exv4w1






Exhibit 4.1





 





INSULET CORPORATION




AND




WELLS
FARGO BANK, National Association,




as Trustee




INDENTURE




Dated as of June •, 2011




__.__% Convertible Senior Notes due 2016




 









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE 1

	Definitions

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. References to Interest
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 2

	Issue, Description, Execution, Registration and Exchange of Notes

	 
	 	 	 	 
	Section 2.01. Designation and Amount
	 	 	12	 
	Section 2.02. Form of Notes
	 	 	12	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts
	 	 	13	 
	Section 2.04. Execution, Authentication and Delivery of Notes
	 	 	14	 
	Section 2.05. Exchange and Registration of Transfer of Notes; Depositary
	 	 	15	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	17	 
	Section 2.07. Temporary Notes
	 	 	18	 
	Section 2.08. Cancellation of Notes Paid, Converted, Etc.
	 	 	19	 
	Section 2.09. CUSIP Numbers
	 	 	19	 
	Section 2.10. Additional Notes; Purchases
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 3

	Satisfaction and Discharge

	Section 3.01. Satisfaction and Discharge
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 4

	Particular Covenants of the Company

	 
	 	 	 	 
	Section 4.01. Payment of Principal and Interest
	 	 	20	 
	Section 4.02. Maintenance of Office or Agency
	 	 	20	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	21	 
	Section 4.04. Provisions as to Paying Agent
	 	 	21	 
	Section 4.05. Existence
	 	 	22	 
	Section 4.06. Annual Reports
	 	 	22	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	22	 
	Section 4.08. Compliance Certificate; Statements as to Defaults
	 	 	22	 
	Section 4.09. Further Instruments and Acts
	 	 	23	 






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	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 5

	Lists of Holders and Reports by the Company and the Trustee

	 
	 	 	 	 
	Section 5.01. Lists of Holders
	 	 	23	 
	Section 5.02. Preservation and Disclosure of Lists
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 6

	Defaults and Remedies
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	23	 
	Section 6.02. Acceleration; Rescission and Annulment
	 	 	25	 
	Section 6.03. Additional Interest
	 	 	25	 
	Section 6.04. Payments of Notes on Default; Suit Therefor
	 	 	26	 
	Section 6.05. Application of Monies Collected by Trustee
	 	 	28	 
	Section 6.06. Proceedings by Holders
	 	 	28	 
	Section 6.07. Proceedings by Trustee
	 	 	29	 
	Section 6.08. Remedies Cumulative and Continuing
	 	 	29	 
	Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders
	 	 	30	 
	Section 6.10. Notice of Defaults
	 	 	30	 
	Section 6.11. Undertaking to Pay Costs
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 7

	Concerning the Trustee

	 
	 	 	 	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	31	 
	Section 7.02. Reliance on Documents, Opinions, Etc.
	 	 	32	 
	Section 7.03. No Responsibility for Recitals, Etc.
	 	 	33	 
	Section 7.04. Trustee, Paying Agents, Conversion Agent, Bid Solicitation Agent or Note Registrar May Own Notes
	 	 	34	 
	Section 7.05. Monies and Shares of Common Stock to Be Held in Trust
	 	 	34	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	34	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	35	 
	Section 7.08. Eligibility of Trustee
	 	 	35	 
	Section 7.09. Resignation or Removal of Trustee
	 	 	35	 
	Section 7.10. Acceptance by Successor Trustee
	 	 	36	 
	Section 7.11. Succession by Merger, Etc.
	 	 	37	 
	Section 7.12. Trustee’s Application for Instructions from the Company
	 	 	 	 
	 
	 	 	 	 
	ARTICLE 8
	Concerning the Holders
	 
	 	 	 	 
	Section 8.01. Action by Holders
	 	 	37	 
	Section 8.02. Proof of Execution by Holders
	 	 	38	 
	Section 8.03. Who Are Deemed Absolute Owners
	 	 	38	 
	Section 8.04. Company-Owned Notes Disregarded
	 	 	38	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	39	 






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	 	 	 	Page	 
	ARTICLE 9

	Holders’ Meetings

	 
	 	 	 	 
	Section 9.01. Purpose of Meetings
	 	 	39	 
	Section 9.02. Call of Meetings by Trustee
	 	 	39	 
	Section 9.03. Call of Meetings by Company or Holders
	 	 	40	 
	Section 9.04. Qualifications for Voting
	 	 	40	 
	Section 9.05. Regulations
	 	 	40	 
	Section 9.06. Voting
	 	 	40	 
	Section 9.07. No Delay of Rights by Meeting
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 10

	Supplemental Indentures

	 
	 	 	 	 
	Section 10.01. Supplemental Indentures Without Consent of Holders
	 	 	41	 
	Section 10.02. Supplemental Indentures with Consent of Holders
	 	 	42	 
	Section 10.03. Effect of Supplemental Indentures
	 	 	43	 
	Section 10.04. Notation on Notes
	 	 	43	 
	Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 11

	Consolidation, Merger, Sale, Conveyance and Lease

	 
	 	 	 	 
	Section 11.01. Company May Consolidate, Etc. on Certain Terms
	 	 	43	 
	Section 11.02. Successor Corporation to Be Substituted
	 	 	44	 
	Section 11.03. Opinion of Counsel to Be Given to Trustee
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 12

	Immunity of Incorporators, Stockholders, Officers and Directors

	 
	 	 	 	 
	Section 12.01. Indenture and Notes Solely Corporate Obligations
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 13

	Intentionally Omitted

	 
	 	 	 	 
	ARTICLE 14

	Conversion of Notes

	 
	 	 	 	 
	Section 14.01. Conversion Privilege
	 	 	45	 
	Section 14.02. Conversion Procedure; Settlement Upon Conversion
	 	 	48	 
	Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection
with Make-Whole Fundamental Changes
	 	 	52	 
	Section 14.04. Adjustment of Conversion Rate
	 	 	54	 
	Section 14.05. Adjustments of Prices
	 	 	63	 
	Section 14.06. Shares to Be Fully Paid
	 	 	63	 
	Section 14.07. Effect of Recapitalizations, Reclassifications and
Changes of the Common Stock
	 	 	63	 
	Section 14.08. Certain Covenants
	 	 	65	 






iii









 






	 	 	 	 	 
	 	 	 	Page	 
	Section 14.09. Responsibility of Trustee
	 	 	65	 
	Section 14.10. Notice to Holders Prior to Certain Actions
	 	 	66	 
	Section 14.11. Stockholder Rights Plans
	 	 	66	 
	Section 14.12. Exchange In Lieu Of Conversion
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 15
	Purchase of Notes at Option of Holders
	 
	 	 	 	 
	Section 15.01. Intentionally Omitted
	 	 	67	 
	Section 15.02. Purchase at Option of Holders Upon a Fundamental Change
	 	 	67	 
	Section 15.03. Withdrawal of Fundamental Change Purchase Notice
	 	 	70	 
	Section 15.04. Deposit of Fundamental Change Purchase Price
	 	 	70	 
	Section 15.05. Covenant to Comply with Applicable Laws Upon Purchase of Notes
	 	 	71	 
	 
	 	 	 	 
	ARTICLE 16

	Optional Redemption

	 
	 	 	 	 
	Section 16.01. Optional Redemption
	 	 	71	 
	Section 16.02. Notice of Optional Redemption; Selection of Notes
	 	 	72	 
	Section 16.03. Payment of Notes Called for Redemption
	 	 	73	 
	Section 16.04. Restrictions on Redemption
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 17

	Miscellaneous Provisions

	 
	 	 	 	 
	Section 17.01. Provisions Binding on Company’s Successors
	 	 	74	 
	Section 17.02. Official Acts by Successor Corporation
	 	 	74	 
	Section 17.03. Addresses for Notices, Etc.
	 	 	74	 
	Section 17.04. Governing Law
	 	 	75	 
	Section 17.05. Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee
	 	 	75	 
	Section 17.06. Legal Holidays
	 	 	75	 
	Section 17.07. No Security Interest Created
	 	 	75	 
	Section 17.08. Benefits of Indenture
	 	 	75	 
	Section 17.09. Table of Contents, Headings, Etc.
	 	 	75	 
	Section 17.10. Authenticating Agent
	 	 	76	 
	Section 17.11. Execution in Counterparts
	 	 	77	 
	Section 17.12. Severability
	 	 	77	 
	Section 17.13. Waiver of Jury Trial
	 	 	77	 
	Section 17.14. Force Majeure
	 	 	77	 
	Section 17.15. Calculations
	 	 	77	 
	 
	 	 	 	 
	EXHIBIT

	Exhibit A         Form of Note
	 	 	A-1	 






iv









 





     INDENTURE dated as of June [•], 2011 between Insulet Corporation, a Delaware corporation, as
issuer (the “Company”, as more fully set forth in
Section 1.01) and Wells Fargo Bank, National Association, a
national banking association, as trustee (the “Trustee”, as more fully set forth in Section 1.01).



W I T N E S S E T H:




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its [__.__]% Convertible Senior Notes due 2016 (the “Notes”), initially in an aggregate principal
amount not to exceed
$[               ] [(as increased by an amount equal to the aggregate principal
amount of any additional Notes purchased by the Underwriters pursuant to the exercise of their
option to purchase additional Notes as set forth in the Underwriting Agreement)], and in order to provide the terms and conditions upon which the Notes are
to be authenticated, issued and delivered, the Company has duly authorized the execution and
delivery of this Indenture; and



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



     WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a
valid agreement according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective Holders from time to time of the Notes
(except as otherwise provided below), as follows:



ARTICLE 1

Definitions




     Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified







 









 









in this Section 1.01. The words “herein,” “hereof,” “hereunder,” and words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
The terms defined in this Article include the plural as well as the singular.




     “Additional Interest” means all amounts, if any, payable pursuant to Section 6.03.



     “Additional Shares” shall have the meaning specified in Section 14.03(a).



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



     “Bid Solicitation Agent” means the Person appointed by the Company to solicit bids for the
Trading Price of the Notes in accordance with Section 14.01(b)(i). The Trustee shall initially act
as the Bid Solicitation Agent.



     “Board of Directors” means the board of directors of the Company or a committee of such board
duly authorized to act for it hereunder2. Solely for purposes of this definition, the
phrase “or a committee of such board duly authorized to act for it hereunder” of the definition of
Board of Directors shall be disregarded.3



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



          “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not (i) a
day on which the banking institutions in The City of New York are authorized or obligated by law or
executive order to close or be closed or (ii) a day on which the Corporate Trust Office is
authorized or obligated by law or executive order to close or be closed.




     “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.



     “Cash Settlement” shall have the meaning specified in Section 14.02(a).



     “Clause A Distribution” shall have the meaning specified in Section 14.04(c).



     “Clause B Distribution” shall have the meaning specified in Section 14.04(c).





2









 










     “Clause C Distribution” shall have the meaning specified in Section 14.04(c).



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



     “Combination Settlement” shall have the meaning specified in Section 14.02(a).



     “Commission” means the U.S. Securities and Exchange Commission.



     “Common Equity” of any Person means Capital Stock of such Person that is generally entitled
(a) to vote in the election of directors of such Person or (b) if such Person is not a corporation,
to 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 of the Company, par value $0.001 per share, at the date
of this Indenture, subject to Section 14.07.



     “Company” shall have the meaning specified in the first paragraph of this Indenture, and
subject to the provisions of Article 11, shall include its successors and assigns.



     “Company Order” means a written order of the Company, signed by (a) an Officer of the Company
and (b) another Officer of the Company, other than the Officer designated in clause (a) of this
definition, or the Company’s Assistant Treasurer or any Assistant Secretary, and delivered to the
Trustee.



     “Continuing Director” means a director who either was a member of the Board of Directors on
June [•], 2011 or who becomes a member of the Board of Directors subsequent to that date and whose
election, appointment or nomination for election by the stockholders of the Company is duly
approved by a majority of the continuing directors on the Board of Directors at the time of such
approval, either by a specific vote or by approval of the proxy statement issued by the Company on
behalf of the entire Board of Directors in which such individual is named as nominee for director.



     “Conversion Agent” shall have the meaning specified in Section 4.02.



     “Conversion Date” shall have the meaning specified in Section 14.02(c).



     “Conversion Obligation” shall have the meaning specified in Section 14.01(a).



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



     “Conversion Rate” shall have the meaning specified in Section 14.01(a).



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at
Wells Fargo Bank, National Association, Corporate Trust Services, MAC N9311-110, 625 Marquette Ave. South,
Minneapolis, MN 55479, Attention: Insulet Corporation Account Manager, or such other address as
the Trustee may designate from time to time by notice to the Holders and the



3









 




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).




     “Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to
the Global Notes, or any successor entity thereto.



     “Daily Conversion Value” means, for each of the 25 consecutive Trading Days during the
Observation Period, 4% of the product of (a) the Conversion Rate on such Trading Day and (b) the
Daily VWAP on such Trading Day.



     “Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 25.



     “Daily Settlement Amount,” for each of the 25 consecutive Trading Days during the Observation
Period, shall consist of:




     (a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii)
the Daily Conversion Value on such Trading Day; and




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



     “Daily VWAP” means, for each of the 25 consecutive Trading Days during the applicable
Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “PODD <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 the Common Stock on
such Trading Day as determined by the Board of Directors in a commercially reasonable manner using
a volume-weighted average method). The “Daily VWAP” shall be determined without regard to after
hours trading or any other trading outside of the regular trading session trading hours.



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



     “Defaulted Amounts” means any amounts on any Note (including, without limitation, the
Redemption Price, the Fundamental Change Purchase Price, principal and interest) that are payable
but are not punctually paid or duly provided for.



     “Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c)
as the Depositary with respect to such Notes, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.



     “Designated Institution” shall have the meaning specified in Section 14.12.



4









 





     “Distributed Property” shall have the meaning specified in Section 14.04(c).



