made or, if the Company makes such an election,
such information, documents and reports have not been transmitted or made
available, as the case may be, liquidated damages will accrue on the Notes at a
rate of 0.50% per annum until the earlier of (x) the date on which such filing
has been made, or such information, documents and reports have been transmitted
or made available, as the case may be, and (y) the Reporting Date
(provided that not more than 0.50% per annum in liquidated damages shall be
payable for any period regardless of the number of such elections by the
Company).  The Company also will comply
with the other provisions of TIA §314(a) if and as applicable.


 


SECTION 2.07.      Execution, Authentication and Delivery.  The Notes shall be executed on behalf of the
Company by one Officer of the Company. 
The signature of any such Officer on the Notes may be manual or by
facsimile.


 


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


 


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication; and the Trustee shall authenticate
and deliver Notes for original issue in the aggregate principal amount not to
exceed $[                ]
million upon a written order of the Company in the form of an Officer’s
Certificate of the Company (an “Authentication Order”).  Such Officer’s Certificate shall specify the
amount of Notes to be authenticated and the date on which the Notes are to be
authenticated, the “CUSIP,” “ISIN” or other similar identification numbers of
such Notes, if any, 


 


26

















 


and whether the Notes are to be issued as one or more
Global Notes or Physical Notes and such other information as the Company may
include or the Trustee may reasonably request.


 


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


 


SECTION 2.08.      Temporary Notes.  Until definitive Notes are ready for
delivery, the Company may prepare and upon receipt of an Authentication Order
the Trustee shall authenticate temporary Notes. 
Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company consider appropriate for temporary
Notes.  If temporary Notes are issued,
the Company will cause definitive Notes to be prepared without unreasonable
delay.  After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Company in a Place of Payment, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Notes the Company shall execute and upon receipt of an
Authentication Order the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations.  Until so exchanged the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes of the same series and tenor.


 


SECTION 2.09.      Security Registrar and Paying Agent.  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 of the Company in a Place of
Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes.  The Company may have one or more
co-registrars.  The term “Security Registrar” includes any
co-registrars.


 


The
Company shall also maintain an office or agent within the United States where
Notes may be presented for payment (the “Paying Agent”);
provided, however, that at the option of the Company payment of
interest on a Note may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.  The Company may have one or more additional
paying agents, and the term “Paying Agent” includes the Paying Agent and any
additional Paying Agent.


 


The
Company initially appoints the Trustee as “Security Registrar” and “Paying
Agent” in connection with the Notes until such time as such entity has resigned
or a successor has been appointed.  The
Company may change the Paying Agent or Security Registrar for the Notes without
prior notice to the Holders of Notes. 
The Company may enter into an appropriate agency agreement with any
Security Registrar or Paying Agent not a party to this Indenture.


 


Any
such agency agreement shall implement the provisions of this Indenture that
relate to such agent.  The Company shall
notify the Trustee in writing of the name and address of any such agent.  If the Company fails to appoint or maintain a
Security Registrar or Paying 


 


27

















 


Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 10.07.  The Company or any wholly-owned domestic
Subsidiary of the Company may act as Paying Agent, Security Registrar or
transfer agent.


 


Upon
surrender for transfer of any Note at the office or agency of the Company in a Place
of Payment, in compliance with all applicable requirements of this Indenture
and applicable law, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of the same series, of any authorized
denominations and of a like aggregate principal amount.


 


At the
option of the Holder, Notes may be exchanged for other Notes of the same
series, of any authorized denominations and of a like tenor and aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency.  Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes that the Holder making the exchange is
entitled to receive.


 


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


 


Every
Note presented or surrendered for transfer or exchange shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or such Holder’s attorney duly
authorized in writing.


 


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


 


SECTION 2.10.      Mutilated, Destroyed, Lost and Stolen
Notes.  If a mutilated Note is
surrendered to the Security Registrar or if the Holder of a Note claims that
the Note has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405
of the Uniform Commercial Code are met, such that the Holder (a) satisfies
the Company or the Trustee within a reasonable time after such Holder has
notice of such loss, destruction or wrongful taking and the Security Registrar
does not register a transfer prior to receiving such notification, (b) makes
such request to the Company or the Trustee prior to the Note being acquired by
a protected purchaser as defined in Section 8-303 of the Uniform
Commercial Code (a “protected purchaser”) and (c) satisfies
any other reasonable requirements of the Trustee.  If required by the Trustee or the Company,
such Holder shall furnish an indemnity bond sufficient in the judgment of the
Trustee to protect the Company, the Trustee, a Paying Agent and the Security
Registrar from any loss that any of them may suffer if a Note is replaced.


 


In case any such mutilated, destroyed, lost or stolen
Note has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Note, pay such Note.


 


28

















 


Upon the issuance of any new Note under this Section 2.10,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.


 


Every new Note issued pursuant to this Section 2.10
in lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and ratably with any and
all other Notes duly issued hereunder.


 


The provisions of this Section 2.10 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
Notes.


 


SECTION 2.11.      Cancellation of Notes Paid, Etc.  All Notes surrendered for the purpose of
payment, repurchase, conversion, exchange or registration of transfer, shall,
if surrendered to the Company or any Paying Agent or any Security Registrar or
any Conversion Agent, be surrendered to the Trustee and promptly canceled by
it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no
Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture.  The
Trustee shall dispose of canceled Notes in accordance with its customary
procedures.  If the Company shall acquire
any of the Notes, such acquisition shall not operate as satisfaction of the
Indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.


 


SECTION 2.12.      CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in all notices issued to Holders as a convenience to them; provided,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or on such notice
and that reliance may be placed only on the other identification numbers
printed on the Notes.  The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


ARTICLE 3



Repurchase of Notes


 


SECTION 3.01.      Repurchase at Option of the Holder Upon
a Fundamental Change.


 


(a)           If there shall occur a Fundamental
Change at any time prior to the Maturity Date, then each Holder shall have the
right, at such Holder’s option, to require the Company to repurchase for cash
any or all of such Holder’s Notes, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple of $1,000, on a date
(the “Fundamental Change Repurchase Date”) of the Company’s choosing that is
not less than fifteen (15) Business Days or more than thirty-five (35) Business
Days after the date of the Fundamental Change Company Notice at a repurchase
price equal to 100% of the principal amount of the Notes to be repurchased,
plus accrued and unpaid interest thereon to, but excluding, the 


 


29

















 


Fundamental Change
Repurchase Date (the “Fundamental Change Repurchase Price”).  If
such Fundamental Change Repurchase Date falls between a Regular Record Date and
on or prior to the Interest Payment Date to which it relates, the Company shall
instead pay the full amount of accrued and unpaid interest payable on such
Interest Payment Date to the holder of record on the close of business on the
corresponding Regular Record Date and the Fundamental Change Repurchase Price
shall be equal to 100% of the principal amount of the Notes to be
repurchased.  Repurchases of Notes under
this Section 3.01 shall be made, at the option of the holder thereof,
upon:


 


(1)           delivery to the Paying Agent by a
Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”)  in the form set forth on the
reverse of the Note by the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase
Expiration Time”);  and


 


(2)           delivery or book-entry transfer of
the Notes to the Paying Agent by the Fundamental Change Repurchase Expiration
Time (together with all necessary endorsements) at the Corporate Trust Office
of the Paying Agent in New York City, such delivery being a condition to
receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 


The
Fundamental Change Repurchase Notice shall state:


 


(i)            if
certificated Notes have been issued, the certificate numbers of the Notes to be
delivered for repurchase, or if certificated Notes have not been issued, such
Fundamental Change Repurchase Notice must comply with appropriate Depositary
procedures;


 


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


 


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


 


Any purchase by the Company contemplated
pursuant to the provisions of this Section 3.01 shall be consummated by
the payment of the Fundamental Change Purchase Price to the relevant Holders
promptly following the later of the Fundamental Change Repurchase Date and the
time of the book-entry transfer or delivery of the Note.


 


All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Notes for repurchase shall be
determined by the Company, whose determination shall be final and binding
absent manifest error.


 


Notwithstanding anything herein to the
contrary, any Holder delivering to the Paying Agent the Fundamental Change
Repurchase Notice contemplated by this Section 3.01 shall have the right
to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at
any time prior to the close of business on the Business Day immediately
preceding the Fundamental 


 


30

















 


Change Repurchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.02 below.


 


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


 


(b)           On or before the tenth (10th) calendar day after the
occurrence of a Fundamental Change, the Company shall mail or cause to be
mailed to all Holders of the Notes, and to beneficial owners as required by
applicable law, a notice (the “Fundamental Change Company Notice”)
of the occurrence of the Fundamental Change and of the repurchase right
at the option of the Holders arising as a result thereof.  Such mailing shall be by first class
mail.  The Company shall also deliver a
copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent
and the Conversion Agent.  Simultaneously
with providing such notice, the Company will issue a press release containing
the information set forth in the Fundamental Change Company Notice and make
this information available on its website.


 


Each Fundamental Change Company Notice shall specify:


 


(i)            the
events causing the Fundamental Change;


 


(ii)           the
date of the Fundamental Change;


 


(iii)          the
last date on which a Holder may exercise the repurchase right pursuant to this Article 3;


 


(iv)          the
Fundamental Change Repurchase Price;


 


(v)           the
Fundamental Change Repurchase Date;


 


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


 


(vii)         that
the Notes are eligible to be converted, the applicable Conversion Rate and any
adjustments to the applicable Conversion Rate resulting from such Fundamental
Change transaction and expected changes in the cash, shares or other property
deliverable upon conversion of the Notes as a result of the occurrence of the
Fundamental Change, and the settlement method the Company has chosen to satisfy
the related Conversion Obligation, if any;


 


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


 


(ix)           that
a Holder must exercise its repurchase right by the Fundamental Change
Repurchase Expiration Time;


 


(x)            that
the Holder shall have the right to withdraw any Notes tendered prior to the
Fundamental Change Repurchase Expiration Time;


 


31

















 


(xi)           the
CUSIP number of the Notes; and


 


(xii)          the
procedures that Holders must follow to require the Company to repurchase their
Notes pursuant to this Article 3.


 


No
failure of the Company to give the foregoing notices and no defect therein
shall limit the repurchase rights of Holders or affect the validity of the
proceedings for the repurchase of the Notes pursuant to this Section 3.01.


 


(c)           Notwithstanding the foregoing, no
Notes may be repurchased by the Company at the option of the Holders upon a
Fundamental Change if there has occurred and is continuing an Event of Default
other than an Event of Default that is cured by the payment of the Fundamental
Change Repurchase Price.


 


SECTION 3.02.              Withdrawal of Fundamental
Change Repurchase Notice.  A
Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the Corporate Trust Office of the Paying
Agent in accordance with the Fundamental Change Repurchase Notice at any time
prior to the Fundamental Change Repurchase Expiration Time, specifying:


 


(1)           if certificated Notes have been
issued, the certificate numbers of the Notes in respect of which such notice of
withdrawal is being submitted, or if certificated Notes have not been issued,
such notice of withdrawal must comply with appropriate Depositary procedures;


 


(2)           the
principal amount of the Note with respect to which such notice of withdrawal is
being submitted, which portion must be in principal amount of $1,000 or an
integral multiple thereof; and


 


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


 


SECTION 3.03.              Deposit of Fundamental Change
Repurchase Price.  Prior to 10:00 a.m.,
New York City time, on the Fundamental Change Repurchase Date, the Company
shall deposit with the Paying Agent or, if the Company or a Subsidiary of the
Company is acting as the Paying Agent, shall segregate and hold in trust as
provided herein, an amount of cash (in immediately available funds if deposited
on the Fundamental Change Repurchase Date), sufficient to pay the aggregate
Fundamental Change Repurchase Price of all the Notes or portions thereof that
are to be repurchased as of the Fundamental Change Repurchase Date.


 


If on the Fundamental Change Repurchase Date
the Paying Agent holds cash sufficient to pay the Fundamental Change Repurchase
Price of the Notes that Holders have elected to require the Company to
repurchase in accordance with Section 3.01, then, on the Fundamental
Change Repurchase Date, such Notes will cease to be outstanding, interest will
cease to accrue (whether or not book-entry transfer of the Notes is made or the
Note is transferred or delivered to the Paying Agent, as the case may be) and
all other rights of the Holders of such Notes will 


 


32

















 


terminate (other than the
right to receive the Fundamental Change Repurchase Price upon delivery or
book-entry transfer of the Notes).  This
will be the case whether or not book-entry transfer of the Notes has been made
or the Notes have been delivered to the Paying Agent.


 


SECTION 3.04.              Notes Repurchased in Part.  Upon presentation of any Notes repurchased
only in part, the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Holder thereof, at the expense of the
Company, a new Note or Notes, of any authorized denomination, in aggregate
principal amount equal to the unrepurchased portion of the Notes presented.


