Exhibit 4.2




 





 


 


TAKE-TWO
INTERACTIVE SOFTWARE, INC.


 


4.375%
Convertible Senior Notes due 2014


 


as Issuer


 


 






 


SUPPLEMENTAL
INDENTURE


 


Dated as
of June 3, 2009


 


to
Indenture


 


Dated as
of June 3, 2009


 


 






 


 


THE BANK
OF NEW YORK MELLON


 


as
Trustee


 




 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1
  Definitions and Other Provisions of General Application

  	
  2

  
	
   

  	
   

  
	
  SECTION 1.01Scope of Supplemental Indenture

  	
  2

  
	
  SECTION 1.02Definitions

  	
  2

  
	
  SECTION 1.03Incorporation
  by Reference of TIA

  	
  10

  
	
  SECTION 1.04Rules of
  Construction

  	
  11

  
	
   

  	
   

  
	
  ARTICLE 2 The
  Notes

  	
  11

  
	
   

  	
   

  
	
  SECTION 2.01Designation,
  Amount and Issuance of Notes

  	
  11

  
	
  SECTION 2.02Form of
  the Notes

  	
  11

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

  	
  12

  
	
  SECTION 2.04Paying
  Agent to Hold Money in Trust

  	
  16

  
	
  SECTION 2.05Reporting Requirement

  	
  16

  
	
  SECTION 2.06Transfer and Exchange

  	
  16

  
	
   

  	
   

  
	
  ARTICLE 3
  Repurchase of Notes

  	
  17

  
	
   

  	
   

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

  	
  17

  
	
  SECTION 3.02Withdrawal
  of Fundamental Change Repurchase Notice

  	
  19

  
	
  SECTION 3.03Deposit
  of Fundamental Change Repurchase Price

  	
  19

  
	
  SECTION 3.04Restrictions
  on Repurchases

  	
  20

  
	
  SECTION 3.05Notes
  Repurchased in Part

  	
  20

  
	
  SECTION 3.06Covenant to Comply with Securities
  Laws Upon Repurchase of Notes

  	
  20

  
	
  SECTION 3.07Repayment to the Company.

  	
  20

  
	
   

  	
   

  
	
  ARTICLE 4
  Covenants

  	
  20

  
	
   

  	
   

  
	
  SECTION 4.01Additional
  Interest

  	
  20

  
	
  SECTION 4.02Repurchase
  and Cancellation

  	
  20

  



 


i

















 


	
  ARTICLE 5
  Successor Company

  	
  21

  
	
   

  	
   

  
	
  SECTION 5.01When
  Company May Merge or Transfer Assets

  	
  21

  
	
  SECTION 5.02Successor
  to Be Substituted

  	
  21

  
	
  SECTION 5.03Opinion
  of Counsel to Be Given Trustee

  	
  22

  
	
   

  	
   

  
	
  ARTICLE 6
  Defaults and Remedies

  	
  22

  
	
   

  	
   

  
	
  SECTION 6.01Events
  of Default

  	
  22

  
	
  SECTION 6.02Waiver
  of Past Defaults

  	
  23

  
	
  SECTION 6.03Failure to Comply with Reporting
  Covenant

  	
  24

  
	
  SECTION 6.04Acceleration

  	
  24

  
	
  SECTION 6.05Limitation on Suits

  	
  24

  
	
  SECTION 6.06Notice of Defaults

  	
  25

  
	
   

  	
   

  
	
  ARTICLE 7
  Discharge

  	
  25

  
	
   

  	
   

  
	
  SECTION 7.01Discharge
  of the Supplemental Indenture

  	
  25

  
	
  SECTION 7.02Application
  of Trust Money

  	
  25

  
	
  SECTION 7.03Repayment
  to Company

  	
  26

  
	
  SECTION 7.04Reinstatement

  	
  26

  
	
   

  	
   

  
	
  ARTICLE 8
  Amendments

  	
  26

  
	
   

  	
   

  
	
  SECTION 8.01Without
  Consent of Holders

  	
  26

  
	
  SECTION 8.02With
  Consent of Holders

  	
  27

  
	
   

  	
   

  
	
  ARTICLE 9 Conversion

  	
  27

  
	
   

  	
   

  
	
  SECTION 9.01Right to Convert

  	
  27

  
	
  SECTION 9.02Conversion Procedures.

  	
  30

  
	
  SECTION 9.03Payment Upon Conversion

  	
  31

  
	
  SECTION 9.04Adjustment of Conversion Rate

  	
  34

  
	
  SECTION 9.05Adjustment of Average Prices

  	
  41

  
	
  SECTION 9.06Adjustments Upon Make-Whole
  Fundamental Changes and a Redemption Notice

  	
  42

  
	
  SECTION 9.07Effect of Recapitalization,
  Reclassification, Consolidation, Merger or Sale

  	
  43

  



 


ii

















 


	
  SECTION 9.08Taxes on Shares Issued

  	
  45

  
	
  SECTION 9.09Reservation of Shares; Shares to be
  Fully Paid; Compliance With Governmental Requirements; Listing of Common
  Stock

  	
  45

  
	
  SECTION 9.10Responsibility of Trustee

  	
  45

  
	
  SECTION 9.11Notice to Holders Prior to Certain
  Actions

  	
  46

  
	
  SECTION 9.12Stockholder Rights Plan

  	
  46

  
	
  SECTION 9.13Company Determination Final

  	
  47

  
	
   

  	
   

  
	
  ARTICLE 10
  Optional Redemption

  	
  47

  
	
   

  	
   

  
	
  SECTION 10.01Redemption
  Rights

  	
  47

  
	
  SECTION 10.02Redemption
  Price

  	
  47

  
	
  SECTION 10.03Redemption Notice

  	
  47

  
	
  SECTION 10.04Payment
  of Notes Called for Redemption.

  	
  48

  
	
  SECTION 10.05Restrictions
  on Redemption

  	
  49

  
	
   

  	
   

  
	
  ARTICLE 11 Miscellaneous

  	
  49

  
	
   

  	
   

  
	
  SECTION 11.01Rules by
  Trustee, Paying Agent and Registrar

  	
  49

  
	
  SECTION 11.02No
  Recourse Against Others

  	
  49

  
	
  SECTION 11.03Severability
  Clause

  	
  49

  
	
  SECTION 11.04Calculations

  	
  49

  
	
  SECTION 11.05Recitals

  	
  50

  
	
  SECTION 11.06Ratification
  of Original Indenture

  	
  50

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A  -  Form of
  Note

  	
  A-1

  
	
  Exhibit B  -  Form of
  Conversion Notice

  	
  B-1

  
	
  Exhibit C  -  Form of
  Fundamental Change Repurchase Notice

  	
  C-1

  
	
  Exhibit D  -  Form of
  Assignment

  	
  D-1

  



 


iii

















 


SUPPLEMENTAL INDENTURE dated as of June 3, 2009 between TAKE-TWO
INTERACTIVE SOFTWARE, INC., a Delaware corporation, as issuer (the “Company”), and THE
BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (the “Trustee”) under the indenture dated as of June 3, 2009
between the Company and the Trustee (as amended and supplemented from time to
time in accordance with the terms thereof, the “Original
Indenture”).


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company executed and delivered the Original
Indenture to the Trustee to provide, among other things, for the future
issuance of the Company’s unsecured Securities from time to time in one or more
series as might be determined by the Company under the Original Indenture, in
an unlimited aggregate principal amount which may be authenticated and
delivered as provided in the Original Indenture;


 


WHEREAS, Section 2.02 of the Original Indenture
provides for the Company to establish Securities of any series pursuant to an
indenture supplemental, and 9.01 of the Original Indenture provides for the
Company and the Trustee to enter into such indenture supplemental to establish
the form or terms of Securities of such series as permitted by Article 2
of the Original Indenture without the consent of any Holders;


 


WHEREAS, the Board of Directors has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture;


 


WHEREAS, pursuant to the terms of the Original
Indenture, the Company desires to provide for the establishment of a new series
of its Securities to be known as its “4.375% Convertible Senior Notes due 2014”
(the “Notes”), the form and substance of the
Notes and the terms, provisions and conditions thereof to be set forth as
provided in the Original Indenture and this Supplemental Indenture; and


 


WHEREAS, the Company has requested that the Trustee
execute and deliver this Supplemental Indenture, and all requirements necessary
to make (i) this Supplemental Indenture a valid and legally binding
instrument in accordance with its terms and (ii) the Notes, when executed
by the Company and authenticated and delivered by the Trustee, the valid and
legally binding obligations of the Company, have been performed, and the
execution and delivery of this Supplemental Indenture has been duly authorized
in all respects.


 


NOW, THEREFORE, THIS
SUPPLEMENTAL 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 Scope of Supplemental
Indenture.  The changes,
modifications and supplements to the Original Indenture effected by this
Supplemental Indenture shall be applicable only with respect to, and shall only
govern the terms of, the Notes and shall not apply to any other Securities that
may be issued under the Original Indenture unless a supplemental indenture with
respect to such other Securities specifically incorporates such changes,
modifications and supplements.  The
provisions of this Supplemental Indenture shall supersede any corresponding
provisions in the Original Indenture.


 


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


 


(i)            the terms defined in this Article 1 shall have the
meanings assigned to them in this Article and include the plural as well
as the singular;


 


(ii)           all words, terms and phrases defined in the Original
Indenture (but not otherwise defined herein) shall have the same meanings as in
the Original Indenture;


 


(iii)          all other terms used herein that are defined in the TIA,
either directly or by reference therein, shall have the meanings assigned to
them in the TIA;


 


(iv)          all accounting terms not otherwise defined herein shall
have the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly provided, the
term “generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this instrument; and


 


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


 


“Additional Interest” has the meaning
specified in Section 6.03.


 


“Additional Notes”
has the meaning specified in Section 2.01.


 


“Additional Shares”
has the meaning specified in Section 9.06(a).


 


“Adjustment Date”
has the meaning specified in Section 9.04.


 


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


 


“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)(ii). The
Company will initially act as the Bid Solicitation Agent.


 


2

















 


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


 


“Business Day” means, solely for purposes of this Supplemental Indenture and
notwithstanding the definition thereof in Section 1.01 of the Original
Indenture, any day other than a Saturday, a Sunday or a day on which the
Federal Reserve Bank of New York is authorized or required by law or executive
order to close or be closed.


 


“Capital Stock”
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.


 


“Cash Amount”
has the meaning specified in Section 9.03(a).


 


“Cash Settlement”
has the meaning specified in Section 9.03(a).


 


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


 


“Combination Settlement”
has the meaning specified in Section 9.03(a).


 


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


 


“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.


 


“Common Stock”
means the common stock, par value $0.01 per share, of the Company, or such
other Reference Property into which the Company’s common stock is reclassified
or changed as set forth in Section 9.07.


 


“Conversion
Agent” means the agency 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(b).


 


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


 


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


 


“Conversion Rate”
means, initially 93.6768 shares of Common Stock per $1,000 principal amount of
Notes, subject to adjustment as set forth herein.


 


3

















 


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


 


“Daily Cash Amount”
has the meaning set forth in Section 9.03(d).


 


“Daily Conversion Value”
means, in respect of each $1,000 principal amount of Notes and for each of the
fifty (50) consecutive Trading Days during the Observation Period for such
Notes, 2% of the product of (i) the Conversion Rate on such Trading Day
and (ii) the Daily VWAP of Common Stock on such Trading Day.


 


“Daily Settlement Amount”
has the meaning set forth in Section 9.03(d).


 


“Daily VWAP”
means, for each of the fifty (50) consecutive Trading Days during the
Observation Period, the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page “TTWO.UQ
<equity> AQR” (or its equivalent successor if such page is not
available) in respect of the period from the scheduled open of trading until
the scheduled close of trading of the primary trading session on such Trading Day
(or if such volume-weighted average price is unavailable, the market value of
one share of Common Stock on such Trading Day determined, using a
volume-weighted average method, by a nationally recognized independent
investment banking firm retained for such purpose by the Company). The Daily
VWAP will be determined without regard to after hours trading or any other
trading outside of the regular trading session trading hours.


 


“Depositary”
means initially DTC until a successor shall have been appointed and become such
pursuant to the applicable provisions of this Supplemental Indenture, and
thereafter, “Depositary” shall
mean such successor.


 


“DTC”
means The Depository Trust Company.


 


“Effective Date”
has the meaning specified in Section 9.06(b).


 


“Event of Default”
has the meaning set forth in the Original Indenture, as supplemented by the
events 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 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 the issuance or distribution in question.


 


“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.