     “effective date” means, for purposes of Section 14.04, the first date on which the shares of
the Common Stock trade on the applicable exchange or in the applicable market, regular way,
reflecting the relevant transaction.



     “Effective Date” shall have the meaning specified in Section 14.03(c).



     “Event of Default” shall have the meaning specified in Section 6.01.



     “Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question, from the Company or, if applicable, from the seller
of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by
such exchange or market.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     “Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as
Attachment 3 to the Form of Note attached hereto as Exhibit A.



     “Form of Fundamental Change Purchase Notice” shall mean the “Form of Fundamental Change
Purchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.



     “Form of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached as
Attachment 1 to the Form of Note attached hereto as Exhibit A.



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




     (a) any “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, files any schedule, form or report under the
Exchange Act disclosing that such person or group has become the direct or indirect
ultimate “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the
Company’s Common Equity representing more than 50% of the voting power of the
Company’s Common Equity;




     (b) consummation of any share exchange, exchange offer, tender offer,
consolidation or merger of the Company pursuant to which all or substantially all of
the Common Stock is 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





			




5









 











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 any such transaction where the holders of more
than 50% of shares of Common Stock 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;




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




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




     (e) the Common Stock (or other common stock into which the Notes are then
convertible) ceases to be quoted or listed for trading on a United States national
securities exchange,


provided, however, in the case of a transaction or event described in clause (a) or (b) above, if
at least 90% of the consideration received or to be received by the holders of Common Stock,
excluding cash payments for fractional shares or pursuant to statutory appraisal rights, 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 or exchangeable into such Publicly Traded Securities, excluding cash
payments for fractional shares and pursuant to statutory appraisal rights (subject to the
provisions of Section 14.02(a)), such event shall not be a Fundamental Change.




     “Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(c).



     “Fundamental Change Purchase Date” shall have the meaning specified in Section 15.02(a).



     “Fundamental Change Purchase Notice” shall have the meaning specified in Section 15.02(b)(i).



     “Fundamental Change Purchase Price” shall have the meaning specified in Section 15.02(a).



     “Global Note” shall have the meaning specified in Section 2.05(b).



     “Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial
holder”), shall mean any person in whose name at the time a particular Note is registered on the
Note Register.



     “Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.



6









 





     “Interest Payment Date” means each June 15 and December 15 of each year, beginning on December
15, 2011.



     “Last Reported Sale Price” of the Common Stock on any date means 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. national or regional securities exchange
on which the Common Stock is listed for trading. If the Common Stock is not listed for trading on
a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale
Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on
the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common
Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the
last bid and ask prices for the Common Stock on the relevant date from each of at least three
nationally recognized independent investment banking firms selected by the Company for this
purpose.



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



     “Make-Whole Fundamental Change Period” shall have the meaning specified in Section 14.03(a).



     “Market Disruption Event” means (a) a failure by the primary U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted for trading to open
for trading during its regular trading session or (b) 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 15, 2016.



     “Measurement Period” shall have the meaning specified in Section 14.01(b)(i).



     “Merger Event” shall have the meaning specified in Section 14.07(a).



     “Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of
this Indenture.



     “Note Register” shall have the meaning specified in Section 2.05(a).



     “Note Registrar” shall have the meaning specified in Section 2.05(a).



     “Notice of Conversion” shall have the meaning specified in Section 14.02(b).



7









 





     “Observation Period” with respect to any Note surrendered for conversion means: (i) subject to
clause (ii), if the relevant Conversion Date occurs prior to March 15, 2016, the 25 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 the date of the Company’s issuance of a
Redemption Notice with respect to the Notes pursuant to Section 16.02 and prior to the relevant
Redemption Date, the 25 consecutive Trading Days beginning on, and including, the 27th Scheduled
Trading Day immediately preceding such Redemption Date; and (iii) if the relevant Conversion Date
occurs on or after March 15, 2016, the 25 consecutive Trading Days beginning on, and including, the
27th Scheduled Trading Day immediately preceding the Maturity Date.



     “Officer” means, with respect to the Company, the Chairman of the Board of Directors,
President, the Chief Executive Officer, the Treasurer, the Secretary, any Executive or Senior Vice
President, Managing Director or any Vice President (whether or not designated by a number or
numbers or word added before or after the title “Vice President”).



     “Officers’ Certificate,” when used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed by (a) two Officers of the Company or (b) one Officer
of the Company and one of the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company. Each such certificate shall include the statements
provided for in Section 17.05 if and to the extent required by the provisions of such Section. One
of the Officers giving an Officers’ Certificate pursuant to Section 4.08 shall be the principal
executive, financial or accounting officer of the Company.



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



     “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is
delivered to the Trustee. Each such opinion shall include the statements provided for in Section
17.05 if and to the extent required by the provisions of such Section 17.05.



     “Optional Redemption” shall have the meaning specified in Section 16.01.



     “outstanding,” when used with reference to Notes, shall, subject to the provisions of Section
8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:




     (a) Notes theretofore canceled by the Trustee or accepted by the Trustee for
cancellation;




     (b) Notes, or portions thereof, that have become due and payable and in respect of
which monies in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent);




     (c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in
substitution for which, other Notes shall have been authenticated and



8









 






delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the
Trustee is presented that any such Notes are held by protected purchasers in due course;




     (d) Notes converted pursuant to Article 14 and required to be cancelled pursuant to
Section 2.08; and




     (e) Notes purchased by the Company pursuant to the penultimate sentence of Section
2.10.



     “Paying Agent” shall have the meaning specified in Section 4.02.



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



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



     “Physical Settlement” shall have the meaning specified in Section 14.02(a).



     “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note that it replaces.



     “Prospectus” means the preliminary prospectus dated June [•], 2011, as supplemented by the
pricing term sheet dated June [•], 2011, relating to the offering and sale of the Notes.



     “Publicly Traded Securities” means shares of common stock that are quoted or listed for
trading on a U.S. national securities exchange or that will be so quoted or listed when issued or
exchanged in connection with a Fundamental Change described in clause (a) or (b) of the definition
thereof.



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



     “Redemption Date” shall have the meaning specified in Section 16.02(a).



     “Redemption Notice” shall have the meaning specified in Section 16.02(a).



     “Redemption Price” shall have the meaning specified in Section 16.01.



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     “Reference Property” shall have the meaning specified in Section 14.07(a).



     “Regular Record Date,” with respect to any Interest Payment Date, shall mean the June 1 or
December 1 (whether or not such day is a Business Day) immediately preceding the applicable June 15
or December 15 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 Indenture.



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



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.



     “Settlement Amount” has the meaning specified in Section 14.02(a)(iv).



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



     “Settlement Notice” has the meaning specified in Section 14.02(a)(iii).



     “Significant Subsidiary” means a Subsidiary of the Company that meets the definition of
“significant subsidiary” in Article 1, Rule 1-02(w) of Regulation S-X under the Exchange Act. For
purposes of Article 6, the term “Significant Subsidiary” shall be deemed to include any group of
Subsidiaries of the Company that, in the aggregate, would constitute a “Significant Subsidiary” as
defined in the preceding sentence.



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



     “Spin-Off” shall have the meaning specified in Section 14.04(c).



     “Stock Price” shall have the meaning specified in Section 14.03(c).



     “Subsidiary” means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
or other interests (including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers, general partners or



10









 




trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more
Subsidiaries of such Person.




     “Successor Company” shall have the meaning specified in Section 11.01(a).



     “Trading Day” means a day on which (i) trading in the Common Stock generally occurs on The
NASDAQ Global Market or, if the Common Stock is not then listed on The NASDAQ Global Market, on the
principal other U.S. national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then traded and (ii) a Last
Reported Sale Price for the Common Stock is available on such securities exchange or market;
provided that 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; and provided, further,
that for purposes of determining amounts due upon conversion only, “Trading Day” means a day on
which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs
on The NASDAQ Global Market or, if the Common Stock is not then listed on The NASDAQ Global Market,
on the principal other U.S. national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then listed or admitted for
trading, except that if the Common Stock is not so listed or admitted for trading, “Trading Day”
means a Business Day.



     “Trading Price” per $1,000 principal amount of Notes on any date of determination means the
average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $1.0
million principal amount of Notes at approximately 3:30 p.m., New York City time, on such
determination date from three independent U.S. nationally recognized securities dealers selected by
the Company; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation
Agent, but two such bids are obtained, then the average of the two bids shall be used, and if only
one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used.
If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $1.0 million principal
amount of Notes from any such 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.



     “transfer” shall have the meaning specified in Section 2.05(c)


     “Trigger Event” shall have the meaning specified in Section 14.04(c).



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939, as so amended.



11









 






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



     “Underwriters” means [_______] and [_______].



     [Underwriting Agreement” means that certain Underwriting Agreement, dated as of [_______],
among the Company and the Underwriters.]



     “unit of Reference Property” shall have the meaning specified in Section 14.07(a).



     Section 1.02. References to Interest. Unless the context otherwise requires, any reference
to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional
Interest if, in such context, Additional Interest is, was or would be payable pursuant to Section
6.03. Unless the context otherwise requires, any express mention of Additional Interest in any
provision hereof shall not be construed as excluding Additional Interest in those provisions hereof
where such express mention is not made.



ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




     Section 2.01. Designation and Amount. The Notes shall be designated as the “[__.__]%
Convertible Senior Notes due 2016.” The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is initially limited
to $[_______] [(as
increased by an amount equal to the aggregate principal amount of any additional Notes purchased by
the Underwriters pursuant to the exercise of their option to purchase additional Notes as set forth
in the Underwriting Agreement)], subject to Section 2.10 and except for Notes
authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of
other Notes pursuant to Section 2.05, Section 2.06, Section 10.04, Section 14.02 and Section 15.04.



     Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to
be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the
terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a
part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.



     Any Global Note may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Indenture as may be





12









 









required by the Custodian or the Depositary, or as may be required to comply with any
applicable law or any regulation thereunder or with the rules and regulations of any securities
exchange or automated quotation system upon which the Notes may be listed or traded or designated
for issuance or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Notes are subject.




     Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements 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 this Indenture, or as may be required to comply with any 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 designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Notes are subject.



     Each Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or reduced to reflect
purchases, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement of
the 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, at the direction of the
Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with
this Indenture. Payment of principal (including the Fundamental Change Purchase Price, if
applicable) of, and accrued and unpaid interest on, the Global Note shall be made to the Holder of
such Note on the date of payment, unless a record date or other means of determining Holders
eligible to receive payment is provided for herein.



     Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.
(a) The Notes shall be issuable in registered form without coupons in denominations of $1,000
principal amount and multiples thereof. 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 Note attached as Exhibit
A hereto. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed
of twelve 30-day months.



     (b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note
Register at the close of business on any Regular Record Date with respect to any Interest Payment
Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest
shall be payable at the office or agency of the Company maintained by the Company for such
purposes, which shall initially be the Corporate Trust Office. The Company shall pay interest (i)
on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of
$2,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in
the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of
more than $2,000,000, either by check mailed to such Holders or, upon application by such Holder to
the Note 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, in writing, the Note



13









 




Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available
funds to the account of the Depositary or its nominee.




     (c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant
payment date but shall accrue interest per annum at the rate borne by the Notes from, and
including, such relevant payment date, and such Defaulted Amounts together with such interest
thereon shall be paid by the Company, at its election in each case, as follows:




The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Amounts, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of the
Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment
(which shall be not less than 25 days after the receipt by the Trustee of such notice,
unless the Trustee shall consent to an earlier date), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in
this clause provided. Thereupon the Company shall fix a special record date for the payment
of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment, and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment (unless the Trustee shall consent to an
earlier date). The Company shall promptly notify the Trustee of such special record date
and the Trustee, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Amounts and the special record date therefor to be
mailed, first-class postage prepaid, to each Holder at its address as it appears in the Note
Register, not less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Amounts and the special record date therefor having been so
mailed, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of business on such special
record date and shall no longer be payable pursuant to the following clause (ii) of this
Section 2.03(c).



     Section 2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive
Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior
Vice Presidents.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes, without any further action by
the Company hereunder.



14









 





     Only such Notes as shall bear thereon a certificate of authentication substantially in the
form set forth on the form of Note attached as Exhibit A hereto, executed manually or by facsimile
by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as
provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon
any Note executed by the Company shall be conclusive evidence that the Note so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of
this Indenture.



     In case any Officer of the Company who shall have signed any of the Notes shall cease to be
such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Notes had not ceased to be such Officer of the
Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Note, shall be the Officers of the Company, although at the date of the
execution of this Indenture any such Person was not such an Officer.



     Section 2.05. Exchange and Registration of Transfer of Notes; Depositary. (a) The Company
shall cause to be kept at the office of the Note Registrar and the Note Registrar agrees to keep a
register (the register maintained in such office or in any other office or agency of the Company
designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Notes and
transfers of Notes. Such register shall be in written form or in any form capable of being
converted into written form within a reasonable period of time. The Trustee is hereby initially
appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section
4.02.



     Upon surrender for registration of transfer of any Note to the Note Registrar or any co-Note
Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.



     Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that
the Holder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.



     All Notes presented or surrendered for registration of transfer or for exchange, purchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note
Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and duly executed, by the Holder thereof or its
attorney-in-fact duly authorized in writing.



15









 





     No service charge shall be imposed by the Company, the Trustee, the Note Registrar or any
co-Note Registrar for any exchange or registration of transfer of Notes, but the Company or the
Trustee may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar
issue or transfer tax required by law or permitted pursuant to Section 14.02(d) or Section
14.02(e).



     None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be
required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a
portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion,
(ii) any Notes, or a portion of any Note, surrendered for purchase (and not withdrawn) in
accordance with Article 15 or (iii) any Notes selected for redemption in accordance with Article
16.



