exv4w1



 






EXHIBIT 4.1




 


 




 


 







WEBMD CORPORATION

d/b/a Emdeon Corporation




and




THE BANK OF NEW YORK




as Trustee




 






INDENTURE




Dated as of August 30, 2005

 





$300,000,000 Principal Amount




(Plus Option)




3
1/8% Convertible Notes due September 1, 2025





 


 




 


 







 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 
	TIA	 	Indenture	 
	Section	 	Section	 
	310 (a)(1)
	 	 	7.10	 
	(a)(2)
	 	 	7.10	 
	(a)(3)
	 	 	N.A.	 
	(a)(4)
	 	 	N.A.	 
	(b)
	 	 	7.08; 7.10; 11.02	 
	(c)
	 	 	N.A.	 
	311 (a)
	 	 	7.11	 
	(b)
	 	 	7.11	 
	(c)
	 	 	N.A.	 
	312 (a)
	 	 	2.05	 
	(b)
	 	 	11.03	 
	(c)
	 	 	11.03	 
	313 (a)
	 	 	7.06	 
	(b)(1)
	 	 	N.A.	 
	(b)(2)
	 	 	7.06	 
	(c)
	 	 	7.06; 11.02	 
	(d)
	 	 	7.06	 
	314 (a)
	 	 	4.03	 
	(b)
	 	 	N.A.	 
	(c)(1)
	 	 	11.04	 
	(c)(2)
	 	 	11.04	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	(e)
	 	 	11.05	 
	(f)
	 	 	N.A.	 
	315 (a)
	 	 	7.01(B)	 
	(b)
	 	 	7.05; 11.02	 
	(c)
	 	 	7.01(A)	 
	(d)
	 	 	7.01(C)	
	(e)
	 	 	6.11	 
	316 (a)(last
sentence)
	 	 	2.09	 
	(a)(1)(A)
	 	 	6.05	 
	(a)(1)(B)
	 	 	6.04	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	6.07	 
	317 (a)(1)
	 	 	6.08	 
	(a)(2)
	 	 	6.09	 
	(b)
	 	 	2.04	 
	318 (a)
	 	 	11.01	 








 




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






i









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Definitions
	 	 	1	 
	SECTION 1.02.

	 	Other Definitions
	 	 	6	 
	SECTION 1.03.

	 	Incorporation by Reference of Trust Indenture Act
	 	 	7	 
	SECTION 1.04.

	 	Rules of Construction
	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 	THE SECURITIES
	 	 	8	 
	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Form and Dating
	 	 	8	 
	SECTION 2.02.

	 	Execution and Authentication
	 	 	8	 
	SECTION 2.03.

	 	Registrar, Paying Agent and Conversion Agent
	 	 	9	 
	SECTION 2.04.

	 	Paying Agent To Hold Money in Trust
	 	 	9	 
	SECTION 2.05.

	 	Securityholder Lists
	 	 	10	 
	SECTION 2.06.

	 	Transfer and Exchange
	 	 	10	 
	SECTION 2.07.

	 	Replacement Securities
	 	 	10	 
	SECTION 2.08.

	 	Outstanding Securities
	 	 	11	 
	SECTION 2.09.

	 	Securities Held by the Company or an Affiliate
	 	 	11	 
	SECTION 2.10.

	 	Temporary Securities
	 	 	11	 
	SECTION 2.11.

	 	Cancellation
	 	 	11	 
	SECTION 2.12.

	 	Defaulted Interest
	 	 	11	 
	SECTION 2.13.

	 	CUSIP Numbers
	 	 	12	 
	SECTION 2.14.

	 	Deposit of Moneys
	 	 	12	 
	SECTION 2.15.

	 	Book-Entry Provisions for Global Securities
	 	 	12	 
	SECTION 2.16.

	 	Special Transfer Provisions
	 	 	13	 
	SECTION 2.17.

	 	Restrictive Legends
	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 	REDEMPTION AND REPURCHASE
	 	 	15	 
	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Optional Redemption
	 	 	15	 
	SECTION 3.02.

	 	Notices to Trustee
	 	 	15	 
	SECTION 3.03.

	 	Selection of Securities To Be Redeemed
	 	 	15	 
	SECTION 3.04.

	 	Notice of Redemption
	 	 	15	 
	SECTION 3.05.

	 	Effect of Notice of Redemption
	 	 	16	 
	SECTION 3.06.

	 	Deposit of Redemption Price
	 	 	16	 
	SECTION 3.07.

	 	Securities Redeemed in Part
	 	 	17	 
	SECTION 3.08.

	 	Repurchase of Securities at Option of the Holder
	 	 	17	 
	SECTION 3.09.

	 	Repurchase Upon a Change in Control
	 	 	19	 
	SECTION 3.10.

	 	Conversion Arrangement on Call for Redemption
	 	 	25	 
	SECTION 3.11.

	 	Effect of Repurchase Notice or Change in Control Repurchase Notice
	 	 	25	 
	SECTION 3.12.

	 	Covenant to Comply With Securities Laws Upon Purchase of Securities
	 	 	26	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE IV

	 	COVENANTS
	 	 	27	 
	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Payment of Securities
	 	 	27	 
	SECTION 4.02.

	 	Maintenance of Office or Agency
	 	 	27	 
	SECTION 4.03.

	 	Reports
	 	 	27	 
	SECTION 4.04.

	 	Compliance Certificate
	 	 	28	 
	SECTION 4.05.

	 	Stay, Extension and Usury Laws
	 	 	28	 
	SECTION 4.06.

	 	Corporate Existence
	 	 	28	 
	SECTION 4.07.

	 	Notice of Default
	 	 	28	 
	SECTION 4.08.

	 	Tax Treatment of Securities
	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 	SUCCESSORS
	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	When Company May Merge, etc
	 	 	29	 
	SECTION 5.02.

	 	Successor Substituted
	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 	DEFAULTS AND REMEDIES
	 	 	30	 
	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Events of Default
	 	 	30	 
	SECTION 6.02.

	 	Acceleration
	 	 	32	 
	SECTION 6.03.

	 	Other Remedies
	 	 	32	 
	SECTION 6.04.

	 	Waiver of Past Defaults
	 	 	32	 
	SECTION 6.05.

	 	Control by Majority
	 	 	32	 
	SECTION 6.06.

	 	Limitation on Suits
	 	 	33	 
	SECTION 6.07.

	 	Rights of Holders to Receive Payment
	 	 	33	 
	SECTION 6.08.

	 	Collection Suit by Trustee
	 	 	33	 
	SECTION 6.09.

	 	Trustee May File Proofs of Claim
	 	 	33	 
	SECTION 6.10.

	 	Priorities
	 	 	34	 
	SECTION 6.11.

	 	Undertaking for Costs
	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 	TRUSTEE
	 	 	34	 
	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Duties of Trustee
	 	 	34	 
	SECTION 7.02.

	 	Rights of Trustee
	 	 	35	 
	SECTION 7.03.

	 	Individual Rights of Trustee
	 	 	36	 
	SECTION 7.04.

	 	Trustee’s Disclaimer
	 	 	36	 
	SECTION 7.05.

	 	Notice of Defaults
	 	 	36	 
	SECTION 7.06.

	 	Reports by Trustee to Holders
	 	 	37	 
	SECTION 7.07.

	 	Compensation and Indemnity
	 	 	37	 
	SECTION 7.08.

	 	Replacement of Trustee
	 	 	37	 
	SECTION 7.09.

	 	Successor Trustee by Merger, etc
	 	 	38	 
	SECTION 7.10.

	 	Eligibility; Disqualification
	 	 	38	 
	SECTION 7.11.

	 	Preferential Collection of Claims Against Company
	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 	DISCHARGE OF INDENTURE
	 	 	39	 
	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Termination of the Obligations of the Company
	 	 	39	 
	SECTION 8.02.