 


SECTION 3.05.              Covenant to Comply with
Securities Laws Upon Repurchase of Notes. 
The Company will, to the extent applicable, comply with the provisions
of Rule 13e-4 and any other tender offer rules under the Exchange Act
that may be applicable at the time of the offer to repurchase the Notes, file
the related Schedule TO or any other schedule required in connection with any
offer by the Company to repurchase the Notes and comply with all other federal
and state securities laws in connection with any offer by the Company to
repurchase the Notes.


 


ARTICLE 4


 


Covenants


 


SECTION 4.01.              Payment of Principal, Premium
and Interest.  The Company shall duly
and punctually pay the principal of (and premium, if any) and interest on the
Notes in accordance with the terms of the Notes and this Indenture.  Principal amount (and premium, if any) and
interest on the Notes shall be considered paid on the date due if the Company
shall have deposited with the Paying Agent (if other than the Company) as of
12:00 p.m. New York City time on the due date money in immediately
available funds and designated for and sufficient to pay all principal amount
(and premium, if any) and interest then due.


 


SECTION 4.02.              Maintenance of Office or Agency.


 


(a)           The Company shall maintain in the
United States one or more offices or agencies where Notes may be presented or
surrendered for payment, where Notes may be surrendered for transfer or exchange
and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served.  The
Company shall give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.


 


(b)           The Company may also from time to
time designate one or more other offices or agencies where the Notes may be
presented or surrendered for any or all purposes and may from time to time
rescind such designations.


 


33














 


The Company hereby designates the Corporate Trust
Office of the Trustee as such office or agency of the Company where Notes may
be presented or surrendered for payment or for transfer or exchange for so long
as such Corporate Trust Office remains a Place of Payment.


 


SECTION 4.03.              Existence.  Subject to Article 5, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence and rights (constituent documents and statutory);
provided that the Company shall not be required to preserve any such right if
the Company 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 of Notes.


 


SECTION 4.04.              Further Instruments and Acts.  The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.


 


SECTION 4.05.              Additional Interest.  If Reporting
Additional Interest is payable by the Company, the Company shall deliver to the
Trustee an Officers’ Certificate to that effect stating (i) the amount of
such Reporting Additional Interest that is payable and (ii) the
date on which such Reporting Additional Interest is payable.  Unless and until a Responsible Officer
receives such a certificate, the Trustee may assume without inquiry that no
Reporting Additional Interest is payable.


 


SECTION 4.06.              Waiver of Stay Extension or Usury Laws. 
The Company covenants (to the extent it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take benefit or advantage of, any stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time; the Company (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.


 


SECTION 4.07.              Repurchase and Cancellation.  To the extent permitted by law, the Company
may repurchase any Notes in the open-market or by tender offer at any price or
by private agreement.  Neither the
Company nor its Affiliates shall resell such Notes unless such resale is
registered under the Securities Act or such resale is pursuant to an exemption
from the registration requirements of the Securities Act that results in such
Notes not being “restricted securities,” as such term is defined in Rule 144(a)(3) under
the Securities Act.  Any Notes
repurchased by the Company may, at the Company’s option, be surrendered to the
Trustee for cancellation.  Any Notes
surrendered for cancellation by the Company shall not be reissued or resold.


 


34

















 


SECTION 4.08.              Provisions as to Paying Agent.


 


(a)           If the Company shall appoint a Paying
Agent other than the Trustee, the Company will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.08:


 


(i)            that
it will hold all sums held by it as such agent for the payment of the principal
of and premium, if any, and accrued and unpaid interest on the Notes in trust
for the benefit of the Holders of the Notes;


 


(ii)           that
it will give the Trustee prompt notice of any failure by the Company to make
any payment of the principal of and premium, if any, and accrued and unpaid
interest on the Notes when the same shall be due and payable; and


 


(iii)          that
at any time during the continuance of an Event of Default, upon written request
of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.


 


The Company shall, on or before each due date of the
principal of, or premium (including the Fundamental Change Repurchase Price),
if any, or accrued and unpaid interest on the Notes, deposit with the Paying
Agent a sum sufficient to pay such principal, premium (including the
Fundamental Change Repurchase Price), if any, or accrued and unpaid interest
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action, provided that if such deposit
is made on the due date, such deposit must be received by the Paying Agent by
11:00 a.m., New York City time, on such date.


 


(b)           If the Company shall act as its own
Paying Agent, it will, on or before each due date of the principal of, premium
(including the Fundamental Change Repurchase Price), if any, accrued and unpaid
interest on the Notes, set aside, segregate and hold in trust for the benefit
of the holders of the Notes a sum sufficient to pay such principal, premium
(including the Fundamental Change Repurchase Price), if any, accrued and unpaid
interest so becoming due and will promptly notify the Trustee in writing of any
failure to take such action and of any failure by the Company to make any
payment of the principal of, premium (including the Fundamental Change
Repurchase Price), if any, accrued and unpaid interest on the Notes when the
same shall become due and payable.


 


(c)           Anything in this Section 4.08 to
the contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the
Company or any Paying Agent hereunder as required by this Section 4.08,
such sums to be held by the Trustee upon the trusts herein contained, and upon
such payment by the Company or any Paying Agent to the Trustee, the Company or
such Paying Agent shall be released from all further liability with respect to
such sums.


 


(d)           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 or premium (including the Fundamental Change Repurchase
Price), if any, or accrued and unpaid interest on any Note and remaining
unclaimed for two years after such principal, premium (including the Fundamental
Change Repurchase Price) or interest has become due and payable shall be paid
to the Company on 


 


35

















 


request of the Company
contained in an Officers’ Certificate, or (if then held by the Company) shall
be discharged from such trust; and the holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, shall at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The Borough of Manhattan, The City of New York, 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 4.09.              Compliance Certificate;
Statements as to Defaults.  The
Company shall deliver to the Trustee within 120 days after the end of each
fiscal year (beginning with the fiscal year ending on December 31, 2009)
an Officers’ Certificate stating whether or not the signer thereof has
knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so,
specifying each such failure and the nature thereof.


 


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


 


ARTICLE 5



Consolidation, Merger and Sale of Assets


 


SECTION 5.01.              When Company May Merge or
Transfer Assets.  The Company shall
not (i) consolidate with or merge with or into another Person, or (ii) sell,
convey, transfer or lease all or substantially all of its properties and assets
to, another Person (other than a wholly-owned subsidiary in existence on, or
created after, the date of this Indenture), unless:


 


(a)           either (i) the Company is the
surviving corporation, or (ii) if the Company is not the surviving
corporation, the resulting, surviving or transferee Person (the “Successor
Company”) is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia
and such Successor Company expressly assumes, by a supplemental indenture, all
of the Company’s obligations under the Notes and the Indenture;


 


(b)           immediately after giving effect to
the transaction described above, no Default or Event of Default, has occurred
and is continuing under the Indenture; and


 


(c)           the Company has delivered to the
Trustee the Officers’ Certificate and Opinion of Counsel pursuant to Section 5.03.


 


36

















 


SECTION 5.02.              Successor to Be Substituted.  In case of any such consolidation, merger,
sale, conveyance, transfer or lease in which the Company is not the surviving
corporation and upon the assumption by the Successor Company, by supplemental
indenture, executed and delivered to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Notes, and the due and
punctual performance and observance of all of the covenants and conditions of
the Indenture to be performed or satisfied by the Company, except in the case
of a lease of all or substantially all of the Company’s properties and assets,
such Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, the Company, with the same effect as if it
had been named herein as the party of this first part, and Hertz Global
Holdings, Inc. shall be discharged from its obligations under the Notes
and the Indenture.  Such Successor
Company thereupon may cause to be signed, and may issue either in its own name
or in the name of  Inc. any or all of the
Notes, issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such Successor
Company instead of the Company and subject to all the terms, conditions and
limitations in the Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Notes that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Notes that such Successor Company
thereafter shall cause to be signed and delivered to the Trustee for that
purpose.  All the Notes so issued shall
in all respects have the same legal rank and benefit under the Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Notes had been issued at the date of the
execution hereof.  In the event of any
such consolidation, merger, sale, conveyance or transfer, upon compliance with
this Article 5 the Person named as the “Company” in the Section 1.01
of this Indenture or any successor that shall thereafter have become such in
the manner prescribed in this Article 5 may be dissolved, wound up and
liquidated at any time thereafter and such Person shall be discharged from its
liabilities as obligor and maker of the Notes and from its obligations under
this Indenture.


 


SECTION 5.03.              Opinion of Counsel to Be Given
Trustee.  Prior to execution of any
supplemental indenture pursuant to this Article 5, the Trustee shall
receive an Officers’ Certificate and an Opinion of Counsel each to the effect
that any such consolidation, merger, sale, conveyance, transfer or lease and
any such assumption complies with the provisions of this Article 5,
provided that in giving such opinion such counsel may rely on an Officer’s
Certificate as to compliance with Section 5.01(b).


 


ARTICLE 6



Defaults and Remedies


 


SECTION 6.01.              Events of Default.  Each of the following events shall be an “Event of
Default” with respect to the Notes:


 


(a)           A
Default in the payment of interest on the notes when due, and such failure
continues for 30 days;


 


37

















 


(b)           A
Default in the payment of principal of the notes when due, whether at their
Maturity Date, upon required repurchase, upon declaration of acceleration or
otherwise;


 


(c)           The
failure by the Company to comply with its obligations under Section 5.01
hereof;


 


(d)           The
failure by the Company to pay or deliver, as the case may be, cash, shares of
Common Stock or a combination thereof and, if applicable, Reference Property in
respect of the Conversion Obligation, as required by Article 9 hereof,
upon the conversion of any Notes, and such failure continues for a period of
five (5) calendar days following the applicable settlement date for such
conversion as determined in accordance with Section 9.02;


 


(e)           The
failure by the Company to provide notice of the anticipated effective date or
actual effective date of a Fundamental Change, Make-Whole Fundamental Change or
notice of specified corporate transactions, as described in Sections 3.01(b),
9.01(a)(3) and 9.01(a)(4), in each case, for a period of five (5) calendar
days after any such notice becomes due;


 


(f)            the
failure by the Company to comply for 60 days after the notice specified in the
penultimate paragraph of this Section 6.01 with its other agreements
contained in the Notes or this Indenture;


 


(g)           the
failure by the Company or any Subsidiary of the Company to pay any Indebtedness
within any applicable grace period after final maturity or the acceleration of
any such Indebtedness by the holders thereof because of a Default, if the total
amount of such Indebtedness so unpaid or accelerated exceeds $75.0 million or
its foreign currency equivalent; provided, that no Default or Event of Default
will be deemed to occur with respect to any such accelerated Indebtedness that
is paid or otherwise acquired or retired within 20 Business Days after such
acceleration;


 


(h)           the
taking of any of the following actions by the Company or a Significant
Subsidiary, or by each of such other Subsidiaries that are not Significant
Subsidiaries but would in the aggregate constitute a Significant Subsidiary if
considered as a single Person, pursuant to or within the meaning of any
Bankruptcy Law:


 


(A)          the
commencement of a voluntary case;


 


(B)           the
consent to the entry of an order for relief against it in an involuntary case;


 


(C)           the
consent to the appointment of a Custodian of it or for any substantial part of
its property; or


 


(D)          the
making of a general assignment for the benefit of its creditors;


 


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


 


38

















 


(A)          is
for relief against the Company or any Significant Subsidiary, or against each
of such other Subsidiaries that are not Significant Subsidiaries but would in
the aggregate constitute a Significant Subsidiary if considered as a single
Person, in an involuntary case;


 


(B)           appoints
(x) a Custodian of the Company or any Significant Subsidiary or for any
substantial part of its property, or (y) a Custodian of each of such other
Subsidiaries that are not Significant Subsidiaries but would in the aggregate
constitute a Significant Subsidiary if considered as a single Person, or for
any substantial part of their property in the aggregate; or


 


(C)           orders
the winding up or liquidation of the Company or any Significant Subsidiary, or
of each of such other Subsidiaries that are not Significant Subsidiaries but
would in the aggregate constitute a Significant Subsidiary if considered as a
single Person;


 


and
the order or decree remains unstayed and in effect for 60 days; or


 


(j)            the
rendering of any judgment or decree for the payment of money in an amount (net
of any insurance or indemnity payments actually received in respect thereof
prior to or within 90 days from the entry thereof, or to be received in respect
thereof in the event any appeal thereof shall be unsuccessful) in excess of
$75.0 million or its foreign currency equivalent against the Company or a
Significant Subsidiary, or jointly and severally against other Subsidiaries
that are not Significant Subsidiaries but would in the aggregate constitute a
Significant Subsidiary if considered as a single Person, that is not
discharged, or bonded or insured by a third Person, if such judgment or decree
remains outstanding for a period of 90 days following such judgment or decree
and is not discharged, waived or stayed.


 


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


 


The term “Bankruptcy Law”
means Title 11, United States Code, or any similar Federal, state or foreign
law for the relief of debtors.  The term “Custodian” means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.