 


4

















 


“Fundamental Change” means the occurrence after the original issuance of
the Notes of any of the following events:


 


(a)           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, has become the direct or
indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange
Act, of the Company’s Common Equity representing more than 50% of the voting
power of the Company’s Common Equity; or


 


(b)           consummation
of (i) 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 (ii) 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 sale,
lease or other transfer in one transaction or a series of transactions of all
or substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
Subsidiaries; provided, however,
that a transaction where the holders of all classes of the Company’s Common
Equity immediately prior to such transaction that is a share exchange,
consolidation or merger own, directly or indirectly, more than 50% of all
classes of Common Equity of the continuing or surviving corporation or
transferee or the parent thereof immediately after such event shall not be a
Fundamental Change; or


 


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


 


(d)           the
Common Stock (or other common stock, American depositary receipts or American
depositary shares underlying the Notes) ceases to be listed or quoted on The
New York Stock Exchange or The NASDAQ Global Market.


 


provided, however, that a Fundamental Change as a result of clause (b) above
will not be deemed to have occurred if at least 90% of the consideration
received or to be received by the holders of the Company’s Common Stock,
excluding cash payments for fractional shares, in connection with 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 9.07, excluding cash payments for fractional
shares (subject to the provisions set forth under Section 9.03).


 


“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).


 


5

















 


“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).


 


“Global Note”
means any Note that is in global form registered in the Security Register in
the name of the Depositary or a nominee thereof.


 


“Indebtedness”
means:


 


(i)            all of the Company’s
indebtedness, obligations and other liabilities, contingent or otherwise, (A) for
borrowed money, including overdrafts, foreign exchange contracts, currency
exchange agreements, interest rate protection agreements and any loans or
advances from banks, whether or not evidenced by notes or similar instruments,
or (B) evidenced by credit or loan agreements, bonds, debentures, notes or
similar instruments, whether or not the recourse of the lender is to the whole
of the assets of the Company or to only a portion thereof, other than any
account payable or other accrued current liability or obligation incurred in
the ordinary course of business in connection with the obtaining of materials
or services;


 


(ii)           all of the Company’s
reimbursement obligations and other liabilities, contingent or otherwise, with
respect to letters of credit, bank guarantees or bankers’ acceptances;


 


(iii)          all of the Company’s
obligations and liabilities, contingent or otherwise, in respect of leases
required, in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the Company’s balance sheet;


 


(iv)          all of the Company’s
obligations and other liabilities, contingent or otherwise, under any lease or
related document, including a purchase agreement, conditional sale or other
title retention agreement, in connection with the lease of real property or
improvements thereon (or any personal property included as part of any such
lease) which provides that the Company is contractually obligated to purchase
or cause a third party to purchase the leased property or pay an agreed upon
residual value of the leased property, including the Company’s obligations
under such lease or related document to purchase or cause a third party to
purchase such leased property or pay an agreed upon residual value of the
leased property to the lessor;


 


(v)           all of the Company’s
obligations, contingent or otherwise, with respect to an interest rate or other
swap, cap, floor or collar agreement or hedge agreement, forward contract or
other similar instrument or agreement or foreign currency hedge, exchange,
purchase or similar instrument or agreement;


 


6
















 


(vi)          all of the
Company’s direct or indirect guaranties or similar agreements by us in respect
of, and all of the Company’s obligations or liabilities to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another person of the kinds
described in clauses (i) through (v) above; and


 


(vii)         any and all
deferrals, renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of
the kinds described in clauses (i) through (vi) above.


 


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


 


“Initial Notes”
has the meaning specified in Section 2.01.


 


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


 


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


 


(i)            the closing
sale price per share (or if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the average of the
average bid and the average ask prices) on that date as reported in composite
transactions for the principal U.S. securities exchange on which the Common
Stock or such other security is traded; or


 


(ii)           if the Common
Stock or such other security is not listed for trading on a U.S. national or
regional securities exchange on the relevant date, the last quoted bid price
for the Common Stock or such other security in the over-the-counter market on
the relevant date as reported by Pink Sheets LLC or a similar organization; or


 


(iii)          if the Common
Stock or such other security is not so quoted, the average of the mid-point of
the last bid and ask prices for the Common Stock or such other security on the
relevant date from each of at least three nationally recognized independent
investment banking firms selected by the Company for this purpose.


 


“Make-Whole
Fundamental Change” means any transaction or event that constitutes
a Fundamental Change as described in the definition thereof (determined after
giving effect to any exceptions or exclusions to such definition, but without
regard to the proviso in clause (b) of
such definition).  For the avoidance of
doubt, any transaction(s) or event(s) described in clause (b) of
the definition of Fundamental Change will not constitute a Make-Whole
Fundamental Change if at least 90% of the consideration received or to be
received by the holders of the Company’s Common Stock, excluding cash payments
for fractional shares, in 


 


7

















 


connection with 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 9.07, excluding cash payments for fractional shares
(subject to the provisions set forth under Section 9.03).


 


“Market Disruption Event”
means (i) a failure by the primary United States 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., New York City time, on any
Scheduled Trading Day for the Common Stock for more than one half-hour period
in the aggregate during regular trading hours of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the relevant stock exchange or otherwise) in the Common Stock or in any
options, contracts or future contracts relating to the Common Stock.


 


“Maturity Date”
means June 1, 2014.


 


“Measurement Period”
has the meaning set forth in Section 9.01(a)(ii).


 


“Merger Event”
has the meaning set forth in Section 9.07.


 


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


 


“Observation Period”
with respect to any converted Note means: (i) if the relevant Conversion
Date occurs prior to December 1, 2013 and a Cash Settlement or a Combination
Settlement applies to such conversion and the Company has not previously
delivered a Redemption Notice, the fifty (50) consecutive Trading-Day period
beginning on and including the second Trading Day after such Conversion Date, (ii) if
the relevant Conversion Date occurs on or after December 1, 2013, and the
Company has not previously delivered a Redemption Notice, and regardless of the
Settlement Method, the fifty (50) consecutive Trading Days beginning on, and
including, the 52nd Scheduled Trading Day immediately preceding
the Maturity Date and (iii) if the relevant Conversion Date occurs on or
after the date the Company has delivered a Redemption Notice (even if after December 1,
2013) and a Cash Settlement or Combination Settlement applies to such
conversion, the fifty (50) consecutive Trading Days beginning on and including
the 52nd Scheduled Trading Day immediately preceding the Redemption Date.


 


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


 


“Outstanding”
shall have the meaning set forth in Section 2.10 of the Original Indenture
other than any Notes repurchased by the Company as set forth in Section 4.02.


 


“Paying Agent”
has the meaning set forth in the Original Indenture, which shall initially be
the Trustee, and shall be the Person authorized by the Company to pay the
principal amount of, interest on (including Additional Interest, if any),
Redemption Price or Fundamental Change Repurchase Price of, any Notes on behalf
of the Company.


 


8

















 


“Physical Notes”
means permanent certificated Notes in registered form issued in denominations
of $1,000 principal amount and multiples thereof.


 


“Physical Settlement”
has the meaning specified in Section 9.03(a).


 


“Preferred Stock”
as applied to the Capital Stock of any Person means Capital Stock of any class
or classes (however designated) that 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 Person, over shares of Capital
Stock of any other class of such Person.


 


“Publicly
Traded Securities” means shares of common stock, American depositary
receipts or American depositary shares traded on the New York Stock Exchange or
The NASDAQ Global Market or which will be so traded or quoted when issued or
exchanged in connection with a Fundamental Change.


 


“Redemption
Date” means, with respect to any Note to be redeemed, the date fixed
for redemption by the Company in accordance with Section 10.01.


 


“Redemption Notice”
has the meaning set forth in Section 10.03.


 


“Redemption Price”
has the meaning set forth in Section 10.02.


 


“Reference Property”
has the meaning specified in Section 9.07.


 


“Regular Record Date”
means, with respect to any Interest Payment Date of the Notes, the May 15
and November 15 preceding the applicable June 1 and December 1
Interest Payment Date, respectively.


 


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


 


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


 


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


 


“Security Register”
means the register of Securities kept by the Registrar in accordance with Section 2.05
of the Original Indenture.


 


9

















 


“Settlement Method”
means each of a Physical Settlement, a Combination Settlement or a Cash
Settlement.


 


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


 


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


 


“Stock Price”
has the meaning specified in Section 9.06(b).


 


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


 


“Trading Day”
means, except as provided in Section 9.03(g) hereof, a day on which (i) trading
in the Common Stock generally occurs on The NASDAQ Global Select Market or, if
the Common Stock is not then listed on The NASDAQ Global Select Market, on the
principal other United States national or regional securities exchange on which
the Common Stock is then listed or, if the Common Stock is not then listed on a
United States national or regional securities exchange, on the principal other
market on which the Common Stock is then traded, and (ii) a Last Reported
Sale Price for the Common Stock is available on such securities exchange or
market. If the Common Stock (or other security for which a closing sale price
must be determined) is not so listed or traded, “Trading Day” means a “Business
Day.”


 


“Trading
Price” of the Notes on any date of determination means the average
of the secondary market bid quotations obtained by the Bid Solicitation Agent for
$5 million principal amount of the Notes at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally
recognized securities dealers the Company selects; provided that, if
three such bids cannot reasonably be obtained by the bid solicitation agent but
two such bids are obtained, then the average of the two bids shall be used, and
if only one such bid can reasonably be obtained by the Bid Solicitation Agent,
that one bid shall be used.  If the Bid
Solicitation Agent cannot reasonably obtain at least one bid for $5 million
principal amount of the Notes from a nationally recognized securities dealer,
then the Trading Price per $1,000 principal amount 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.


 


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


 


“Underwriters”
mean J.P. Morgan Securities Inc., Barclays Capital Inc. and Citigroup Global
Markets Inc.


 


“Underwriting Agreement”
means the Underwriting Agreement, dated May 28, 2009, entered into by the
Company and the Underwriters.


 


“Valuation Period”
has the meaning set forth in Section 9.04(c).


 


SECTION 1.03 Incorporation
by Reference of TIA.  This Indenture
is subject to the mandatory provisions of the TIA, which are incorporated by
reference in and made a part of this Indenture. 
The following TIA terms have the following meanings:


 


10

















 


“indenture securities” means the Notes.


 


“indenture security holder” means a Holder or
Securityholder.


 


“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 other obligor on the indenture securities.


 


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


 


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


 


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


 


(2)           “or” is not
exclusive; and


 


(3)           “including” means
including without limitation.


 


ARTICLE 2


 


The Notes


 


SECTION 2.01 Designation,
Amount and Issuance of Notes.  The
Notes shall be designated as “4.375%
Convertible Senior Notes due 2014.” 
The Notes will initially not exceed the aggregate principal amount of
$138,000,000 except for Notes authenticated and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Notes pursuant to Section 2.09
of the Original Indenture.  Upon the
execution of this Supplemental Indenture, or from time to time thereafter,
Notes may be executed by the Company and delivered to the Trustee for
authentication.


 


The Company may, without the consent of the Holders of the Notes,
hereafter issue additional notes (“Additional
Notes”) under the Indenture with the same terms and, if permissible
as a “qualified reopening” for U.S. federal income tax purposes, with the same
CUSIP numbers as the Notes issued on the date of this Supplemental Indenture
(the “Initial
Notes”) in an unlimited aggregate principal amount.  Any such Additional Notes shall constitute a
single series together with the Initial Notes for all purposes hereunder,
including, without limitation, for purposes of any waivers, supplements or
amendments to the Indenture requiring the approval of Holders of the Notes and
any offers to purchase the Notes.


 


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 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 Supplemental Indenture and, to the extent



 


11

















 


applicable, the Company and
the Trustee, by their execution and delivery of this Supplemental 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 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 redemptions,
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.  The Company has initially
designated the Trustee as its Paying Agent and Registrar in respect of the
Notes and the Corporate Trust Office as a place where Notes may be presented
for payment or for registration of transfer. 
The Company may, however, change the Paying Agent or Registrar for the
Notes without prior notice to the Holders, and the Company may act as Paying
Agent or Registrar for the Notes.


 


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 June 1, 2014, unless earlier redeemed, converted or
repurchased in accordance with the provisions hereof.  On the Maturity 


 


12

















 


Date, each Holder shall be entitled to receive on such date $1,000 in
cash for each $1,000 principal amount of Notes, together with accrued and
unpaid interest (including Additional Interest, if any) to, but not including,
the Maturity Date.  With respect to
Global Notes, principal and interest (including Additional Interest, if any)
will be paid to the Depositary in immediately available funds.  With respect to any Physical Notes, principal
and interest (including Additional Interest, if any) 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 accrue in respect of the delay.