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



     (b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c) all
Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered
in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of
beneficial interests in a Global Note that does not involve the issuance of a Physical Note, shall
be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the procedures of the
Depositary therefor.



     (c) Notwithstanding any other provisions of this Indenture (other than the provisions set
forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except
(i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary and (ii) for transfers of portions
of a Global Note in certificated form made upon request of a member of, or a participant in, the
Depositary (for itself or on behalf of a beneficial owner) by written notice given to the Trustee
by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in
compliance with this Section 2.05(c).



     The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company to act as Depositary with respect to each Global
Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede
& Co.



     If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or
unable to continue as depositary for the Global Notes and a successor depositary is not appointed
within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange
Act and a successor depositary is not appointed within 90 days or (iii) an Event of



16









 




Default with respect to the Notes has occurred and is continuing and a beneficial owner of any
Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall
execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the
authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause
(iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount
of such Note corresponding such beneficial owner’s beneficial interest and (y) in the case of
clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a
portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such
Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the
Trustee such Global Notes shall be canceled.




     Physical Notes issued in exchange for all or a part of the Global Note pursuant to this
Section 2.05(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical
Notes to the Persons in whose names such Physical Notes are so registered.



     At such time as all interests in a Global Note have been converted, canceled, purchased or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance
with standing procedures and existing instructions between the Depositary and the Custodian. At
any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical
Notes, converted, canceled, purchased or transferred to a transferee who receives Physical Notes
therefor or any Physical Note is exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately reduced or
increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.



     Neither the Company, the Trustee nor any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



     Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon
receipt of a Company Order request the Trustee or an authenticating agent appointed by the Trustee
shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution
for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note
shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless from any loss,
liability, cost or expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.



17









 





     The Trustee or such authenticating agent may authenticate any such substituted Note and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substitute Note, the
Company or the Trustee may require the payment by the Holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note that has matured or is about to mature or has been
surrendered for required purchase or is about to be converted in accordance with Article 14 shall
become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead
of issuing a substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a mutilated Note), as the
case may be, if the applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or expense caused by
or connected with such substitution, and, in every case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent
evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof.



     Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment or
conversion or purchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment or conversion of negotiable instruments or
other securities without their surrender.



     Section 2.07. Temporary Notes. Pending the preparation of Physical Notes, the Company may
execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon receipt of
a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the form of the
Physical Notes but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as the Physical Notes.
Without unreasonable delay, the Company shall execute and deliver to the Trustee or such
authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary
Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate
principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same



18









 




benefits and subject to the same limitations under this Indenture as Physical Notes
authenticated and delivered hereunder.




     Section 2.08. Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes
surrendered for the purpose of payment, purchase, redemption, registration of transfer or exchange
or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s
Agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation. All Notes
delivered to the Trustee shall be canceled promptly by it, and no Notes shall be authenticated in
exchange thereof except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such
disposition, shall deliver a certificate of such disposition to the Company, at the Company’s
written request in a Company Order. If the Company or any of its Subsidiaries shall acquire any of
the Notes, such acquisition shall not operate as a redemption, purchase or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered to the Trustee for
cancellation.



     Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to
Holders as a convenience to such Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or on
such notice and that reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



     Section 2.10. Additional Notes; Purchases. The Company may, without the consent of the
Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes
hereunder with the same terms and with the same CUSIP number as the Notes initially issued
hereunder in an unlimited aggregate principal amount; provided that if any such additional Notes
are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes,
such additional Notes will have a separate CUSIP number. Prior to the issuance of any such
additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’
Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to cover
such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably
request. In addition, the Company may, to the extent permitted by law, and directly or indirectly
(regardless of whether such Notes are surrendered to the Company), purchase Notes in the open
market or otherwise, whether by the Company or its Subsidiaries or through a private or public
tender or exchange offer or through counterparties to private agreements, including by cash-settled
swaps or other derivatives. The Company shall cause any Notes so purchased (other than Notes
purchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for
cancellation in accordance with Section 2.08.



ARTICLE 3

Satisfaction and Discharge




     Section 3.01. Satisfaction and Discharge. This Indenture shall upon request of the Company
contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and



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discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered
(other than (x) Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.06 and (y) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 4.04(d)) have been delivered to the
Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to
Holders, as applicable, after the Notes have become due and payable, whether at the Maturity Date,
any Fundamental Change Purchase Date, upon conversion or otherwise, cash or cash, shares of Common
Stock or a combination thereof, as applicable, solely to satisfy the Company’s Conversion
Obligation, sufficient to pay all of the outstanding Notes and all other sums due and payable under
this Indenture by the Company; and (b) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 7.06 shall survive.




ARTICLE 4

Particular Covenants of the Company




     Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal (including the Fundamental Change Purchase Price, if
applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain in a State of the
United States of America or the District of Columbia, an office or agency where the Notes may be
surrendered for registration of transfer or exchange or for presentation for payment or purchase
(“Paying Agent”) or for conversion (“Conversion Agent”) and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office or the office or agency of the
Trustee.



     The Company may also from time to time designate as co-Note Registrars one or more other
offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in any State of the United States of America of the District of Columbia for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The terms “Paying Agent” and
“Conversion Agent” include any such additional or other offices or agencies, as applicable.



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     The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian and Conversion Agent and the Corporate Trust Office shall be considered as one such
office or agency of the Company for each of the aforesaid purposes.



     Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.



     Section 4.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying
Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04:




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




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




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



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



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



     (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the
Company or any Paying Agent hereunder as required by this Section 4.04, such sums or



21









 




amounts to be held by the Trustee upon the trusts herein contained and upon such payment or
delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall
be released from all further liability but only with respect to such sums or amounts.




     (d) Any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal (including the Fundamental
Change Purchase Price, if applicable) of, and accrued and unpaid interest on, any Note and
remaining unclaimed for two years after such principal (including the Fundamental Change Purchase
Price, if applicable) or interest has become due and payable shall be paid to the Company on
request of the Company contained in an Officers’ Certificate, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money and shares of Common Stock, and all liability of
the Company as trustee thereof, shall thereupon cease.



     Section 4.05. Existence. Subject to Article 11, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate existence.



     Section 4.06. Annual Reports. (a) The Company shall file with the Trustee within 15 days
after the same are required to be filed with the Commission, copies of any documents or reports
that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act).
Any such document or report that the Company files with the Commission via the Commission’s EDGAR
system shall be deemed to be filed with the Trustee for purposes of this Section 4.06(a) at the
time such documents are filed via the EDGAR system.



     (b) Delivery of the reports and documents described in subsection (a) above to the Trustee is
for informational purposes only, and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely on an Officers’ Certificate).



     Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the principal of or interest on
the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that
may affect the covenants or the performance of this Indenture; and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.



     Section 4.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the
fiscal year ending on December 31, 2011) an Officers’ Certificate stating whether or not the
signers thereof have knowledge of any failure by the Company to comply



22









 




with all conditions and covenants then required to be performed under this Indenture and, if
so, specifying each such failure and the nature thereof.




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



     Section 4.09. Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.



ARTICLE 5

Lists of Holders and Reports by the Company and the Trustee




     Section 5.01. Lists of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than 5 days after each June 1 and
December 1 in each year beginning with December 1, 2011, and at such other times as the Trustee may
request in writing, within 10 days after receipt by the Company of any such request (or such lesser
time as the Trustee may reasonably request in order to enable it to timely provide any notice to be
provided by it hereunder), a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee
may reasonably request in order to so provide any such notices) prior to the time such information
is furnished, except that no such list need be furnished so long as the Trustee is acting as Note
Registrar.



     Section 5.02. Preservation and Disclosure of Lists. The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained
by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.



ARTICLE 6

Defaults and Remedies




     Section 6.01. Events of Default. The following events shall be “Events of Default” with
respect to the Notes:



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



     (b) default in the payment of principal of any Note when due and payable on the Maturity Date,
upon Optional Redemption, upon any required purchase, upon declaration of acceleration or
otherwise;



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     (c) failure by the Company to comply with its obligation to convert the Notes in accordance
with this Indenture upon exercise of a Holder’s conversion right, and such failure continues for a
period of 5 calendar days;



     (d) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 15.02(c) or notice of a specified corporate event in accordance with Section 14.01(b)(ii)
or Section 14.01(b)(iii), in each case when due;



     (e) failure by the Company to comply with its obligations under Article 11;



     (f) failure by the Company for 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 Subsidiary of the Company in the payment of the principal or
interest on any mortgage, agreement or other instrument under which there may be outstanding, or by
which there may be secured or evidenced, any debt for money borrowed in excess of $25 million in
the aggregate of the Company and/or any such Subsidiary, whether such debt now exists or shall
hereafter be created, resulting in such debt becoming or being declared due and payable, and such
acceleration shall not have been rescinded or annulled within thirty days after written notice to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Notes then outstanding;



     (h) a final judgment for the payment of $25 million or more (excluding any amounts covered by
insurance) rendered against the Company or any Subsidiary of the Company, which judgment is not
discharged or stayed within 30 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;



     (i) the Company or any Significant Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to the Company or any
such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or any such Significant Subsidiary or any substantial part of
its property, or shall consent to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors; or



     (j) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the
Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or such Significant Subsidiary or
any substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 30 consecutive days.



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     Section 6.02. Acceleration; Rescission and Annulment. In case one or more Events of Default
shall have occurred and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any administrative or governmental
body), then, and in each and every such case (other than an Event of Default specified in Section
6.01(i) or Section 6.01(j) with respect to the Company (but not with respect to any of its
Significant Subsidiaries)), unless the principal of all of the Notes shall have already become due
and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding determined in accordance with Section 8.04, by notice in writing to the
Company (and to the Trustee if given by Holders), may declare 100% of the principal of, and accrued
and unpaid interest on, all the Notes to be due and payable immediately, and upon any such
declaration the same shall become and shall automatically be immediately due and payable, anything
in this Indenture or in the Notes contained to the contrary notwithstanding. If an Event of
Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company (but not with
respect to any of its Significant Subsidiaries) occurs and is continuing, 100% of the principal of,
and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be
immediately due and payable.



     The immediately preceding paragraph, however, is subject to the conditions that if, at any
time after the principal of the Notes shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay installments of accrued and unpaid interest upon all Notes and the principal of any and all
Notes that shall have become due otherwise than by acceleration (with interest on overdue
installments of accrued and unpaid interest, and on such principal at the rate borne by the Notes
at such time) and amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission would
not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all
existing Events of Default under this Indenture, other than the nonpayment of the principal of and
accrued and unpaid interest, if any, on Notes that shall have become due solely by such
acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every such case
(except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the Company and to the
Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and
annul such declaration and its consequences and such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture;
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding
anything to the contrary herein, no such waiver or rescission and annulment shall extend to or
shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal of,
or accrued and unpaid interest on, any Notes, (ii) a failure to purchase any Notes when required or
(iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the
Notes.



     Section 6.03. Additional Interest. Notwithstanding anything in this Indenture or in the
Notes to the contrary, to the extent the Company elects, the sole remedy for Event of Default
relating to the Company’s failure to comply with its obligations as set forth in Section 4.06
shall, for the first 360 days after the occurrence of such an Event of Default, consist exclusively
of the



25









 




right to receive 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 first 180 days after the
occurrence of such Event of Default and 0.50% per annum of the principal amount of the Notes
outstanding from the 181st day until the 360th day following the occurrence of such an Event of
Default during which such Event of Default is continuing beginning on, and including, the date on
which such an Event of Default first occurs. If the Company so elects, such Additional Interest
shall be payable in the same manner and on the same dates as regular interest on the Notes. On the
361st day after such Event of Default (if the Event of Default relating to the Company’s failure to
file is not cured or waived prior to such 361st day), the Notes will be subject to acceleration as
provided in Section 6.02. In the event the Company does not elect to pay Additional Interest
following an Event of Default in accordance with this Section 6.03, or the Company elects to make
such payment but does not pay the Additional Interest when due, the Notes shall be subject to
acceleration as provided in Section 6.02.




     In order to elect to pay Additional Interest as the sole remedy during the first 360 days
after the occurrence of any Event of Default described in the immediately preceding paragraph, the
Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election
prior to the beginning of such 360-day period. Upon the failure to timely give such notice, the
Notes shall be immediately subject to acceleration as provided in Section 6.02.



     Section 6.04. Payments of Notes on Default; Suit Therefor. If an Event of Default described
in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due
and payable on the Notes for principal and interest, if any, with interest on any overdue principal
and interest, if any, at the rate borne by the Notes at such time and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06.
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the property of the Company
or any other obligor upon the Notes, wherever situated.



     In the event there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Notes under title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
event of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or documents and to take
such other actions as it may deem necessary or advisable



26









 




in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceedings relative to the Company or any other obligor on
the Notes, its or their creditors, or its or their property, and to collect and receive any monies
or other property payable or deliverable on any such claims, and to distribute the same after the
deduction of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby
authorized by each of the Holders to make such payments to the Trustee, as administrative expenses,
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances
and disbursements, including agents and counsel fees, and including any other amounts due to the
Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses, advances and disbursements out of the estate in
any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien
on, and shall be paid out of, any and all distributions, dividends, monies, securities and other
property that the Holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.




     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.



     All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Notes.



     In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the
Notes parties to any such proceedings.



     In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section
6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the Company, the Holders, and
the Trustee shall, subject to any determination in such proceeding, be restored respectively to
their several positions and rights hereunder, and all rights, remedies and powers of the Company,
the Holders, and the Trustee shall continue as though no such proceeding had been instituted.