 


However, a Default under clause (f) will not
constitute an Event of Default until the Trustee or the Holders of at least 25%
in principal amount of the Outstanding Notes notify the Company of the Default
and the Company does not cure such Default within the time specified in such
clause after receipt of such notice. 
Such notice must specify the Default, demand that it be remedied and
state that such notice is a “Notice of Default.”  When a Default or an Event of Default is
cured, it ceases.


 


The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of an Officer’s
Certificate of any Event of Default under clause (g) or (j) and any
event that with the giving of notice or the lapse of time would become an Event
of 


 


39

















 


Default under clause (f), its status and what action
the Company is taking or proposes to take with respect thereto.


 


SECTION 6.02.              Acceleration of Maturity;
Rescission and Annulment.  If an
Event of Default (other than an Event of Default specified in Section 6.01(h) or
Section 6.01(i)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least thirty percent (30%) in principal amount of
the Outstanding Notes by notice to the Company and the Trustee, in either case
specifying in such notice the respective Event of Default and that such notice
is a “notice of acceleration,” may declare the principal of and accrued but
unpaid interest on all the Notes to be due and payable.  Upon the effectiveness of such a declaration,
such principal and interest will be due and payable immediately.


 


Notwithstanding
the foregoing, if an Event of Default specified in Section 6.01(h) or
Section 6.01(i) occurs and is continuing, the principal of and
accrued interest on all the Outstanding Notes will ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.  The Holders
of a majority in principal amount of the Outstanding Notes by notice to the
Company and the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except non-payment of principal or
interest that has become due solely because of such acceleration.  No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


SECTION 6.03.              Other Remedies; Collection Suit
by Trustee.  If an Event of Default
occurs and is continuing, the Trustee may, but is not obligated under Section 6.03
to, pursue any available remedy to collect the payment of principal of, or
interest on, the Notes or to enforce the performance of any provision of the
Notes or this Indenture.  If an Event of
Default specified in Section 6.01(a) or 6.01(b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 10.07.


 


SECTION 6.04.              Trustee May File Proofs of
Claim.  The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Holders allowed in any
judicial proceedings relative to the Company or any other obligor upon the
Notes, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make 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 its counsel, and any
other amounts due the Trustee under Section 10.07.


 


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, 


 


40

















 


adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


SECTION 6.05.              Trustee May Enforce Claims
Without Possession of Notes.  All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes 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, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.


 


SECTION 6.06.              Application of Money Collected.  Any money collected by the Trustee pursuant
to this Article 6 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
Notes 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 10.07;


 


Second:  To the payment of the amounts then due and
unpaid upon the Notes for principal (and premium, if any) and interest, 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 Notes for principal (and premium, if any) and interest,
respectively; and


 


Third:  to the Company.


 


SECTION 6.07.              Limitation on Suits.  Subject to Section 6.08 hereof, no
Holder may pursue any remedy with respect to this Indenture or the Notes
unless:


 


(i)            such
Holder has previously given the Trustee written notice that an Event of Default
is continuing;


 


(ii)           Holders
of at least 30% in principal amount of the Outstanding Notes have requested the
Trustee in writing to pursue the remedy;


 


(iii)          such
Holder or Holders have offered to the Trustee reasonable security or indemnity
against any loss, liability or expense;


 


(iv)          the
Trustee has not complied with the request within 60 days after receipt of the
request and the offer of security or indemnity; and


 


(v)           the
Holders of a majority in principal amount of the Outstanding Notes have not
given the Trustee a direction inconsistent with the request within such 60-day
period.


 


41

















 


A Holder may not
use this Indenture to affect, disturb or prejudice the rights of another
Holder, to obtain a preference or priority over another Holder or to enforce
any right under this Indenture except in the manner herein provided and for the
equal and ratable benefit of all Holders.


 


SECTION 6.08.      Unconditional Right of Holders to
Receive Principal and Interest. 
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the absolute and unconditional right to receive payment of the
principal of and all interest on such Note on the respective Maturity Date or
Interest Payment Dates expressed in such Note and to institute suit for the
enforcement of any such payment on or after such respective Maturity Date or
Interest Payment Dates, and such right shall not be impaired without the
consent of such Holder.


 


SECTION 6.09.      Restoration of Rights and Remedies.  If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture or any Note
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 the Company, any other obligor upon the Notes, the Trustee and the
Holders shall, subject to any determination in such proceeding, 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.


 


SECTION 6.10.      Rights and Remedies Cumulative.  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 6.11.      Delay or Omission Not Waiver.  No delay or omission of the Trustee or of any
Holder of any Note 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 6 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 6.12.      Control by Holders.  The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee, provided that


 


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


 


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


 


42

















 


However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 10.01, that the Trustee determines is
unduly prejudicial to the rights of any other Holder or that would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction.  Prior to taking any action
under this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action. 
This Section 6.12 shall be in lieu of Section 316(a)(1)(A) of
the TIA, and such Section 316(a)(1)(A) of the TIA is hereby expressly
excluded from this Indenture and the Notes, as permitted by the TIA.


 


SECTION 6.13.              Waiver of Past Defaults.  The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes may on behalf of the
Holders of all the Notes waive any past Default hereunder and its consequences,
except a Default


 


(i)            in
the payment of the principal of or interest on any Note (which may only be
waived with the consent of each Holder of Notes affected), or


 


(ii)           in
respect of a covenant or provision hereof that pursuant to the second paragraph
of Section 8.02 cannot be modified or amended without the consent of the
Holder of each Outstanding Note 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 Event of Default or impair any right consequent thereon.  In case of any such waiver, the Company, any
other obligor upon the Notes, the Trustee and the Holders shall be restored to
their former positions and rights hereunder and under the Notes,
respectively.  This paragraph of this Section 6.13
shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.


 


SECTION 6.14.              Undertaking for Costs.  All parties to this Indenture agree, and each
Holder of any Note by such Holder’s 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 the Notes, or in any
suit against the Trustee for any action taken,


 


(i)            suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant.  This Section 6.14 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Note
on or after the respective Maturity Date or Interest Payment Dates expressed in
such Note.


 


43

















 


SECTION 6.15.              Failure to Comply with
Reporting Covenant.  Notwithstanding
anything to the contrary in this Indenture, the sole remedy for an Event of
Default relating to the Company’s failure to perform or observe the covenants
in Section 2.06  (other than as
specifically set forth therein) will for the 180 days after the occurrence of
such an Event of Default consist exclusively of the right to receive additional
interest (the “Reporting Additional Interest”) on the Notes at
an annual rate equal to 0.50% of the principal amount of the Notes.  Reporting Additional Interest will be payable
in the same manner and on the same Interest Payment Dates as the stated
interest payable on the Notes.  Reporting
Additional Interest will accrue on all outstanding Notes from, and including,
the date on which an Event of Default relating to a failure by the Company to
comply with its obligations pursuant to Section 2.06 first occurs to,
but not including, the one-hundred eightieth (180th) day thereafter (or such earlier date on which the
Event of Default relating to the Company’s obligations pursuant to Section 2.06
shall have been cured or waived).  On
such one-hundred eightieth (180th) day (or earlier, if an Event of Default relating to
the Company’s obligations pursuant to Section 2.06 is cured or waived
prior to such one-hundred eightieth (180th) day), such Reporting Additional Interest will cease
to accrue and the Notes will be subject to acceleration.  A Holder’s right to receive Reporting
Additional Interest for an Event of Default relating to the Company’s failure
to perform or observe the covenant in Section 2.06 will not affect the
rights of the Holders in the event of an occurrence of any other Event of
Default.


 


ARTICLE 7


 


Discharge


 


SECTION 7.01.              Discharge of the Indenture.


 


(a)           When
(i) the Company delivers to the Trustee all outstanding Notes (other than
Notes replaced pursuant to Section 2.10) for cancellation or (ii) all
outstanding Notes have become due and payable, whether on the Maturity Date,
upon a repurchase pursuant to Article 3 hereof, upon conversion pursuant
to Article 9 or otherwise, and the Company irrevocably deposits with the
Trustee money sufficient to pay on the Maturity Date or upon repurchase all
outstanding Notes, including interest thereon to the Maturity Date or the
relevant Fundamental Change Repurchase Date, as the case may be (other than
Notes replaced pursuant to Section 2.10 hereof), and any shares of Common
Stock, cash or a combination of cash and shares of Common Stock (or other
property) due in respect of converted Notes, and if in each such case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.01(b), cease to be of further
effect.  The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel at the cost
and expense of the Company.


 


(b)           Notwithstanding
clause (a) above, the Company’s obligations in Sections 2.04,  2.10, 10.07, 10.10 and 11.01 and this Article 7
shall survive until the Notes have been paid in full.  Thereafter, the Company’s obligations in Section 10.07
shall survive such satisfaction and discharge.


 


44














 


SECTION 7.02.              Application of Trust Money.  The Trustee shall hold in trust cash and any
shares of Common Stock or other property due in respect of converted Notes
deposited with it pursuant to this Article 7.  It shall apply the deposited money through the
Paying Agent and in accordance with the Indenture to the payment of
principal of and interest on the Notes or, in the case of any cash or shares of
Common Stock (or other property) due in respect of converted Notes, in
accordance with the Indenture in relation to the conversion of Notes pursuant
to the terms hereof.


 


SECTION 7.03.              Repayment to Company.  The Trustee and the Paying Agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time after a full satisfaction and discharge pursuant to
the terms hereof.


 


Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest and any shares of Common Stock or
other property due in respect of converted Notes that remains unclaimed for two
years, and, thereafter, Holders entitled to the money or securities must look
to the Company for payment as general creditors.


 


SECTION 7.04.              Reinstatement.  If the Trustee or Paying Agent is unable to
apply any cash or to pay or deliver, as the case may be, cash or any shares of
Common Stock (or other property) due in respect of converted Notes in
accordance with this Article 7 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 7 until such
time as the Trustee or Paying Agent is permitted to apply all such cash and pay
or deliver, as the case may be, cash or any shares of Common Stock (or other
property) due in respect of converted Notes in accordance with this Article 7;
provided, however, that, if the Company has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE 8



Amendments


 


SECTION 8.01.              Without Consent of Holders.  The Company and the Trustee may amend or
supplement the Indenture or the Notes without notice to or the consent of any
Holder to:


 


(a)           provide for the assumption by a
successor corporation pursuant to Section 5.01 hereof;


 


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


 


45

















 


(c)           add any additional events of default;


 


(d)           secure the Notes;


 


(e)           evidence and provide for the
acceptance of appointment hereunder by a successor trustee and other agents and
to add to or change any of the provisions hereof as necessary to provide for or
facilitate the administration of the trusts hereunder by more than one trustee;


 


(f)            cure any ambiguity, correct or
supplement any provision hereof that may be defective or inconsistent with any
other provision hereof or make any other provisions with respect to matters or
questions arising hereunder that shall not adversely affect the interests of
the Holders of the Notes in any material respect;


 


(g)           add Guarantees with respect to the
Notes;


 


(h)           confirm and evidence the release or
discharge of any Guarantee or Lien with respect to or securing the Notes where
such release of discharge is provided for under the Indenture;


 


(i)            comply with any requirements of the
Commission in connection with qualifying, or maintaining the qualification of,
the Indenture under the TIA;


 


(j)            conform the provisions of the
Indenture and the form or terms of the Notes to the section entitled “Description
of notes” as set forth in the prospectus supplement related to the offering and
sale of the Notes dated May [   ], 2009;


 


(k)           add the ability of the Company to
irrevocably choose, at its option, to settle conversions of the notes with cash
only or with a combination of cash and shares of its common stock;


 


(l)            increase the conversion rate; or


 


(m)          provide for the conversion of the
Notes in accordance with this Indenture.


 


SECTION 8.02.              With Consent of Holders.  Subject to Section 6.08, the Company and
the Trustee may amend or supplement this Indenture or the Notes with the written
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes), provided, that the Holders of not less than
a majority in aggregate principal amount of the Outstanding Notes by written
notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for Notes) may waive any existing Default or Event of
Default or compliance by the Company with any provision of this Indenture or
the Notes.


 


Notwithstanding the provisions of this Section 8.02,
without the consent of each Holder affected, an amendment or waiver, including
a waiver pursuant to Section 6.13, may not


 


(a)           change the terms of payment of
principal, interest or any premium;


 


46

















 


(b)           reduce the percentage of principal
amount of the Notes the consent of whose holders is necessary to amend the
Indenture or waive any default;


 


(c)           make any change that impairs or
adversely affects the right of a Holder to convert any Notes pursuant to Article 9;


 


(d)           reduce the Fundamental Change
Repurchase Price, change the time at which Holders may require any Notes to be
repurchased by the Company in connection with a Fundamental Change in
accordance with Article 3 or amend or modify in any manner adverse to the
Holders the Company’s obligation to make such payments, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;


 


(e)           make any Note payable in a currency
other than that stated in the Note;


 


(f)            impair the right of any Holder to
institute suit for the enforcement of any payment on or with respect to such
Holder’s Notes; or


 


(g)           adversely affect the ranking of the
Notes.