 


(c)           Payment of Interest. 
Interest on the Notes will accrue at the rate of 4.375% per annum, from June 3,
2009 until the principal thereof is paid or made available for payment.  Interest shall be payable on June 1 and December 1
of each year (each, an “Interest Payment Date”),
commencing on December 1, 2009, to the Person in whose name a Note is
registered on the Security Register at the close of business on any Regular
Record Date immediately preceding the applicable Interest Payment Date.  If Notes are converted after the close of
business on a Regular Record Date, Holders of such Notes at the close of
business on such Regular Record Date will receive the interest and Additional
Interest, if any, payable on such Notes on the corresponding Interest Payment
Date notwithstanding the conversion. 
Notwithstanding the foregoing, any Notes or portion thereof surrendered
for conversion after 5:00 p.m., New York City time, on the Regular Record
Date for an Interest Payment Date but prior to 9:00 a.m., New York City
time, on the immediately following 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 and Additional Interest, if any,
otherwise payable on such Interest Payment Date on the principal amount being
converted; provided that
no such payment need be made:


 


(i)  with respect to
Notes converted after the close of business on the Regular Record Date
immediately preceding the Maturity Date;


 


(ii)  if the Company
has specified a Redemption Date pursuant to Section 10.01 that is after a
Regular Record Date and on or prior to the third Scheduled Trading Day
immediately following the corresponding Interest Payment Date;


 


(iii) if the Company
has specified a Fundamental Change Repurchase Date pursuant to Section 3.01(a) that
is after a Regular Record Date and on or prior to the corresponding Interest
Payment Date; or


 


(iv)  to the extent
of any overdue interest, if any overdue interest exists at the time of
conversion with respect to converted Notes.


 


Interest on the Notes will be computed on the basis
of a three hundred sixty (360)-day year comprised of twelve (12) thirty
(30)-day months.


 


The Company shall pay interest, including Additional
Interest, if any, on:


 


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


 


13

















 


(ii)  any Physical Notes having a principal amount of $5,000,000
or less, by check mailed to each Holder at its address in the Security
Register; and


 


(iii)  any Physical Notes having a principal amount of more than
$5,000,000, either by check mailed to each Holder at its address in the
Security Register or, upon application by a Holder to the Registrar not later
than the relevant Regular Record Date, by wire transfer in immediately
available funds to that Holder’s account within the United States, which
application shall remain in effect until the Holder notifies the Registrar to
the contrary.


 


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 in respect of the delay.


 


All references to “interest” in this Indenture shall
be deemed to include Additional Interest, if any, that accrues in connection
with the Company’s failure to comply with Section 2.05, if applicable, as
provided by Section 6.03.


 


(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 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.  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, Physical 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 following the occurrence and continuation 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, pursuant to instructions form its
direct or indirect participants or otherwise, 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 


 


14

















 


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
Physical 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,
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 redeemed, 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 redeemed, 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.


 


(vii)         The Holder of Global Notes may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action that a Holder is
entitled to take under this Indenture or the Notes.


 


(viii)        None of the Company, the Trustee nor any agent of the
Company or the Trustee will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of a 


 


15

















 


Global Note or maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.  None of the Trustee, the
Paying Agent or the Registrar shall have any responsibility for any actions
taken or not taken by the Depositary or any Agent Member.


 


SECTION 2.04 Paying Agent
to Hold Money in Trust.  Prior to
each due date of the principal and interest (including Additional Interest, if
any) 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 (including Additional Interest, if any) 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
(including Additional Interest, if any) 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 Reporting
Requirement The first paragraph of Section 4.02 of the Original
Indenture shall not apply to the Notes. 
Instead, the Company shall file with the Trustee, within fifteen (15)
calendar days after it is required to file them with the Commission (giving
effect to any grace period provided by Rule 12b-25 under the Exchange
Act), documents or reports 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 will be deemed to be filed with the Trustee as
of the time such documents are filed via EDGAR. 
The Company also shall comply with the other provisions of Section 314(a) of
the TIA.


 


SECTION 2.06  Transfer and Exchange The
Registrar and the Trustee may require a Holder who transfers or exchanges a
Note in accordance with Section 2.08 of the Original Indenture, among
other things, to furnish appropriate endorsements and transfer documents.  No service charge shall be made to any Holder
for any registration of, transfer or exchange of Notes, but the Company may
require payment by the Holder of a sum sufficient to cover any transfer tax or
other similar governmental charge required by law or permitted by the
Indenture. Neither the Company nor the Trustee nor any Security Registrar shall
be required to exchange, issue or register a transfer of (a) any Notes
surrendered for conversion (b) any Notes tendered for repurchase (and not
withdrawn) or (c) any Notes selected for redemption.


 


16
















 


ARTICLE 3


 


Repurchase of Notes


 


SECTION 3.01 Repurchase
at Option of the Holder Upon a which 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 a multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s
choosing that is not less than twenty (20) or more than thirty-five (35)
calendar 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 (including Additional Interest,
if any) thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).  If such 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 shall instead pay the full amount of accrued
and unpaid interest (including Additional Interest, if any) 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, the certificate numbers of the Notes
to be delivered for repurchase, or if not certificated, 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 a 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.


 


17

















 


Any repurchase by the Company contemplated
pursuant to the provisions of this Section 3.01 shall be consummated by the
payment of the Fundamental Change Repurchase 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 Notes.  If the such required repurchase date falls on
a day that is not a Business Day, the Fundamental Change Repurchase Price shall
be paid on the next succeeding Business Day, and no additional interest shall
accrue in respect of the delay.


 


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 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 publish a notice containing the
information set forth in the Fundamental Change Company Notice in a newspaper
of general circulation in The City of New York or publish the information on
the Company’s website or through such other public medium as the Company may
use at that time.


 


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, if applicable;


 


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


 


18

















 


(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 Supplemental Indenture;


 


(ix)           the procedures that Holders must follow to require the
Company to repurchase their Notes pursuant to this Article 3; and


 


(x)            the CUSIP, ISIN or other similar numbers, if any,
assigned to the Notes.


 


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.


 


SECTION 3.02 Withdrawal
of Fundamental Change Repurchase Notice. 
A Fundamental Change Repurchase Notice may be withdrawn (in whole
or in part) 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 Physical Notes have been issued, the certificate
numbers of the Notes in respect of which such notice of withdrawal is being
submitted, or if Physical 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 in Section 2.06 of the Original
Indenture, 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 or securities 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 (including
any Additional Interest, if any) will cease to accrue (whether or not
book-entry transfer of the Notes is made or the Note is delivered to the Paying
Agent) and all other rights of 


 


19

















 


the Holders of such Notes
will 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 Restrictions
on Repurchases.  No Notes may be
repurchased at the option of the Holders upon a Fundamental Change if the principal
amount of the Notes has been accelerated, and such acceleration has not been
rescinded, on or prior to such date.


 


SECTION 3.05 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 portion of
the Notes presented that is not repurchased.


 


SECTION 3.06 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.


 


SECTION 3.07 Repayment to
the Company.  To the extent that the
aggregate amount of cash deposited by the Company pursuant to 0 exceeds the
aggregate Fundamental Change Repurchase Price of the Notes or portions thereof
that the Company is obligated to repurchase as of the Fundamental Change
Repurchase Date, then, following the Fundamental Change Repurchase Date, the
Paying Agent shall promptly return any such excess to the Company.


 


ARTICLE 4


 


Covenants


 


SECTION 4.01 Additional
Interest.  If
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 Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable.  Unless
and until a Responsible Officer receives such a certificate, the Trustee may
assume without inquiry that no Additional Interest is payable.


 


SECTION 4.02 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.  The Company shall surrender any Notes
repurchased by the Company to the Trustee for cancellation as provided by Section 2.12
of the Original Indenture and any such Notes repurchased by the Company shall
be deemed to be no longer Outstanding. 
Any Notes surrendered for cancellation by the Company shall not be
reissued or resold.


 


20

















 


ARTICLE 5


 


Successor Company


 


SECTION 5.01 When Company
May Merge or Transfer Assets. 
Notwithstanding Section 5.01 of the Original Indenture, the Company
shall not consolidate with or merge with or into, or sell, convey, transfer or
lease all or substantially all of its properties and assets to, another Person,
unless:


 


(a)           the resulting, surviving or transferee Person (if not the Company) (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 (if not the Company) expressly assumes, by
a supplemental indenture, all of the Company’s obligations under the Notes and
the Indenture;


 


(b)           if as a result of such transaction the
Notes become convertible into common stock or other securities issued by a
third party, such third party fully and unconditionally guarantees all
obligations of the Company or such Successor Company under the Notes and the
Supplemental Indenture;


 


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


 


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


 


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 (including Additional Interest, if any) 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 the Company 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 the Company 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 


 


21

















 


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 first paragraph 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 as
conclusive evidence that any such consolidation, merger, sale, conveyance, transfer
or lease and any such assumption complies with the provisions of this Article 5.


 


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)           default in the
payment of interest, including any Additional Interest, if any, on any Note
when due and payable and the default continues for a period of 30 days;


 


(b)           default in the payment of the principal
amount of any Note when due and payable on the Maturity Date, upon a redemption
pursuant to Article 10, upon a repurchase at the option of the Holders
pursuant to Article 3, upon declaration or otherwise;


 


(c)           failure by the Company to comply with its
obligation to convert the Notes in accordance with Section 9.02 upon
exercise of a Holder’s conversion right and such conversion default is not
cured or such conversion is not rescinded within five (5) days;


 


(d)           failure by the Company to comply with its
obligations under Article 5;


 


(e)           failure by the Company to mail a
Fundamental Change Company Notice or notice to Holders required pursuant to Section 9.01(a)(ii),
in each case when due;


 


(f)            failure by the Company for sixty (60)
days after written notice from the Trustee or the holders of at least 25% in
principal amount of the Notes then Outstanding (a copy of which notice, if
given by holders, also to be given to the Trustee) has been received by the
Company to comply with any of its other agreements contained in the Notes or
this Indenture;


 


(g)           default by the Company or any Significant
Subsidiary with respect to any mortgage, agreement or other instrument under
which there may be outstanding, or by which there may be secured or evidenced,
any Indebtedness for money borrowed in excess of $10 million in the aggregate
of the Company and/or any such Significant Subsidiary, whether such
Indebtedness now exists or shall hereafter be created (i) resulting in
such Indebtedness becoming or being declared due and payable (unless rescinded)
or (ii) constituting a failure to 


 


22

















 


pay the principal
or interest of any such Indebtedness when due and payable at its stated
maturity, upon required repurchase, upon declaration or otherwise;


 


(h)           (i) the entry by a court having
jurisdiction in the premises of a decree or order for relief in respect of the
Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, (ii) the entry by a court having
jurisdiction in the premises of a decree or order adjudging the Company or any
Significant Subsidiary as bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company or any Significant Subsidiary under any applicable
federal or state law or (iii) the appointment by a court having
jurisdiction in the premises of a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
Significant Subsidiary, or ordering the winding up or liquidation of a
Significant Subsidiary’s affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a
period of sixty (60) consecutive days;


 


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


 


(j)            a final judgment for the payment of $50
million or more (excluding any amounts covered by insurance) rendered against
the Company or any Significant Subsidiary, which judgment is not discharged or
stayed within sixty (60) days after (i) the date on which the right to
appeal thereof has expired if no such appeal has commenced, or (ii) the
date on which all rights to appeal have been extinguished.


 


SECTION 6.02 Waiver of
Past Defaults.  Notwithstanding Section 6.04
of the Original Indenture, the Holders of not less than a majority in principal
amount of the Notes then Outstanding may, on behalf of all Holders, waive any
past Default under the Indenture (except with respect to a Default described in
Section 6.01(a), (b) or (c) of this Supplemental Indenture) and
rescind any such acceleration with respect to the Notes and its consequences if
(i) rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (ii) all existing Events of Default, other
than a Default with respect to the nonpayment of the principal of and interest,
including Additional


 


23

















 


Interest, if any, as described
in Section 6.01(a) and (b) herein, on the Notes that have become due
solely by such declaration of acceleration, have been cured or waived.


 


SECTION 6.03 Failure to
Comply with Reporting Covenant. 
Notwithstanding anything to the contrary in the Indenture, to the extent
elected by the Company, the sole remedy for an Event of Default relating to (i) the
Company’s failure to comply with its obligations as set forth under Section
2.05, or (ii) the Company’s failure to file with the Trustee pursuant to Section 314(a)(1) of
the TIA any documents or reports that it is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, will
after the occurrence of such an Event of Default consist exclusively of the
right to receive additional interest (the “Additional Interest”)
on the Notes at a rate equal to 0.25% per annum of the principal amount of the
Notes Outstanding for each day during the 60-day period beginning on, and
including, the occurrence of such an Event of Default during which such Event
of Default is continuing.  If the Company
makes such an election, such Additional Interest will be payable in the same
manner and on the same dates as the stated interest payable on the Notes.  On the sixty-first (61st) day after the
occurrence of such Event of Default (if the Event of Default relating to the
Company’s obligations referred to in clauses (i) and (ii) of this Section
6.03 is not cured or waived prior to such sixty-first (61st) day), the Notes
will be subject to acceleration as provided in Section 6.02 of the
Original Indenture.  A Holder’s right to
receive Additional Interest for an Event of Default relating to the Company’s
failure to comply with its obligations referred to in clauses (i) and (ii) of
this Section 6.03 will not affect the rights of the Holders in the event of an
occurrence of any other Event of Default. 
In the event the Company does not timely elect to pay the Additional
Interest following an Event of Default in accordance with this paragraph, the
Notes will be subject to acceleration as provided in Section 6.02 of the
Original Indenture.  To make such
election to pay Additional Interest as the sole remedy during the first sixty
(60) days after the occurrence of an Event of Default referred to in clauses (i) and
(ii) of this Section 6.03, the Company must notify the Holders and the
Trustee and the Paying Agent of such election prior to the beginning of such
60-day period.  Upon the Company’s
failure to timely give such notice, the Notes will be immediately subject to
acceleration as provided in Section 6.02 of the Original Indenture.