27









 





     Section 6.05. Application of Monies Collected by Trustee. Any monies collected by the
Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:



     First, to the payment of all amounts due the Trustee under Section 7.06;



     Second, in case the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in
the order of the date due of the payments of such interest and cash due upon conversion, as the
case may be, with interest (to the extent that such interest has been collected by the Trustee)
upon such overdue payments at the rate borne by the Notes at such time, such payments to be made
ratably to the Persons entitled thereto;



     Third, in case the principal of the outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment
of the Fundamental Change Purchase Price and any cash due upon conversion) then owing and unpaid
upon the Notes for principal and interest, if any, with interest on the overdue principal and, to
the extent that such interest has been collected by the Trustee, upon overdue installments of
interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such
principal (including, if applicable, the Fundamental Change Purchase Price and the cash due upon
conversion) and interest without preference or priority of principal over interest, or of interest
over principal or of any installment of interest over any other installment of interest, or of any
Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the
Fundamental Change Purchase Price and any cash due upon conversion) and accrued and unpaid
interest; and



     Fourth, to the payment of the remainder, if any, to the Company.



     Section 6.06. Proceedings by Holders. Except to enforce the right to receive payment of
principal (including, if applicable, the Fundamental Change Purchase Price) or interest when due,
or the right to receive payment or delivery of the consideration due upon conversion, no Holder of
any Note shall have any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar
official, or for any other remedy hereunder, unless:



     (a) such Holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as herein provided;



     (b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder;



     (c) such Holders shall have offered to the Trustee such security or indemnity satisfactory to
it against any loss, liability or expense to be incurred therein or thereby;



28









 





     (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or proceeding; and



     (e) no direction that, in the opinion of the Trustee, is inconsistent with such written
request shall have been given to the Trustee by the Holders of a majority of the aggregate
principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,


it being understood and intended, and being expressly covenanted by the taker and Holder of every
Note with every other taker and Holder and the Trustee that no one or more Holders shall have any
right in any manner whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders
(except as otherwise provided herein). For the protection and enforcement of this Section 6.06,
each and every Holder and the Trustee shall be entitled to such relief as can be given either at
law or in equity.




     Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including
the Fundamental Change Purchase Price, if applicable) of, (y) accrued and unpaid interest, if any,
on, and (z) the consideration due upon conversion of, such Note, on or after the respective due
dates expressed or provided for in such Note or in this Indenture, or to institute suit for the
enforcement of any such payment or delivery, as the case may be, on or after such respective dates
against the Company shall not be impaired or affected without the consent of such Holder.



     Section 6.07. Proceedings by Trustee. In case of an Event of Default the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



     Section 6.08. Remedies Cumulative and Continuing. Except as provided in the last paragraph
of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the
Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any
such right or power, or shall be construed to be a waiver of any such Default or Event of Default
or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Holders.



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     Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The
Holders of a majority of the aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04 shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to Notes; provided, however, that (a) such direction
shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such direction. The
Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights
of any other Holder or that would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 8.04 may on behalf of the Holders of all of the Notes waive any past
Default or Event of Default hereunder and its consequences except (i) a default in the payment of
accrued and unpaid interest, if any, on, or the principal (including any Fundamental Change
Purchase Price) of, the Notes when due that has not been cured pursuant to the provisions of
Section 6.01, (ii) a failure by the Company to deliver the consideration due upon conversion of the
Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot
be modified or amended without the consent of each Holder of an outstanding Note affected. Upon
any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event
of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or
Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.



     Section 6.10. Notice of Defaults. The Trustee shall, within 90 days after the occurrence
and continuance of a Default of which a Responsible Officer has actual knowledge, send to all
Holders as the names and addresses of such Holders appear upon the Note Register, notice of all
Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived
before the giving of such notice; provided that, except in the case of a Default in the payment of
the principal of (including the Fundamental Change Purchase Price, if applicable), or accrued and
unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration
due upon conversion, the Trustee shall be protected in withholding such notice if and so long as a
committee of Responsible Officers of the Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders.



     Section 6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each
Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in
its discretion, require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; provided that the provisions of this Section
6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in



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principal amount of the Notes at the time outstanding determined in accordance with Section
8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the
Fundamental Change Purchase Price with respect to the Notes being purchased as provided in this
Indenture) on or after the due date expressed or provided for in such Note or to any suit for the
enforcement of the right to convert any Note in accordance with the provisions of Article 14.




ARTICLE 7

Concerning the Trustee




     Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing or waiver of all Events of Default that may have
occurred, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred that has not been cured or waived the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or direction.



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



     (a) prior to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default that may have occurred:




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




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



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



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



     (d) whether or not therein provided, every provision of this Indenture relating to the conduct
or affecting the liability of, or affording protection to, the Trustee shall be subject to the
provisions of this Section 7.01;



     (e) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected by the
Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the
Notes;



     (f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred, unless such
Responsible Officer of the Trustee had actual knowledge of such event;



     (g) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee
be liable for the selection of investments or for investment losses incurred thereon or for losses
incurred as a result of the liquidation of any such investment prior to its maturity date or the
failure of the party directing such investments prior to its maturity date or the failure of the
party directing such investment to provide timely written investment direction, and the Trustee
shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such
written investment direction from the Company; and



     (h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and protections
afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note
Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer agent.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.



     Section 7.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
7.01:



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



     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;



     (c) the Trustee may consult with counsel and require an Opinion of Counsel and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;



     (d) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney at the
expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;



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



     (f) the permissive rights of the Trustee enumerated herein shall not be construed as duties.



     In no event shall the Trustee be liable for any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action other than any such loss or
damage caused by the Trustee’s willful misconduct or gross negligence. The Trustee shall not be
charged with knowledge of any Default or Event of Default with respect to the Notes, unless either
(1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the Trustee by the
Company or by any Holder of the Notes.



     Section 7.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Company of any



33









 




Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity
with the provisions of this Indenture.




     Section 7.04. Trustee, Paying Agents, Conversion Agent, Bid Solicitation Agent or Note
Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation
Agent or Note Registrar, in its individual or any other capacity, may become the owner or pledgee
of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion
Agent, Bid Solicitation Agent or Note Registrar.



     Section 7.05. Monies and Shares of Common Stock to Be Held in Trust. All monies and shares
of Common Stock received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received. Money and shares of Common Stock held by the
Trustee in trust hereunder need not be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any money or shares of Common Stock
received by it hereunder except as may be agreed from time to time by the Company and the Trustee.



     Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder
(including the reasonable compensation and the expenses and disbursements of its agents and counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as
shall have been caused by its gross negligence, willful misconduct or bad faith. The Company also
covenants to indemnify the Trustee in any capacity under this Indenture and any other document or
transaction entered into in connection herewith and its agents and any authenticating agent for,
and to hold them harmless against, any loss, claim, damage, liability or expense incurred without
gross negligence, willful misconduct or bad faith on the part of the Trustee, its officers,
directors, agents or employees, or such agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the costs and expenses of defending themselves against any claim of
liability in the premises. The obligations of the Company under this Section 7.06 to compensate or
indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances
shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or
property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds
held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to
receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other
liability or indebtedness of the Company (even though the Notes may be so subordinated). The
obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of
this Indenture and the earlier resignation or removal or the Trustee. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. The
indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and
employees of the Trustee.



34









 





     Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee and its agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.



     Section 7.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of gross
negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.



     Section 7.08. Eligibility of Trustee. There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section 7.08, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article 7.



     Section 7.09. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof to the
Holders at their addresses as they shall appear on the Note Register. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 60 days after the mailing of such
notice of resignation to the Holders, the resigning Trustee may, upon 10 Business Days’ notice to
the Company and the Holders, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least
six months may, subject to the provisions of Section 6.11, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



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




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



35









 






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


then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona
fide holder of a Note or Notes for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




     (c) The Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor trustee unless within 10
days after notice to the Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a)
provided, may petition any court of competent jurisdiction for an appointment of a successor
trustee.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.10.



     Section 7.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all
money or property held or collected by such trustee as such, except for funds held in trust for the
benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 7.06.



     No successor trustee shall accept appointment as provided in this Section 7.10 unless at the
time of such acceptance such successor trustee shall be eligible under the provisions of Section
7.08.



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     Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Holders at their addresses as they shall appear on the Note Register. If the Company fails to mail
such notice within 10 days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



     Section 7.11. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be eligible under the provisions of Section 7.08.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor trustee may
authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of
the successor trustee; and in all such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate of authentication of any
predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.



ARTICLE 8

Concerning the Holders




     Section 8.01. Action by Holders. Whenever in this Indenture it is provided that the Holders
of a specified percentage of the aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the Holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Article 9, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders. Whenever the Company
or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the
Trustee may fix, but shall not be required to, in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record date if one is
selected shall be not more than fifteen days prior to the date of commencement of solicitation of
such action.



37









 





     Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or
proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.
The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.



     Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and (subject to Section
2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other
purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor
any Note Registrar shall be affected by any notice to the contrary. All such payments or
deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and
discharge the liability for monies payable or shares deliverable upon any such Note.
Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of
Default, any Holder of a beneficial interest in a Global Note may directly enforce against the
Company, without the consent, solicitation, proxy, authorization or any other action of the
Depositary or any other Person, such Holder’s right to exchange such beneficial interest for a Note
in certificated form in accordance with the provisions of this Indenture.



     Section 8.04. Company-Owned Notes Disregarded. In determining whether the Holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are
so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the
pledgee is not the Company or a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by
or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee
shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any
such determination. The Trustee shall not be required at any time to request a list of
Company-owned Notes before taking any actions or making any calculations.



38









 





     Section 8.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by
the Holders of the percentage of the aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be
included in the Notes the Holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such
action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Note and of any Notes issued in exchange or substitution
therefor or upon registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon
registration of transfer thereof.



ARTICLE 9

Holders’ Meetings




     Section 9.01. Purpose of Meetings. A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 9 for any of the following purposes:



     (a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article 6;



     (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 7;



     (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 10.02; or



     (d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or
under applicable law.



     Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Holders to take any action specified in Section 9.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken at such meeting and
the establishment of any record date pursuant to Section 8.01, shall be mailed to Holders of such
Notes at their addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty nor more than ninety days
prior to the date fixed for the meeting.



     Any meeting of Holders shall be valid without notice if the Holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by
duly authorized representatives or have, before or after the meeting, waived notice.



39









 





     Section 9.03. Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of
the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by
written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of
such request, then the Company or such Holders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice
thereof as provided in Section 9.02.



     Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a
Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or
(b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on
the record date pertaining to such meeting. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.



     Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Holders of a majority in principal amount of the Notes represented
at the meeting and entitled to vote at the meeting.



     Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or
proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section
9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.



     Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Holders
shall be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file



40









 




with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.02. The record shall show the
principal amount of the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.




     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     Section 9.07. No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under
any of the provisions of this Indenture or of the Notes.



ARTICLE 10

Supplemental Indentures




     Section 10.01. Supplemental Indentures Without Consent of Holders. The Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense,
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
one or more of the following purposes:



     (a) to cure any ambiguity, omission, defect or inconsistency in this Indenture that does not,
individually or in the aggregate, adversely affect the rights of any Holder of the Notes in any
material respect;



     (b) to provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 11;



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



     (d) to secure the Notes;



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



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



     (g) to comply with any requirements of the Commission in connection with the qualification of
this Indenture under the Trust Indenture Act;



     (h) to appoint a successor Trustee with respect to the Notes; or



41









 





     (i) to conform the provisions of this Indenture or the Notes to the “Description of notes”
section of the Prospectus.



     Upon the written request of the Company, the Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 10.02.



     Section 10.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced
as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount
of the Notes then outstanding (determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), the Company, when authorized by the resolutions of the Board of Directors and the
Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that, without the consent of
each Holder of an outstanding Note affected, no such supplemental indenture shall:



     (a) reduce the percentage in aggregate principal amount of Notes outstanding whose Holders
must consent to an amendment to this Indenture or to waive any past Default or Event of Default
pursuant to Section 6.09;



     (b) reduce the rate of or extend the stated time for payment of interest on any Note;



     (c) reduce the principal of or extend the Maturity Date of any Note;



     (d) make any change that impairs or adversely affects the conversion rights of any Notes;



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



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



     (g) change the ranking of the Notes;



     (h) impair the right of any Holder to receive payment of principal of and interest, including
Additional Interest, if any, on such Holder’s Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such Holder’s Note; or



42









 





     (i) make any change in this Article 10 that requires each Holder’s consent or in the waiver
provisions in Section 6.01 or Section 6.09.



     Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.



     Holders do not need under this Section 10.02 to approve the particular form of any proposed
supplemental indenture. It shall be sufficient if such Holders approve the substance thereof.
After any such supplemental indenture becomes effective, the Company shall deliver to the Holders a
notice briefly describing such supplemental indenture. However, the failure to give such notice to
all the Holders, or any defect in the notice, will not impair or affect the validity of the
supplemental indenture.



     Section 10.03. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.



     Section 10.04. Notation on Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s
expense, bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared
and executed by the Company, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then
outstanding, upon surrender of such Notes then outstanding.



     Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In
addition to the documents required by Section 17.05, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 10 and is permitted or
authorized by this Indenture.



ARTICLE 11

Consolidation, Merger, Sale, Conveyance and Lease




     Section 11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of
Section 11.02, the Company shall not consolidate with, merge with or into, or sell,



43









 




convey, transfer or lease its properties and assets substantially as an entirety to another
Person, unless:




     (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all of the obligations of the Company under the Notes and this
Indenture; and



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



     For purposes of this Section 11.01, the sale, conveyance, transfer or lease of the properties
and assets of one or more Subsidiaries of the Company substantially as an entirety to another
Person, which properties and assets, if held by the Company instead of such Subsidiaries, would
constitute the properties and assets of the Company substantially as an entirety on a consolidated
basis, shall be deemed to be the sale, conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety to another Person.