 


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


 


SECTION 8.03.              Execution of Amendments,
Supplements or Waivers.  The Trustee
shall sign any amendment, supplement or waiver authorized pursuant to this Article 8
if the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee.  If it does, the Trustee may, but need not,
sign it.  In signing or refusing to sign
such amendment, supplement or waiver, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Officer’s Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver has been duly authorized, executed and delivered by the
Company and that, subject to applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws now
or hereinafter in effect affecting creditors’ rights or remedies generally and
to general principles of equity (including standards of materiality, good
faith, fair dealing and reasonableness), whether considered in a proceeding at
law or at equity, such amendment, supplement or waiver is a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms.


 


SECTION 8.04.              Revocation and Effect of
Consents.  Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of that Note or
any Note that evidences all or any part of the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note.  Subject to the following paragraph of this Section 8.04,
any such Holder or subsequent Holder may revoke the consent as to such Holder’s
Note by written notice to the Trustee or the Company, received by the Trustee
or the Company, as the case may be, before the date on which the Trustee
receives an Officer’s Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such
consent) to the amendment, 


 


47

















 


supplement or waiver.  The Company may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver as set forth in Section 1.07.


 


After an amendment, supplement or waiver
becomes effective, it shall bind every Holder of Notes, unless it makes a
change described in any of clauses (a) through (g) of the second
paragraph of Section 8.02.  In that
case, the amendment, supplement or waiver shall bind each Holder of a Note who
has consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder’s Note.


 


SECTION 8.05.              Conformity with TIA.  Every amendment or supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
TIA as then in effect.


 


SECTION 8.06.              Notation on or Exchange of
Notes.  If an amendment, supplement
or waiver changes the terms of a Note, the Trustee shall (if required by the
Company and in accordance with the specific direction of the Company) request
the Holder of the Note to deliver it to the Trustee.  The Trustee shall (if required by the Company
and in accordance with the specific direction of the Company) place an
appropriate notation on the Note about the changed terms and return it to the
Holder.  Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.  Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver..


 


ARTICLE 9


 


Conversion of 
Notes


 


SECTION 9.01.              Right to Convert.  (a) Subject to and upon compliance with
the provisions of this Article 9, a Holder shall have the right, at such
Holder’s option, to convert all or any portion (if the
portion to be converted is $1,000 in principal amount or multiple thereof) of such
Notes, at any time prior to the close of business on the second Scheduled
Trading Day immediately preceding the Maturity Date at an initial conversion
rate (the “Conversion Rate”) of
[        ] shares of the Common Stock
(subject to adjustments as provided in Sections 9.03 and 9.04 of this
Indenture) per $1,000 in principal amount of Notes (the “Conversion Obligation”)
only under the following circumstances:


 


(1)           Conversion Based on Common Stock Price.  A Holder may surrender its Notes
for conversion during any calendar quarter commencing at any time after [June 30],
2009, and only during such calendar quarter, if the Last Reported Sale Price
for the Common Stock for at least twenty (20) Trading Days during the thirty
(30) consecutive Trading-Day period ending on the last Trading Day of the
immediately preceding calendar quarter is more than 130% of the applicable
Conversion Price in effect on the last day of such immediately preceding
calendar quarter.  Whenever the Notes
shall become convertible pursuant to this Section 9.01(a)(1), the Company
shall notify all Holders, the Trustee and the Conversion Agent promptly and,
simultaneously with 


 


48

















 


providing such
notice, the Company shall issue a press release containing the relevant
information and make this information available on its website.


 


(2)           Conversion Upon Satisfaction of Trading Price
Condition.  A Holder may surrender its Notes for
conversion during the five (5) Business Day period after any ten (10) consecutive
Trading Day period (the “Trading Price Measurement Period”)
in which the Trading Price per $1,000 in principal amount of Notes, as
determined following a request by a Holder in accordance with the procedures
set forth in this Section 9.01(a)(2), for each Trading Day in the Trading
Price Measurement Period was less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the applicable Conversion Rate.  In connection with any conversion in
accordance with this Section 9.01(a)(2), the Bid Solicitation Agent shall
have no obligation to determine the Trading Price of the Notes unless requested
in writing by the Company; and the Company shall have no obligation to
determine the Trading Price of the Notes or make such request, as applicable,
unless a Holder provides the Company with written notice which includes
reasonable evidence that the Trading Price per $1,000 in principal amount of
Notes would be less than 98% of the product of the Last Reported Sale Price of
the Common Stock and the applicable Conversion Rate.  Promptly after receiving such evidence, the
Company shall determine, or instruct the Bid Solicitation Agent to determine,
as applicable, the Trading Price of the Notes in the manner described above
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 in principal amount of Notes 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.  Whenever
the Notes shall become convertible pursuant to this Section 9.01(a)(2),
the Company shall notify all Holders, the Trustee and the Conversion Agent
promptly and, simultaneously with providing such notice, the Company shall
issue a press release containing the relevant information and make this
information available on its website.


 


(3)           Conversion Upon Specified Distributions to Holders of
Common  Stock.  If the Company elects to:


 


(ii)           distribute
to all or substantially all holders of its Common Stock rights entitling them
to purchase, for a period expiring within sixty (60) calendar days after the
date of the distribution, shares of the Common Stock at a price per share less
than the average Last Reported Sale Prices of the Common Stock over the ten (10) consecutive
Trading Day period ending on and including the Trading Day immediately
preceding the declaration date for such distribution; or


 


(iii)          distribute to all or substantially all holders of the
Common Stock the Company’s assets, its debt securities or certain rights to
purchase securities of the Company(excluding distributions described in Section 9.04(a) and
(b) and other then pursuant to a stockholders’ rights plan), which
distribution has a per share fair market value as determined by the Board of
Directors exceeding 10% of the Last Reported Sale Price of the Common Stock on
the five consecutive Trading Days immediately preceding the declaration date
for such distribution,


 


49

















 


then,
in either case, the Company shall notify all Holders, the Trustee and the
Conversion Agent at least thirty-five (35) Business Days prior to the
Ex-Dividend Date for such distribution. 
Simultaneously with providing such notice, the Company shall issue a
press release containing the relevant information, including, but not limited
to, the declaration date, and make this information available on its
website.  Once the Company has given such
notice, a Holder may surrender its Notes for conversion at any time until the
earlier of the close of business on the Business Day immediately prior to such
Ex-Dividend Date for such distribution or the Company’s announcement that such
distribution will not take place.  A
Holder may not exercise a conversion right pursuant to this Section 9.01(a)(3) if
such Holder may participate in the distribution described above as a result of
holding the Notes on a basis equivalent to a holder of a number of shares of
Common Stock equal to the principal amount of such Notes, divided by the applicable Conversion
Price.


 


(4)           Conversion Upon a
Fundamental Change or a Make-Whole Fundamental Change.  If an event constituting a Fundamental Change
occurs, a Holder may surrender its Notes for conversion at any time beginning
on the Business Day following the effective date of such event until (a) the
close of business on the second Scheduled Trading Day immediately preceding the
Fundamental Change Repurchase Date corresponding to such event. If an event
constituting a Make-Whole Fundamental Change occurs, a holder may be entitled
to receive an increase in the conversion rate in the form of Additional Shares
upon any conversion. In an event constituting a Make-Whole Fundamental Change
occurs, a Holder may surrender notes for conversion at any time beginning on the
business day following the effective date of such event until 5:00 p.m.,
New York City time, on the 35th trading day after the effective date of the
event.  The Company shall notify all
Holders, the Trustee and the Conversion Agent of the anticipated occurrence of
such a Fundamental Change or Make-Whole Fundamental Change no later than five (5) Business
Days prior to the anticipated effective date of such Fundamental Change or
Make-Whole Fundamental Change. 
Simultaneously with providing such notice, the Company shall issue a
press release containing the relevant information and make this information
available on its website.


 


(5)           Conversion During the Period
Commencing on [                ], 20[   ] to Maturity.  Notwithstanding
anything herein to the contrary, a Holder may surrender all or a portion of its
Notes for conversion at any time on or after
[                ],
20[   ] until the close of business on the second Scheduled
Trading Day immediately preceding the Maturity Date.


 


SECTION 9.02.              Conversion Procedures;
Settlement Upon Conversion; No Adjustment for Interest or Dividends; Cash
Payments in Lieu of Fractional Shares. 
(a)    In order to exercise the conversion right
with respect to any Notes in certificated form, a Holder must (A) complete
and manually sign an irrevocable notice of conversion in the form entitled “Form of
Conversion Notice” attached to the reverse of such certificated Note (or a
facsimile thereof) (a “Conversion Notice”), (B) deliver
such Conversion Notice and certificated Note to the Conversion Agent at the
office of the Conversion Agent, (C) to the extent any shares of Common
Stock issuable upon conversion are to be issued in a name other than the Holder’s,
furnish appropriate endorsements and transfer documents as may be required by
the Conversion 


 


50

















 


Agent, (D) if required pursuant to Section 9.02(f),
pay all transfer or similar taxes or duties and (E) if required pursuant
to Section 2.03(c), pay funds equal to interest payable on the next
Interest Payment Date.


 


In order to exercise the conversion right with respect to any interest
in a Global Note, a Holder must (A) comply with the Depositary’s
procedures for converting a beneficial interest in a Global Note, (B) to
the extent any shares of Common Stock issuable upon conversion are to be issued
in a name other than the Holder’s, furnish appropriate endorsements and
transfer documents as may be required by the Conversion Agent; (C) if
required pursuant to Section 9.02 (f), pay all transfer or similar taxes
or duties; and (D) if required pursuant to Section 2.03(c), pay funds
equal to interest payable on the next Interest Payment Date.


 


The date that the Holder satisfies the
foregoing requirements is the “Conversion Date.”


 


If a Holder has submitted any Notes for repurchase pursuant to Section 3.01,
such Notes may be converted only if the Holder submits a withdrawal notice in
accordance with Section 3.02 prior to the close of business on the second
Scheduled Trading Day immediately preceding the Fundamental Change Repurchase
Date and, if such Notes are evidenced by a Global Note, the Holder complies
with appropriate Depositary procedures.


 


(b)           Except as provided below, the Company
may elect to pay or deliver, as the case may be, shares of its Common Stock,
cash or a combination of cash and shares of Common Stock in respect of the
Conversion Obligation upon conversion of any Notes.


 


The Company shall from time to time make an election with respect to
the method it chooses in respect of the Conversion Obligation upon conversion
of any Notes.  Such election shall be
effective until the Company provides notice of an election of a different
method of settlement.  The Company may
not elect a different method of settlement after the fifty-first (35th) Scheduled Trading Day preceding the Maturity
Date.  The Company shall provide to all
Holders, the Trustee and the Conversion Agent a notice of the newly chosen
method of settlement and the effective date of such newly chosen method;
provided, however, that in no event shall the Company notify a Holder who has
submitted its Notes for conversion of a settlement method applicable to such
conversion after the second Trading Day immediately following the related
Conversion Date (or, if earlier, [                ],
20[   ]).  Simultaneously
with providing such notice, the Company shall issue a press release containing
the relevant information and make this information available on its website.


 


The Company will treat all Holders converting on the same Trading Day
in the same manner.  Except for all
conversions that occur on of after the 35th scheduled Trading Day prior to the maturity of
the Notes, we will not have any obligation to settle our conversion obligations
arising on different Trading Days in the same manner.  The Company may choose on one Trading Day to
settle in shares of  Common Stock only
and choose on another Trading Day to settle in cash or a combination of cash and
shares of Common Stock.


 


If the Company elects to deliver cash in
respect of the Conversion Obligation upon conversion of any Notes, the Company
shall specify in such notice the fixed dollar amount per $1,000 in principal
amount of the Notes to be paid in cash (the “Fixed Dollar Amount”);



 


51

















 


provided the Fixed Dollar
Amount due upon conversion shall in no event exceed the Conversion Value.  If, in respect of any conversion, the Company
has not previously made an election with respect to the settlement method it
chooses in respect of any Conversion Obligation upon conversion of any Notes
and does not timely make such an election, the Company shall be deemed to have
elected to settle such conversion in the manner set forth in Section 9.01(a) (3) with
a Fixed Dollar Amount equal to $1,000 per $1,000 in principal amount of Notes.


 


Settlement of conversions (x) solely in
shares of Common Stock (other than cash in lieu of fractional shares) shall
occur on the third (3rd) Trading Day
following the final Settlement Period Trading Day of the Settlement Period that
would be applicable if settlement were in cash or a combination of cash and
shares of Common Stock, and (y) in cash or in a combination of cash and
shares of Common Stock shall occur on the third (3rd) Trading Day following the final Settlement Period
Trading Day of the applicable Settlement Period.