	 	Application of Trust Money
	 	 	40	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 8.03.

	 	Repayment to Company
	 	 	40	 
	SECTION 8.04.

	 	Reinstatement
	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 	AMENDMENTS
	 	 	40	 
	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Without Consent of Holders
	 	 	40	 
	SECTION 9.02.

	 	With Consent of Holders
	 	 	41	 
	SECTION 9.03.

	 	Compliance with Trust Indenture Act
	 	 	42	 
	SECTION 9.04.

	 	Revocation and Effect of Consents
	 	 	42	 
	SECTION 9.05.

	 	Notation on or Exchange of Securities
	 	 	42	 
	SECTION 9.06.

	 	Trustee Protected
	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 	CONVERSION
	 	 	43	 
	 
	 	 	 	 	 	 
	SECTION 10.01.

	 	Right to Convert; Restrictive Legend
	 	 	43	 
	SECTION 10.02.

	 	Conversion Procedure
	 	 	43	 
	SECTION 10.03.

	 	Settlement Upon Conversion
	 	 	44	 
	SECTION 10.04.

	 	Irrevocable Election by Company of Net Share Settlement Upon Conversion
	 	 	46	 
	SECTION 10.05.

	 	Make Whole Amount and Public Acquirer Change of Control
	 	 	47	 
	SECTION 10.06.

	 	Adjustment of Conversion Rate
	 	 	50	 
	SECTION 10.07.

	 	Fractional Shares
	 	 	55	 
	SECTION 10.08.

	 	No Adjustment
	 	 	55	 
	SECTION 10.09.

	 	Other Adjustments
	 	 	56	 
	SECTION 10.10.

	 	Adjustments for Tax Purposes
	 	 	56	 
	SECTION 10.11.

	 	Notice of Adjustment
	 	 	56	 
	SECTION 10.12.

	 	Notice of Certain Transactions
	 	 	57	 
	SECTION 10.13.

	 	Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege
	 	 	57	 
	SECTION 10.14.

	 	Trustee’s Disclaimer
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 	MISCELLANEOUS
	 	 	59	 
	 
	 	 	 	 	 	 
	SECTION 11.01.

	 	Trust Indenture Act Controls
	 	 	59	 
	SECTION 11.02.

	 	Notices
	 	 	59	 
	SECTION 11.03.

	 	Communication by Holders with Other Holders
	 	 	60	 
	SECTION 11.04.

	 	Certificate and Opinion as to Conditions Precedent
	 	 	60	 
	SECTION 11.05.

	 	Statements Required in Certificate or Opinion
	 	 	60	 
	SECTION 11.06.

	 	Rules by Trustee and Agents
	 	 	61	 
	SECTION 11.07.

	 	Legal Holidays
	 	 	61	 
	SECTION 11.08.

	 	No Recourse Against Others
	 	 	61	 
	SECTION 11.09.

	 	Duplicate Originals
	 	 	61	 
	SECTION 11.10.

	 	Governing Law
	 	 	61	 
	SECTION 11.11.

	 	No Adverse Interpretation of Other Agreements
	 	 	61	 
	SECTION 11.12.

	 	Successors
	 	 	62	 
	SECTION 11.13.

	 	Separability
	 	 	62	 
	SECTION 11.14.

	 	Table of Contents, Headings, etc
	 	 	62	 






iv









 






EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Global Security
	Exhibit B

	 	-
	 	Form of Legends
	Exhibit C

	 	-
	 	Form of Notice of Transfer Pursuant to Registration Statement
	Exhibit D

	 	-
	 	Form of Opinion of Counsel in Connection with Registration
of Securities
	Exhibit E

	 	-
	 	Projected Payment Schedule






v









 






     INDENTURE, dated as of August 30, 2005, between WebMD Corporation
(d/b/a Emdeon Corporation), a Delaware corporation (the “Company”),
and The Bank of New York, as trustee (the “Trustee”).



          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Company’s
3 1/8% Convertible Notes due September 1, 2025 (the
“Securities”).




ARTICLE I




Definitions and Incorporation by Reference




          SECTION 1.01. Definitions.




          “Affiliate” means any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company. For this purpose, “control”
shall mean the power to direct the management and policies of a person through the ownership of
securities, by contract or otherwise.




          “Agent” means any Registrar, Paying Agent, Conversion Agent or co-registrar.




          “Applicable Price” means, in connection with a Make Whole Change of Control, (1) if
the consideration (excluding cash payment for fractional shares or pursuant to statutory appraisal
rights) paid to holders of Common Stock in connection with such transaction consists exclusively of
cash, the amount of such cash per share of the Common Stock, and (2) in all other cases, the
average of the Closing Sale Prices of the Common Stock for the five consecutive Trading Days
immediately preceding the related conversion date.




          “Board of Directors” means the board of directors of the Company or any committee
thereof authorized to act for it hereunder.




          “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 its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.




          “Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of the Company and all warrants or options to
acquire such capital stock.




          “Cash” means U.S. legal tender currency.




          “Cash Settlement Averaging Period” means, in respect of a conversion date, the twenty
consecutive Trading Day period beginning on the third Trading Day following the conversion date.




          “Closing Sale Price” means the price of a share of Common Stock or any other security
on the relevant date, determined on the basis of the last reported per share sale price (or, if no
last sale price is reported, the average of the bid and ask prices or, if more than one in either




1









 




case, the average of the average bid and the average ask prices) of the Common Stock or such
other security on such date as reported on The Nasdaq National Market, or if the Common Stock or
such other security is not quoted on The Nasdaq National Market, as reported by the principal U.S.
exchange or quotation system the Common Stock or such other security is then listed or quoted;
provided, however, that in the absence of such quotations, the Board of Directors will make a good
faith determination of the Closing Sale Price.




          “Common Stock” means the common stock, par value $0.0001 per share, of the Company, or
such other capital stock into which the Company’s common stock is reclassified or changed.




          “Company” means the party named as such above until a successor replaces it pursuant
to the applicable provision hereof and thereafter means the successor.




          “Company Order” means a written request or order signed on behalf of the Company by
its Chairman of the Board, its Chief Executive Officer, its President, its Chief Operating Officer,
its Chief Financial Officer, any Executive Vice President or any Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary, and delivered to
the Trustee.




          “Conversion Notice” means a written notice, substantially in the form attached to the
Securities, as set forth in Exhibit A.




          “Conversion Price” means an amount equal to $1,000 principal amount of Securities
divided by the then current conversion rate.




          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 11.02 or such other address as the Trustee may give notice of to the Company.




          “Current Market Price” means, on any date of determination, the average of the Closing
Sale Prices of the Common Stock for each of the 10 consecutive Trading Days ending on the earlier
of the date of determination and the day before the Ex-Dividend Date with respect to the issuance
or distribution requiring such computation, except that if any other issuance, distribution,
subdivision or combination of the Common Stock to which a conversion rate adjustment pursuant to
Section 10.06 would apply during such consecutive Trading Day period, the “Current Market Price”
shall be calculated for such period in a manner determined by the Company to reflect the impact of
such issuance, distribution, subdivision or combination on the Closing Sale Price during such
period.




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




          “Depositary” means The Depository Trust Company, its nominees and successors.




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




2









 





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




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




          “Indenture” means this Indenture as amended or supplemented from time to time.




          “Initial Purchaser” means Citigroup Global Markets Inc.




          “interest” includes liquidated damages, unless the context otherwise requires.




          “liquidated damages” has the meaning provided in the Registration Rights Agreement.




          “Maturity Date” means September 1, 2025.




          “Non-Recourse Indebtedness” means Indebtedness upon the enforcement of which recourse
may be had by the holder(s) thereof only to identified assets of the Company or any Subsidiary and
not to the Company or any Subsidiary personally.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, the Chief Financial Officer, any Executive Vice President, any Vice
President, the Treasurer or the Secretary of the Company.