 


SECTION 6.04 Acceleration.  Notwithstanding Section 6.02 of the
Original Indenture, if an Event of Default occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Notes then Outstanding by notice to the Company and the
Trustee, may, and the Trustee at the request of such Holders shall, declare
100% of the principal of and accrued and unpaid interest, including Additional
Interest, if any, on all the Notes to be due and payable.  If an Event of Default specified in Section 6.01(4) or
(5) of the Original Indenture or Article 6(h) and Article 6(i) of
this Supplemental Indenture occurs, 100% of the principal of and accrued and
unpaid interest, including Additional Interest, if any, on the Notes will
automatically become due and payable. 
Upon such a declaration, such principal and accrued and unpaid interest,
including any Additional Interest, if any, will be due and payable immediately.


 


SECTION 6.05 Limitation
on Suits.  Notwithstanding Section 6.07 of the
Original Indenture, a Holder may enforce, and may institute and maintain any
proceeding suitable to enforce, its right to receive payment of principal or
interest, including any Additional Interest, when due, or the right to receive
payment or delivery of the consideration due upon conversion.


 


24

















 


SECTION 6.06 Notice of
Defaults.


 


(a)           Notwithstanding the proviso in Section 7.05
of the Original Indenture, the Trustee will not be protected in withholding
notice of a Default after the ninetieth (90th)
day following the occurrence of the Default if such Default relates to the
payment or delivery of the consideration due upon conversion.


 


(b)           Notwithstanding the last paragraph of Section 6.01
of the Original Indenture, the Company will deliver to the Trustee, within 30
days after it occurs, written notice in the form of an Officers’ Certificate of
any event which with the giving of notice or the lapse of time would constitute
an Event of Default, its status and what action the Company is taking or
proposes to take with respect to it.


 


ARTICLE 7


 


Discharge


 


SECTION 7.01 Discharge of
the Supplemental Indenture.  (a) 
The satisfaction and discharge provisions set forth in this Article 7
shall, with respect to the Notes, supersede in their entirety Article 8 of
the Original Indenture, and all references in the Original Indenture to Article 8
thereof and the satisfaction and discharge provisions therein, as the case may
be, shall, with respect to the Notes, be deemed to be references to this Article 7
and the satisfaction and discharge provisions set forth in this Article 7,
respectively.  When (i) the Company
delivers to the Trustee all Outstanding Notes (other than Notes replaced
pursuant to Section 2.09 of the Original Indenture) for cancellation or (ii) all
Outstanding Notes have become due and payable, whether on the Maturity Date, on
any Redemption 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
Redemption Date or upon repurchase of all Outstanding Notes, including interest
(and any Additional Interest, if any) thereon to the Maturity Date, the
Redemption Date or the relevant Fundamental Change Repurchase Date, as the case
may be (other than Notes replaced pursuant to Section 2.09 of the Original
Indenture), 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 Supplemental Indenture shall, subject to Section 7.01(b),
cease to be of further effect.  The
Trustee shall acknowledge satisfaction and discharge of this Supplemental
Indenture on demand of the Company accompanied by an Officers’ Certificate and
an Opinion of Counsel as required by Section 12.05 of the Original
Indenture and at the cost and expense of the Company.


 


(b)           Notwithstanding clause (a) above,
the Company’s obligations in Sections 2.07, 2.08, 2.09, 2.10, 7.07, and 7.08 of
the Original Indenture and Section 2.04, Section 3.03 and Section 10.04(c) hereof
and this Article 7 shall survive until the Notes have been paid in
full.  Thereafter, the Company’s
obligations in Section 7.07 of the Original Indenture shall survive such
satisfaction and discharge.


 


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 


 


25

















 


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 (including any Additional 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.  In addition to Section 8.03
of the Original Indenture, 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
Additional 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 Supplemental Indenture, the Original 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 (including any Additional
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 (to the extent applicable to
the Notes) or the Notes without notice to or the consent of any Holder:


 


(a)           to cure any
ambiguity, omission, defect or inconsistency that does not adversely affect
Holders of the Notes;


 


(b)           to provide for the
assumption by a Successor Company of the obligations of the Company under the
Indenture;


 


(c)           to increase the
Conversion Rate of the Notes;


 


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


 


(e)           to secure the
Notes;


 


26
















 


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


 


(g)       to make any change
that does not adversely affect the rights of any Holder;


 


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


 


(i)        to 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 final prospectus supplement
related to the offering and sale of the Notes dated May 28, 2009.


 


SECTION 8.02 With Consent
of Holders.  In addition to the
amendments or supplements to the Indenture pursuant to Section 9.02 of the
Original Indenture that require the consent of the Holder of each Outstanding
Note affected thereby, without the consent of each Holder of an Outstanding
Note affected (including consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Notes), no amendment or supplement may:


 


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


 


(b)       impair the right
of any Holder to receive payment of principal or interest, including Additional
Interest, on such Holder’s Notes on or after the due dates therefor; or


 


(c)       make any change in
the provision of this Section
8.02 which require each Holder’s consent or in the waiver provisions
in Section 6.02.


 


ARTICLE 9


 


Conversion


 


SECTION 9.01 Right to Convert


 


(a)       Subject to and upon compliance with the
provisions of this Indenture, each Holder shall have the right, at such Holder’s
option, to convert the principal amount of any such Notes, or any portion of
such principal amount which is $1,000 or an integral multiple of 


 


 


27

















 


$1,000 thereof at the Conversion Rate then in effect, (x) on or
after December 1, 2013 through the close of business on the third
Scheduled Trading Day immediately preceding the Maturity Date and (y) prior
to the close of business on the business day immediately preceding December 1,
2013, but only upon the satisfaction of one or more of the conditions set forth
in clauses (i) through (v) below and only during the periods set
forth below:


 


(i)            Prior to the close of business on the Business Day
immediately preceding December 1, 2013, a Holder may surrender all or a
portion of its Notes for conversion during any fiscal quarter (and only during
such fiscal quarter) commencing after July 31, 2009, if the Last Reported
Sale Price of the Common Stock for at least twenty (20) Trading Days (whether
or not consecutive) during the period of 30 consecutive Trading Days ending on
the last Trading Day of the immediately preceding fiscal quarter is greater
than or equal to 130% of the Conversion Price in effect on each applicable Trading
Day.


 


(ii)           Prior to the close of business on the Business Day
immediately preceding December 1, 2013, a Holder may surrender all or a
portion of its Notes for conversion during the five (5) Business-Day
period after any ten (10) consecutive Trading-Day period (the “Measurement Period”) in which the Trading Price per $1,000
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)(ii), for
each day of such Measurement Period was less than 98% of the product of the
Last Reported Sale Price of the Common Stock and the Conversion Rate on each
such Trading Day.  The Bid Solicitation
Agent shall have no obligation to determine the Trading Price of the Notes in
accordance with this Section 9.01(a)(ii) unless requested by the
Company, and the Company shall have no obligation to make such request unless a
Holder provides the Company with reasonable evidence that the Trading Price per
$1,000 principal amount of Notes would be less than 98% of the product of the
Last Reported Sale Price of the Common Stock and the Conversion Rate.  At such time, the Company shall instruct the
Bid Solicitation Agent to determine the Trading Price of the Notes beginning on
the next Trading Day and on each successive Trading Day until the Trading Price
per $1,000 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 Conversion
Rate.  If the Company does not so
instruct the Bid Solicitation Agent to obtain bids when required, the Trading
Price per $1,000 principal amount 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
Conversion Rate on each day the Company fails to do so.  If the Trading Price condition has been met
the Company shall notify the Holders of the Notes in the manner provided in Section
9.11, the Trustee and the Conversion Agent. 
If, at any time after the Trading Price condition has been met, the Trading
Price per $1,000 principal amount of Notes is greater than 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate for
such date the Company shall so notify the Holders of the Notes in the manner
provided in Section 9.11, the Trustee and the Conversion Agent.


 


 


28

















 


(iii)          If, prior to the close of business on the Business Day
immediately preceding December 1, 2013, the Company elects to:


 


(A)          issue to all or substantially all holders of Common
Stock rights or warrants entitling them to subscribe for or purchase, for a
period expiring within 45 days after the announcement date of such issuance,
shares of Common Stock at a price per share less than the average of the Last
Reported Sale Prices of a share of Common Stock for the ten (10) consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of
announcement of such issuance; or


 


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


 


then,
in each case, the Company shall notify the Holders of the Notes, in the manner
provided in Section 9.11, at least fifty-five (55) Scheduled Trading Days prior
to the Ex-Dividend Date for such issuance or distribution. Once the Company has
given such notice, Holders may surrender Notes for conversion at any time until
the earlier of 5:00 p.m., New York City time, on the Business Day
immediately prior to such Ex-Dividend Date or the Company’s announcement that
such issuance or distribution will not take place, even if the Notes are not
otherwise convertible at such time.


 


(iv)          If, prior to the close of business on the Business Day
immediately preceding December 1, 2013, a transaction or event that
constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs,
regardless of whether a Holder has the right to require the Company to
repurchase the Notes under Section 3.01(a), or if the Company is a party to a
consolidation, merger, binding share exchange, or transfer or lease of all or
substantially all of the Company’s assets, pursuant to which the Common Stock
would be converted into cash, securities or other assets, Holders may surrender
Notes for conversion at any time from or after the fifty-fifth (55th) Scheduled Trading Day prior to the anticipated
effective date of such transaction to, and including, the thirty-fifth (35th) Trading Day following the actual effective date of
such transaction or, if such transaction also constitutes a Fundamental Change,
until the related Fundamental Change Repurchase Date.  The Company will notify the Holders and the
Trustee, in the manner provided in Section 9.11, as promptly as practicable
following the date the Company publicly announces such transaction, but in no
event less than fifty-five (55) Scheduled Trading Days prior to the anticipated
effective date of such transaction.


 


(v)           If, prior to the close of business on the
Business Day immediately preceding December 1, 2013, the Company calls the Notes for redemption
pursuant to Article 10, then Holders may surrender their Notes for
conversion at any time prior to the close of business on the third Scheduled
Trading Day immediately preceding the Redemption Date, even if the Notes are
not otherwise convertible at such time, after which time the Holder’s right to
convert will expire unless the Company defaults in the payment of the
Redemption Price. 
With respect
to any Notes that are converted following a Redemption Notice, the Company will
increase the Conversion Rate for the Notes so surrendered for conversion by a
number of Additional Shares as described under Section 9.06.


 


(b)       Notes may not be converted after the
close of business on the third Scheduled Trading Day immediately preceding the
Maturity Date.


 


29

















 


SECTION 9.02 Conversion Procedures.


 


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


 


(b)       In order to exercise the conversion
privilege with respect to any interest in a Global Note, the Holder must comply
with the Depositary’s procedures for converting a beneficial interest in a
Global Note and pay the funds, if any, required by Section 2.03(c) to which
such converting Holder is not entitled and, if required, pay all transfer taxes
pursuant to Section 9.08, if any. 
In order to exercise the conversion privilege with respect to any
Physical Notes, the Holder of any such Notes to be converted, in whole or in
part, shall:


 


(i)            complete and manually sign the conversion notice on
the back of the Note (the “Conversion Notice”)
or facsimile of the Conversion Notice and deliver such notice, which is
irrevocable, to the Conversion Agent;


 


(ii)           surrender the Note to the Conversion Agent;


 


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


 


(iv)          if required, pay all transfer or similar taxes; and


 


(v)           make any payment required under Section 2(c) to
which such Holder is not entitled.


 


The date on which the Holder
satisfies all of the applicable requirements set forth above is the “Conversion Date.”  The
Trustee will, as promptly as possible, provide the Company with notice of any
conversion exercised by Holders of which a Responsible Officer becomes aware.