     Section 11.02. Successor Corporation to Be Substituted. In case of any such consolidation,
merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all
of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration
due upon conversion of the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such Successor Company (if not the
Company) shall succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, except in the case of a lease of the Company’s
properties and assets substantially as an entirety. 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 which 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 this 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 this Indenture as the Notes theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or
transfer (but not in the case of a lease), upon compliance with this Article 11 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 11) may be dissolved, wound up and liquidated
at any time thereafter and, except in the case of a lease, such Person shall be released



44









 




from its liabilities as obligor and maker of the Notes and from its obligations under this
Indenture and the Notes.




     In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes
in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as
may be appropriate.



     Section 11.03. Opinion of Counsel to Be Given to Trustee. No consolidation, merger, sale,
conveyance, transfer or lease shall be effective unless 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 11 and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture, complies with the provisions of this Article 11 and Article 10.



ARTICLE 12

Immunity of Incorporators, Stockholders, Officers and Directors




     Section 12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the
payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor
because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.



ARTICLE 13

Intentionally Omitted




ARTICLE 14

Conversion of Notes



     Section 14.01. Conversion Privilege. (a)Subject to and upon compliance with the provisions
of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert
all or any portion (if the portion to be converted is $1,000 principal amount or a multiple
thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b),
at any time prior to the close of business on the Business Day immediately preceding March 15, 2016
under the circumstances and during the periods set forth in Section 14.01(b), and (ii) irrespective
of the conditions described in Section 14.01(b), on or after March 15, 2016 and prior to the close
of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each
case, at an initial conversion rate of [_____] shares of Common Stock (as adjusted as provided in
Section 14.04 as of any date, the “Conversion Rate”) per $1,000 principal



45









 




amount of Notes (subject to the settlement provisions of Section 14.02, the
“Conversion Obligation”).




     (b) (i) Prior to the close of business on the Business Day immediately preceding March 15,
2016, the Notes may be surrendered for conversion during the five Business Day period immediately
after any five 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 of Notes in
accordance with this subsection (b)(i), for each Trading Day of the 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 Trading Prices shall be determined by the Bid Solicitation Agent
pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture.
The Company shall provide written notice to the Bid Solicitation Agent of the three independent
nationally recognized securities dealers selected by the Company pursuant to the definition of
Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent
shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless
the Company has requested such determination, 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 which time the Company shall instruct the Bid
Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes beginning on
the next Trading Day and on each successive Trading Day until the Trading Price per Note 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 instruct the Bid Solicitation Agent to determine the
Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding
sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid
Solicitation Agent fails to make such determination, then, in either case, the Trading Price per
$1,000 principal amount of Notes shall 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 Trading Day of such
failure. If the Trading Price condition set forth above has been met, the Company shall so notify
the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time
after the Trading Price condition set forth above has been met, 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 applicable Conversion Rate, the Company shall so notify the
Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).




     (ii) If, prior to the close of business on the Business Day immediately preceding March
15, 2016, the Company elects to:




     (A) distribute to all or substantially all holders of its Common Stock rights,
options or warrants entitling them, for a period of not more than 60 calendar days
from the declaration date of such distribution, to subscribe for or purchase shares
of its Common Stock, at a price per share less than the average of the Last
Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period
ending on, and including, the Trading Day immediately preceding the declaration
date for such distribution; or




46











 






     (B) distribute to all or substantially all holders of its Common Stock
the Company’s assets, debt securities or rights to purchase securities of the
Company, which distribution has a per share value, as determined by the Board of
Directors, exceeding 10% of the average of the Last Reported Sale Prices of the
Common Stock for the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the declaration date for such distribution,



then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the
Conversion Agent (if other than the Trustee) in writing at least 35 Business Days prior to the
Ex-Dividend Date for such distribution. Once the Company has given such notice, the Notes may be
surrendered for conversion at any time until the earlier of (1) the close of business on the
Business Day immediately prior to the Ex-Dividend Date for such distribution and (2) the Company’s
announcement that such distribution will not take place, even if the Notes are not otherwise
convertible at such time.





     (iii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole
Fundamental Change occurs prior to the close of business on the Business Day immediately
preceding March 15, 2016, regardless of whether a Holder has the right to require the
Company to purchase the Notes pursuant to Section 15.02, the Notes may be surrendered for
conversion at any time from and after the date that is 35 Business Days prior to the
anticipated effective date of such Fundamental Change or Make-Whole Fundamental Change, as
the case may be, until the Business Day immediately preceding the Fundamental Change
Purchase Date corresponding to such Fundamental Change (or, in the case of a Make-Whole
Fundamental Change that does not constitute a Fundamental Change by virtue of the proviso in
clause (b) of the definition of Make-Whole Fundamental Change, the 35th Trading Day
immediately following such effective date). The Company shall give notice in writing of the
anticipated effective date of any Fundamental Change or Make-Whole Fundamental Change, as
the case may be, as soon as practicable after the Company first determines the anticipated
effective date of such Fundamental Change or such Make-Whole Fundamental Change, as the case
may be; provided that the Company shall not be required to give such notice more than 35
Business Days in advance of such anticipated effective date.




     (iv) Prior to the close of business on the Business Day immediately preceding March 15,
2016, the Notes may be surrendered for conversion during any calendar quarter commencing
after the calendar quarter ending on September 30, 2011 (and only during such calendar
quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days
(whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and
including, the last Trading Day of the immediately preceding calendar quarter is equal to or
greater than 130% of the Conversion Price on each applicable Trading Day. The Conversion
Agent, on behalf of the Company, shall determine at the beginning of each calendar quarter
commencing after September 30, 2011 whether the Notes may be surrendered for conversion in
accordance with this clause
(iv) and shall notify the Company and the Trustee if the Notes become convertible in
accordance with this clause (iv).



47









 






     (v) If the Company calls any or all of the Notes for redemption pursuant to Article 16
prior to the close of business on the Business Day immediately preceding March 15, 2016,
then Holders may surrender Notes that have been so called for redemption at any time prior
to the close of business on the Scheduled Trading Day prior to the Redemption Date, even if
the Notes are not otherwise convertible at such time. After that time, the right to convert
shall expire, unless the Company defaults in the payment of the Redemption Price, in which
case a Holder of Notes may convert its Notes until the Redemption Price has been paid or
duly provided for.



     Section 14.02. Conversion Procedure; Settlement Upon Conversion.



     (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion
of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in
respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares
of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock
in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination
of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional
share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination
Settlement”), at its election, as set forth in this Section 14.02.




     (i)
 All conversions occurring on or after March 15, 2016 and after the Company’s
issuance of a Redemption Notice with respect to the Notes and prior to the related
Redemption Date shall be settled using the same Settlement Method.




     (ii) Prior to March 15, 2016, except for any conversions that occur after the Company’s
issuance of a Redemption Notice with respect to the Notes but prior to the related
Redemption Date, the Company shall use the same Settlement Method for all conversions
occurring on the same Conversion Date, but the Company shall not have any obligation to use
the same Settlement Method with respect to conversions that occur on different Trading Days.




     (iii) If, in respect of any Conversion Date (or the period beginning on, but excluding,
March 15, 2016 and ending on, and including, the Business Day immediately preceding the
Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement
Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such
period, as the case may be), the Company, through the Trustee, shall deliver such Settlement
Notice to converting Holders no later than the close of business on the Trading Day
immediately following the relevant Conversion Date (or, in the case of any conversions
occurring (x) after the date of issuance of a Redemption Notice with respect to the Notes
and prior to the related Redemption Date, in such Redemption Notice or (y) on or after March
15, 2016, no later than April 15, 2016). If the Company does not elect a Settlement Method
prior to the deadline set forth in the immediately preceding sentence, the Company shall no
longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected
Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar
Amount per $1,000 principal amount of Notes shall be equal to $1,000.



48









 







Such Settlement
Notice shall specify the relevant Settlement Method and in the case of an election of
Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar
Amount. If the Company delivers a Settlement Notice electing Combination Settlement in
respect of its Conversion Obligation but does not indicate a Specified Dollar Amount in such
Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.




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




     (A) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by Physical Settlement, the Company shall deliver to the converting
Holder a number of shares of Common Stock equal to the product of (1) the aggregate
principal amount of Notes to be converted, divided by $1,000, and (2) the
Conversion Rate in effect on the Conversion Date;




     (B) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by Cash Settlement, the Company shall pay to the converting Holder
in respect of each $1,000 principal amount of Notes being converted cash in an
amount equal to the sum of the Daily Conversion Values for each of the 25
consecutive Trading Days during the related Observation Period; and




     (C) if the Company elects (or is deemed to have elected) to satisfy its
Conversion Obligation in respect of such conversion by Combination Settlement, the
Company shall pay or deliver, as the case may be, in respect of each $1,000
principal amount of Notes being converted, a Settlement Amount equal to the sum of
the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the
related Observation Period.




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



     (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a
Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the
procedures of the Depositary in effect at that time and, if required, pay funds equal to interest
payable on the next Interest Payment Date to which such Holder is not entitled as set forth in
Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver
an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion



49









 





(or
a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in
writing therein the principal amount of Notes to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for any shares of Common
Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender
such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Conversion Agent, (3) if required, furnish
appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest
payable on the next Interest Payment Date to which such Holder is not entitled as set forth in
Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company
of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No
Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such
Holder has also delivered a Fundamental Change Purchase Notice to the Company in respect of such
Notes and not validly withdrawn such Fundamental Change Purchase Notice in accordance with Section
15.03.




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



     (c) A Note shall be deemed to have been converted immediately prior to the close of business
on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in
subsection (b) above. The Company shall pay or deliver, as the case may be, the consideration due
in respect of the Conversion Obligation on the third Business Day immediately following the
relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day
immediately following the last Trading Day of the Observation Period, in the case of any other
Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall
issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such
Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the
full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the
Company’s Conversion Obligation.



     (d) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the
Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note, without payment of any service
charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum
sufficient to cover any transfer tax or similar governmental charge required by law or that may be
imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon
such conversion being different from the name of the Holder of the old Notes surrendered for such
conversion.



     (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of any shares of Common Stock upon
conversion, unless the tax is due because the Holder requests such shares to be issued in a
name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion
Agent may refuse to deliver the certificates representing the shares of Common Stock being



50









 





issued
in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax
that is due by such Holder in accordance with the immediately preceding sentence.




     (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Note as provided in this Article 14.



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



     (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest, if any, except as set forth below. The Company’s settlement of the Conversion
Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the
Note and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be
deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of
Notes into a combination of cash and shares of Common Stock accrued and unpaid interest will be
deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing,
if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes
as of the close of business on such Regular Record Date will receive the full amount of interest
payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion.
Notes surrendered for conversion during the period from the close of business on any Regular Record
Date to the open of business on the immediately following Interest Payment Date must be accompanied
by funds equal to the amount of interest payable on the Notes so converted; provided that no such
payment shall be required (1) for conversions following the Regular Record Date immediately
preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a
Regular Record Date and on or prior to the Business Day immediately following the corresponding
Interest Payment Date; (3) if the Company has specified a Fundamental Change Purchase Date that is
after a Regular Record Date and on or prior to the Business Day immediately following the
corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any
Defaulted Amounts exist at the time of conversion with respect to such Note.



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



     (j) The Company shall not issue any fractional share of Common Stock upon conversion of the
Notes and shall instead pay cash in lieu of any fractional share of Common
Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the
case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant
Observation Period (in the case of Combination Settlement). For each Note surrendered



51









 





for
conversion, if the Company has elected Combination Settlement, the full number of shares that shall
be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement
Amounts for the applicable Observation Period and any fractional shares remaining after such
computation shall be paid in cash.




     Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection with Make-Whole Fundamental Changes. (a) If a Make-Whole Fundamental Change occurs and
a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, the
Company shall, under the 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 relevant Notice of Conversion 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 preceding the related
Fundamental Change Purchase 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
35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change)
(such period, the “Make-Whole Fundamental Change Period”).



     (b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change
pursuant to Section 14.01(b)(iii), the Company shall, at its option, satisfy the related
Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in
accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole
Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference
Property is composed entirely of cash, for any conversion of Notes following the Effective Date of
such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on
the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000
principal amount of converted Notes equal to the Conversion Rate (including any adjustment for
Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall
be paid to Holders in cash on the third Business Day following the Conversion Date.



     (c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased
for conversions during the Make-Whole Fundamental Change Period shall be determined by reference to
the table below, based on the date on which the Make-Whole Fundamental Change occurs (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 holders of the Common Stock receive only cash in
the case of a 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. In the case of any
other Make-Whole Fundamental Change, the Stock Price shall be the average of the Last Reported Sale
Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading
Day immediately preceding the Effective Date of the Make-Whole Fundamental Change. The Board of
Directors shall make
appropriate adjustments to the Stock Price, in its good faith determination, to account for
any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment



52









 





to the Conversion Rate where the Ex-Dividend Date of the event occurs, during such five consecutive
Trading Day period.




     (d) 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 applicable immediately prior to such adjustment, multiplied by
a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the
same manner and at the same time as the Conversion Rate as set forth in Section 14.04.



     (e) The following table sets forth the number of Additional Shares to be received per $1,000
principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date
set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective Date	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 	 	$	 
	 
	June [•], 2011
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June 15, 2012
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June 15, 2013
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June 15, 2014
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June 15, 2015
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June 15, 2016
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






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




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




     (ii) if the Stock Price is greater than $[__.__] per share (subject to adjustment in
the same manner as the Stock Prices set forth in the column headings of the table above
pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion
Rate; and




     (iii) if the Stock Price is less than $[__.__] per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above pursuant
to subsection (d) 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 [_.___] per $1,000 principal amount of Notes, subject to adjustment
in the same manner as the Conversion Rate pursuant to Section 14.04.