          “Officers’ Certificate” means a certificate signed by two Officers or by an Officer
and an Assistant Treasurer or an Assistant Secretary of the Company.




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




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




          “Public Acquirer” means any acquirer of the Company, or any entity that it is a direct
or indirect “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 50%
of the total voting power of all shares of such acquirer’s capital stock that are entitled to vote
generally in the election of directors, but in each case other than the Company, that has a class
of common stock traded on a national securities exchange or quoted on The Nasdaq National Market or
which will be so traded or quoted when issued or exchanged in connection with a Make Whole Change
of Control; provided that if there is more than one such entity, the relevant entity will be such
entity that has the most direct beneficial ownership to such acquirer’s or entity’s capital stock.




3









 








          “Public Acquirer Change of Control” means any Make Whole Change of Control where the
acquirer is a Public Acquirer.




          “Public Acquirer Common Stock” means a Public Acquirer’s class of common stock which
is traded on a national securities exchange or quoted on the Nasdaq National Market or which will
be so traded or quoted when issued or exchanged in connection with a Public Acquirer Change of
Control.




          “Purchase Agreement” means the Purchase Agreement dated August 24, 2005 between the
Company and the Initial Purchaser.




          “QIB” means a “qualified institutional buyer” within the meaning of Rule 144A under
the Act.




          “Redemption Date” means, with respect to Securities to be redeemed by the Company in
accordance with Section 3.01, the business day specified for redemption of such Security in
accordance with the terms of the Securities and this Indenture, as set forth in a notice of
redemption.




          “Redemption Price” means, with respect to Securities to be redeemed by the Company in
accordance with Section 3.01, the applicable redemption price set forth in paragraph (6) of the
Securities.




          “Registration Rights Agreement” means the Registration Rights Agreement, dated as of
August 30, 2005, between the Company and the Initial Purchaser.




          “Repurchase Price” means, with respect to Securities duly tendered for purchase by the
Company in accordance with Section 3.08 or Section 3.09, 100% of the outstanding principal amount
of such Securities so tendered.




          “Responsible Officer” shall mean, 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.




          “Restricted Security” means a Security that constitutes a “restricted security” within
the meaning of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall
be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any
Security constitutes a Restricted Security.




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




          “Rule 144A Global Security” means a permanent Global Security in registered form
representing the aggregate principal amount of Securities sold in reliance on Rule 144A.




4









 








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




          “Securities”
means the 3 1/8% Convertible Notes due September 1, 2025 issued by the
Company pursuant to this Indenture.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Significant Subsidiary” with respect to any person means any subsidiary of such
person that, from time to time, constitutes a “significant subsidiary” within the meaning of Rule
1-02 of Regulation S-X under the Securities Act, as such regulation is in effect on the date of
this Indenture.




          “subsidiary” means (i) a corporation a majority of whose capital stock with voting
power, under ordinary circumstances, to elect directors is at the time, directly or indirectly,
owned by the Company, by one or more subsidiaries of the Company or by the Company and one or more
of its subsidiaries or (ii) any other person (other than a corporation) in which the Company, one
or more its subsidiaries or the Company and one or more its subsidiaries, directly or indirectly,
at the date of determination thereof, have at least majority ownership interest.




          “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in
effect on the date of this Indenture, except as provided in Section 9.03.




          “Trading Day” means (x) if the applicable security is quoted on The Nasdaq National
Market, a day on which trades may be made thereon or (y) if the applicable security is listed or
admitted for trading on the American Stock Exchange, New York Stock Exchange or another national
securities exchange, a day on which the American Stock Exchange, New York Stock Exchange or another
national securities exchange is open for business or (z) if the applicable security is not so
listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law or executive order
to close. In determining the number of Trading Days that precede the Maturity Date for the purposes
of Section 10.03(a) and Section 10.04, a day shall be deemed a Trading Day if such day was
scheduled to have been a Trading Day, whether or not trading occurs on such day.




          “Trading Price” per $1,000 in principal amount of Securities on any date of
determination means the average of the secondary market bid quotations per $1,000 in principal
amount of Securities obtained by the Trustee for $5,000,000 principal amount of Securities at
approximately 3:30 p.m., New York City time, on such determination date from two independent
nationally recognized securities dealers selected by the Company (which may include the Initial
Purchaser); provided that if at least two such bids cannot reasonably be obtained by the Trustee,
but such bid can be reasonably obtained by the Trustee, then such bid shall be used. If the
Trustee cannot reasonably obtain at least one bid for $5,000,000 principal amount of Securities
from a nationally recognized securities dealer or, in the reasonable judgment of the Company, the
bid quotations are not indicative of the secondary market value of the Securities, then the Trading
Price will equal (a) the applicable conversion rate multiplied by (b) the Closing Sale Price on
such determination date. The Trustee shall determine the Trading Price prior to the start
of each Contingent Interest Period, and shall promptly notify the Company if contingent




5









 




interest is payable for such Contingent Interest Period. Upon determination that Holders will be
entitled to receive contingent interest which may become payable during a Contingent Interest
Period, the Company shall provide notice to the Trustee setting forth the amount of contingent
interest payable per $1,000 principal amount of Securities and disseminate a press release through
Dow Jones & Company, Inc. or Bloomberg Business News or other similarly broad public medium that is
customary for such press releases.




          “Trustee” means the party named as such in this Indenture until a successor replaces
it in accordance with the provisions hereof and thereafter means the successor.




          SECTION 1.02. Other Definitions.




	 	 	 
	Term	 	Defined in Section
	“Acquisition Value”
	 	10.05(d)
	“Additional Securities”
	 	2.01
	“Additional Shares”
	 	10.05(a)
	“Bankruptcy Law”
	 	6.01
	“business day”
	 	11.07
	“Cash Amount”
	 	10.03(d)
	“Change in Control”
	 	3.09
	“Change in Control Notice”
	 	3.09
	“Change in Control Repurchase Date”
	 	3.09
	“Change in Control Repurchase Right”
	 	3.09
	“Company Notice”
	 	3.08
	“Company Notice Date”
	 	3.08
	“comparable yield”
	 	4.08
	“Contingent Payment Regulations”
	 	4.08
	“Conversion Agent”
	 	2.03
	“Conversion Obligation”
	 	10.03
	“Conversion Retraction Period”
	 	10.03(a)
	“Conversion Value”
	 	10.04
	“conversion date”
	 	10.02
	“conversion rate”
	 	10.01
	“Conversion Shares”
	 	10.01
	“Custodian”
	 	6.01
	“Daily Conversion Value Amount”
	 	10.04
	“Effective Date”
	 	10.05
	“Event of Default”
	 	6.01
	“Expiration Time”
	 	10.06
	“Global Security”
	 	2.01
	“Global Security Legend”
	 	2.17
	“Legal Holiday”
	 	11.07
	“Make Whole Change of Control”
	 	10.05(a)
	“Market Price”
	 	3.09
	“Merger Event”
	 	10.13
	“Net Share Settlement”
	 	10.04(a)






6









 






	 	 	 
	Term	 	Defined in Section
	“Option of Holder to Elect Repurchase Notice”
	 	3.08
	“Participants”
	 	2.15
	“Paying Agent”
	 	2.03
	“Physical Securities”
	 	2.01
	“Private Placement Legend”
	 	2.17
	“Purchased Shares”
	 	10.06
	“Record Date”
	 	10.06(f)
	“Reference Property”
	 	10.13(b)
	“Registrar”
	 	2.03
	“Repurchase Date”
	 	3.08
	“Repurchase Right”
	 	3.08
	“Resale Restriction Termination Date”
	 	2.16
	“Retraction Date”
	 	10.03(b)
	“Settlement Method Election Notice”
	 	10.03(a)
	“Settlement Method Notice Period”
	 	10.03(a)
	“U.S. Government Obligations”
	 	8.01
	“Valuation Period”
	 	10.05(d)






          SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture.