 


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


 


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


 


(e)       Each conversion shall be deemed to have
been effected as to any Notes (or portion thereof) surrendered for conversion
on the relevant Conversion Date, and with respect to any shares of Common Stock
that are issuable upon such conversion: (i) if such conversion was subject
to a Physical Settlement, the Person in whose name the certificate or
certificates for such shares of Common Stock will be registered, shall become
the holder of record of such 


 


30

















 


shares as of the close of business on the Conversion Date; and (ii) if
such conversion was subject to a Combination Settlement, the Person in whose
name the certificate or certificates for such shares of Common Stock will be
registered, shall become the holder of record of such shares as of the close of
business on the last Trading Day of the related Observation Period.


 


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


 


(g)       If a Holder has submitted any Notes for
repurchase pursuant to Section 3.01(a), such Notes may be converted only if the
Holder submits a withdrawal notice in accordance with Section 3.02 prior to the
Fundamental Change Repurchase Expiration Time.


 


SECTION 9.03 Payment Upon Conversion


 


(a)       Upon any conversion of any Note, the
Company shall deliver to converting Holders, in respect of each $1,000
principal amount of Notes being converted, at the Company’s election, in full
satisfaction of the Company’s conversion obligation, any of (1) shares of
Common Stock, together with cash in lieu of fractional shares, if any (a “Physical Settlement”), (2) a cash payment without any
delivery of shares of Common Stock (a “Cash Settlement”)
or (3) a combination of cash and shares of Common Stock, together with
cash in lieu of fractional shares, if any (a “Combination
Settlement”), in each case, as set forth below.  For conversions:


 


(i)            that occur prior to December 1, 2013, and
provided that the Company has not called the Notes for redemption pursuant to Article 10,
by the close of business on the Business Day following the Conversion Date, the
Company will notify converting Holders of the relevant Settlement Method and,
if the Company elects a Combination Settlement, the dollar amount of the
conversion obligation (the “Cash Amount”)
that will be settled in cash;


 


(ii)           that occur after the Company has mailed a Redemption
Notice in accordance with Section 10.03, the Company will notify Holders of the
relevant Settlement Method and, if applicable, the Cash Amount in the
Redemption Notice (which will apply to all such conversions, even if the
Company has specified a Settlement Method and Cash Amount for conversions that
occur after December 1, 2013 as described in clause (iii) below);


 


(iii)          that occur after December 1, 2013, the Company
will notify Holders of the relevant Settlement Method and, if applicable, the
related Cash Amount, by notice on or prior to December 1, 2013 (which will
apply to all conversions following December 1, 2013, unless the Company
calls the Notes for redemption
pursuant to Article 10, in which case the Settlement Method
and related Cash Amount in the Redemption Notice will apply as set forth in
clause (ii) above).


 


31

















 


If the Company does not
specify a Settlement Method as set forth above, then Physical Settlement will
apply.  Except as described in the
parentheticals to clauses (ii) and (iii) above, any such notice of a
Settlement Method may not be revoked.


 


(b)       If the Company has elected or is deemed
to have elected a Physical Settlement with respect to any Notes tendered for
conversion, the Company shall deliver, for each $1,000 principal amount of
Notes, a number of shares of Common Stock equal to the Conversion Rate,
together with cash in lieu of fractional shares.  Except for conversions upon a Make-Whole
Fundamental Change as provided in Section 9.06 the Company shall deliver
such shares of Common Stock on (1) the third Business Day following the
Conversion Date, in the case of a Physical Settlement with respect to a
Conversion Date (A) on or prior to the Business Day immediately preceding December 1,
2013 or (B) that occurs after the Company has mailed a Redemption Notice,
or (2) on the third Business Day following the last day of the applicable
Observation Period, in the case of a Physical Settlement with respect to a
Conversion Date on or after December 1, 2013 where the Company has not
delivered a Redemption Notice in accordance with Section 10.03.


 


(c)       If the Company has elected a Cash
Settlement with respect to any Notes tendered for conversion, the Company shall
deliver, for each $1,000 principal amount of Notes, a cash payment equal to the
sum of the Daily Conversion Values for each of the fifty (50) Trading Days
during the relevant Observation Period. 
Except for conversions upon a Make-Whole Fundamental Change as provided
in Section 9.06, the Company shall make such payment on the third Business
Day following the last day of the applicable Observation Period.


 


(d)       If the Company has elected a Combination
Settlement with respect to any Notes tendered for conversion, the Company shall
deliver, for each $1,000 principal amount of Notes, the sum of the Daily
Settlement Amounts for each of the fifty (50) Trading Days during the relevant
Observation Period.


 


The
“Daily Settlement Amount” for each
of the fifty (50) Trading Days during the Observation Period shall consist of:


 


(i)            cash in an amount equal to the lesser of (i) 2%
of the Cash Amount specified by the Company in the notice regarding the chosen
Settlement Method (the “Daily Cash Amount”)
and (ii) the Daily Conversion Value on such Trading Day; and


 


(ii)           if the Daily Conversion Value on such Trading Day
exceeds the Daily Cash Amount, a number of shares of Common Stock (together
with cash in lieu of any fractional shares) equal to (i) the difference
between such Daily Conversion Value and the Daily Cash Amount, divided by (ii) the
Daily VWAP on such Trading Day.


 


Except for conversions
upon a Make-Whole Fundamental Change as provided in Section 9.06, the
Company shall deliver such cash and shares of Common Stock on the third
Business Day following the last day of the applicable Observation Period.


 


32

















 


(e)       Upon conversion, Holders shall not
receive any separate cash payment for accrued and unpaid interest (including
any Additional Interest, if any), except to the extent specified in Section
2.03.  The Company’s delivery to the
Holder of Common Stock, cash or a combination of cash and Common Stock, as
applicable, together with any cash payment for any fractional share of Common
Stock, into which a Note is convertible will be deemed to satisfy in full the
Company’s obligation to pay (i) the principal amount of the Notes so
converted and (ii) accrued and unpaid interest and Additional Interest, if
any, to, but not including, the Conversion Date.  As a result, accrued and unpaid interest and
Additional Interest, if any, to, but not including, the Conversion Date will be
deemed to be paid in full rather than cancelled, extinguished or forfeited.


 


(f)        The Company shall not issue fractional
shares of Common Stock upon conversion of Notes.  If multiple Notes shall be surrendered for
conversion at one time by the same Holder, the number of full shares of Common
Stock which shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. 
If any fractional share of Common Stock would be issuable upon the
conversion of any Notes, the Company shall make payment therefor in cash in
lieu of fractional shares of Common Stock based on:


 


(i)            if Physical Settlement applies, on the Last Reported
Sale Price of the Common Stock on the relevant Conversion Date, and


 


(ii)           if Combination Settlement applies, the Daily VWAP of
the Common Stock on the final Trading Day of the applicable Observation Period.


 


(g)       Solely for purposes of determining the
payments and deliveries due upon conversion under this Section 9.03, and
notwithstanding the definition of “Trading Day” contained in Section 1.02,
“Trading Day” means a day on which (i) there
is no Market Disruption Event and (ii) trading in the Common Stock
generally occurs on The NASDAQ Global Select Market or, if the Common Stock is
not then listed on The NASDAQ Global Select Market, on the principal other
United States national or regional securities exchange on which the Common
Stock is then listed or, if the Common Stock is not then listed on a United
States national or regional securities exchange, on the principal other market
on which the Common Stock is then traded. 
If the Common Stock (or other security for which a Daily VWAP must be
determined) is not so listed or quoted, “Trading Day” means a Business Day.


 


(h)       Upon surrender of Notes for conversion in
connection with a Make-Whole Fundamental Change or in connection with a redemption by the
Company pursuant to Article 10, the Company shall deliver
shares of Common Stock, cash or a combination of cash and shares of Common
Stock, as set forth above, at the increased Conversion Rate as described in Section 9.06.  However, if the consideration paid for the
Common Stock in any Make-Whole Fundamental Change described in clause (b) of
the definition of Fundamental Change is comprised entirely of cash, for any
conversion of Notes following the Effective Date of such Make-Whole Fundamental
Change, the Company’s conversion obligation shall be calculated based solely on
the Stock Price for such Make-Whole Fundamental Change and shall be deemed to
be an amount equal to the Conversion Rate (including any adjustment as
described in Section 9.06 hereof) multiplied by
such Stock Price.  In such event, the
Company’s 


 


33

















 


conversion obligation shall be determined and paid to Holders in cash
on the third Business Day following the relevant Conversion Date.


 


SECTION 9.04 Adjustment
of Conversion Rate.  The Conversion
Rate shall be adjusted from time to time by the Company if any of the following
events occurs, except that the Company will not make any of the adjustments to
the Conversion Rate referred to in clauses (a) (but only with respect to a
dividend or distribution), (b), (c) or (d) below if Holders of the
Notes participate, at the same time as holders of Common Stock and as a result
of holding the Notes, in any of the transactions described below without having
to convert their Notes as if such Holders held, for each $1,000 principal
amount of Notes, a number of shares of Common Stock equal to the Conversion
Rate.


 


As used herein, the “Adjustment Date” for any issuance, dividend or distribution
means, the Ex-Dividend Date for such issuance, dividend or distribution.


 


(a)       If the Company, at any time or from time
to time while any of the Notes are Outstanding, exclusively issues 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, then the Conversion Rate
will be adjusted based on the following formula:


 





 


where


 


CR0      =        the Conversion
Rate in effect immediately prior to the open of business on the Adjustment
Date, or immediately prior to the open of business on the effective date of
such share split or share combination, as applicable;


 


CR1      =        the Conversion
Rate in effect immediately after the open of business on such Adjustment Date
or effective date, as applicable;


 


OS0      =        the number of
shares of Common Stock outstanding immediately prior to such Adjustment Date or
effective date, as applicable; and


 


OS1      =         the number of
shares of Common Stock outstanding immediately after giving effect to such
dividend, distribution, share split or share combination.


 


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


 


(b)       If the Company, at any time or from time
to time while any of the Notes are Outstanding, issues to all or substantially
all holders of the Common Stock any rights or 


 


34

















 


warrants entitling them for a period of not more than 45 calendar days
after the announcement date of such issuance to subscribe for or purchase
shares of Common Stock, at a price per share less than the average of the Last
Reported Sale Prices of Common Stock for the ten (10) consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of
announcement of such issuance, the Conversion Rate shall be adjusted based on
the following formula (provided that the conversion rate will be readjusted to
the extent that such rights or warrants are not exercised prior to their
expiration):


 





 


where


 


CR0      =        the Conversion
Rate in effect immediately prior to the open of business on the Adjustment Date
for such issuance;


 


CR1      =        the Conversion
Rate in effect immediately after the open of business on such Adjustment Date;


 


OS0      =        the number of
shares of Common Stock outstanding immediately prior to the open of business on
such Adjustment Date;


 


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


 


Y          =         the number of shares of
Common Stock equal to the aggregate price payable to exercise such rights or
warrants divided by the average of the Last
Reported Sale Prices of the Common Stock over the ten (10) consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of
announcement of the issuance of such rights or warrants.


 


To the extent such rights or
warrants are not exercised prior to their expiration or termination, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be
in effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered.  In the event
that such rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate which would then be in effect if the date
fixed for the determination of shareholders entitled to receive such rights or
warrants had not been fixed.


 


(c)       If the Company, at any time or from time
to time while the Notes are Outstanding, distributes shares of any class of
Capital Stock of the Company, evidences of its Indebtedness, other assets or
property of the Company or rights or warrants to acquire the Company’s Capital
Stock or other securities to all or substantially all holders of its Common
Stock, excluding:


 


35

















 


(i)            dividends or distributions as to which an adjustment
was effected pursuant to Section 9.04(a) and rights or warrants
referred to in Section 9.04(b);


 


(ii)           dividends or distributions paid exclusively in cash
(as set forth below in Section 9.04(d); and


 


(iii)          Spin-offs to which provisions set forth below in this Section 9.04(c) shall
apply;


 


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


 





 


where


 


CR0      =        the Conversion
Rate in effect immediately prior to the open of business on the Adjustment Date
for such distribution;


 


CR1      =        the Conversion
Rate in effect immediately after the open of business on such Adjustment Date;


 


SP0       =        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
Adjustment Date for such distribution; and


 


FMV    =        the Fair Market Value (as determined by the Board of
Directors) of the shares of Capital Stock, evidences of Indebtedness, assets,
property, rights or warrants distributed with respect to each outstanding share
of the Common Stock on the Adjustment Date for such distribution.


 


Such
adjustment shall become effective immediately after the open of business on the
Adjustment Date for such distribution. 
If the Board of Directors determines the Fair Market 


 


36
















 


Value of any distribution for
purposes of this Section 9.04(c) by reference to the actual or
when-issued trading market for any securities, it must in doing so consider the
prices in such market over the same period used in computing the average of the
Last Reported Sale Prices of the Common Stock. 
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to
or greater than “SP0” (as defined above), in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall receive
on the date on which the relevant Capital Stock, evidences of Indebtedness,
other assets or property of the Company or rights or warrants to acquire the
Common Stock or other securities are distributed to holders of Common Stock,
for each $1,000 principal amount of Notes, the amount of Capital Stock,
evidences of Indebtedness, other assets or property of the Company or rights or
warrants to acquire the Common Stock or other securities such Holder would have
received on the record date for such distribution had such Holder owned a
number of shares of Common Stock equal to the Conversion Rate as of the
Adjustment Date for such distribution.