 


The number of shares of Common Stock, the
amount of cash, or the number of shares of Common Stock and amount of cash, as
the case may be, due upon conversion of any Notes shall be computed as follows:


 


(1)           if
upon conversion of any Notes, the Company has elected to deliver solely shares
of Common Stock in respect of the related Conversion Obligation, the Company
shall deliver to each converting Holder, for each $1,000 in principal amount of
Notes converted, a number of shares of Common Stock equal to the Conversion
Rate in effect on the final Settlement Period Trading Day of the Settlement
Period that would be applicable if settlement were in cash or a combination of
cash and shares of Common Stock, plus cash in lieu of fractional shares, if
applicable, as set forth in Section 9.02(i);


 


(2)           if
upon conversion of any Notes, the Company has elected to pay solely cash in
respect of the related Conversion Obligation, the Company shall deliver to each
converting Holder, for each $1,000 in principal amount of Notes converted, cash
in an amount equal to the Conversion Value; and


 


(3)           if
upon conversion of any Notes, the Company has elected (or is deemed to have
elected) to pay and deliver, as the case may be, a combination of cash and
shares of Common Stock in respect of the related Conversion Obligation, the
Company shall pay or deliver, as the case may be, to each converting Holder,
for each $1,000 in principal amount of Notes converted: (A) the Fixed
Dollar Amount per $1,000 in principal amount of the Notes of the Conversion
Obligation to be satisfied in cash specified in the notice regarding the
Company’s chosen method of settlement or, if lower, the Conversion Value in
cash (the “Fixed Cash Amount”) and (B) a number of
shares of Common Stock equal to the sum, for each of the forty-five (45)
Settlement Period Trading Days in the Settlement Period, of 1/45th of (a) the
Conversion Rate then in effect minus (b) the quotient of (x) the
Fixed Cash Amount divided by (y) the VWAP of the Common Stock on
that Settlement Period Trading Day (plus cash in lieu of fractional shares, if
applicable, as set forth in Section 9.02(i)).


 


52

















 


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


 


(d)           In case any Note shall be surrendered
for partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered, without charge to such Holder, a new Note or Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.


 


(e)           Upon the conversion of an interest in
a Global Note, the Trustee and the Depositary shall reduce the principal amount
of such Global Note in their records.


 


(f)            The issuance of stock certificates
on conversions of Notes shall be made without charge to the converting holder
of Notes for any documentary, stamp or similar issue or transfer tax in respect
of the issue thereof.  The Company shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Notes converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid. The Company will not be required to make
any payment with respect to any other tax, assessment or governmental charge
imposed by any other government or any political subdivision or taxing
authority thereof.


 


(g)           Upon conversion, accrued and unpaid
interest to the Conversion Date with respect to the converted Notes shall be
deemed to be paid in full rather than cancelled, extinguished or forfeited.


 


(h)           If the Company’s Conversion Obligation
is satisfied in Common Stock or a combination of cash and Common Stock, the
Holder that has converted its Notes (or if such Person designated another
Person to whom such Common Stock shall be issued and delivered, such Person)
shall be treated as a holder of record of such Common Stock as of the close of
business on the final Settlement Period Trading Day of the applicable
Settlement Period.


 


(i)            No fractional shares of Common Stock
shall be issued upon conversion of any Note or Notes.  If any fractional shares of Common Stock
would be issuable upon the conversion of any Note or Notes, the Company shall
instead deliver cash with respect to the fractional share calculated by
multiplying the daily VWAP of the Common Stock on the final Settlement Period
Trading Day of the applicable Settlement Period, by the fractional amount and
rounding the product to the nearest cent. 
If the Company has elected to satisfy the entire Conversion Obligation
in Common Stock only, the applicable Settlement Period used to calculate the
cash payment under this Section 9.02(i) shall be the Settlement
Period that would be applicable if settlement of the Conversion Obligation were
in cash or a combination of cash and shares of Common Stock.


 


53

















 


SECTION 9.03.              Increased Conversion Rate
Applicable to Securities Converted in 
Connection With Make-Whole Fundamental Changes.  If a Holder elects to convert its Notes in
connection with a Make-Whole Fundamental Change, the Conversion Rate applicable
to each Note that is surrendered for conversion in accordance with this Article 9
shall be increased by an additional number of shares of Common Stock (the “Additional
Shares”) determined pursuant to this Section 9.03.


 


A conversion will be deemed to have occurred
in connection with a Make-Whole Fundamental Change only if such conversion occurs on and after the
business day following the Effective Date of such Make-Whole Fundamental Change
and prior to the close of the Business Day immediately prior to the related
Fundamental Change Repurchase Date and notwithstanding the fact
that a Note may then be convertible because another condition to conversion has
been satisfied.


 


The number of Additional Shares shall be
determined by reference to the table below, based on the date on which such
Make-Whole Fundamental Change occurs or becomes effective (the “Effective
Date”) and the Stock Price paid per share for the Common
Stock in such Make-Whole Fundamental Change. 
The Stock Prices set forth in the first row of the table below (i.e.,
the column headers) shall be adjusted as of any date on which the Conversion
Rate is adjusted to equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a
fraction, the numerator of which shall be the Conversion Rate immediately prior
to the adjustment and the denominator of which shall be the Conversion Rate as
so adjusted.  The number of Additional
Shares in the table will be adjusted in the same manner and at the same time as
the Conversion Rate as set forth in Section 9.04.


 


The following table sets forth the number of
Additional Shares by which the Conversion Rate shall be increased based on the
Stock Price and Effective Date of the Make-Whole Fundamental Change:


 


Stock Price


 


	
  Effective

  Date

  	
   

  	
  $ 

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [          ],
  2009

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [          ],
  2010

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [          ],
  2011

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [          ],
  2012

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [          ]
  20[   ]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


provided, however,
that:


 


54

















 


(1)           if
the actual Stock Price is between two Stock Prices listed in the table above
under the column titled “Stock Price,” or if the actual Effective Date of such
Make-Whole Fundamental Change is between two Effective Dates listed in the
table above in the row immediately below the title “Effective Date,” then the
number of Additional Shares shall be determined by the Company by straight-line
interpolation between the number of Additional Shares set forth for the higher
and lower Stock Price amounts, and the two Effective Dates, as applicable,
based on a 365-day year; and


 


(2)           (a) if
the actual Stock Price is greater than
$[        ] per share (subject to
adjustment in the same manner as the Stock Prices set forth in the first row of
the table above pursuant to this Section 9.03), then the Conversion Rate
will not be increased, or (b) if the actual Stock Price is less than
$[        ] per share (subject to
adjustment in the same manner as the Stock Prices set forth in the
first row of the table above pursuant to this Section 9.03), then the
Conversion Rate will not be increased.


 


Notwithstanding the foregoing, in no event
will the Conversion Rate as adjusted exceed
[                ]
per $1,000 in principal amount of Notes, subject to adjustment in the same
manner as the Conversion Rate pursuant to Section 9.04.


 


SECTION 9.04.              Adjustment of Conversion  Rate. 
The Conversion Rate shall be adjusted from time to time by the Company
as follows:


 


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


 


	
   

  	
  CR’ = CR0  x

  	
     OS’

  	
   

  
	
   

  	
   

  	
    OS0

  	
   

  



 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect at the close of
  business on the Record Date for such dividend or distribution or the
  effective date of such share split or share combination;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the
  Record Date for such dividend or distribution or the effective date of such
  share split or share combination;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of the Common Stock that are
  outstanding at the close of business on the Record Date for such dividend or
  distribution or the effective date of such share split or share combination;
  and

  
	
   

  	
   

  	
   

  
	
  OS’

  	
  =

  	
  the number of shares of the Common Stock that are
  outstanding immediately after, and solely as a result of, such event.

  



 


Such
adjustment shall become effective immediately after (x) the Record Date
for such dividend or distribution or (y) the effective date of such share
split or share combination.  If any
dividend or distribution of the type described in this Section 9.04(a) is
declared but not so paid or made, the Conversion Rate shall be readjusted to
the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.


 


55














 


(b)           If the Company shall issue to all or
substantially all holders of its Common Stock any rights or warrants entitling
them for a period of not more than sixty (60) calendar days to subscribe for or
purchase shares of the Common Stock, at a price per share less than the Current
Market Price of the Common Stock, the Conversion Rate shall be adjusted based
on the following formula:


 


	
  CR’ = CR0  x 

  	
   OS0 + X

  	
   

  
	
   

  	
   OS0 + Y

  	
   

  



 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect at the close of
  business on the Record Date for such distribution;

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the
  Record Date for such distribution;

  
	
  OS0

  	
  =

  	
  the number of shares of the Common Stock that are
  outstanding at the close of business on the Record Date for such
  distribution;

  
	
  X’

  	
  =

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

  
	
  Y

  	
  =

  	
  the number of shares of the Common Stock equal to
  the aggregate price payable to exercise such rights or warrants divided by
  the Current Market Price.

  



 


Such
adjustment shall become effective immediately after the Record Date for such
distribution.  In the event that such
rights or warrants described in this Section 9.04(b) are not so
distributed, the Conversion Rate shall be readjusted to the Conversion Rate
that would then be in effect if the Record Date for such distribution had not
occurred.  To the extent that such rights
or warrants are not exercised prior to their expiration or shares of the Common
Stock are otherwise not delivered pursuant to such rights or warrants upon the
exercise of such rights or warrants, the Conversion Rate shall be readjusted to
the Conversion Rate that would then be in effect had the adjustments made upon
the issuance of such rights or warrants been made on the basis of the delivery
of only the number of shares of the Common Stock actually delivered.  In determining the aggregate price payable
for such shares of the Common Stock, there shall be taken into account any
consideration received for such rights or warrants and the value of such
consideration if other than cash to be determined by the Board of Directors.


 


(c)           If the Company shall distribute
shares of its Capital Stock, evidences of its indebtedness or other of its
assets or property to all or substantially all holders of its Common Stock,
excluding (v) any dividends or distributions referred to in Section 9.04(a);
(w) any rights or warrants referred to in Section 9.04(b); (x) any
dividends or distributions covered by Section 9.04(d); (y) any
dividends and distributions in connection with a Reorganization Event covered
by Section 9.05; and (z) any Spin-off to which the provisions set
forth below in this Section 9.04(c) shall apply (any of such shares
of Capital Stock, evidences of indebtedness, or other assets or property, “Distributed
Property”), then, in each such case, the Conversion Rate
shall be adjusted based on the following formula:


 


	
  CR’ = CR0  x  

  	
  SP0

  	
   

  
	
   

  	
  SP0 – FMV

  	
   

  



 


56

















 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect at the close of
  business on the Record Date for such distribution;

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the
  Record Date for such distribution;

  
	
  SP0

  	
  =

  	
  the Current Market Price; and

  
	
  FMV 

  	
  =

  	
  the Fair Market Value, on the Record Date for such
  distribution, of the Distributed Property, expressed as an amount per share
  of the Common Stock.

  



 


With respect to an adjustment pursuant to this
Section 9.04(c) where there has been a payment of a dividend or other
distribution on the Common Stock of shares of Capital Stock of any class or
series of, or similar equity interest in, a Subsidiary or other business unit
of the Company (a “Spin-off’),
that are, or, when issued, will be, quoted or listed on the New York
Stock Exchange, the NASDAQ Global Select Market, NASDAQ Global Market or any
other national or regional securities exchange or market, the Conversion Rate
will instead be adjusted based on the following formula:


 


	
  CR’ = CR0 x 

  	
  FMV0 + MP0

  	
   

  
	
   

  	
  MP0

  	
   

  



 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect at the close of
  business on the Record Date for such dividend or distribution

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the
  Record Date for such dividend or distribution

  
	
  FMV0

  	
  =

  	
  the average of the Last Reported Sale Prices of the
  Capital Stock or similar equity interest distributed to holders of the Common
  Stock applicable to one share of the Common Stock over the ten (10) consecutive
  Trading-Day period commencing on, and including, the effective date of the
  Spin-off; and

  
	
  MP0 

  	
  =

  	
  the average of the Last Reported Sale Prices of the
  Common Stock over the ten (10) consecutive Trading-Day period commencing
  on, and including, the effective date of the Spin-off.

   

  



 


Such adjustment shall become effective immediately
after the Record Date for such dividend or distribution.  If such dividend or distribution is not so
made, the Conversion Rate shall be readjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.
Such adjustment in
this paragraph does not apply to any distributions to the extent that the right
to convert the Notes has been changed into the right to convert into Reference
Property in respect of such distribution as described under Section 9.05(a)(3).