          The following TIA terms used in this Indenture have the following meanings:




          “Commission” means the SEC.




          All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the
meanings so assigned to them.




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





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




     (b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles in effect on the date hereof;




     (c) “or” is not exclusive;




     (d) words in the singular include the plural and in the plural include the singular;




     (e) provisions apply to successive events and transactions; and




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



7









 





ARTICLE II




The Securities




          SECTION 2.01. Form and Dating. The Securities and the Trustee’s certificate of
authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in
and forms a part of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication.




          Securities offered and sold in reliance on Rule 144A under the Securities Act shall be issued
initially in the form of one or more Global Securities, substantially in the form set forth in
Exhibit A (each, a “Global Security”), deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided
and bearing the legends set forth in Exhibits B-1 and B-2. The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary, as hereinafter provided; provided that in
no event shall the aggregate principal amount of the Global Security or Securities exceed
$300,000,000, or $345,000,000 if the Initial Purchaser elects to purchase additional Securities
pursuant to the option provided for in Section 1 of the Purchase Agreement (the “Additional
Securities”).




          Securities issued in exchange for interests in a Global Security pursuant to Section 2.15 may
be issued in the form of permanent certificated Securities in registered form in substantially the
form set forth in Exhibit A (the “Physical Securities”) and, if applicable, bearing any
legends required by Section 2.17.




          SECTION 2.02. Execution and Authentication. One Officer shall sign the Securities for
the Company by manual or facsimile signature.




          If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.




          A Security shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Security has been authenticated under this
Indenture.




          Upon a written order of the Company signed by one Officer of the Company, the Trustee shall
authenticate Securities for original issue in the aggregate principal amount of $300,000,000 and
such additional principal amount, if any, as shall be determined pursuant to the next sentence of
this Section 2.02. Upon receipt by the Trustee of an Officers’ Certificate stating that the
Initial Purchaser has elected to purchase from the Company a specified principal amount of
Additional Securities, not to exceed $45,000,000, pursuant to Section l of the Purchase Agreement,
the Trustee shall authenticate and deliver such specified principal amount of
Additional Securities to or upon the written order of the Company signed as provided in the
immediately preceding sentence. Such Officers’ Certificate must be received by the Trustee not
later than the proposed date for delivery of such Additional Securities. The aggregate principal




8









 







amount of Securities outstanding at any time may not exceed $345,000,000 except as provided in
Section 2.07.




          Upon a written order of the Company signed by two Officers or by an Officer and an Assistant
Treasurer of the Company, the Trustee shall authenticate Securities not bearing the Private
Placement Legend to be issued to the transferee when sold pursuant to an effective registration
statement under the Securities Act as set forth in Section 2.16(b).




          The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company and its
Affiliates.




          If a written order of the Company pursuant to this Section 2.02 of the Indenture has been, or
simultaneously is, delivered, any instructions by the Company to the Trustee with respect to
endorsement, delivery or redelivery of a Security issued in global form shall be in writing but
need not comply with Section 11.04 hereof and need not be accompanied by an Opinion of Counsel.




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




          SECTION 2.03. Registrar, Paying Agent and Conversion Agent. The Company shall
maintain an office or agency where Securities may be presented for registration of transfer or for
exchange (“Registrar”), an office or agency where Securities may be presented for payment (“Paying
Agent”) and an office or agency where Securities may be presented for conversion (“Conversion
Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange.
The Company may appoint or change one or more co-registrars, one or more additional paying agents
and one or more additional conversion agents without notice and may act in any such capacity on its
own behalf. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Conversion Agent” includes any additional conversion agent.




          The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such.




          The Company initially appoints the Trustee as Paying Agent, Registrar and Conversion Agent.




          SECTION 2.04. Paying Agent To Hold Money in Trust. Each Paying Agent shall hold in
trust for the benefit of the Securityholders or the Trustee all moneys held by the Paying Agent for
the payment of the Securities, and shall notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time





9









 







may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no
further liability for the money. If the Company acts as Paying Agent, it shall segregate and hold
as a separate trust fund all money held by it as Paying Agent.




          SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on
or before each interest payment date and at such other times as the Trustee may request in writing
a list, in such form and as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders.




          SECTION 2.06. Transfer and Exchange. Subject to Sections 2.15 and 2.16 hereof, where
Securities are presented to the Registrar with a request to register their transfer or to exchange
them for an equal principal amount of Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such transaction are met.
To permit registrations of transfer and exchanges, the Trustee shall authenticate Securities at the
Registrar’s request. The Company or the Trustee, as the case may be, shall not be required (a) to
issue, authenticate, register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 3.04 and ending at the close of business on the day of such
mailing or (b) to register the transfer of or exchange any Security so selected for redemption or
repurchase in whole or in part, except the unredeemed or unrepurchased portion of Securities being
redeemed or repurchased in part.




          No service charge shall be made for any transfer, exchange or conversion of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer, exchange or conversion of Securities, other
than exchanges pursuant to Section 2.10, 3.07, 3.08, 3.09, 9.05 or 10.02 not involving any
transfer.




          SECTION 2.07. Replacement Securities. If the Holder of a Security claims that the
Security has been mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee’s requirements are met and, in the
case of a mutilated Security, such mutilated Security is surrendered to the Trustee. In the case
of lost, destroyed or wrongfully taken Securities, if required by the Trustee, an indemnity bond
must be provided by the Holder that is sufficient in the judgment of the Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Trustee may charge for its expenses in replacing a Security.




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




          Every replacement Security is an additional obligation of the Company only as provided in
Section 2.08.





10









 








          SECTION 2.08. Outstanding Securities. Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those converted, those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.08 as not outstanding.
Except to the extent provided in Section 2.09, a Security does not cease to be outstanding because
the Company or one of its subsidiaries or Affiliates holds the Security.




          If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it, or a court holds, that the replaced Security is held by
a protected purchaser.




          If the Paying Agent (other than the Company) holds on a Redemption Date, Repurchase Date or
the Maturity Date money sufficient to pay Securities payable on that date, then on and after that
date, such Securities shall be deemed to be no longer outstanding and interest on them shall cease
to accrue, and such Security shall be deemed paid whether or not the Security is delivered to the
Paying Agent. Thereafter, all other rights of the Holders of such Securities shall terminate with
respect to such Securities, other than the right to receive the Redemption Price, Repurchase Price
or principal amount, as applicable, and accrued and unpaid interest (including contingent
interest), if any.




          SECTION 2.09. Securities Held by the Company or an Affiliate. In determining whether
the Holders of the required aggregate principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or any of its subsidiaries or an
Affiliate shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which a Responsible Officer of the Trustee knows are so owned shall be so
disregarded.




          SECTION 2.10. Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.




          SECTION 2.11. Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange, payment or conversion. The
Trustee shall cancel all Securities surrendered for transfer, exchange, payment, conversion or
cancellation in accordance with its customary procedures. The Company may not issue new
Securities to replace Securities that it has paid or delivered to the Trustee for cancellation
or that any Securityholder has converted pursuant to Article X.




          SECTION 2.12. Defaulted Interest. If and to the extent the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted interest in any lawful
manner plus, to the extent not prohibited by applicable statute or case law, interest payable on
the defaulted interest at the rate provided in the Securities. The Company may pay the defaulted
interest to the persons who are Securityholders on a subsequent special record date.




11









 







The Company shall fix such record date and payment date. At least 15 days before the record date, the Company
shall mail to Securityholders a notice that states the record date, payment date and amount of
interest to be paid.




          SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use one or
more “CUSIP” numbers, and if so, the Trustee shall use the CUSIP numbers in notices of redemption
or exchange as a convenience to Holders; provided, however, that no representation is hereby deemed
to be made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed in the
notice or on the Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the Trustee of any change in
the CUSIP numbers.