 


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, or similar equity interest, of or
relating to a Subsidiary or other business unit, in each case listed on a
national securities exchange (a “Spin-off”), the
Conversion Rate shall be increased based on the following formula:


 





 


where


 


	
  CR0

  	
  =

  	
   

  	
  the
  Conversion Rate in effect immediately prior to the end of the Valuation
  Period;

  
	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

  	
   

  	
  the average
  of the Last Reported Sale Prices of the Capital Stock or similar equity
  interest distributed to holders of Common Stock applicable to one share of
  Common Stock over the first ten (10) consecutive Trading-Day period
  after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and

  
	
   

  	
   

  	
   

  	
   

  
	
  MP0

  	
  =

  	
   

  	
  the average
  of the Last Reported Sale Prices of Common Stock over the Valuation Period.

  



 


The adjustment to the Conversion Rate under the preceding paragraph
will occur on the last day of the Valuation Period; provided that in
respect of any conversion during the Valuation Period, references above with
respect to ten (10) Trading Days shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the Ex-Dividend Date of such
Spin-off and the Conversion Date in determining the Conversion Rate.


 


If any
dividend or distribution of the type described in this Section 9.04(c) is
declared but not so paid or made, the Conversion Rate shall again be adjusted to
the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.


 


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


 





 


where


 


37

















 


	
  CR0

  	
  =

  	
   

  	
  the
  Conversion Rate in effect immediately prior to the open of business on the
  Adjustment Date for such dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
   

  	
  the Conversion
  Rate in effect immediately after the open of business on the Adjustment Date
  for such dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
   

  	
  the Last
  Reported Sale Price of a share of Common Stock on the Trading Day immediately
  preceding the Adjustment Date for such dividend or distribution; and

  
	
   

  	
   

  	
   

  	
   

  
	
  C

  	
  =

  	
   

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

  



 


In the case of
an adjustment pursuant to this Section 9.04(d), such adjustment shall become
effective immediately after the open of business on the Adjustment Date for the
relevant dividend or distribution; provided that, if the portion of the
cash so distributed applicable to one share of Common Stock is equal to or
greater than the Last Reported Sale Price of a share of Common Stock on the
Trading Day immediately preceding the Ex-Dividend Date for such dividend or
distribution, in lieu of the adjustment set forth in this Section 9.04(d) adequate
provision shall be made so that each Holder shall have the right to receive on
the date on which such cash dividend or distribution is distributed to holders
of Common Stock, for each $1,000 principal amount of Notes, the amount of cash
such Holder would have received had such Holder owned a number of shares equal
to the Conversion Rate on the Ex-Dividend Date for such distribution.


 


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


 





 


where


 


	
  CR0

  	
  =

  	
   

  	
  the
  Conversion Rate in effect immediately prior to the close of business on the
  tenth (10th)Trading
  Day immediately following, and including, the Trading Day next succeeding the
  date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
   

  	
  the
  Conversion Rate in effect immediately after the close of business on the
  tenth (10th)
  Trading Day immediately following, and including, the Trading Day next
  succeeding the date such tender or exchange offer expires;

  



 


38

















 


	
  AC

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
  OS1

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
  SP1

  	
  =

  	
   

  	
  the average
  of the Last Reported Sale Prices of Common Stock over the ten (10) consecutive
  Trading-Day period commencing on the Trading Day next succeeding the date
  such tender or exchange offer expires.

  



 


The adjustment
to the Conversion Rate under this Section 9.04(e) shall occur at the close of
business on the tenth (10th) Trading Day from, and including, the
Trading Day next succeeding the date such tender or exchange offer expires; provided
that in respect of any conversion within ten (10) Trading Days immediately
following, and including, the expiration date of any tender or exchange offer,
references with respect to ten (10) Trading Days shall be deemed replaced
with such lesser number of Trading Days as have elapsed between the expiration
date of such tender or exchange offer and the Conversion Date in determining
the Conversion Rate.


 


If the Company
or one of its subsidiaries is obligated to purchase shares of Common Stock
pursuant to any such tender or exchange offer, but the Company or such
subsidiary is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.


 


(f)            For purposes of Section
9.04(c), “record date” shall mean, with respect
to any dividend, issuance, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any cash, securities or
other property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders entitled to receive
such cash, securities or other property (whether such date is fixed by the
Board of Directors or by statute, contract or otherwise).


 


(g)           The Company from
time to time may increase the Conversion Rate by any amount for any period of
time if the period is at least twenty (20) Business Days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the
Company.  Whenever the Conversion Rate is
increased pursuant to this Section 9.04(g), the Company shall mail to Holders
of record of the Notes a notice of the increase at least 15 days prior to the
date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.


 


39

















 


(h)           The Company may make
such increases in the Conversion Rate, in addition to any adjustments required
by Sections 9.04(a), 9.04(b), 9.04(c), 9.04(d), 9.04(e) or 9.04(g), as the
Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock in connection
with a dividend or distribution of shares (or rights to acquire shares) or
similar event.


 


(i)            All calculations
under this Article 9 shall be made by the Company and shall be calculated
to the nearest one-ten-thousandth of a share. No adjustment to the Conversion
Rate will be required unless the adjustment would require an increase or
decrease of at least 1% of the Conversion Rate. 
However, the Company will carry forward any adjustments that are less
than 1% of the Conversion Rate that the Company elects not to make and take
them into account upon (1) any Observation Period with respect to a
payment on conversion (or, in the case of a Physical Settlement, any Conversion
Date), (2) giving a Redemption Notice, (3) the occurrence of a
Fundamental Change, (4) the Maturity Date and (5) such time as all
adjustments that have not been made prior thereto would have the effect of
adjusting the Conversion Rate by at least 1%.


 


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


 


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


 


(l)            Notwithstanding the
foregoing, if the application of the foregoing formulas would result in a
decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be
made (other than as a result of a share split or a share combination).


 


(m)          Notwithstanding any
of the foregoing, the applicable Conversion Rate will not be adjusted:


 


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


 


40

















 


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


 


(iii)          upon the issuance of any shares of
Common Stock pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security not described in the preceding bullet and
outstanding as of the date the Notes were first issued;


 


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


 


(v)           for accrued and unpaid interest and
Additional Interest, if any.


 


(n)           Notwithstanding the
Conversion Rate adjustment provisions above, if any Conversion Rate adjustment
becomes effective, or any Ex-Dividend Date relating to a required Conversion
Rate adjustment occurs, during the period beginning on a Conversion Date and
ending on the close of business on the last Trading Day of the corresponding
Observation Period, the Board of Directors will make adjustments to the
Conversion Rate or the amount of cash or number of shares of Common Stock
issuable upon conversion of the Notes, as may be necessary or appropriate to
effect the intent of the foregoing Conversion Rate adjustments to avoid unjust
or inequitable results, as determined in good faith by the Board of Directors.
Any adjustment made pursuant to this paragraph will apply in lieu of the
adjustment or other term that would otherwise be applicable.  In addition, if a Conversion Rate adjustment
becomes effective on any Ex-Dividend Date as described above, and a Holder that
has converted its Notes would become the record holder of shares of Common
Stock as of the related Conversion Date as set forth in Section 9.02(e) based
on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding
the Conversion Rate adjustment provisions above, the Conversion Rate adjustment
relating to such Ex-Dividend Date will not be made for such converting
Holder.  Instead, such Holder will be
deemed to be the record owner of shares on an un-adjusted basis and participate
in the related dividend, distribution or other event giving rise to such
adjustment.


 


(o)           Except as stated
herein, the applicable Conversion Rate will not be adjusted for the issuance of
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.


 


SECTION 9.05 Adjustment
of Average Prices.  Whenever any
provision of this Supplemental Indenture requires the Company to calculate Last
Reported Sale Prices or Daily VWAP over a span of multiple days, the Company
will make appropriate adjustments to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to
the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time
during the period from which such prices are to be calculated.


 


41

















 


SECTION 9.06 Adjustments
Upon Make-Whole Fundamental Changes and a Redemption Notice.


 


(a)           If


 


(i)            a Make-Whole Fundamental Change
occurs and a Holder elects to convert its Notes in connection with such
Make-Whole Fundamental Change; or


 


(ii)           the Company gives a Redemption Notice
for the Notes and a Holder elects to convert its Notes in connection with such redemption;then,
in each case, the Company shall, under the certain circumstances described
below, increase the Conversion Rate for the Notes so surrendered for conversion
by a number of additional shares of Common Stock (the “Additional
Shares”) as described below. 
A conversion of Notes shall be deemed for these purposes to be “in
connection with” such Make-Whole Fundamental Change if the Conversion Notice of
the Notes is received by the Conversion Agent from, and including, the
Effective Date of the Make-Whole Fundamental Change up to, and including, the
Business Day immediately prior to the related Fundamental Change Repurchase
Date (or, in the case of a Make-Whole Fundamental Change that would have been a
Fundamental Change but for the proviso in
clause (b) of the definition thereof, the thirty-fifth (35th) Trading Day immediately
following the Effective Date of such Make-Whole Fundamental Change).  A conversion of Notes will be deemed for
these purposes to be “in connection” with a redemption of Notes if the
Holder converts the Notes on a date from, and including, the date the Company
gives Holders the Redemption Notice up to, and including, the third Scheduled
Trading Day prior to the Redemption Date.


 


(b)           The number of
Additional Shares by which the Conversion Rate will be increased will be
determined by reference to the table below, based on the date on which the
Make-Whole Fundamental Change occurs or becomes effective or the date upon
which the Company gives its Redemption Notice (the “Effective
Date”) and the price (the “Stock Price”)
paid (or deemed paid) per share of the Common Stock in the Make-Whole
Fundamental Change.  If the holders of
the Common Stock receive only cash in such Make-Whole Fundamental Change
described in clause (b) of the definition of Fundamental Change, the Stock
Price shall be the cash amount paid per share. 
Otherwise, and in the case of a conversion upon the Company giving a
Redemption Notice, the Stock Price shall be the average of the Last Reported
Sale Prices of Common Stock over the five (5) Trading-Day period ending
on, and including, the Trading Day immediately preceding the Effective Date of
the Make-Whole Fundamental Change or the date which the Company gives its
Redemption Notice, as the case may be.


 


(c)           The Stock Prices set
forth in the column headings of the table below shall be adjusted as of any
date on which the Conversion Rate of the Notes is otherwise adjusted.  The adjusted Stock Prices shall equal the
Stock Prices immediately prior to such adjustment, multiplied
by a fraction, the numerator of which is the Conversion Rate
immediately prior to such adjustment giving rise to the Stock Price adjustment
and the denominator of which is the Conversion Rate as so adjusted. The number
of Additional Shares set forth in the table below shall be adjusted in the same
manner as the Conversion Rate as set forth in Section 9.04.