 


For the purposes of this Section 9.04(c) (and
subject in all respects to Section 9.08), rights or warrants distributed
by the Company to all holders of its Common Stock entitling them to subscribe
for or purchase shares of the Company’s capital stock (either initially or
under certain circumstances), which rights or warrants, until the occurrence of
a specified event or 


 


57

















 


events (a “Trigger
Event”): (1) are deemed to be transferred with such
shares of Common Stock; (2) are not exercisable; and (3) are also
issued in respect of future issuances of Common Stock, shall be deemed not to
have been distributed for purposes of this Section 9.04(c), (and no
adjustment to the Conversion Rate under this Section 9.04(c) will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 9.04(c).  If any such right
or warrant, including any such existing rights or warrants distributed prior to
the date of this Indenture, are subject to events, upon the occurrence of which
such rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and
Record Date of such deemed distribution (in which case the original rights or
warrants shall be deemed to terminate and expire on such date without exercise
by any of the holders).  In addition, in
the event of any distribution or deemed distribution of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this Section 9.04(c) was
made, (1) in the case of any such rights or warrants which shall all have
been redeemed or purchased without exercise by any Holders thereof, upon such
final redemption or repurchase (x) the Conversion Rate shall be readjusted
as if such rights or warrants had not been issued and (y) the Conversion
Rate shall then again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or purchase price received by
holders of Common Stock with respect to such rights or warrants (assuming each
such holder had retained such rights or warrants), made to all holders of
Common Stock as of the date of such redemption or purchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights and warrants had not been issued.


 


For the purposes of this Section 9.04(c) and
subsections (a) and (b) of this Section 9.04, any dividend or
distribution to which this Section 9.04(c) applies which also
includes one or both of:


 


A.            a dividend or distribution of shares of Common Stock to
which Section 9.04(a) applies; and


 


B.            a dividend or distribution of rights or warrants to which
Section 9.04(b) applies,


 


then (1) such
dividend or distribution, other than the dividend or distribution of shares of
Common Stock to which Section 9.04(a) applies and the dividend or
distribution of rights or warrants to which Section 9.04(b) applies,
shall be deemed to be a dividend or distribution to which this Section 9.04(c) applies
and any Conversion Rate adjustment required by this Section 9.04(c) with
respect thereto shall then be made, and (2) the dividend or distribution
of shares of Common Stock to which Section 9.04(a) applies and the
dividend or distribution of shares of Common Stock to which Section 9.04(b) applies
shall be deemed to immediately follow such dividend or distribution to which
this Section 9.04(c) applies and any Conversion Rate 


 


58

















 


adjustment required by Section 9.04(a) and Section 9.04(b) with
respect thereto shall then be made, except that, if determined by the Company, (I) the
“Record Date” of the dividend or distribution of shares of Common Stock to
which Section 9.04(a) applies and the dividend or distribution of
shares of Common Stock to which Section 9.04(b) applies shall be
deemed to be the Record Date of such dividend or distribution to which this Section 9.04(c) applies
and (II) any shares of Common Stock included in the dividend or distribution
of shares of Common Stock to which Section 9.04(a) applies or the
dividend or distribution of shares of Common Stock to which Section 9.04(b) applies
shall be deemed not to be “outstanding at the close of business on the Record
Date for such dividend or distribution or the effective date of such share
split or share combination” within the meaning of Section 9.04(a) or “outstanding
at the close of business on the Record Date for such distribution” within the
meaning of Section 9.04(b).


 


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


 


	
  CR’ = CR0  x  

  	
  SP0

  	
   

  
	
   

  	
  SP0 – C

  	
   

  



 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect at the close of
  business on the Record Date for such dividend or distribution

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the
  Record Date for such dividend or distribution

  
	
  SP0

  	
  =

  	
  the Current Market Price; and

  
	
  C

  	
  =

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

  



 


Such
adjustment shall become effective immediately after the Record Date for such
dividend or distribution.  In the event
that any such dividend or distribution is not so made, the Conversion Rate
shall be readjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared. Such adjustment described
in this paragraph does not apply to any distributions to the extent that the
right to convert Notes has been changed into the right to convert into
Reference Property in respect of such distribution as described under Section 9.05(a)(3).


 


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


 


59

















 


	
  CR’ = CR0  x   

  	
  FMV + (SP’ x OS’)

  	
   

  
	
   

  	
  0S0 x SP’

  	
   

  



 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect at the close of
  business on the Expiration Date

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the
  Expiration Date

  
	
   

  	
   

  	
   

  
	
  FMV

  	
   

  	
  the Fair Market Value, on the Expiration Date, of
  the aggregate value of all cash and any other consideration paid or payable
  for shares purchased or to be purchased in such tender or exchange offer

  
	
   

  	
   

  	
   

  
	
  OS’

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately after the date such tender or exchange offer expires (the “Expiration
  Time”) after giving effect to such tender or exchange;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately prior to the Expiration Time; and

  
	
   

  	
   

  	
   

  
	
  SP’

  	
  =

  	
  the average of the Last Reported Sale Prices of
  Common Stock over the ten (10) consecutive Trading Day period commencing
  on the Trading Day immediately following the Expiration Time.

  



 


Such
adjustment shall become effective immediately prior to the open of business on
the Trading Day immediately following the Expiration Date.  In the event the Company or one of its
Subsidiaries is obligated to purchase shares of the Common Stock pursuant to
any such tender offer or exchange offer, but the Company or such Subsidiary of
the Company is permanently prevented by applicable law from effecting any such
purchases, or all such purchases are rescinded, the Conversion Rate shall be
readjusted to be the Conversion Rate that would then be in effect if such
tender offer or exchange offer had not been made.  Except as set forth in the preceding
sentence, if the application of this clause (e) to any tender offer or
exchange offer would result in a decrease in the Conversion Rate, no adjustment
shall be made for such tender offer or exchange offer under this Section 9.04(e).


 


(f)            Except with respect to a Spin-Off, in
cases where the Fair Market Value of assets, debt securities or certain rights,
warrants or options to purchase the Company’s securities, or the amount of
the cash dividend or distribution applicable to one share of Common Stock,
distributed to all or substantially all stockholders:


 


(i)            equals or exceeds
the average Last Reported Sale Prices of Common Stock over the ten (10) consecutive
Trading Day period ending on the Trading Day immediately preceding the
declaration date for such distribution; or


 


(ii)           such average Last
Reported Sale Prices exceeds the Fair Market Value of such assets, debt
securities or rights, warrants or options, or the amount of cash so distributed
by less than $1.00,


 


rather
than being entitled to an adjustment in the Conversion Rate, the Holder of a
Note will be entitled to receive upon conversion, in addition to the shares of
Common Stock, cash or a combination of cash and shares of Common Stock, the
kind and amount of assets, debt securities or rights, warrants or options, or
cash comprising the distribution, if any, that such Holder would have received
if such Holder had held a number of shares of Common Stock equal to the 


 


60

















 


principal
amount of the Notes held, divided by the Conversion Price in effect
immediately prior to the Record Date for determining the stockholders entitled
to receive the distribution.


 


(g)           To the extent permitted by applicable
law and subject to the applicable rules of the New York Stock Exchange,
the Company from time to time may increase the Conversion Rate by any amount
for a period of at least twenty (20) Business Days if the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the Company’s best interest, which
determination shall be conclusive. 
Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall mail to holders of record of the Notes a notice of
the increase, which notice will be given at least fifteen (15) calendar days
prior to the effectiveness of any such increase, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.


 


(h)           In addition, the Company may (but is
not required to) increase the Conversion Rate to avoid or diminish any income
tax to holders of Common Stock or rights to purchase shares of Common Stock in
connection with a dividend or distribution of shares (or rights to acquire
shares) or similar event.


 


(i)            All calculations and other
determinations under this Article 9 shall be made by the Company and shall
be made to the nearest one-ten thousandth (1/10,000th)
of a share.  No adjustment pursuant to
this Section 9.04 shall be made to the Conversion Rate unless such
adjustment would require a change of at least 1% in the Conversion Rate then in
effect at such time.  However, any
adjustments that are less than 1% of the Conversion Rate shall be carried
forward and taken into account in any subsequent adjustment, regardless of
whether the aggregate adjustment is less than 1% within one year of the first
adjustment carried forward, upon a Fundamental Change, upon a Make-Whole
Fundamental Change, and on each day beginning with the forty-seventh (47th) Scheduled Trading Day and ending on and including
the second (2nd) Scheduled Trading Day prior to the
Maturity Date.


 


(j)            Whenever the Conversion Rate is
adjusted as herein provided, the Company will issue a press release containing
the relevant information, including, but not limited to, any applicable
declaration date, and make this information available on its website.  In  addition, the Company shall
promptly file with the Trustee and any Conversion Agent other than the Trustee
an Officers’ Certificate setting forth any applicable declaration date and 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 the Holder of each Note at its last
address appearing on the Security Register within twenty (20) calendar days of
the effective date of such adjustment. 
Failure to deliver such notice shall not affect the legality or validity
of any such adjustment.


 


61

















 


(k)           In any case in which this Section 9.04
provides that an adjustment shall become effective immediately after (i) a
Record Date for a dividend or distribution described in Section 9.04(a),
9.04(b), 9.04(d), (ii) the effective date for a share split or share
combination of the Common Stock described in Section 9.04(a), (iii) a
Record Date for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 9.04(b), or (iv) the expiration date for
any tender or exchange offer pursuant to Section 9.04(e), (each, a “Determination
Date”), the Company may elect to defer until the
occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing
to the holder of any Notes converted after such Determination Date and before
the occurrence of such Adjustment Event, the additional shares of Common Stock
or other securities issuable upon such conversion by reason of the adjustment
required by such Adjustment Event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (y) paying to
such holder any amount in cash in lieu of any fractional share pursuant to Section 9.04.  For purposes of this Section 9.04(k),
the term “Adjustment Event” shall mean:


 


(1)        in any
case referred to in clause (i) hereof, the date any such dividend or
distribution is paid or made;


 


(2)        in any
case referred to in clause (ii) hereof, the occurrence of such event;


 


(3)        in any
case referred to in clause (iii) hereof, the date of expiration of such
rights or warrants; and


 


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


 


(l)            Notwithstanding any of the foregoing
clauses in this Section 9.04, the applicable Conversion Rate will not be
adjusted pursuant to this Section 9.04 if the Holders of the Notes will
participate in the transaction that would otherwise give rise to adjustment
pursuant to this Section 9.04 without conversion of such Holder’s Notes on
a basis equivalent to a holder of a number of shares of Common Stock equal to
the principal amount of the Notes held by the Holder divided by the applicable
Conversion Price.  In no event will the
Company adjust the Conversion Rate to the extent that the adjustment
would reduce the Conversion Price below the par value per share of Common
Stock.  In addition, the applicable
Conversion Rate will not be adjusted:


 


(1)        for
the issuance of shares of Common Stock, including in connection with
satisfaction of the Company’s Conversion Obligation in a combination of cash
and shares of Common Stock, or any securities convertible into or exchangeable
for shares of Common Stock or the right to purchase shares of Common Stock or
such convertible or exchangeable securities;


 


(2)        upon
the issuance of any shares of the Common Stock pursuant to any present or
future plan providing for the reinvestment of dividends or interest 


 


62

















 


payable on the
Company’s securities and the investment of additional optional amounts in
shares of the Common Stock under any plan;


 


(3)        upon
the issuance of any shares of the Common Stock or options or rights to acquire
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 the Company’s
Subsidiaries;


 


(4)        for a
change in the par value (or a change to no par value or from no par value to
par value) of the Common Stock; or


 


(5)        for
accrued and unpaid interest.


 


(m)          For purposes of this Section 9.04,
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.  The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


(n)          Whenever any provision of this Article 9
requires a calculation of a number of shares of Common Stock equal to a sum or
an average of the VWAPs or the Last Reported Sale Prices over a span of
multiple days, the Company will make appropriate adjustments (determined by the
Board of Directors) 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 the sum or average is to be calculated.


 


SECTION 9.05.                  Effect of Reclassification,
Consolidation, Merger or Sale.


 


(a)           In the event of:


 


(1)        any
reclassification of the outstanding Common Stock (other than a change in par
value or a change to or from no par value or as a result of a share split or
share combination to which Section 9.04(a) applies);


 


(2)        any
share exchange, consolidation, recapitalization, reclassification, combination
or merger or similar event involving the Company; or


 


(3)        any
conveyance, transfer, sale, lease or other disposition to another Person of all
or substantially all of the Company’s assets, in which holders of Common
Stock received cash, securities or other property (the “Reference Property”)
in exchange for such Common Stock (any such event or transaction, a “Reorganization
Event”), in each case, the Company or the Successor
Company, as the case may be, shall execute with the Trustee a supplemental
indenture (which shall comply with the TIA as in force at the date of execution
of such supplemental indenture, if such supplemental indenture is then required
to so 


 


63

















 


comply) providing that the Notes shall, and the Notes shall, without the
consent of any Holder, become convertible based on the type and amount of
consideration that the holders of a number of shares of Common Stock equal to
the principal amount of Notes divided by the Conversion Price would have
received in such Reorganization Event. 
If the Reorganization Event causes the Common Stock to be exchanged for
more than a single type of consideration (determined based in part upon any
form of stockholder election), the Reference Property into which the Notes 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 made such an election.  In
all cases, the provisions under Section 9.02 shall continue to apply with
respect to the calculation of the Conversion Obligation and the method of
settlement.  The Company hereby agrees
not to become a party to any such transaction unless its terms are consistent
with the foregoing.  Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
practicable to the adjustments provided for in this Article 9.