53









 








     (f) As soon as practicable after the Company determines the anticipated Effective Date of any
proposed Make-Whole Fundamental Change the Company shall mail to each Holder, the Trustee and the
Conversion Agent written notice of, and shall issue a press release indicating, and publicly
announce, through a public medium that is customary for such announcements, and publish on the
Company’s website, the anticipated Effective Date of such proposed Make-Whole Fundamental Change;
provided that the Company shall not be required to give such written notice or issue such press
release more than 35 Business Days in advance of such anticipated Effective Date. No later than
five Business Days after the actual Effective Date of each Make-Whole Fundamental Change, the
Company shall mail to each Holder, the Trustee and the Conversion Agent written notice of, and
shall issue a press release indicating, and publicly announce, through a public medium that is
customary for such announcements, and publish on the Company’s website, such Effective Date.



     (g) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant
to Section 14.04 in respect of a Make-Whole Fundamental Change.



     Section 14.04. 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 shall
not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of
holding the Notes and contemporaneously with holders of the Common Stock) in any of the
transactions described in this Section 14.04 as if they held a number of shares of Common Stock
equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes
held by such Holder divided by 1,000, without having to convert their Notes.



     (a) If the Company issues solely shares of Common Stock as a dividend or distribution to all
holders of the outstanding Common Stock on all or substantially all of the shares of Common Stock,
or if the Company effects a share split or share combination of the Common Stock, the applicable
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 Ex-Dividend Date for such dividend or distribution, or immediately prior to the
open of business on the effective date of such share split or share combination, as the
case may be;
	 
	 	CR’    = 	 	the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution, or immediately after the open of
business on the effective date of such share split or share combination, as the case
may be;
	 
	 	OS0    =	 	the number of shares of Common Stock outstanding immediately prior to the
open of business on the Ex-Dividend Date for such dividend or





54









 





	 	 	 	distribution, or immediately prior to the open of business on the effective
date of such share split or share combination, as the case may be; and
	 
	 	OS’    =	 	the number of shares of Common Stock outstanding immediately after such
dividend or distribution, or immediately after the effective date of such share split
or share combination, as the case may be.





Any adjustment made under this Section 14.04(a) shall become effective immediately after the open
of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the
open of business on the effective date for such share split or share combination, as applicable.
If any dividend or distribution of the type described in this Section 14.04(a) is declared but not
so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the
Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.




     (b) If the Company distributes to all or substantially all holders of its Common Stock any
rights, options or warrants entitling them for a period of not more than 60 days from the
declaration date of such distribution to subscribe for or purchase shares of the Common Stock, at a
price per share less than the average of the Last Reported Sale Prices of the Common Stock for the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the declaration date for such distribution, the Conversion Rate shall be increased based on the
following formula:








     where




	 	CR0   =	 	the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such distribution;
	 
	 	CR’   = 	 	the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such distribution;
	 
	 	OS0   =	 	the number of shares of the Common Stock that are outstanding immediately
prior to the open of business on the Ex-Dividend Date for such distribution;
	 
	 	X      = 	 	the total number of shares of the Common Stock issuable pursuant to such
rights, options or warrants; and
	 
	 	Y       = 	 	the number of shares of the Common Stock equal to the aggregate price payable
to exercise such rights, options or warrants, divided by the average of the Last
Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the Ex-Dividend Date relating
to such distribution of such rights, options or warrants.




55









 











Any increase made under this Section 14.04(b) shall be made successively whenever any such rights,
options or warrants are distributed and shall become effective immediately after the open of
business on the Ex-Dividend Date for such distribution. To the extent that shares of the Common
Stock are not delivered after the expiration of such rights, options or warrants, the Conversion
Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with
respect to the distribution of such rights, options or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered. If such rights, options or
warrants are not so distributed, the Conversion Rate shall be decreased to the Conversion Rate that
would then be in effect if such Ex-Dividend Date for such distribution had not occurred.




     For purposes of this Section 14.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than such
average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day
period ending on, and including, the Trading Day immediately preceding the declaration date of such
distribution, and in determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such rights, options or
warrants and any amount payable on exercise or conversion thereof, the value of such consideration,
if other than cash, to be determined by the Board of Directors.



     (c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other assets or property or rights, options or warrants to acquire its Capital Stock or other
securities, to all or substantially all holders of the Common Stock, excluding (i) dividends or
distributions (including share splits) as to which an adjustment was effected pursuant to Section
14.04(a)or Section 14.04(b), (ii) dividends or distributions paid in cash as to which an
adjustment was effected pursuant to Section 14.04(c)(ii), and (iii) Spin-Offs as to which the
provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital
Stock, evidences of indebtedness, other assets or property or rights, options or warrants to
acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the
Conversion Rate shall be increased based on the following formula:










     where




	 	CR0   = 	 	the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such distribution;
	 
	 	CR’   = 	 	the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such distribution;
	 
	 	SP0   = 	 	the average of the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and





56









 





	 	FMV   = 	 	the fair market value (as determined by the Board of Directors) of the
Distributed Property distributed with respect to each outstanding share of the Common
Stock as of the open of business on the Ex-Dividend Date for such distribution.





Any increase made under the portion of this Section 14.04(c) above shall become effective
immediately after the open of business on the Ex-Dividend Date for such distribution. If such
distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same
terms as holders of the Common Stock receive the Distributed Property, the amount of Distributed
Property such Holder would have received if such Holder owned a number of shares of Common Stock
equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board
of Directors determines the “FMV” (as defined above) of any distribution for purposes of this
Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it
shall in doing so consider the prices in such market over the same period used in computing the
Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.



          With respect to an adjustment pursuant to this Section 14.04(c) where there has been 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 of the
Company, which Capital Stock or similar equity interest will be quoted or listed for trading on a
U.S. national securities exchange or other established automated over-the-counter trading market in
the United States after its distribution (a “Spin-Off”), the Conversion Rate in effect immediately
before the close of business on the tenth Trading Day immediately following, and including, the
Ex-Dividend Date for the Spin-Off will be increased based on the following formula:








     where




	 	CR0     = 	 	the Conversion Rate in effect immediately prior to the close of business on
the tenth Trading Day immediately following, and including, the Ex-Dividend Date for
the Spin-Off;
	 
	 	CR’     = 	 	the Conversion Rate in effect immediately after the close of business on the
tenth Trading Day immediately following, and including, the Ex-Dividend Date for the
Spin-Off;
	 
	 	FMV   = 	 	the average of the Last Reported Sale Prices of the Capital Stock or similar
equity interest distributed to holders of the Common Stock





57









 





	 	 	 	applicable to one share of the Common Stock over the first 10 consecutive
Trading Day period immediately following, and including, the Ex-Dividend
Date for the Spin-Off; and
	 
	 	MP0   =	 	the average of the Last Reported Sale Prices of the Common Stock over the
first 10 consecutive Trading Day period immediately following and including the
Ex-Dividend Date for the Spin-Off.





The adjustment to the Conversion Rate under the preceding paragraph shall become effective at the
close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend
Date for the Spin-Off; provided that, for purposes of determining the Conversion Rate, in respect
of any conversion during the 10 Trading Days immediately following, and including, the Ex-Dividend
Date for any Spin-Off, references in the portion of this Section 14.04(c) related to Spin-Offs to
10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed
between the Ex-Dividend Date for such Spin-Off and the relevant Conversion Date.




     For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights,
options or warrants distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares
of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this
Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be
required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or
warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right,
option or warrant, including any such existing rights, options or warrants distributed prior to the
date of this Indenture, are subject to events, upon the occurrence of which such rights, options or
warrants become exercisable to purchase different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such event shall be deemed to be the date
of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such
rights (in which case the existing rights, options or warrants shall be deemed to terminate and
expire on such date without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or
other event (of the type described in the immediately preceding sentence) with respect thereto that
was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options
or warrants that shall all have been redeemed or purchased without exercise by any holders thereof,
upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such
rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be
readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share redemption or purchase price
received by a holder or holders of Common Stock with respect to such rights, options or warrants
(assuming such holder had retained such rights, options or warrants), made to all holders of Common
Stock as of the date of such redemption or purchase,



58









 





and (2) in the case of such rights, options or warrants that shall have expired or
been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as
if such rights, options and warrants had not been issued.




     For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), any dividend
or distribution to which this Section 14.04(c) is applicable that also includes one or both of:



     (A) a dividend or distribution of shares of Common Stock to which Section 14.04(a) is
applicable (the “Clause A Distribution”); or



     (B) a dividend or distribution of rights, options or warrants to which Section 14.04(b) is
applicable (the “Clause B Distribution”),



then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this
Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause
A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C
Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b)
with respect thereto shall then be made, except that, if determined by the Company (I) the
“Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be
the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in
the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding
immediately prior to the open of business on the Ex-Dividend Date for such dividend or
distribution, or immediately prior to the open of business on the effective date of such share
split or share combination, as the case may be” within the meaning of Section 14.04(a) or
“outstanding immediately prior to the open of business on the Ex-Dividend Date for such
distribution” within the meaning of Section 14.04(b).




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








where




	CR0   = 	 	the Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date for
such dividend or distribution;
	 
	 	 

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

	SP0   = 	 	the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading
Day period ending on, and including, the Trading
Day immediately preceding the Ex-Dividend Date for
such dividend or distribution; and




59









 






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





Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open
of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or
distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the
Board of Directors determines not to make or pay such dividend or distribution, to the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as
holders of shares of the Common Stock, the amount of cash that such Holder would have received if
such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the
Ex-Dividend Date for such cash dividend or distribution.




     (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for the Common Stock and the cash and value of any other consideration included in
the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading-Day period commencing on, and including, the
Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to
such tender or exchange offer (the “Expiration Date”), the Conversion Rate shall be increased based
on the following formula:








     where




	 	CR0   = 	 	the Conversion Rate in effect at the close of business on the last Trading
Day of the period of 10 consecutive Trading Days commencing on, and including, the
Trading Day next succeeding the Expiration Date;
	 
	 	CR’    = 	 	the Conversion Rate in effect at the open of business on first day following
the last Trading Day of the period of 10 consecutive Trading Days commencing on, and
including, the Trading Day next succeeding the Expiration Date;
	 
	 	FMV  = 	 	the fair market value (as determined by the Board of Directors), on the
Expiration Date, of the aggregate value of all cash and any other consideration paid or
payable for shares validly tendered or exchanged as of the Expiration Date;
	 
	 	OS’    = 	 	the number of shares of Common Stock outstanding immediately after the time
(the “Expiration Time”) tender or exchange offer expires (after giving effect to such
tender offer or exchange offer);
	 
	 	OS0    =	 	the number of shares of Common Stock outstanding immediately prior to




60









 






	 	 	 	the Expiration Time (prior to giving effect to such tender offer or exchange
offer); and
	 
	 	SP’   = 	 	the average of the Last Reported Sale Prices of Common Stock over the 10
consecutive Trading Day period commencing on, and including, the Trading Day next
succeeding the date such tender or exchange offer expires.





The adjustment to the Conversion Rate under this Section 14.04(e) shall occur at the close of
business on the 10th Trading Day immediately following the Expiration Date; provided that, for
purposes of determining the Conversion Rate, in respect of any conversion during the 10 Trading
Days following, and including, the Trading Day next succeeding the Expiration Date, references in
this Section 14.04(e) with respect to 10 Trading Days shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the Trading Day next succeeding the date that such
tender or exchange offer expires and the relevant Conversion Date. If the Company is obligated to
purchase shares pursuant to any such tender offer or exchange offer, but the Company is permanently
prevented by applicable law from effecting any or all or any portion of 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 offer or exchange offer had not been made or had been made
only in respect of the purchases that have been effected.




     (f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes,
if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has
converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date
would be treated as the record holder of the shares of Common Stock as of the related Conversion
Date as described under Section 14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend
Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.04, the
Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting
Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares
of Common Stock on an unadjusted basis and participate in the related dividend, distribution or
other event giving rise to such adjustment.



     (g) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance
of shares of its Common Stock or any securities convertible into or exchangeable for shares of its
Common Stock or the right to purchase shares of its Common Stock or such convertible or
exchangeable securities.



     (h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of
this Section 14.04, and to the extent permitted by applicable law and subject to the applicable
rules of The NASDAQ Global Market, the Company from time to time may increase the Conversion Rate
by any amount for a period of at least 20 Business Days if the Board of Directors determines that
such increase would be in the Company’s best interest. In addition, the Company may (but is not
required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares
(or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant
to either of the preceding two sentences, the Company
shall mail to the Holder of each Note at its last address appearing on the Note Register a
notice



61









 





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.




     (i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall
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 the Company’s
securities and the investment of additional optional amounts in shares of Common Stock under
any plan;




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




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




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




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



     (j) All calculations and other determinations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share.



     (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee (and the Conversion Agent if not the Trustee) 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 at its last address appearing on the Note
Register of this Indenture. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.



     (l) For purposes of this Section 14.04, 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.



62









 





     Section 14.05. Adjustments of Prices. Whenever any provision of this Indenture requires the
Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or
the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the
period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board
of Directors shall make appropriate adjustments to each 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 when the Last
Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts
are to be calculated.



     Section 14.06. Shares to Be Fully Paid. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for conversion of the Notes from time to time as such Notes are presented
for conversion (assuming that at the time of computation of such number of shares, all such Notes
would be converted by a single Holder and that Physical Settlement is applicable).



     Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common
Stock.



     (a) In the case of:




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




     (ii) any consolidation, merger or combination involving the Company,




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




     (iv) any statutory share exchange,



in each case, as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any combination thereof) (any
such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Notes shall be changed into a right to convert
such principal amount of Notes 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 kind and amount of Reference Property that a holder of one share of Common
Stock is entitled to receive) upon such Merger Event and, prior to or 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 permitted under Section 10.01(f) providing for such
change in the right to convert each $1,000 principal amount of Notes; provided, however, that at
and after the effective time of the Merger Event (A) the Company shall continue to have the right
to determine the form of consideration to be paid or delivered, as the case may be, upon conversion
of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion
of the Notes in accordance with Section 14.02 shall




63









 








continue to be payable in cash, (II) any shares of Common Stock that the Company would have been
required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be
deliverable in the amount and type of Reference Property that a holder of that number of shares of
Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP
shall be calculated based on the value of a unit of Reference Property.