 


The following table sets forth
the number of Additional Shares per $1,000 principal amount of Notes for each
Stock Price and Effective Date set forth below:


 


42

















 


	
   

  	
   

  	
  Stock
  Price

  	
   

  
	
  Effective
  date

  	
   

  	
  $8.54

  	
   

  	
  $9.50

  	
   

  	
  $10.00

  	
   

  	
  $11.00

  	
   

  	
  $12.50

  	
   

  	
  $15.00

  	
   

  	
  $17.50

  	
   

  	
  $20.00

  	
   

  	
  $25.00

  	
   

  	
  $30.00

  	
   

  	
  $40.00

  	
   

  	
  $50.00

  	
   

  
	
  6/3/2009

  	
   

  	
  23.4192

  	
   

  	
  22.9595

  	
   

  	
  21.0236

  	
   

  	
  17.8442

  	
   

  	
  14.3177

  	
   

  	
  10.4635

  	
   

  	
  8.0310

  	
   

  	
  6.3848

  	
   

  	
  4.3324

  	
   

  	
  3.1218

  	
   

  	
  1.7793

  	
   

  	
  1.0700

  	
   

  
	
  6/1/2010

  	
   

  	
  23.4192

  	
   

  	
  22.2882

  	
   

  	
  20.2325

  	
   

  	
  16.8945

  	
   

  	
  13.2650

  	
   

  	
  9.4200

  	
   

  	
  7.0832

  	
   

  	
  5.5526

  	
   

  	
  3.7110

  	
   

  	
  2.6597

  	
   

  	
  1.5156

  	
   

  	
  0.9130

  	
   

  
	
  6/1/2011

  	
   

  	
  23.4192

  	
   

  	
  21.7309

  	
   

  	
  19.4595

  	
   

  	
  15.8255

  	
   

  	
  11.9789

  	
   

  	
  8.0845

  	
   

  	
  5.8542

  	
   

  	
  4.4708

  	
   

  	
  2.9069

  	
   

  	
  2.0652

  	
   

  	
  1.1779

  	
   

  	
  0.7114

  	
   

  
	
  6/1/2012

  	
   

  	
  23.4192

  	
   

  	
  20.1880

  	
   

  	
  17.6727

  	
   

  	
  13.7344

  	
   

  	
  9.7361

  	
   

  	
  5.9795

  	
   

  	
  4.0411

  	
   

  	
  2.9530

  	
   

  	
  1.8532

  	
   

  	
  1.3157

  	
   

  	
  0.7656

  	
   

  	
  0.4685

  	
   

  
	
  6/1/2013

  	
   

  	
  23.4192

  	
   

  	
  17.2208

  	
   

  	
  14.3376

  	
   

  	
  10.0014

  	
   

  	
  5.9640

  	
   

  	
  2.7782

  	
   

  	
  1.5310

  	
   

  	
  1.0056

  	
   

  	
  0.6136

  	
   

  	
  0.4510

  	
   

  	
  0.2743

  	
   

  	
  0.1704

  	
   

  
	
  6/1/2014

  	
   

  	
  23.4192

  	
   

  	
  11.4420

  	
   

  	
  6.2228

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


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


 


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


 


(2)           If the Stock Price is greater than
$50.00 per share (subject to adjustment in the same manner as the Stock Prices
set forth in the table above), no Additional Shares shall be added to the
Conversion Rate.


 


(3)           If the Stock Price is less than $8.54
per share (subject to adjustment in the same manner as the Stock Prices as set
forth in the column headings of the table above), no Additional Shares shall be
added to the Conversion Rate.


 


Notwithstanding
the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion exceed 117.0960 shares of Common Stock per $1,000
principal amount of Notes, subject to adjustments in the same manner as the
Conversion Rate as set forth in Section 9.04.


 


(d)           The Company shall
notify the Holders of Notes of the Effective Date of any Make-Whole Fundamental
Change and issue a press release announcing such Effective Date no later than
five (5) Business Days after such Effective Date.


 


SECTION 9.07 Effect
of Recapitalization, Reclassification, Consolidation, Merger or Sale.  If any of the following events occur:


 


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


 


(b)           any consolidation,
merger or combination involving the Company; or


 


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


 


(d)           any statutory share
exchange;


 


43

















 


in each case
of clauses (a) – (d) as a result of which the Common Stock would be converted
into, or exchanged for stock, other securities or other property or assets
(including cash or any combination thereof) (any such event, a “Merger Event”), then, at the effective time of such Merger
Event, the Company or the successor or purchasing Person, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply
with the TIA as in force at the date of execution of such supplemental
indenture) providing that at and after the effective time of such Merger Event,
the right of a Holder to convert a Note will be changed into a right to convert
such Note as set forth in this Supplemental Indenture into the kind and amount
of shares of stock, other securities or other property or assets (including
cash or any combination thereof) that a holder of a number of shares of Common
Stock equal to the Conversion Rate immediately prior to such Merger Event would
have owned or been entitled to receive (the “Reference
Property,” with each “unit of Reference
Property” meaning the type and amount of Reference Property that a
holder of one share of Common Stock is entitled to receive) upon such Merger
Event. However, at and after the effective time of the Merger Event (x) the
amount otherwise payable in cash upon conversion of the Notes as set forth in Section 9.03
will continue to be payable in cash, (y) the number of shares of Common
Stock otherwise deliverable upon conversion of the Notes as set forth in Section 9.03
will instead be deliverable in the amount and type of Reference Property that a
holder of that number of shares of Common Stock would have received in such
Merger Event and (z) the Daily VWAP will be calculated based on the value
of a unit of Reference Property.


 


If the Merger Event causes the Common Stock to be converted into, or
exchanged for, the right to receive more than a single type of consideration
(determined based in part upon any form of stockholder election), (x) 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 the Common Stock that affirmatively make such election and (y) the
unit of Reference Property for purposes of the foregoing sentence shall refer
to the consideration referred to in clause (x) attributable to one share
of Common Stock.


 


The Company shall not become a party to any such Merger Event unless
its terms are consistent with this Section 9.07.  Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 9 in the judgment of the Board of
Directors or the board of directors of the successor Person.  If, in the case of any such recapitalization,
reclassification, change, consolidation, merger, combination, sale, lease,
other transfer or statutory share exchange, the Reference Property receivable
thereupon by a holder of Common Stock includes shares of stock, securities or
other property or assets (including cash or any combination thereof) of a
Person other than the successor or purchasing Person, as the case may be, in
such reorganization, reclassification, change, consolidation, merger,
combination, sale, lease, other transfer or statutory share exchange, then such
supplemental indenture shall also be executed by such other Person.


 


The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the register of the Notes maintained by the Registrar, within 20
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.  The above provisions of this Section 9.07
shall similarly apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances. 
If this Section 9.07 applies to any Merger Event, Section 9.04 shall not
apply.


 


44

















 


SECTION 9.08 Taxes
on Shares Issued.  Any issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Holder for any documentary, stamp or any similar issue or transfer
tax in respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Notes pursuant hereto.  The Company shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issue and delivery of shares of Common Stock in
any name other than that of the Holder of any Notes converted.


 


SECTION 9.09 Reservation
of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements;
Listing of Common Stock.  The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to satisfy
conversion of the Notes from time to time as such Notes are presented for
conversion (assuming that, at the time of the computation of such number of
shares or securities, all such Notes would be converted by a single Holder).


 


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


 


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


 


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


 


SECTION 9.10 Responsibility
of Trustee.  The Trustee and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Notes to determine or calculate the Conversion Rate, to determine
whether any facts exist which may require any adjustment of the Conversion
Rate, or to confirm the accuracy of any such adjustment when made or the
appropriateness of the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same.  The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock or of any other securities or property
that may at any time be issued or delivered upon the conversion of any Notes;
and the Trustee and the Conversion Agent make no representations with respect
thereto.  Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Notes for the purpose
of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 9.  The rights, privileges, protections,
immunities and benefits given to the Trustee under this Supplemental Indenture
and the Original Indenture,


 


45

















 


including
without limitation its right to be compensated, reimbursed, and indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, including its capacity as Conversion Agent and if it is
so appointed by the Company and accepts such appointment, as Bid Solicitation
Agent.


 


SECTION 9.11 Notice
to Holders Prior to Certain Actions. 
Unless a notice has been provided under Section 9.01(a)(iii) or
Section 9.01(a)(iv), as applicable, 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 the holders of all or substantially all of its Common
Stock of rights or warrants to subscribe for or purchase any share of any class
or any other rights or warrants that would require an adjustment in the
Conversion Rate pursuant to Section 9.04; or


 


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


 


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


 


then, in each
case, the Company shall cause to be filed with the Trustee and the Conversion
Agent and to be mailed to each Securityholder at such Holder’s address
appearing on the list of Securityholders provided for in Section 2.07 of
the Original Indenture, as promptly as practicable but in any event at least 30
days prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution 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 (y) the date on
which such reclassification, consolidation, merger, sale, lease, transfer,
dissolution, liquidation or winding up is expected to become effective or
occur, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, 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 9.12 Stockholder
Rights Plan.  Each share of Common
Stock issued upon conversion of Notes pursuant to this Article 9 shall be
entitled to receive, in addition to any shares of Common Stock received in
connection with such conversion, rights under the rights plan, if any, and the
certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any
stockholder rights plan


 


46
















 


adopted by the Company, as
the same may be amended from time to time. 
If prior to any conversion, however, such rights have separated from the
shares of Common Stock in accordance with the provisions of the applicable
stockholder rights agreement, the Conversion Rate shall be adjusted at the time
of separation as if the Company distributed to all holders of the Common Stock,
shares of the Company’s Capital Stock, evidences of Indebtedness, assets,
property, rights or warrants as described in Section 9.04(c), subject to
readjustment in the event of the expiration, termination or redemption of such
rights.


 


SECTION 9.13 Company
Determination Final.  Any
determination that the Company or the Board of Directors must make pursuant to
this Article 9 shall be conclusive if made in good faith, absent manifest
error.


 


ARTICLE
10


 


Optional Redemption


 


SECTION 10.01 Redemption
Rights.  Article 3 of the
Original Indenture will not apply to the Notes. 
The Notes shall be redeemable at the Company’s option in accordance with
this Article 10 in whole but not in part, at any time on or after June 5,
2012 if the Last Reported Sale Price of the Common Stock for twenty (20) or
more Trading Days in a period of 30 consecutive Trading Days ending on the
Trading Day prior to the date the Company provides a Redemption Notice in
accordance with this Article 10 exceeds 150% of the Conversion Price in
effect on each such Trading Day.  The
Company may elect to redeem all, but not less than all, of the Notes pursuant
to this Section 10.01 by providing notice to the Trustee, the Paying Agent
and each Holder of such Notes in accordance with Section 10.03 not less
than fifty-five (55) Scheduled Trading Days nor more than 90 calendar days
prior to the Redemption Date for such Notes; provided that the Company
may not redeem the Notes pursuant to this Article 10 if the Redemption
Date would be after the Maturity Date. 
The Redemption Date must be a Business Day.


 


SECTION 10.02 Redemption
Price  The “Redemption
Price” for the Notes shall be an amount equal to 100% of the
principal amount of the Notes being redeemed, plus any accrued and unpaid
interest, including Additional Interest, if any, to, but excluding, the
Redemption Date. If the Redemption Date falls after a Regular Record Date for
the payment of interest and on or prior to the immediately succeeding Interest
Payment Date, the Company shall pay the full amount of accrued and unpaid
interest, including Additional Interest, if any, payable on such Interest
Payment Date to the holder of record as of the close of business on such
Regular Record Date and the Redemption Price shall be an amount equal to 100%
of the principal amount of the Notes being redeemed.


 


SECTION 10.03 Redemption
Notice.  Notice of redemption (a “Redemption Notice”) shall be given by first-class mail,
postage prepaid, to each Holder of Notes to be redeemed, at the address of such
Holder as it appears in the Securities Register.


 


(a)   The Redemption Notice shall state:


 


(i)            the Redemption Date (which must be a
Business Day);


 


47

















 


(ii)           the Redemption Price;


 


(iii)          that on the Redemption Date, the
Redemption Price will become due and payable upon each such Note, and that
interest thereon, if any, shall cease to accrue on and after said date;


 


(iv)          the place or places where such Notes
are to be surrendered for payment of the Redemption Price;


 


(v)           that Holders may surrender their Notes for
conversion at any time prior to the close of business on the third Scheduled
Trading Day immediately preceding the Redemption Date;


 


(vi)          the procedures a converting Holder
must follow to convert its Notes and the Settlement Method and related Cash
Amount, if applicable;


 


(vii)         the Conversion Rate and, if applicable,
the number of Additional Shares added to the Conversion Rate in accordance with
Section 9.06; and


 


(viii)        the CUSIP, ISIN or other similar
numbers, if any, assigned to such Notes.


 


(b)   A Redemption Notice shall be given by the
Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company; provided that
the Company shall have delivered to the Trustee, at least five (5) Business
Days before the Redemption Notice is required to be mailed (or such shorter
period agreed to by the Trustee), an Officers’ Certificate requesting that the
Trustee give such notice and setting forth the complete form of such notice and
the information to be stated in such notice.


 


(c)   A Redemption Notice shall not be irrevocable.


 


(d)   A Redemption Notice, if mailed in the manner
herein provided, shall be conclusively presumed to have been duly given,
whether or not a Holder receives such notice. In any case, a failure to give
such Redemption Notice by mail or any defect in the Redemption Notice to the
Holder of any Note shall not affect the validity of the proceedings for the
redemption of any other Note.


 


SECTION 10.04 Payment of Notes Called for
Redemption.


 


(a)   If any Redemption Notice has been given
in respect of the Notes in accordance with Section 10.03, the Notes shall
become due and payable on the Redemption Date at the place or places stated in
the Redemption Notice and at the applicable Redemption Price.  On presentation and surrender of the Notes at
the place or places stated in the Redemption Notice, the Notes shall be paid
and redeemed by the Company at the applicable Redemption Price.


 


(b)   Prior to 10:00 a.m., New York City
time, on the Redemption 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 in Section 2.06


 


48

















 


of the Original Indenture
an amount of cash (in immediately available funds if deposited on the
Redemption Date), sufficient to pay the Redemption Price of all of the Notes to
be redeemed on such Redemption Date. Subject to receipt of funds by the Paying
Agent, payment for the Notes to be redeemed shall be made promptly after the
later of:


 


(i)            the Redemption Date for such Notes;
and


 


(ii)           the time of presentation of such Note
to the Trustee (or other Paying Agent appointed by the Company) by the Holder
thereof in the manner required by this Section 10.04.