 


(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 Security Register of the Notes
maintained by the Security Registrar, within twenty (20) calendar days after
execution thereof.  Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.


 


SECTION 9.06.                 Certain Covenants.  (a)  The Company shall, prior to the
issuance of any Notes hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock or shares of Common
Stock held in treasury, a sufficient number of shares of Common Stock, free of
preemptive rights, to permit the conversion of the Notes.


 


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


 


(c)           The Company shall endeavor promptly to
comply with all federal and state securities laws regulating the issuance and
delivery of shares of Common Stock upon the conversion of Notes, if any, and
shall cause to have listed or quoted and shall keep listed or quoted all such
shares of Common Stock on each U.S. national or regional securities exchange or
automatic quotation system or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.


 


SECTION 9.07.                 Notice to Holders Prior to
Certain Actions.  Except where notice
is required pursuant to Section 9.01, 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 9.04; or


 


(b)           the Company shall authorize the granting
to all or substantially all of the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or 


 


64

















 


any other rights or warrants that would require an
adjustment in the Conversion Rate pursuant to Section 9.04; or


 


(c)           of any reclassification of the Common
Stock of the Company (other than a share split or share combination of its
outstanding Common Stock, or a change in par value or to or from no par value),
or of any share exchange, 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 conveyance, transfer, sale, lease or other disposition of all or
substantially all of the consolidated assets of the Company; or


 


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


 


the
Company shall cause to be filed with the Trustee and to be mailed to each
Holder at its address appearing on the Security Register, as promptly as
possible but in any event at least twenty (20) calendar days prior to the
applicable date hereinafter specified, a notice stating (x) the
declaration date of the dividend or other distribution, (y) the date on
which a record is to be taken for the purpose of such dividend, 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 are to be determined, or (z) the date on which such
reclassification, share exchange, consolidation, merger, conveyance, transfer,
sale, lease or other disposition, dissolution, liquidation or winding up is
expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.  Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.


 


SECTION 9.08.                    Stockholder Rights Plans.  If the rights provided for in any rights plan
adopted by the Company have not separated from the shares of Common Stock in
accordance with the provisions of the applicable stockholder rights agreement,
upon conversion of Notes, the converting Holder will receive, in addition to
shares of Common Stock, if any, the rights under the applicable stockholders
rights agreement.  If such rights have
separated from the Common Stock, the Conversion Rate will be adjusted as
provided in Section 9.04(c) at the time of separation as if the
Company distributed to all holders of the Common Stock, shares of the Company’s
Capital Stock, evidences of indebtedness or assets, subject to readjustment in
the event of the expiration, termination or redemption of such rights.


 


SECTION 9.09.                    Responsibility of Trustee.  The Trustee and any other Conversion Agent
shall not at any time be under any duty or responsibility to any Holder of
Notes to determine the Conversion Rate or whether any facts exist that may
require any adjustment (including any increase) of the Conversion
Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same.  The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or 


 


65

















 


value (or the kind or amount)
of any shares of Common Stock, or of any securities, property or cash that may
at any time be issued or delivered upon the conversion of any Note; and the
Trustee and any other Conversion Agent make no representations with respect
thereto.  Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Note for the purpose
of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 9.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 9.05 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders of the Notes upon the conversion of
their Notes after any event referred to in such Section 9.05 or to any
adjustment to be made with respect thereto, but, subject to the provisions of Section 8.01,
may accept as conclusive evidence of the correctness of any such provisions,
and shall be protected in relying upon, the Officers’ Certificate (which the
Company shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.  Neither the Trustee nor the Conversion Agent
shall be responsible for determining whether any event contemplated by Section 9.01
has occurred that makes the Notes eligible for conversion or no longer eligible
therefor until the Company has delivered to the Trustee and the Conversion
Agent the notices referred to in Section 9.01 with respect to the
commencement or termination of such conversion rights, on which notices the
Trustee and the Conversion Agent may conclusively rely, and the Company agrees
to deliver such notices to the Trustee and the Conversion Agent immediately
after the occurrence of any such event or at such other times as shall be
provided for in Section 9.01.


 


ARTICLE 10


 


The Trustee


 


SECTION 10.01.                Certain Duties and
Responsibilities.


 


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


 


(1)           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


 


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


 


66














 


(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 man would exercise or use under the
circumstances in the conduct of his own affairs.


 


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


 


(1)           this subsection shall not be
construed to limit the effect of subsection (a) of this Section,


 


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


 


(3)           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 principal amount
of the Outstanding Notes, determined as provided in Section 6.12, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Notes; and


 


(4)           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.


 


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


 


SECTION 10.02.            Notice of Defaults.  Within 90 days after the occurrence of any
default hereunder with respect to the Notes, the Trustee shall transmit by mail
to all Holders of Notes entitled to receive reports pursuant to Section 11.03,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on the
Notes, 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 determine that
the withholding of such notice is in the interest of the Holders of the Notes;
and provided, further, that in the case of any default of the character
specified in Section 6.01(f) with respect to the Notes, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof.  For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Notes.


 


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SECTION 10.03.            Certain Rights of Trustee.  Subject to the provisions of Section 10.01:


 


(a)           the Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or facsimile
form) believed by it 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 may be
sufficiently evidenced by a Board Resolution;


 


(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) may, in the
absence of bad faith on its part, rely upon an Officers’ Certificate;


 


(d)           the Trustee may consult with counsel
of its own 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 of the Notes
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it 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 to examine the books, records and
premises of the Company, personally or by agent or attorney at the expense of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;


 


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


 


(h)           the Trustee shall 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)            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 


 


68

















 


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; and


 


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


 


SECTION 10.04.            Not Responsible for Recitals or
Issuance of Notes.  The recitals
contained herein and in the Notes, except the Trustee’s certificates of
authentication, and in any coupons 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 Notes.  The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Notes or the proceeds thereof.


 


SECTION 10.05.            May Hold Notes.  The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 10.8 and 10.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.


 


SECTION 10.06.            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 with the Company.


 


SECTION 10.07.            Compensation and Reimbursement.  The Company agrees:


 


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


 


(3)           to fully indemnify the Trustee and
any predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense (including taxes other than taxes based
upon the income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance of administration of
the trust or trusts hereunder, including the costs and expenses of 


 


69

















 


defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


As security for the
performance of the obligation of the Company under this Section the
Trustee shall have a lien prior to the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the payment
of principal of (and premium, if any) or interest on the Notes .


 


SECTION 10.08.            Disqualification; Conflicting
Interests.  If the Trustee has or
shall acquire any conflicting interest, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Notes in the manner
prescribed in the TIA.


 


SECTION 10.09.            Corporate Trustee Required;
Eligibility.  There shall at all
times be a Trustee hereunder which shall 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 exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
subject to supervision or examination by Federal or State authority.  If such corporation 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 corporation 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 10.10.            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 10.11.


 


(b)           The Trustee may resign at any time
with respect to the Notes by giving written notice thereof to the Company.  If the instrument of acceptance by a
successor Trustee required by Section 10.11 shall not have been delivered
to the 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 with respect
to the Notes.


 


(c)           The Trustee may be removed at any
time with respect to the Notes by Act of the Holders of a majority in principal
amount of the Outstanding Notes, delivered to the Trustee and to the Company.


 


(d)           If at any time:


 


(1)           the Trustee shall fail to comply with
Section 10.08(a) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six months,
or


 


70

















 


(2)           the Trustee shall cease to be
eligible under Section 10.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or


 


(3)           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,


 


then, in any such case, (i) the
Company by a Board Resolution may remove the Trustee with respect to the Notes
or (ii) subject to Section 6.14, any Holder who has been a bona fide
Holder of a Note 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 with respect to the Notes and the appointment of a
successor Trustee or Trustees.


 


(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, with respect to the Notes, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Notes and shall comply with the applicable requirements of Section 10.11,
if, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Notes shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes 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 10.11,
become the successor Trustee with respect to the Notes and to that extent
supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Notes shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 10.11, any Holder who has
been a bona fide Holder of a Note 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 with respect to the
Notes.


 


(f)            The Company shall give notice of
each resignation and each Removal of the Trustee with respect to the Notes and
each appointment of a successor Trustee with respect to the Notes by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Notes as their names and addresses appear in the Security
Register.  Each notice shall include the
name of the successor Trustee with respect to the Notes and the address of its
Corporate Trust Office.


 


SECTION 10.11.            Acceptance of Appointment by
Successor.


 


(a)           In case of the appointment hereunder
of a successor Trustee with respect to the Notes, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges (and the charges of its agents and counsel),
execute and deliver an instrument transferring to such successor Trustee all 


 


71

















 


the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.


 


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


 


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


 


SECTION 10.12.            Merger, Conversion, Consolidation
or Succession to Business.  Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation 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 Notes 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 Notes so authenticated with the same effect as
if such successor Trustee had itself authenticated such Notes.


 


SECTION 10.13.            Preferential Collection of Claims
Against Company.  If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Notes), the Trustee shall be subject to the provisions of the TIA regarding
the collection of claims against the Company (or any such other obligor).


 


SECTION 10.14.            Appointment of the Authenticating
Agent.  At any time when any of the
Notes remain Outstanding the Trustee may appoint an Authenticating Agent or
Agents with respect to the Notes which shall be authorized to act on behalf of
the Trustee to authenticate Notes issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.10, and
Notes 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 Notes 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 


 


72

















 


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 the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
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.


 


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 provide notice thereof pursuant to Section 1.09.  Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all 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 Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 10.07.


 


If an appointment with
respect to one or more series is made pursuant to this Section, the Notes may
have endorsed thereon an alternate certificate of authentication in the
following form:


 


“This is one of the
Securities of the series designated therein referred to in the within-mentioned
Indenture.


 


 


[                                ,
As Trustee


 


 


	
  By

  	
   

  	
   

  
	
  as
  Authenticating Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Authorized
  Signatory”

  	
   

  



 


SECTION 10.15.            Trustee’s Application for
Instructions from the Company.  Any
application by the Trustee for written instructions from the Company may, at
the option of the 


 


73

















 


Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective.  The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any Officer of the Company actually receives such
application, unless any such Officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.


 


ARTICLE 11


 


Holders’ Lists And
Reports By Trustee And The Company


 


SECTION 11.01.            The Company to Furnish Trustee
Names and Addresses of Holders.  The
Company will furnish or cause to be furnished to the Trustee


 


(1)           semi-annually, not more than 10 days
after each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such
Regular Record Date, and


 


(2)           at such other times as the Trustee
may request in writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;


 


provided, however, that
if and to the extent and so long as the Trustee shall be the Security
Registrar, no such list need be furnished pursuant to this Section 11.01.


 


SECTION 11.02.            Preservation of Information;
Communications to Holders.  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, if any,
furnished to the Trustee as provided in Section 11.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar; provided, however, that if and so long as the Trustee shall be the
Security Registrar, the Security Register shall satisfy the requirements
relating to such list.  None of the
Company or the Trustee or any other Person shall be under any responsibility
with regard to the accuracy of such list. 
The Trustee may destroy any list furnished to it as provided in Section 11.01
upon receipt of a new list so furnished.


 


The rights of Holders to
communicate with other Holders with respect to their rights under this
Indenture or under the Notes, and the corresponding rights and privileges of
the Trustee, shall be as provided by the TIA.


 


Every Holder of Notes, by
receiving and holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee, nor any agent of either of them, shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the TIA.


 


74

















 


SECTION 11.03.            Reports by Trustee.  Within 60 days after each December 15,
beginning with December 15, 2009, the Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the TIA at the times and in the manner provided
pursuant thereto for so long as any Notes remain outstanding.  A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee or any applicable
listing agent with each stock exchange upon which any Notes are listed, with
the Commission and with the Company.  The
Company will notify the Trustee when any Notes are listed on any stock
exchange.


 


75

















 


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


 


	
   

  	
  HERTZ GLOBAL
  HOLDINGS, INC.,

  as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [                                ],

  
	
   

  	
  as Trustee,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


76


















 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[Global
Note Legend]


 


UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), 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
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.


 


A-1

















 


	
  No.

  	
  Initially $[              
   ]

  



 


[      ]%
Convertible Senior Note due 20[   ]


 


CUSIP No.:
[                ]


ISIN: [
               ]


 


HERTZ GLOBAL
HOLDINGS, INC., a Delaware corporation (and its successors and assigns),
promises to pay to [CEDE & CO.](1), or its registered assigns, the
principal sum of
[                        ]
MILLION DOLLARS ($[                ])
[(or such lesser principal amount as shall be specified in the “Schedule of
Exchanges of Securities” attached hereto)](1), on
[                ],
20[   ], and to pay interest thereon from
[                ],
2009, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on
[                ]
and
[                ]
of each year, commencing on [                ],
2009, at the rate of [      ]% per annum, until
the principal hereof is paid or made available for payment or converted.  The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at 5:00 p.m., New York City time, on the
Regular Record Date for such interest, which shall be
[                ]
or
[                ]
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.