          SECTION 2.14. Deposit of Moneys. Prior to 11:00 a.m., New York City time, on each
interest payment date, Maturity Date, Redemption Date, Repurchase Date and Change in Control
Repurchase Date, the Company shall deposit with the Paying Agent in immediately available funds
money sufficient to make Cash payments, if any, due on such interest payment date, Maturity Date,
Redemption Date, Repurchase Date and Change in Control Repurchase Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on such interest
payment date, Maturity Date, Redemption Date, Repurchase Date, and Change in Control Repurchase
Date, as the case may be.




          SECTION 2.15. Book-Entry Provisions for Global Securities. The Global Securities
initially shall (i) be registered in the name of the Depositary or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Section 2.17.




          (a) Members of, or participants in, the Depositary (“Participants”) shall have no
rights under this Indenture with respect to any Global Security, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of
the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.




          (b) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
the Depositary, its successors or their respective nominees. Physical Securities shall be issued to
all beneficial owners in exchange for their beneficial interests in Global Securities only
if (i) the Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for any Global Security and a successor Depositary is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depositary to issue Physical Securities.




          (c) In connection with the transfer of a Global Security in its entirety to beneficial owners
pursuant to Section 2.15(b), such Global Security shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner




12









 







identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.




          (d) Any Physical Security constituting a Restricted Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.15(b) shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend (as defined).




          (e) The Holder of any Global Security may grant proxies and otherwise authorize any person,
including Participants and persons that may hold interests through Participants, to take any action
which a Holder is entitled to take under this Indenture or the Securities.




          SECTION 2.16. Special Transfer Provisions. Transfers to QIBs. The Registrar
shall register the transfer of any Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after the later of the second
anniversary after (i) the issue date for the Securities and (ii) the last date on which the Company
or any Affiliate of the Company was the owner of such Security (or any predecessor security) (or
such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) (or such longer period of time as may be required under the Securities Act or
applicable state securities laws in the opinion of counsel for the Company, unless otherwise agreed
between the Company and the Holder thereof) (such later date being the “Resale Restriction
Termination Date”), or (y) such transfer is being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to
a transferee who has signed the certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is purchasing the Security for
its own account or an account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by Rule 144A.




          (a) Restrictions on Transfer and Exchange of Global Securities. Notwithstanding any
other provisions of this Indenture, a Global Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary.




          (b) Private Placement Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar shall deliver Securities that do
not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only Securities that bear the
Private Placement Legend until after the second anniversary of the later of (i) the issue date for
the Securities, (ii) the last date on which the Company or any Affiliate of the Company was the
owner of such Security (or any predecessor security) (or such shorter period of time as permitted




13









 







by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer
period of time as may be required under the Securities Act or applicable state securities laws in
the opinion of counsel for the Company, unless otherwise agreed between the Company and the Holder
thereof), (y) there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to
the Company to the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities Act or (z) such
Security has been sold pursuant to an effective registration statement under the Securities Act and
the Holder selling such Securities has delivered to the Registrar a notice in the form of Exhibit C
hereto. Upon the effectiveness of a Shelf Registration Statement (as defined in the Registration
Rights Agreement), the Company shall deliver to the Trustee a notice of effectiveness, a Security
or Securities, an authentication order in accordance with Section 2.02 and an opinion of counsel in
the form of Exhibit D hereto and, if required by the Depositary, the Company shall deliver to the
Depositary a letter of representations in a form reasonably acceptable to the Depositary.




          (c) General. By its acceptance of any Security bearing the Private Placement Legend,
each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth
in this Indenture and in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture.




          The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.15 or this Section 2.16. The Company shall have the right to
inspect and make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.




          (d) Transfers of Securities Held by Affiliates. Any certificate (i) evidencing a
Security that has been transferred to an Affiliate of the Company within two years after the issue
date for the Securities, as evidenced by a notation on the Assignment Form for such transfer or in
the representation letter delivered in respect thereof or (ii) evidencing a Security that has been
acquired from an Affiliate (other than by an Affiliate) in a transaction or a chain of transactions
not involving any public offering, shall, until two years after the last date on which the Company
or any Affiliate of the Company was an owner of such Security, in each case, bear the Private
Placement Legend, unless otherwise agreed by the Company (with written notice thereof to the
Trustee).




          SECTION 2.17. Restrictive Legends. Each Global Security and Physical Security that
constitutes a Restricted Security shall bear the legend (the “Private Placement Legend”) as
set forth in Exhibit B-1 on the face thereof until after the second anniversary of the later of (i)
the issue date for the Securities, (ii) the last date on which the Company or any Affiliate of the
Company was the owner of such Security (or any predecessor security) (or such shorter period of
time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder)
(or such longer period of time as may be required under the Securities Act or applicable state
securities laws in the opinion of counsel for the Company, unless otherwise agreed between the
Company and the Holder thereof).




          Each Global Security shall also bear the “Global Security Legend” as set forth in
Exhibit B-2.





14









 






ARTICLE III




Redemption and Repurchase




          SECTION 3.01. Optional Redemption. The Company may redeem all or any portion of the
Securities upon the terms and at the Redemption Prices set forth in each of the Securities. Any
redemption shall be made pursuant to paragraph 6 of the Securities and this Article III.




          SECTION 3.02. Notices to Trustee. If the Company elects to redeem Securities pursuant
to Paragraph 6 of the Securities, it shall notify the Trustee at least 15 days prior to the mailing
of the notice of redemption (unless a shorter notice period shall be satisfactory to the Trustee)
of the Redemption Date and the aggregate principal amount of Securities to be redeemed.




          SECTION 3.03. Selection of Securities To Be Redeemed. If the Company elects to redeem
Securities pursuant to Paragraph 6 of the Securities and less than all the Securities are to be
redeemed, the Trustee shall select the Securities to be redeemed on a pro rata basis. The Trustee
shall make the selection from Securities outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that have denominations
larger than $1,000 principal amount. Securities and portions of them the Trustee selects shall be
in amounts of $1,000 principal amount or positive integral multiples of $1,000 principal amount.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption
and the principal amount thereof to be redeemed.




          The Registrar need not transfer or exchange any Securities selected for redemption, except the
unredeemed portion of the Securities redeemed in part. Also, the Registrar need not transfer or
exchange any Securities for a period of 15 days before selecting Securities to be redeemed.




          If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be redeemed may be treated
by the Trustee as outstanding for the purpose of such selection.




          SECTION 3.04. Notice of Redemption. At least 15 days but not more than 60 days before
a Redemption Date, the Company shall mail by first-class mail a notice of redemption to each Holder
whose Securities are to be redeemed.




          The notice shall identify the Securities and the aggregate principal amount thereof to be
redeemed and shall state:





     (a) the Redemption Date;




     (b) the Redemption Price, plus the amount of accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, to be paid on the Securities
called for redemption;



15









 






     (c) the then current conversion rate and Conversion Price;




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




     (e) the date on which the right to convert the principal of the Securities called for
redemption will terminate and the place or places where such Securities may be surrendered
for conversion;




     (f) that Holders who want to convert Securities must satisfy the requirements in
Article X;




     (g) the Paragraph of the Securities pursuant to which the Securities are to be
redeemed;




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




     (i) that unless the Company shall default in the payment of the Redemption Price,
interest (including contingent interest, if any) and liquidated damages, if any, on
Securities called for redemption ceases to accrue on and after the Redemption Date and that
the Securities will cease to be convertible after the close of business on the second
business day immediately preceding the Redemption Date; and




     (j) the CUSIP number or numbers, as the case may be, of the Securities.



          The date on which the right to convert the principal of the Securities called for redemption
will terminate shall be at the close of business on the second business day immediately preceding
the Redemption Date.




          At the Company’s request, upon reasonable prior notice, the Trustee shall give the notice of
redemption in the Company’s name and at the Company’s expense; provided that the form and content
of such notice shall be prepared by the Company.




          SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is mailed,
Securities called for redemption become due and payable on the Redemption Date at the Redemption
Price, plus accrued and unpaid interest (including contingent interest, if any) and liquidated
damages, if any, to the date of redemption, and, on and after such date (unless the Company shall
default in the payment of the Redemption Price), such Securities shall cease to bear interest,
contingent interest and liquidated damages. Upon surrender to the Paying Agent, such Securities
shall be paid at the Redemption Price, plus accrued interest (including contingent interest, if
any) and liquidated damages, if any, to, but excluding, the Redemption Date, provided that if the
Redemption Date is on or after an interest record date but on or prior to the related interest
payment date, interest (including contingent interest, if any) and liquidated damages, if
any, will be payable to the Holders in whose names the Securities are registered at the close
of business on the relevant record date.




          SECTION 3.06. Deposit of Redemption Price. On or before the Redemption Date, the
Company shall, in accordance with Section 2.14, deposit with the Paying Agent money







16









 







in funds
immediately available on the Redemption Date sufficient to pay the Redemption Price of and accrued
interest (including contingent interest, if any) and liquidated damages, if any, on all Securities
to be redeemed on that date. The Paying Agent shall return to the Company, as soon as practicable,
any money not required for that purpose.




          SECTION 3.07. Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate for the Holder a new
Security or Securities in an aggregate principal amount equal to the unredeemed portion of the
Security surrendered.




          If any Security selected for partial redemption is converted in part, the converted portion of
such Security shall be deemed to be the portion selected for redemption.




          SECTION 3.08. Repurchase of Securities at Option of the Holder. Each Holder shall
have the right (the “Repurchase Right”), at the Holder’s option, to require the Company to
repurchase in Cash all of such Holder’s Securities, or a portion thereof which is $1,000 in
principal amount or any positive integral multiple thereof, on September 1, 2012, September 1, 2015
and September 1, 2020 (each, a “Repurchase Date”) at the Repurchase Price plus accrued and unpaid
interest (including contingent interest, if any) and liquidated damages, if any, thereon, up to but
not including the Repurchase Date; provided that if the Repurchase Date is on or after an interest
record date but on or prior to the related interest payment date, interest (including contingent
interest, if any) and liquidated damages, if any, will be payable to the Holders in whose names the
Securities are registered at the close of business on the relevant record date.




          To exercise a Repurchase Right, a Holder shall deliver to a Paying Agent designated by the
Company for such purpose in the Company Notice, (i) at any time from the opening of business on the
date that is 30 business days prior to the Repurchase Date until the close of business on the fifth
business day prior to the Repurchase Date, the Option of Holder to Elect Repurchase Notice on the
back of the Securities with respect to which the Repurchase Right is being exercised, or any other
form of written notice substantially similar to the Option of Holder to Elect Repurchase Notice, in
each case, duly completed and signed, with appropriate signature guarantee, and (ii) such
Securities with respect to which the Repurchase Right is being exercised, duly endorsed for
transfer to the Company, and the Holder of such Securities shall be entitled to receive from such
Paying Agent a nontransferable receipt of deposit evidencing such deposit.




          In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the
Company shall, on the later of the Repurchase Date and the date the Securities to be repurchased
are delivered to the Paying Agent designated therefor in accordance with the preceding paragraph,
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04),
in accordance with Section 2.14, an amount of Cash sufficient to pay the Repurchase Price (plus
accrued and unpaid interest, including contingent interest, if any, and liquidated damages, if any)
with respect to all of the Securities which are to be repurchased on that date.






17









 








          Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Option of Holder to Elect Repurchase Notice contemplated by this Section 3.08 shall have the right
to withdraw such notice at any time prior to the close of business on the second business day prior
to the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent at the
principal office of the Paying Agent in accordance with Section 3.11.




          In connection with any repurchase of Securities pursuant to this Section 3.08, the Company
shall give written notice of the Repurchase Date to the Holders (the “Company Notice”).
The Company Notice shall be sent by first-class mail to the Trustee and to each Holder not less
than 30 business days prior to any Repurchase Date (the “Company Notice Date”). The
Company will also disseminate the Company Notice (without the Option of Holder to Elect Repurchase
Notice) via a press release through Dow Jones & Company, Inc. or Bloomberg Business News or other
similarly broad public medium that is customary for such press releases. Each Company Notice shall
include an Option of Holder to Elect Repurchase Notice substantially in the form included in
Exhibit A attached hereto (the “Option of Holder to Elect Repurchase Notice”) to be
completed by a Securityholder that wishes to exercise its Repurchase Right and shall state, among
other things:





     (a) the Repurchase Price, plus the amount of accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, payable on the Repurchase Date;




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




     (c) a description of the procedures which a Holder must follow to exercise a Repurchase
Right and a brief description of those rights;




     (d) that the Securities are to be surrendered to the Paying Agent before the Company is
obligated to pay the Repurchase Price;




     (e) that Securities as to which a repurchase notice has been given may be converted in
accordance with Article X hereof and Paragraph 10 of the Securities if the applicable Option
of Holder to Elect Repurchase Notice has been withdrawn by written notice to the Paying
Agent by the close of business on the second business day preceding the Redemption Date;




     (f) that the Repurchase Price for, and any accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, on, any Security as to which an
Option of Holder to Elect Repurchase Notice has been given and not validly withdrawn will be
paid promptly following the later of the Repurchase Date and the time of surrender of such
Security as described in subclause (d) above;




     (g) the procedures for withdrawing an Option of Holder to Elect Repurchase Notice (as
specified in Section 3.11);




     (h) the then existing conversion rate;




     (i) the place or places where such Securities may be surrendered for conversion;



18









 






     (j) that, unless the Company defaults in making payment on Securities for which a
repurchase notice has been submitted, interest (including contingent interest, if any), and
liquidated damages, if any, on such Securities will cease to accrue on the Repurchase Date
and the Securities shall cease to be outstanding;




     (k) that all rights of the Holders of such Securities shall terminate with respect to
such Securities on the Repurchase Date, other than the right to receive the Repurchase Price
upon delivery of the Securities to be purchased; and




     (l) the CUSIP number of the Securities.



          At the Company’s request, the Trustee shall give such Company Notice in the Company’s name and
at the Company’s expense; provided, however, that the Company makes such request at least three
business days prior to the date by which such Company Notice must be given to the Holders and that,
in all cases, the text of such Company Notice shall be prepared by the Company.




          SECTION 3.09. Repurchase Upon a Change in Control. Upon any Change in Control (as
defined below) with respect to the Company, each Holder shall have the right (the “Change in
Control Repurchase Right”), at the Holder’s option, to require the Company to repurchase all of
such Holder’s Securities, or a portion thereof which is $1,000 in principal amount or any positive
integral multiple thereof, on the date (the “Change in Control Repurchase Date”) that is 30
business days after the date of the Change in Control Notice (as defined below) at the Repurchase
Price, plus accrued and unpaid interest (including contingent interest, if any) and liquidated
damages, if any, to, but not including, the Change in Control Repurchase Date. Provisions of this
Indenture that apply to the repurchase of Securities pursuant to this Section 3.09 of all of a
Security also apply to the repurchase of such portion of such Security.




          At the option of the Company, all or a specified percentage of the Repurchase Price of
Securities in respect of which a Change in Control Notice pursuant to this Section 3.09 has been
given may be paid by the Company by the issuance of a number of shares of Common Stock or, in the
case of a merger in which the Company is not the surviving corporation, common stock, ordinary
shares, American depositary shares or analogous securities of the surviving corporation or its
direct or indirect parent, equal to, per $1,000 principal amount of Securities, the quotient
obtained by dividing (i)$1,000 minus the amount of the Repurchase Price the Company has elected to
pay in Cash by (ii) the product of (A) the Market Price (as defined below) of the Common Stock,
subject to the next succeeding paragraph, and (B) 0.95.