 


The Paying Agent shall, promptly after such payment and upon written
demand by the Company, return to the Company any funds in excess of the
Redemption Price.


 


(c)   Any cash amounts due upon redemption in
respect of Notes presented for redemption shall be paid by the Company to such
Holder, or such Holder’s nominee or nominees.


 


SECTION 10.05 Restrictions
on RedemptionThe Company may not redeem the Notes on any date if the
principal amount of the Notes has been accelerated in accordance with the terms
of the Indenture, and such acceleration has not been rescinded on or prior to
the Redemption Date.


 


ARTICLE
11


 


Miscellaneous


 


SECTION 11.01 Rules by
Trustee, Paying Agent and Registrar. 
The Trustee may make reasonable rules for action by or a meeting of
Holders.  The Registrar and the Paying
Agent may make reasonable rules for their functions.


 


SECTION 11.02 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.


 


SECTION 11.03 Severability
Clause.  In case any provision in the
Indenture shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and such provision shall be ineffective only to the extent
of such invalidity, illegality or unenforceability.


 


SECTION 11.04 Calculations.  Except as otherwise provided in this
Supplemental Indenture, the Company will be responsible for making all
calculations called for under the Indenture and the Notes. The Company upon
request will provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and Conversion Agent is entitled
to rely conclusively upon the accuracy of the Company’s calculations without
independent verification. The Trustee will deliver a copy of such schedule to
any Holder upon the request of such Holder.


 


49

















 


SECTION 11.05 Recitals.  The recitals herein and in the Notes, except
the Trustee’s certificate of authentication, are deemed to be those of the
Company and not of the Trustee and the Trustee assumes no responsibility for
their correctness.  The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture or of the Notes.  The Trustee
shall not be accountable for the use or application by the Company of Notes or
the proceeds thereof.


 


SECTION 11.06 Ratification
of Original Indenture.  The Original
Indenture, as supplemented by this Supplemental Indenture, is in all respects
ratified and confirmed, and this Supplemental Indenture shall be deemed part of
the Original Indenture in the manner and to the extent herein and therein
provided. For the avoidance of doubt, each of the Company and each Holder of
Notes, by its acceptance of such Notes, acknowledges and agrees that all of the
rights, privileges, protections, immunities and benefits afforded the Trustee
under the Original Indenture are deemed to be incorporated herein, and shall be
enforceable by the Trustee hereunder, as if set forth herein in full.


 


50

















 


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


 


	
   

  	
  TAKE-TWO INTERACTIVE SOFTWARE, INC.,

  
	
   

  	
  as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lainie Goldstein

  
	
   

  	
   

  	
  Name: 

  	
  Lainie Goldstein

  
	
   

  	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON, as
  Trustee,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kimberly Davidson

  
	
   

  	
   

  	
  Name: 

  	
  Kimberly Davidson

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  



 


51

















 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


THIS NOTE IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.  THIS NOTE IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS NOTE 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 NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.  OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.


 


A-1

















 


TAKE-TWO INTERACTIVE SOFTWARE, INC.


 


4.375% Convertible Senior Note due 2014


 


	
  No. [                ]

  	
   

  	
  Initially
  $138,000,000

  



 


CUSIP
No.: 874054 AA7

ISIN: US874054AA76


 


Take-Two Interactive
Software, Inc., a Delaware corporation (herein called the “Company”, which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay CEDE & CO., or registered assigns, ONE HUNDRED THIRTY
EIGHT MILLION DOLLARS ($138,000,000) (or such lesser principal amount as shall
be specified in the “Schedule of Exchanges of Securities” attached hereto) on June 1,
2014 unless earlier converted, redeemed or repurchased, and to pay interest
thereon as set forth in the manner, at the rates and to the Persons set forth
in the Indenture.


 


This Note shall bear
interest at a rate of 4.375% per annum from June 3, 2009 or from the most
recent date to which interest had been paid or provided to, but excluding, the
next scheduled Interest Payment Date, until the principal hereof shall be
repaid.  Interest on this Note will be
computed on the basis of a 360-day year composed of twelve 30-day months.  Interest is payable semi-annually in arrears
on each June 1 and December 1, commencing on December 1, 2009,
to the Person in whose name this Note (or one or more predecessor securities)
is registered at the close of business on the Regular Record Date for such
interest.  Additional Interest will be
payable at the option of the Company on the terms set forth in Section 6.03
of the within-mentioned Supplemental Indenture.


 


The Company shall pay
principal of and interest on this Note, so long as such Note is a Global Note,
in immediately available funds to the Depositary or its nominee, as the case
may be, as the registered Holder of such Note. 
The Company shall pay principal of any Notes (other than Notes that are
Global Notes) at the office or agency designated by the Company for that
purpose.  The Company has initially
designated the Trustee as its Paying Agent and Registrar in respect of the
Notes and its Corporate Trust Office in New York, New York as a place where
Notes may be presented for payment or for registration of transfer.  The Company may, however, change the Paying
Agent or Registrar for the Notes without prior notice to the Holders thereof,
and the Company may act as Paying Agent or Registrar.  Interest on the Notes (other than Notes that
are Global Notes) will be payable (i) to Holders of the Notes having an
aggregate principal amount of Notes of $5,000,000 or less, by check mailed to
the Holders of these Notes at their address in the Security Register and (ii) to
Holders having an aggregate principal amount of Notes in excess of $5,000,000,
either by check mailed to each Holder at its address in the Security Register
or, upon application by a Holder to the Registrar not later than the relevant
Regular Record Date, by wire transfer in immediately available funds to that
Holder’s account within the United States, which application shall remain in
effect until that Holder notifies, in writing, the Registrar to the contrary.


 


A-2

















 


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, for all purposes,
shall be governed by and construed in accordance with the laws of the State of
New York.


 


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
or be valid or obligatory for any purpose.


 


[Remainder of page intentionally left blank]


 


A-3

















 


IN WITNESS WHEREOF, TAKE-TWO
INTERACTIVE SOFTWARE, INC. has caused this instrument to be signed manually or
by facsimile by its duly authorized officers.


 


Dated: June 3, 2009


 


	
   

  	
   

  	
  TAKE-TWO INTERACTIVE SOFTWARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


A-4

















 


CERTIFICATE OF AUTHENTICATION


 


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


 


Dated: June 3, 2009


 


 


	
   

  	
  THE BANK OF NEW YORK MELLON, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  



 


A-5
















 


[FORM OF REVERSE OF NOTE]


 


TAKE-TWO INTERACTIVE SOFTWARE, INC.

4.375% Convertible Senior Note due 2014


 


This Note is one of a duly
authorized issue of Securities of the Company (herein called the “Notes”), issued under an Indenture dated as
of June 3, 2009, as amended and supplemented from time to time in
accordance with the terms thereof (herein called the “Original Indenture”) and as further
supplemented by the Supplemental Indenture dated as of June 3, 2009
(herein called the “Supplemental Indenture”
and the Original Indenture, as supplemented by the Supplemental Indenture, the “Indenture”) by and between the Company and
The Bank of New York Mellon, herein called the “Trustee”, and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.  Additional Notes may be
issued in an unlimited aggregate principal amount, subject to certain
conditions specified in the Indenture.


 


This Note shall be redeemable at the Company’s
option in accordance with Article 10 of the Supplemental Indenture.  This Note is not subject to redemption at the
option of the Company prior to June 5, 2012 and, for the avoidance of
doubt, this Note is not subject to the provisions of Article 3 of the
Original Indenture.


 


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


 


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 the close of business on the
third 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.  In
accordance with 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 in respect of the conversion obligation upon conversion
of any Notes.  The initial Conversion
Rate shall be 93.6768 shares of Common Stock for each $1,000 principal amount
of Notes, as the same may be adjusted pursuant to the terms of the Indenture.


 


As provided in and subject
to the provisions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the
Redemption Price and the principal amount on the Maturity Date, as the case may
be, to the Holder who surrenders a Note to the Trustee or Paying Agent, as the
case may be and as set forth in the Indenture, to collect such payments in
respect of the Note.  The Company will
pay cash amounts in money of the United States that at the time of payment is
legal tender for payment of public and private debts.


 


A-6

















 


The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Notes to be effected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Notes at the time Outstanding.  The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Notes at the time outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences.


 


If an Event of Default
occurs and is continuing, unless the principal of all of the Notes has already
become due and payable, the Trustee by notice to the Company, or the Holders of
at least 25% in aggregate principal amount of the Outstanding Notes by notice
to the Company and the Trustee, may declare the principal of and accrued
interest, if any (including Additional Interest, if any), on all the Notes to
be due and payable.  As described in the
Indenture, if an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company or any of its Subsidiaries occurs,
the principal of, premium, if any, and accrued interest, if any (including
Additional Interest, if any) on all the Notes will automatically become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders.


 


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


 


As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this Note
is registrable in the Security Register, upon presentation of this Note to the
Registrar or co-registrar with a request to register a transfer.


 


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


 


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


 


Prior to due presentment of
this Note for registration of transfer, the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar may deem and treat the Person in whose
name the Note is registered as the absolute owner of the Note for all purposes,
and none of the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar will be affected by notice to the contrary.


 


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


 


A-7

















 


ABBREVIATIONS


 


The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as
though they were written out in full according to applicable laws or
regulations:


 


	
  TEN COM - as tenants in
  common

  	
  UNIF GIFT MIN
  ACT

  	
  Custodian

  
	
   

  	
  (Cust)

  	
   

  
	
   

  	
   

  	
   

  
	
  TEN ENT - as tenants by
  the entireties

  	
   

  	
   

  
	
   

  	
  (Minor)

  	
   

  
	
   

  	
   

  	
   

  
	
  JT TEN - as joint
  tenants with right of

  Survivorship and
  not as tenants in common

  	
  Uniform Gifts to Minors
  Act               (State)

  



 


Additional abbreviations may also be used though not
in the above list.


 


A-8

















 


SCHEDULE A


 


SCHEDULE OF EXCHANGES OF SECURITIES


 


TAKE-TWO INTERACTIVE SOFTWARE, INC.

4.375% Convertible Senior Notes due 2014


 


The initial principal amount
of this registered Global Note is ONE HUNDRED THIRTY EIGHT MILLION DOLLARS
($138,000,000).  The following,
exchanges, purchases or conversions of a part of this Registered 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 this

  Global Note

  	
   

  	
  Principal amount of this

  Global Note

  following such decrease or

  increase

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


EXHIBIT B


 


[FORM OF NOTICE OF CONVERSION]


 


To:          Take-Two Interactive Software, Inc.


 


                The undersigned owner of this Note hereby irrevocably
exercises the option to convert this Note, or a portion hereof (which is $1,000 or
an integral multiple hereof) below designated, into shares of Common Stock of
Take-Two Interactive Software, Inc., a combination of cash and shares of Common
Stock of Take-Two Interactive Software, Inc. or into cash, at the Company’s
discretion, in accordance with the terms of the Indenture referred to in this
Note and directs that cash payable and any shares of Common Stock issuable and
deliverable upon conversion, together with any check in payment for fractional
shares of Common Stock, and any Notes representing any unconverted principal
amount hereof, be paid or issued and delivered, as the case may be, to the
registered Holder hereof unless a different name has been indicated below.  Subject to certain exceptions set forth in
the Indenture, if this notice is being delivered on a date after the close of
business on a Regular Record Date and prior to the open of business on the
related Interest Payment Date, this notice is accompanied by payment of an
amount equal to the interest payable on such Interest Payment Date of the
principal of this Note to be converted. 
If any shares of Common Stock are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect hereto.  Any amount required
to be paid by the undersigned on account of interest accompanies this Note.


 


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


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must
  be guaranteed

  by an institution
  which is a member of one of the following recognized signature Guarantee
  Programs:

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature
  Guarantee

  



 


B-1

















 


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


 


	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
  Please print Name and
  Address

  (including zip code
  number)

  	
   

  
	
   

  	
   

  
	
  Social Security or
  other Taxpayer

  	
   

  
	
  Identifying Number

  	
   

  	
   

  
			



 


B-2

















 


EXHIBIT C


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


To:          Take-Two Interactive Software, Inc.


 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Social Security or Other Taxpayer Identification Number

  
	
   

  	
   

  
	
   

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

  
	
   

  	
  $                    ,
  000

  
	
   

  	
   

  
	
   

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

  



 


C-1

















 


EXHIBIT D


 


[FORM OF ASSIGNMENT AND TRANSFER]


 


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


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must be guaranteed

  
	
   

  	
  by an institution which is a member of one of the following
  recognized signature Guarantee Programs:

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


D-1