     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), then (i) the Reference Property into which the Notes will be convertible
shall be deemed to be the weighted average of the types and amounts of consideration received by
the holders of Common Stock that affirmatively make such an election, and (ii) the unit of
Reference Property for purposes of the immediately preceding paragraph shall refer to the
consideration referred to in clause (i) attributable to one share of Common Stock. If the holders
receive only cash in such Merger Event, then for all conversions that occur after the effective
date of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount
of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion
Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the
price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the
Conversion Obligation by paying cash to converting Holders on the third Business Day immediately
following the Conversion Date. The Company shall notify Holders, the Trustee and the Conversion
Agent (if other than the Trustee) of such weighted average as soon as practicable after such
determination is made.



     Such supplemental indenture described in the second immediately preceding paragraph shall
provide for adjustments that shall be as nearly equivalent as is possible to the adjustments
provided for in this Article 14. If, in the case of any Merger Event, the Reference Property
includes shares of stock or other securities or other property or assets (including cash or any
combination thereof) of a Person other than the successor or purchasing corporation, as the case
may be, in such Merger Event, then such supplemental indenture shall also be executed by such other
Person and shall contain such additional provisions to protect the interests of the Holders of the
Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent required by the Board of Directors and practicable the provisions providing
for the purchase rights set forth in Article 15.



     (b) In the event the Company shall execute a supplemental indenture pursuant to subsection
(a) of this Section 14.07, the Company shall promptly file with the Trustee an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or
property or asset that will comprise the Reference Property after any such Merger Event, any
adjustment to be made with respect thereto and that all conditions precedent have been complied
with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the
execution of such supplemental indenture to be mailed to each Holder, at its address appearing on
the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure
to deliver such notice shall not affect the legality or validity of such supplemental indenture.



     (c) The Company shall not become a party to any Merger Event unless its terms are consistent
with this Section 14.07. None of the foregoing provisions shall affect the right of a



64









 





holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of
cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02
prior to the effective date of such Merger Event.




     (d) The above provisions of this Section shall similarly apply to successive Merger Events.



     Section 14.08. Certain Covenants. (a) The Company covenants that all shares of Common Stock
issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from
all taxes, liens and charges with respect to the issue thereof.



     (b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will, to the extent then permitted by the rules and interpretations of the Commission,
secure such registration or approval, as the case may be.



     (c) The Company further covenants that if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system the Company will list and keep listed,
so long as the Common Stock shall be so listed on such exchange or automated quotation system, any
Common Stock issuable upon conversion of the Notes.



     Section 14.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate
(or any adjustment thereto) or whether any facts exist that may require any adjustment (including
any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities, property or cash that may at any time be issued or
delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Note for
the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to Section 14.07
relating either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Notes after any event referred to in such
Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, the Officers’
Certificate (which the Company shall be obligated to file with the Trustee prior to the execution
of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion
Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has



65









 





occurred that makes the Notes eligible for conversion or no longer eligible therefor until the
Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section
14.01(b) with respect to the commencement or termination of such conversion rights, on which
notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to
deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of
any such event or at such other times as shall be provided for in Section 14.01(b).




     Section 14.10. Notice to Holders Prior to Certain Actions. In case of any:



     (a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 14.04 or Section 14.11;



     (b) Merger Event; or



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



then, in each case (unless notice of such event is otherwise required pursuant to another provision
of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent
(if other than the Trustee) and to be mailed to each Holder at its address appearing on the Note
Register, as promptly as possible but in any event at least 20 days prior to the applicable date
hereinafter specified, a notice stating (i) the date on which a record is to be taken for the
purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be
taken, the date as of which the holders of Common Stock of record are to be determined for the
purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such
Merger Event, 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 Merger Event,
dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such action by the Company or one of its Subsidiaries,
Merger Event, dissolution, liquidation or winding-up.




     Section 14.11. Stockholder Rights Plans. To the extent that the Company has a rights plan in
effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such
conversion shall be entitled to receive the appropriate number of rights, if any, and the
certificates representing the Common Stock issued upon such conversion shall bear such legends, if
any, in each case as may be provided by the terms of any such stockholder rights plan, as the same
may be amended from time to time. If at the time of conversion, however, the rights have separated
from the shares of Common Stock in accordance with the provisions of the applicable stockholder
rights plan so that the Holders would not be entitled to receive any rights in respect of Common
Stock, if any, issuable upon conversion of the Notes, the Conversion Rate shall be adjusted at the
time of separation as if the Company distributed to all or substantially all holders of Common
Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event
of the expiration, termination or redemption of such rights.



     Section 14.12. Exchange In Lieu Of Conversion. (a) When a Holder surrenders its Notes for
conversion, the Company may, at its election, direct the Conversion Agent to surrender, on or



66









 





prior to the second Business Day following the relevant Conversion Date, such Notes to a
financial institution designated by the Company (the “Designated Institution”) for exchange in lieu
of conversion. In order to accept any Notes surrendered for conversion for exchange in lieu of
conversion, the Designated Institution must agree to timely deliver, in exchange for such Notes,
the cash, shares of Common Stock or combination of cash and shares of Common Stock, at the
Company’s election, that would otherwise be due upon conversion as described in Section 14.02
above and in respect of which the Company has notified converting Holders. If the Company makes the
election described above, the Company shall, by the close of business on the second Business Day
following the relevant Conversion Date, notify the Holder surrendering Notes for conversion that it
has made such election. In addition, the Company shall concurrently notify the Designated
Institution of the relevant deadline for delivery of the consideration due upon conversion. Any
Notes exchanged by the Designated Institution will remain outstanding.




     (b) If the Designated Institution agrees to accept any Notes for exchange but does not timely
deliver the related consideration due upon conversion to the Conversion Agent, or if the Designated
Institution does not accept such Notes for exchange, the Company shall, within the time period
specified in Section 14.02(c), convert such Notes into cash and shares of Common Stock, if any, in
accordance with the provisions of Section 14.02.



     (c) For the avoidance of doubt, in no event will the Company’s designation of a Designated
Institution pursuant to this Section 14.12 require the Designated Institution to accept any Notes
for exchange.



ARTICLE 15

Purchase of Notes at Option of Holders




     Section 15.01. Intentionally Omitted.



     Section 15.02. Purchase at Option of Holders Upon a Fundamental Change. (a) If there shall
occur a Fundamental Change at any time prior to the Maturity Date, then each Holder shall have the
right, at such Holder’s option, to require the Company to purchase for cash all of such Holder’s
Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date (the
“Fundamental Change Purchase Date”) specified by the Company that is not less than 20 calendar days
and not more than 35 calendar days after the date of the Fundamental Change Company Notice (as
defined below) at a purchase price equal to 100% of the principal amount thereof, together with
accrued and unpaid interest, if any, thereon to, but excluding, the Fundamental Change Purchase
Date (the “Fundamental Change Purchase Price”), unless the Fundamental Change Purchase Date is
after a Regular Record Date and on or prior to the immediately succeeding Interest Payment Date, in
which case interest accrued to the Interest Payment Date will be paid to Holders of the Notes as of
the immediately preceding Regular Record Date and the Fundamental Change Purchase Price payable to
the Holder surrendering the Note for purchase pursuant to this Section 15.02 shall be equal to the
principal amount of Notes subject to purchase.



     (b) Purchases of Notes under this Section 15.02 shall be made, at the option of the Holder
thereof, upon:



67









 






     (i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Purchase Notice”) in the form set forth in Attachment 2 to the Form of
Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with
the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are
Global Notes, in each case prior to the close of business on the Business Day immediately
preceding the Fundamental Change Purchase Date; and




     (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any
time after delivery of the Fundamental Change Purchase Notice (together with all necessary
endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry
transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of
the Depositary, in each case such delivery being a condition to receipt by the Holder of the
Fundamental Change Purchase Price therefor.



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




     (i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered
for purchase;




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




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



provided, however, that if the Notes are Global Notes, the Fundamental Change Purchase Notice must
comply with appropriate Depositary procedures.




     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 15.02 shall have the right to
withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.03.



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



     (c) On or before the 20th calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the
Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the
“Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental
Change and of the purchase right at the option of the Holders arising as a result thereof. Such
notice shall be by first class mail or, in the case of Global Notes, in accordance with the
applicable procedures of the Depositary. Contemporaneously with providing such notice, the Company
shall 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



68









 





York or publish such information on the Company’s website or through such other public medium
as the Company may use at that time or issue a press release containing the relevant information.
Each Fundamental Change Company Notice shall specify:





     (i) the events causing the Fundamental Change;




     (ii) the date the Fundamental Change occurred, and whether such Fundamental Change is a
Make-Whole Fundamental Change, in which case the Effective Date of such Make-Whole
Fundamental Change shall also be specified;




     (iii) the last date on which a Holder may exercise the purchase right pursuant to this
Article 15;




     (iv) the Fundamental Change Purchase Price;




     (v) the Fundamental Change Purchase Date;




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




     (vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate
made or to be made on account of such Fundamental Change;




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




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



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ purchase rights or affect the validity of the proceedings for the purchase of the Notes
pursuant to this Section 15.02.



     At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change
Company Notice shall be prepared by the Company.



     (d) Notwithstanding the foregoing, no Notes may be purchased by the Company on any date 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 (except in the
case of an acceleration resulting from a Default by the Company in the payment of the Fundamental
Change Purchase Price with respect to such Notes). The Paying Agent will promptly return to the
respective Holders thereof any Physical Notes held by it during the acceleration of the Notes
(except in the case of an acceleration resulting from a Default by the Company in the payment of
the Fundamental Change Purchase Price with respect to such Notes), or any instructions for
book-entry transfer of the Notes in compliance with the



69









 





procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or
cancellation, as the case may be, the Fundamental Change Purchase Notice with respect thereto shall
be deemed to have been withdrawn.




     Section 15.03. Withdrawal of Fundamental Change Purchase Notice. (a) A Fundamental Change
Purchase 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 this Section 15.03
at any time prior to the close of business on the Business Day immediately preceding the
Fundamental Change Purchase Date, specifying:




     (i) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted, which amount must be $1,000 or a multiple thereof,




     (ii) if Physical Notes have been issued, the certificate number of the Note in respect
of which such notice of withdrawal is being submitted, and




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



provided, however, that if the Notes are Global Notes, the notice must comply with appropriate
procedures of the Depositary.




     Section 15.04. Deposit of Fundamental Change Purchase Price. (a) The Company will deposit
with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or
prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date an amount of money
sufficient to purchase all of the Notes to be purchased at the appropriate Fundamental Change
Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company), payment for Notes surrendered for purchase (and not withdrawn prior to
the close of business on the Business Day immediately preceding the Fundamental Change Purchase
Date) will be made on the later of (i) the Fundamental Change Purchase Date with respect to such
Note (provided the Holder has satisfied the conditions in Section 15.02) and (ii) the time of
book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by
the Company) by the Holder thereof in the manner required by Section 15.02 by mailing checks for
the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note
Register; provided, however, that payments to the Depositary shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee. The Trustee shall,
promptly after such payment and upon written demand by the Company, return to the Company any funds
in excess of the Fundamental Change Purchase Price.



     (b) If by 11:00 a.m. New York City time, on the Fundamental Change Purchase Date, the Trustee
(or other Paying Agent appointed by the Company) holds money or securities sufficient to make
payment on all the Notes or portions thereof that are to be purchased on such Fundamental Change
Purchase Date, then (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue
on such Notes (whether or not book-entry transfer of the Notes has been



70









 





made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other
rights of the Holders of such Notes will terminate (other than the right to receive the
Fundamental Change Purchase Price, and subject to Section 15.02(a), previously accrued and unpaid
interest upon delivery or transfer of such Notes).




     (c) Upon surrender of a Note that is to be purchased in part pursuant to Section 15.02, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an
authorized denomination equal in principal amount to the unpurchased portion of the Note
surrendered.



     Section 15.05. Covenant to Comply with Applicable Laws Upon Purchase of Notes. In connection
with any purchase offer, the Company will, to the extent required:



     (a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act that may then be applicable;



     (b) file a Schedule TO or any successor or similar schedule required under the Exchange Act;
and



     (c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to purchase the Notes;



in each case, so as to permit the rights and obligations under this Article 15 to be exercised in
the time and in the manner specified in this Article 15.




     Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company
with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance
with clause (a) above, to the extent inconsistent with any other provision of this Indenture, will
not, standing alone, constitute an Event of Default solely as a result of compliance by the Company
with such rules.



ARTICLE 16

Optional Redemption




     Section 16.01. Optional Redemption. No sinking fund is provided for the Notes. The Notes
shall not be redeemable by the Company prior to June 20, 2014. On or after (i) June 20, 2014, if
the Last Reported Sale Price of the Common Stock has been at least 130% of the Conversion Price for
at least 20 Trading Days (whether or not consecutive) during any 30 consecutive Trading Day period
ending within five Trading Days prior to the date on which the Company provides notice of
redemption as set forth in Section 16.02 and (ii) June 20, 2015, irrespective of the sale price
condition described in clause (i), the Company may redeem (an “Optional Redemption”) for cash all
or part of the Notes, upon notice as set forth in Section 16.02, at a redemption price equal to
100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any,
to, but excluding, the Redemption Date (the “Redemption Price”) (unless the Redemption Date falls
after a Regular Record Date but on or



71









 





prior to the immediately succeeding Interest Payment Date, in which case interest accrued to
the Interest Payment Date will be paid to Holders of record of such Notes on such Regular Record
Date, and the Redemption Price will be equal to 100% of the principal amount of the Notes to be
redeemed).