          The Company will not issue fractional shares of Common Stock in payment of the Repurchase
Price in connection with the exercise of any Change in Control Repurchase Right. Instead the
Company will pay Cash based on the Market Price for all fractional shares. The Market Price of a
fractional share shall be determined to the nearest 1/1,000th of a share, by multiplying the
applicable Market Price of a full share by the fractional amount and rounding to the nearest whole
cent. It is understood that if a Holder elects to have more than one Security repurchased, the
number of shares of Common Stock shall be based on the aggregate principal amount of Securities to
be repurchased.





19









 








          In the event that the Company is unable to purchase the Securities of a Holder or Holders for
Common Stock because any necessary qualifications or registrations of the Common Stock under
applicable state securities laws cannot be obtained, the Company may purchase the Securities of
such Holder or Holders for Cash. The Company may not change its election with respect to the
consideration to be paid once the Company has given its Change in Control Notice to Securityholders
except pursuant to the immediately preceding sentence in the event of a failure to satisfy, prior
to the close of business on the Change in Control Repurchase Date, any condition to the payment of
the Repurchase Price in shares of Common Stock.




          At least three business days before the date of the Change in Control Notice (as defined
below), the Company shall deliver an Officers’ Certificate to the Trustee specifying:





     (a) the manner of payment selected by the Company;




     (b) the information required to be included in the Change in Control Notice;




     (c) if the Company elects to pay all or a specified percentage of the Repurchase Price
in shares of Common Stock, that the conditions to such manner of payment set forth in this
Section 3.09 have been or will be complied with; and




     (d) whether the Company desires the Trustee to give the Change in Control Notice
required by this Section 3.09.




     The Company’s right to exercise its election to purchase Securities through the issuance of
Common Stock shall be conditioned upon:




     (a) the Company’s giving of timely Change in Control Notice to purchase Securities with
Common Stock as provided herein;




     (b) the registration of such Common Stock under the Securities Act or the Exchange Act,
in each case, if required;




     (c) such Common Stock having been quoted or listed on the Nasdaq National Market or
other principal U.S. exchange or quotation system on which the shares of Common Stock are
then listed, or if the Common Stock is not so quoted or listed then on the principal other
market on which the Common Stock are then traded;




     (d) any necessary qualification or registration under applicable state securities laws
or the availability of an exemption from such qualification and registration; and




     (e) the receipt by the Trustee of an Officers’ Certificate and an Opinion of Counsel
each stating that (A) the terms of the issuance of the Common Stock are in conformity with
this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of
all or a specified percentage of the Repurchase Price in respect of Securities have been
duly authorized and, when issued and delivered pursuant to the terms of this Indenture in
payment of all or a specified percentage of the Repurchase Price in respect of the
Securities, will be validly issued, fully paid and nonassessable and, to the best of such
counsel’s knowledge, free from preemptive rights, and, (a) in the case



20









 






of such Officers’
Certificate, stating that the conditions above and the condition set forth in the second
succeeding sentence have been satisfied and, (b) in the case of such Opinion of Counsel,
stating that the conditions above have been satisfied.



          Such Officers’ Certificate shall also set forth (i) the number of shares of Common Stock of to
be issued for each $1,000 principal amount at maturity of Securities, (ii) the Closing Sale Price
on each Trading Day during the period during which the Market Price is calculated and (iii) the
Market Price of the Common Stock. The Company may pay the Repurchase Price in Common Stock only if
the information necessary to calculate the Market Price is published in a daily newspaper of
national circulation or is otherwise publicly available or obtainable (e.g., by dissemination on
the World Wide Web or by other public means). If the foregoing conditions are not satisfied with
respect to a Holder or Holders prior to the close of business on the Change in Control Repurchase
Date and the Company has elected to purchase the Securities pursuant to this Section 3.09 through
the issuance of Common Stock, the Company shall pay the entire Repurchase Price of the Securities
of such Holder or Holders in Cash.




          All shares of Common Stock delivered upon purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued, fully paid and nonassessable,
and shall be free from preemptive rights and free of any lien or adverse claim.




          Within 30 days after the occurrence of a Change in Control of the Company, the Company shall
mail to all Holders of record of the Securities a notice (the “Change in Control Notice”)
of the occurrence of such Change in Control and the Change in Control Repurchase Right arising as a
result thereof. The Company shall deliver a copy of the Change in Control Notice to the Trustee
and shall disseminate a copy via a press release through Dow Jones & Company, Inc. or Bloomberg
Business News or other similarly broad public medium that is customary for such press releases.





     Each Change in Control Notice shall state:




     (a) the events causing the Change in Control;




     (b) the date of such Change in Control;




     (c) the Change in Control Repurchase Date;




     (d) the date by which the Change in Control Repurchase Right must be exercised;




     (e) the Repurchase Price, plus the amount of accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, to be paid on the Securities to
be repurchased;




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




     (g) a description of the procedure which a Holder must follow to exercise a Change in
Control Repurchase Right and a brief description of those rights;



21









 






     (h) that, in order to exercise the Change in Control Repurchase Right, the Securities
are to be surrendered for payment of the Repurchase Price;




     (i) that Securities as to which a Change in Control Notice has been given may be
converted only in accordance with Article X hereof and Paragraph 10 of the Securities if the
applicable Option of Holder to Elect Repurchase Notice has been withdrawn in accordance with
the terms of this Indenture;




     (j) that the Repurchase Price for, any accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, on any Security as to which an
Option of Holder to Elect Repurchase Notice has been given and not withdrawn, shall be so
paid pursuant to this Section 3.09 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in the related Change in Control
Notice, as determined by the Company in its sole discretion;




     (k) the procedures for withdrawing an Option of Holder to Elect Repurchase Notice (as
specified in Section 3.11);




     (l) the then existing conversion rate, and any adjustment to the conversion rate that
will result from the Change in Control;




     (m) the place or places where such Securities may be surrendered for conversion;




     (n) that, unless the Company defaults in making payment on Securities for which a
Change in Control repurchase notice has been submitted, interest (including contingent
interest, if any), and liquidated damages, if any, on such Securities will cease to accrue
on the Change in Control Repurchase Date;




     (o) that all rights of the Holders of such Securities shall terminate with respect to
such Securities on the Change in Control Repurchase Date, other than the right to receive
the Repurchase Price upon delivery of the Securities to be purchased;




     (p) the CUSIP number of the Securities; and




     (q) whether the Repurchase Price will be paid in Cash, Common Stock or a combination of
both and, if both, the percentage thereof; provided, however, if the Company elects to pay
all or a portion of the Repurchase Price in Common Stock, such Change in Control Notice
shall also:




	 	(X)	 	state that each Holder will receive shares of Common Stock with
a Market Price determined as of a specified date prior to the Change in Control
Repurchase Date equal to such specified percentage of the Repurchase Price of
the Securities held by such Holder (except any cash amount to be paid in lieu
of fractional shares);
	 
	 	(Y)	 	describe the method of calculating the Market Price of the
Common Stock; and




22









 






	 	(Z)	 	state that because the Market Price of Common Stock will be
determined prior to the Change in Control Repurchase Date, Holders of the
Securities will bear the market risk with respect to the value of the Common
Stock to be received from the date such Market Price is determined to the
Change in Control Repurchase Date.





          The “Market Price” means the average of the Closing Sale Prices of the Common Stock
for the five consecutive Trading Days ending on the third Trading Day prior to the applicable
Change in Control Repurchase Date, appropriately adjusted to take into account the occurrence,
during the period commencing on the first of the Trading Days during the five Trading Day period
and ending on the Change in Control Repurchase Date, of any event described in Section 10.06.




          No failure of the Company to give the foregoing notice shall limit any Holder’s right to
exercise a Change in Control Repurchase Right.