 


Interest on the Notes for
a Full Interest Period will be computed on the basis of a three hundred sixty
(360)-day year comprised of twelve (12) thirty (30)-day months.  Interest on the Notes for any period other
than a Full Interest Period will be computed on the basis of the actual number
of days elapsed during the period and a three hundred sixty-five (365)-day
year.  If an Interest Payment Date is not
a Business Day, payment shall instead be made on the next succeeding Business
Day, and no additional interest shall accrue thereon.


 


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


 


In the case of any
conflict between this Note and the Indenture, the provisions of the Indenture
shall control.  This Note shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be governed by and construed in accordance with the laws of said
State.


 


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


 






(1)                                  Use
bracketed language only if Global Note.


 


A-2

















 


Dated:


 


	
   

  	
  HERTZ GLOBAL
  HOLDINGS, INC., 

  as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE 

OF AUTHENTICATION


 


This
is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture


 


 


	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [                                ],

  	
   

  
	
  as
  Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  



A-3

















 


[FORM OF REVERSE SIDE OF NOTE]


 


[      ]%
Convertible Senior Note due 20[   ]


 


HERTZ
GLOBAL HOLDINGS, INC., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the “Company”), issued this
Note under an Indenture dated as of May [   ], 2009 (the “Indenture”),
between the Company and
[                                ]
(herein called the “Trustee”), as trustee,
to which reference is hereby made for a statement of the respective rights,
obligations, duties and immunities thereunder of the Company, the Trustee and
the Holders and of the terms upon which the Notes are, and are to be,
authorized and delivered.  All terms used
in this Note that are defined in the Indenture shall have the meaning assigned
to them in the Indenture.


 


1.                                       Method
of Payment


 


The
Company will pay interest on the Notes to the Persons who are registered
holders of Notes at 5:00 p.m., New York City time, on the [                ] and [                ] next preceding the Interest Payment Date even
if Notes are canceled after the Regular Record Date and on or before the
Interest Payment Date, except as otherwise provided in the Indenture.  Holders must surrender Notes to a Paying
Agent to collect principal payments.  The
Company will pay principal and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts.


 


The
Company shall pay interest on:


 


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


 


(ii)                                  any
Notes in certificated form having a principal amount of less than
$[                ],
by check mailed to the address of the Person entitled thereto as it appears in
the Security Register; provided, however, on the Maturity Date, interest
will be payable as described in Section 2.03(b) of the Indenture; and


 


(iii)                               any
Notes in certificated form having a principal amount of
$[                ]
or more, by wire transfer in immediately available funds at the election of the
Holders of such Notes duly delivered to the Trustee at least five (5) Business
Days prior to the relevant Interest Payment Date; provided, however, on the
Maturity Date, interest will be payable as described in Section 2.03(b) of
the Indenture.


 


2.                                       Paying
Agent, Security Registrar, Conversion Agent and Bid Solicitation Agent


 


Initially,
the Trustee will act as Paying Agent, Security Registrar, Conversion Agent and
Bid Solicitation Agent.  The Company may
appoint and change any Paying Agent, Security Registrar or co-registrar,
Conversion Agent or Bid Solicitation Agent without notice.  The Company may act as Paying Agent, Security
Registrar or co-registrar.


 


A-4

















 


3.                                       Repurchase
of Notes at the Option of Holders


 


If
there shall occur a Fundamental Change at any time prior to the Maturity Date,
then each Holder shall have the right, at such Holder’s option, to require the
Company to repurchase for cash any or all of such Holder’s Notes in accordance
with the terms of the Indenture.


 


4.                                       Conversion


 


Subject to and upon compliance with 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 and prior to 5:00 p.m. (New York City time) on the second
Scheduled Trading Day immediately preceding the Maturity Date, to convert any
Notes or portion thereof that is $1,000 or multiples thereof at a Conversion
Rate specified in the Indenture, as adjusted from time to time as provided in
the Indenture, upon surrender of this Note, together with a Conversion Notice
as provided in the Indenture and this Note, to the Company at the office or
agency of the Company maintained for that purpose in New York City and, unless the
shares issuable on conversion are to be issued in the same name as this Note,
duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or by its duly
authorized attorney.  Except as provided
in the Indenture, the Company may elect to pay or deliver, as the case may be,
shares of its Common Stock, cash or a combination of cash and shares of Common
Stock and, if applicable, Reference Property in respect of the Conversion
Obligation upon conversion of any Notes. 
The Company may elect, in accordance with the Indenture, a different
settlement method pursuant to the terms of the Indenture.  If, in respect of any conversion, the Company
has not previously made an election with respect to the settlement method it
chooses in respect of any Conversion Obligation upon conversion of any Notes
and does not timely make such an election, the Company shall be deemed to have
elected to settle such conversion in the manner set forth in
Section 9.01(a)(3) of the Indenture with a Fixed Dollar Amount equal
to $1,000 per $1,000 in principal amount of Notes.  The initial Conversion Rate shall be
[                ]
shares of Common Stock for each $1,000 in principal amount of Notes.  No fractional shares of Common Stock will be
issued upon conversion of any Note or Notes, but instead cash will be paid to
the Holder as provided in Section 9.02(i) of the Indenture.  No adjustment shall be made for dividends or
any shares issued upon conversion of such Note except as provided in the
Indenture.


 


5.                                       Denominations,
Transfer, Exchange


 


The
Notes are in Global Form without coupons in denominations of $1,000 and
whole multiples of $1,000.  A Holder may
transfer or exchange Notes in accordance with the Indenture.  Upon any transfer or exchange, the Security
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture.


 


6.                                       Persons
Deemed Owners


 


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


 


A-5

















 


7.                                       Unclaimed
Money


 


Subject to any applicable
abandoned property law, the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of
principal or interest and any shares of Common Stock or other property due in
respect of converted Notes that remains unclaimed for two years, and,
thereafter, Holders entitled to the money or securities must look to the
Company for payment as general creditors.


 


8.                                       Amendment,Waiver


 


Subject to certain
exceptions, the Indenture contains provisions permitting an amendment of the
Indenture or the Notes with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Notes and the waiver of
any Event of Default or noncompliance with any provision with the written
consent of the Holders of a majority in principal amount of the then
outstanding Notes.


 


In addition, the
Indenture permits an amendment of the Indenture or the Notes without the
consent of any Holder under circumstances specified in the Indenture.


 


9.                                       Defaults
and Remedies


 


Under
certain circumstances specified in the Indenture, after a declaration of
acceleration with respect to the Notes, the Holders of a majority in principal
amount of the Outstanding Notes may rescind and annul such declaration with
respect to the Notes and its consequences.


 


Subject to certain
conditions in the Indenture, the Holders of not less than a majority in
principal amount of the Notes then Outstanding may, on behalf of the Holders of
all the Notes, waive certain past Defaults under the Indenture and its
consequences.


 


10.                                 Trustee
Dealings with the Company


 


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


 


11.                                 No
Recourse Against Others


 


No director, officer,
employee, incorporator, stockholder or partner of the Company, as such, shall
have any liability for any obligations of the Company under the Notes, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  The waiver and release shall be part of the
consideration for the issuance of the Notes. 
The waiver may not be effective to waive liabilities under the federal
securities laws.


 


A-6

















 


12.                                 Authentication


 


This
Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Note.


 


13.                                 Abbreviations


 


Customary abbreviations
may be used in the name of a Holder or an assignee, such as TEN COM (=tenants
in common), 1EN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian), and
U/G/M/A (=Uniform Gift to Minors Act).


 


14.                                 GOVERNING
LAW


 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


15.                                 CUSIP
and ISIN Numbers


 


Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the
Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of
repurchase as a convenience to Holders. 
No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of repurchase and reliance
may be placed only on the other identification numbers placed thereon.


 


The
Company will furnish to any Holder upon written request and without charge to
the Holder a copy of the Indenture which has in it the text of this Note.


 


A-7

















 


SCHEDULE A


 


SCHEDULES OF EXCHANGES OF
SECURITIES


 


HERTZ GLOBAL HOLDINGS INC.


 


[      ]%
Convertible Senior Notes due 20[   ]


 


The initial principal amount of this Global Note is [                                                                                                                                                                                                                     ] DOLLARS ($[              ]).  The following, exchanges, purchases or
conversion of a part of this Global Note have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount of increase

  in principal amount

  of the Global Note

  	
   

  	
  Principal amount of

  this Global Note

  following such decrease

  or increase

  	
   

  	
  Signature of 

  authorizes signatory

  of Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-8

















 


EXHIBIT B


 


[FORM OF CONVERSION NOTICE]


 


TO:                            HERTZ
GLOBAL HOLDINGS, INC.

[                                ],
as Trustee


 


The
undersigned registered owner of this Note hereby irrevocably exercises the
option to convert this Note, or the portion thereof (which is $1,000 or a
multiple thereof) below designated in accordance with the terms of the
Indenture referred to in this Note, and directs that the shares of Common
Stock, cash or a combination of cash and shares of Common Stock and, if
applicable, Reference Property deliverable or payable upon such conversion and
any Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below.  Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the Indenture.  If shares or any portion of this Note not
converted are to be issued in the name of a person other than the undersigned,
the undersigned will provide the appropriate information below and pay all
transfer taxes payable with respect thereto. 
Any amount required to be paid by the undersigned on account of interest
accompanies this Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must
  be guaranteed by an “eligible guarantor institution” meeting the requirements
  of the Security Registrar, which requirements include membership or
  participation in the Security Transfer Agent Medallion Program (“STAMP”) or
  such other “signature guarantee program” as may be determined by the Security
  Registrar in addition to, or in substitution for, STAMP, all in accordance
  with the Securities Exchange Act of 1934, as amended.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  



 


B-1

















 


Fill
in the registration of shares of Common Stock, if any, if to be issued, and
Notes if to be delivered, and the person to whom cash, if any, and payment for
fractional shares is to be made, if to be made, other than to and in the name
of the registered holder:


 


Please print name and
address


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City,
  State and Zip Code)

  	
   

  
	
   

  	
   

  
	
  Principal
  amount to be converted

  	
   

  
	
  (if
  less than all):

  	
   

  
	
   

  	
   

  
	
  $

  	
   

  
	
   

  	
   

  
	
  Social
  Security or Other Taxpayer

  	
   

  
	
  Identification
  Number:

  	
   

  



 


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


 


B-2

















 


EXHIBIT C


 


[FORM OF FUNDAMENTAL CHANGE
REPURCHASE NOTICE]


 


TO:                            HERTZ GLOBAL HOLDINGS INC.

[                                ],
as Trustee


 


The
undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from Hertz Global Holdings, Inc. (the “Company”)
describing the right of Holders to elect to require the Company to
repurchase the Notes and requests and instructs the Company to pay the entire
principal amount of this Note, or the portion thereof (which is $1,000 or an
integral multiple thereof) below designated, in accordance with the terms of
the Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid interest to, but excluding, the
Fundamental Change Repurchase Date to the registered holder hereof; provided,
however, that if the Fundamental Change Repurchase Date falls after a
Regular Record Date and on or prior to the Interest Payment Date to which it
relates, the Company will instead pay the full amount of accrued and unpaid
interest payable on such Interest Payment Date to the holder of record on the
close of business on the corresponding Regular Record Date and the Company will
pay only 100% of the principal amount of the Notes to be repurchased to the
Holder surrendering this Note for repurchase. 
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Indenture.  The
Notes shall be repurchased by the Company as of the Fundamental Change
Repurchase Date pursuant to the terms and conditions specified in the
Indenture.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s):

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


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


 


	
  Notes Certificate Number
  (if applicable):

  	
   

  



 


Principal amount to be repurchased (if less
than all, must be $1,000 or whole multiples thereof):


 


Social Security or Other Taxpayer
Identification Number:


 


C-1

















 


EXHIBIT D


 


[FORM OF ASSIGNMENT]


 


For value received                                       hereby
sell(s) assign(s) and transfer (s) unto                                                (Please
insert social security or other Taxpayer Identification Number of assignee) the
within Notes, and hereby irrevocably constitutes and appoints attorney to
transfer said Notes on the books of the Company, with full power of
substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must
  be guaranteed by an “eligible guarantor institution” meeting the requirements
  of the Security Registrar, which requirements include membership or
  participation in the Security Transfer Agent Medallion Program (“STAMP”) or
  such other “signature guarantee program” as may be determined by the Security
  Registrar in addition to, or in substitution for, STAMP, all in accordance
  with the Securities Exchange Act of 1934, as amended.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  



 


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


 


D-1