     Section 16.02. Notice of Optional Redemption; Selection of Notes.



     (a) In case the Company exercises its Optional Redemption right to redeem all or, as the case
may be, any part of the Notes pursuant to Section 16.01, it shall fix a date for redemption (each,
a “Redemption Date”) and it or, at its written request received by the Trustee not less than 50
calendar days prior to the Redemption Date (or such shorter period of time as may be acceptable to
the Trustee), the Trustee, in the name of and at the expense of the Company, shall mail or cause to
be mailed a notice of such Optional Redemption (a “Redemption Notice”) not less than 40 nor more
than 60 calendar days prior to the Redemption Date to each Holder of Notes so to be redeemed as a
whole or in part at its last address as the same appears on the Note Register; provided, however,
that if the Company shall give such notice, it shall also give written notice of the Redemption
Date to the Trustee.



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



     (c) Each Redemption Notice shall specify:




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




     (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 Specified 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 14.03;



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




     (ix) in case any Note is to be redeemed in part only, the portion of the principal
amount thereof to be redeemed and on and after the Redemption Date, upon surrender of such
Note, a new Note in principal amount equal to the unredeemed portion thereof shall be
issued.



A Redemption Notice shall be irrevocable.




     (d) If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof of a Global Note or the Notes in certificated form to be redeemed (in
principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis or by another method
the Trustee considers to be fair and appropriate. If any Note selected for partial redemption is
submitted for conversion in part after such selection, the portion of the Note submitted for
conversion shall be deemed (so far as may be possible) to be the portion selected for redemption.
In the event of any redemption in part, the Company shall not be required to (i) issue, register
the transfer of or exchange any Notes during a period beginning at the open of business 15 calendar
days before any selection for redemption of Securities and ending at the close of business on the
earliest date on which the relevant Redemption Notice is deemed to have been given to all Holders
of Notes to be redeemed or (ii) register the transfer of or exchange any Notes so selected for
redemption, in whole or in part, except the unredeemed portion of any Notes being redeemed in part.



     Section 16.03. Payment of Notes Called for Redemption.



     (a) If any Redemption Notice has been given in respect of the Notes in accordance with
Section 16.02, 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 the open of business 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 7.05 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
16.03.



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.




73









 








     Section 16.04. Restrictions on Redemption. The Company may not redeem any Notes on any date
if the principal amount of the Notes has been accelerated in accordance with the terms of this
Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except
in the case of an acceleration resulting from a Default by the Company in the payment of the
Redemption Price with respect to such Notes).



ARTICLE 17

Miscellaneous Provisions




     Section 17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



     Section 17.02. Official Acts by Successor Corporation. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or Officer of the Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation or other entity that shall at the time be the
lawful sole successor of the Company.



     Section 17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Holders on
the Company shall be deemed to have been sufficiently given or made, for all purposes if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee) to Insulet
Corporation, 9 Oak Park Drive, Bedford, Massachusetts 01730, Attention: [General Counsel]. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box addressed to the Corporate Trust
Office.



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



     Any notice or communication mailed to a Holder shall be mailed to it by first class mail,
postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given
to it if so mailed within the time prescribed.



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



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



74









 





     Section 17.04. Governing Law. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF).



     Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officers’ Certificate stating that all conditions precedent to
such action have been satisfied and such action is permitted by the terms of this Indenture.



     Each Officers’ Certificate provided for, by or on behalf of the Company in this Indenture and
delivered to the Trustee with respect to compliance with this Indenture (other than the Officers’
Certificates provided for in Section 4.08) shall include (a) a statement that the Person making
such certificate is familiar with the requested action and this Indenture; (b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement contained in
such certificate is based; (c) a statement that, in the judgment of such person, he or she has made
such examination or investigation as is necessary to enable him or her to express an informed
judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to
whether or not, in the judgment of such Person, all conditions precedent to such action have been
satisfied and such action is permitted by this Indenture.



     Notwithstanding anything to the contrary in this Section 17.05, if any provision in this
Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in
connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall
be entitled to, or entitled to request, such Opinion of Counsel.



     Section 17.06. Legal Holidays. In any case where any Interest Payment Date, Fundamental
Change Purchase Date, Conversion Date or Maturity Date is not a Business Day, then any action to be
taken on such date need not be taken on such date, but may be taken on the next succeeding Business
Day with the same force and effect as if taken on such date, and no interest shall accrue in
respect of the delay.



     Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.



     Section 17.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any
Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder or
the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 17.09. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of



75









 





reference only, are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.




     Section 17.10. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07,
Section 10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating
agent had been expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the
authenticating agent shall be deemed to be authentication and delivery of such Notes “by the
Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s
certificate of authentication. Such authenticating agent shall at all times be a Person eligible
to serve as trustee hereunder pursuant to Section 7.08.



     Any corporation or other entity into which any authenticating agent may be merged or converted
or with which it may be consolidated, or any corporation or other entity resulting from any merger,
consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to the corporate trust business of any authenticating agent, shall be
the successor of the authenticating agent hereunder, if such successor corporation or other entity
is otherwise eligible under this Section 17.10, without the execution or filing of any paper or
any further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.



     Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a
successor authenticating agent (which may be the Trustee), shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all Holders as the names
and addresses of such Holders appear on the Note Register.



     The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.



     The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section
17.10 shall be applicable to any authenticating agent.



     If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative
certificate of authentication in the following form:



76









 





                    ,

as Authenticating Agent, certifies that this is one of the Notes described
in the within-named Indenture.




By: ____________________

Authorized Officer




     Section 17.11. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.



     Section 17.12. Severability. In the event any provision of this Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or
impaired.



     Section 17.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.



     Section 17.14. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



     Section 17.15. Calculations. Except as otherwise provided herein, the Company shall be
responsible for making all calculations called for under the Notes. These calculations include,
but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock,
accrued interest payable on the Notes and the Conversion Rate of the Notes. The Company shall make
all these calculations in good faith and, absent manifest error, the Company’s calculations shall
be final and binding on Holders of Notes. The Company shall 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 forward the Company’s calculations to any Holder of Notes upon the
request of that Holder at the sole cost and expense of the Company.



77









 





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



	 	 	 	 	 
	 	INSULET CORPORATION

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WELLS FARGO BANK, National
Association, as Trustee

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT A




[FORM OF FACE OF NOTE]




[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]





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



A-1









 





Insulet Corporation




[__.__]% Convertible Senior Note due 2016



	 	 	 

	No. 1

	 	Initially $[_________]
	 
	 	 
	CUSIP No. [_________]
	 	 






     Insulet Corporation, a corporation duly organized and validly existing under the laws of the
State of Delaware (the “Company,” which term includes any successor corporation or other entity
under the Indenture referred to on the reverse hereof), for value received hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum as set forth in the “Schedule of Exchanges
of Notes” attached hereto, which amount, taken together with the principal amounts of all other
outstanding Notes, shall not, unless permitted by the Indenture, exceed $[_________] in aggregate
at any time [(or $[_______] if the Underwriters exercise their option to purchase additional Notes
in full as set forth in the Underwriting
Agreement)]8), in accordance with the rules and
procedures of the Depositary, on June [•], 2011, and interest thereon as set forth below.



     This Note shall bear interest at the rate of [__.__]% per year from June [•], 2011, or from the
most recent date to which interest had been paid or provided for to, but excluding, the next
scheduled Interest Payment Date until June 15, 2016. Accrued interest on this Note shall 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 15 and December 15, commencing on December 15, 2011, to
Holders of record at the close of business on the preceding June 1 and December 15 (whether or not
such day is a Business Day), respectively. Additional Interest will be payable as set forth in
Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect
of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional
Interest is, was or would be payable pursuant to any of such Section 6.03 and any express mention
of the payment of Additional Interest in any provision therein shall not be construed as excluding
Additional Interest in those provisions thereof where such express mention is not made.



     Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes from, and
including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts
shall have been paid by the Company, at its election, in accordance with Section 2.03(c) of the
Indenture.



     The Company shall pay the 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. As provided in and subject to the provisions of the
Indenture, the Company shall pay the 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 Note Registrar in respect of the Notes






A-2









 










and its agency in New York, New York as a place where Notes may be presented for payment or
for registration of transfer.




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



     This Note, and any claim, controversy or dispute arising under or related to this Note, shall
be construed in accordance with and governed by the laws of the State of New York (without regard
to the conflicts of laws provisions thereof).



     In the case of any conflict between this Note and the Indenture, the provisions of the
Indenture shall control and govern.



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



[Remainder of page intentionally left blank]




A-3









 








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



	 	 	 	 	 
	 	INSULET CORPORATION

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

WELLS FARGO BANK, National Association

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture.




By:  _____________________

       Authorized Officer




A-4









 








[FORM OF REVERSE OF NOTE]




Insulet Corporation

[__.__]% Convertible Senior Note due 2016





     This Note is one of a duly authorized issue of Notes of the Company, designated as its [__.__]%
Convertible Senior Notes due 2016 (the “Notes”), limited to the aggregate principal amount of
$[_________] [(as increased by an amount equal to the aggregate principal amount of any
additional Notes purchased by the Underwriters pursuant to the exercise of their option to purchase
additional Notes as set forth in the Underwriting
Agreement)]9 all issued or to be
issued under and pursuant to an Indenture dated as of June [•], 2011 (the “Indenture”), between the
Company and Wells Fargo Bank, National Association (the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders
of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject
to certain conditions specified in the Indenture.



     In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or
Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions and certain exceptions set forth in the Indenture.



     Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Purchase Price and the principal amount on the
Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent 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.



     The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Notes, and in certain other circumstances,
with the consent of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures modifying the terms of the Indenture and the Notes as described therein. It is also
provided in the Indenture that, subject to certain exceptions, the Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all
of the Notes waive any past Default or Event of Default under the Indenture and its consequences.



     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 (including the Fundamental Change Purchase Price, if applicable) of and accrued






A-5









 










and unpaid interest on this Note at the place, at the respective times, at the rate and in the
lawful money herein prescribed.




     The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and multiples thereof. At the office or agency of the Company referred to on the face
hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized denominations, without
payment of any service charge but, if required by the Company or Trustee, with payment of a sum
sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a
result of the name of the Holder of the new Notes issued upon such exchange of Notes being
different from the name of the Holder of the old Notes surrendered for such exchange.



     The Notes shall be redeemable at the Company’s option in accordance with the terms and
conditions specified in the Indenture.



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



     Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the close of business on the second Scheduled Trading Day immediately preceding the
Maturity Date, to convert any Notes or portion thereof that is $1,000 or a multiple thereof, into
cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, at
the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the
Indenture.



     Terms used in this Note and defined in the Indenture are used herein as therein defined.



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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 = Uniform Gifts to Minors Act




CUST = Custodian




TEN ENT = as tenants by the entireties




JT TEN = joint tenants with right of survivorship and not as tenants in common




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



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SCHEDULE A




SCHEDULE OF EXCHANGES OF NOTES




Insulet Corporation

[__.__]% Convertible Senior Notes due 2016



     The initial principal amount of this Global Note is _______ DOLLARS ($[_________]). The
following increases or decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal amount	 	Signature of
	 	 	Amount of	 	Amount of	 	of this Global Note	 	authorized
	 	 	decrease in	 	increase in	 	following such	 	signatory of
	 	 	principal amount	 	principal amount	 	decrease or	 	Trustee or
	Date of exchange	 	of this Global Note	 	of this Global Note	 	increase	 	Custodian
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





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ATTACHMENT 1




[FORM OF NOTICE OF CONVERSION]




To: Insulet Corporation




     The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or a multiple thereof) below
designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock,
as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs
that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion,
together with any cash for any fractional share, and any Notes representing any unconverted
principal amount hereof, be issued and delivered to the registered Holder hereof unless a different
name has been indicated below. If any shares of Common Stock or any portion of this Note not
converted are to be issued in the name of a Person other than the undersigned, the undersigned will
pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section
14.02(d) and Section 14.02(d) of the Indenture. Any amount required to be paid to the undersigned
on account of interest accompanies this Note.



	 	 	 	 	 	 	 	 	 

	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 

Signature(s)
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Signature Guarantee	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature(s) must be guaranteed
by an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares
of Common Stock are to be issued, or
Notes are to be delivered, other than
to and in the name of the registered holder.
	 
	 	 	 	 	 	 	 	 
	Fill in for registration of shares if
to be issued, and Notes if to






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	be delivered, other than to and in the
name of the registered holder:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	(Name)	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	(Street Address)	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	(City, State and Zip Code)

Please print name and address	 	 	 	 	 	 






	 	 	 

	 

	 	Principal amount to be converted
(if less than all): $______,000
	 
	 	 
	 

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

	 	_________________________

Social Security or Other Taxpayer 


Identification Number






2









 






ATTACHMENT 2




[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]




To: Insulet Corporation




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Insulet Corporation (the “Company”) as to the occurrence of a Fundamental Change with respect to
the Company and specifying the Fundamental Change Purchase Date and requests and instructs the
Company to pay to the registered holder hereof in accordance with Section 15.02 of 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 a multiple thereof) below designated, and (2) if such Fundamental
Change Purchase Date does not fall during the period after a Regular Record Date and on or prior to
the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but
excluding, such Fundamental Change Purchase Date.



     In the case of Physical Notes, the certificate numbers of the Notes to be purchased 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 above signature(s) of the Holder(s) hereof must
correspond with the name as written upon the face of the Note
in every particular without alteration or enlargement or any
change whatever.






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ATTACHMENT 3




[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 _________________ attorney to
transfer the said Note on the books of the Company, with full power of substitution in the
premises.




	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 
	 	 	 
	 
	 	 
	 	 	 
	Signature(s)	 	 
	 
	 	 
	 	 	 
	Signature Guarantee	 	 
	 
	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.






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





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