          To exercise a Change in Control Repurchase Right, a Holder shall deliver to the Trustee, or to
a Paying Agent designated by the Company for such purpose in the Change in Control Notice, on or
before the close of business on the 30th day after the date of the Change in Control
Notice, (i) irrevocable written notice in the form of the Option of Holder to Elect Repurchase
Notice on the back of the Securities with respect to which the Change in Control Repurchase Right
is being exercised, or any other form of written notice substantially similar to the Option of
Holder to Elect Repurchase Notice, in each case, duly completed and signed, with appropriate
signature guarantee, and (ii) such Securities with respect to which the Change in Control
Repurchase Right is being exercised, duly endorsed for transfer to the Company, and the Holder of
such Securities shall be entitled to receive from the Company (if it is acting as its own Paying
Agent), or such Paying Agent a nontransferable receipt of deposit evidencing such deposit.




          In the event a Change in Control Repurchase Right shall be exercised in accordance with the
terms hereof, the Company shall, on or prior to a Change in Control Repurchase Date, deposit Cash
in respect of the Cash portion of a repurchase under this Section 3.09 or for fractional shares of
Common Stock, as applicable, plus Cash sufficient to pay accrued
an unpaid interest, including contingent interest, if any, and liquidated damages, if any,
with respect to all Securities to be purchased pursuant to this Section 3.09. On the Trading Day
following the Change in Control Repurchase Date, the Company shall deliver to each Holder entitled
to receive Common Stock the number of full shares of Common Stock issuable in payment of the
Repurchase Price. The person in whose name the certificate for shares of Common Stock is
registered shall be treated as a holder of record of Common Stock on the business day following the
Change in Control Repurchase Date. No payment or adjustment will be made for dividends on the
shares of Common Stock on the record date for which occurred on or prior to the Change in Control
Repurchase Date.




          If a Holder of a repurchased Security is paid in Common Stock pursuant to this Section 3.09,
the Company shall pay all, stamp and other duties, if any, which may be imposed by the United
States or any political subdivision thereof or taxing authority thereof or therein with respect to
the issuance of shares of Common Stock. However, the Holder shall pay any





23









 







such tax which is due
because the Holder requests the shares of Common Stock to be issued in a name other than the
Holder’s name. The Trustee or any Paying Agent may refuse to deliver the certificates representing
the Common Stock issued in a name other than the Holder’s name until the Trustee or any such Paying
Agent receives a sum sufficient to pay any tax which shall be due because the shares are to be
issued in a name other than the Holder’s name. Nothing herein shall preclude any withholding tax
required by law.




          As used in this Section 3.09 and in the Securities:




          A “Change in Control” of the Company shall be deemed to have occurred at such time as:





     (a) any person acquires beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of transactions, of shares of
the Company’s capital stock entitling the person to exercise 50% or more of the total voting
power of all shares of the Company’s capital stock that are entitled to vote generally in
elections of directors, other than an acquisition by the Company, any of its subsidiaries or
any of its employee benefit plans; or




     (b) the conveyance, sale, transfer or lease by the Company of all or substantially all
of its assets to another person.



          However, a Change in Control will not be deemed to have occurred for the purposes of this
Section 3.09 if:





	 	(X)	 	the Closing Sale Price of the Common Stock for any five Trading
Days within the period of ten consecutive Trading Days ending immediately after
the later of the Change in Control or the public announcement of the Change in
Control, in the case of a Change in Control relating to an acquisition of
capital stock, or the period of ten consecutive Trading Days ending immediately
before the Change in Control, in the case of a Change in Control relating to a
merger, consolidation or asset sale, equals or
exceeds 105% of the Conversion Price of the Securities in effect on each of
those five Trading Days; or
	 
	 	(Y)	 	all or substantially all (but in no event less than 90%) of the
consideration, excluding Cash payments for fractional shares of Common Stock
and Cash payments made pursuant to dissenters’ appraisal rights, in a merger or
consolidation otherwise constituting a Change in Control in the preceding
paragraph (X) consists of shares of common stock, depositary receipts or other
certificates representing common equity interests traded on a national
securities exchange or quoted on the Nasdaq National Market, or will be so
traded or quoted immediately following such merger or consolidation, and as a
result of such merger or consolidation the Securities become convertible solely
into such consideration.





          For purposes of this “Change in Control” definition:





24









 









     (1) whether a person is a “beneficial owner” will be determined in accordance
with Rule 13d-3 under the Exchange Act; and




     (2) a “person” includes any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Exchange Act.



          SECTION 3.10. Conversion Arrangement on Call for Redemption. In connection with any
redemption of Securities, the Company may arrange, in lieu of redemption, for the purchase and
conversion of any Securities called for redemption by an agreement with one or more investment
banks or other purchasers to purchase all or a portion of such Securities by paying to the Trustee
in trust for the Holders whose Securities are to be so purchased, on or before the close of
business on the Redemption Date, an amount that, together with any amounts deposited with the
Trustee by the Company for redemption of such Securities, is not less than the Redemption Price,
together with interest (including contingent interest, if any) and liquidated damages, if any,
accrued to the Redemption Date, of such Securities. Notwithstanding anything to the contrary
contained in this Article III, the obligation of the Company to pay the Redemption Price of such
Securities and such interest (including contingent interest, if any) and liquidated damages, if
any, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such
purchasers, but no such agreement shall relieve the Company of its obligation to pay such
Redemption Price and such interest (including contingent interest, if any) and liquidated damages,
if any. If such an agreement is entered into, any Securities not duly surrendered for conversion
by the Holders thereof may, at the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article X) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the second business day immediately preceding the
Redemption Date, subject to payment of the above amount as aforesaid. The Trustee shall hold and
pay to the Holders whose Securities are selected for redemption any such amount paid to it for
purchase and conversion in the same manner as it would moneys deposited with it by the Company for
the redemption of Securities. Without the Trustee’s prior written consent, no arrangement between
the Company and such purchasers for
the purchase and conversion of any Securities shall increase or otherwise affect any of the
powers, duties, rights, immunities, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Company agrees to indemnify the Trustee from, and hold it harmless against,
any and all loss, liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such purchasers,
including the costs and expenses (including counsel fees and expenses) incurred by the Trustee in
the defense of any claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under this Indenture
except to the extent arising from its bad faith, willful misconduct or negligence.




          SECTION 3.11. Effect of Repurchase Notice or Change in Control Repurchase Notice.
Upon receipt by the Paying Agent, or the Trustee, as applicable, of a Holder’s Option of Holder to
Elect Repurchase Notice in accordance with Section 3.08 or Section 3.09, as applicable, the Holder
of the Security in respect of which such notice, as the case may be, was given shall (unless such
notice is withdrawn as specified in the following two paragraphs) thereafter be entitled to receive
solely the Repurchase Price, together with all accrued and unpaid interest (including contingent
interest, if any) and liquidated damages, if any, thereon, to but not





25









 







including the Repurchase Date
or Change in Control Repurchase Date, as the case may be, with respect to such Security.
Securities in respect of which a repurchase notice has been given by the Holder thereof may not be
converted pursuant to Article X hereof on or after the date of the delivery of such notice unless
such notice has first been validly withdrawn as specified in the following paragraph.




          With respect to any Security which is to be submitted for repurchase only in part pursuant to
Section 3.08 or Section 3.09, as applicable (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the Holder thereof or its attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without charge, a new Security or Securities of the same tenor and in
aggregate principal amount equal to the portion of such Security not submitted for repurchase
thereunder.




          A Holder’s Option of Holder to Elect Repurchase Notice specified in Section 3.08 or Section
3.09, as applicable, may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent at any time prior to the close of business on the second business day
prior to the Repurchase Date or prior to close of business on the second business day prior to the
Change in Control Repurchase Date, as the case may be, specifying:





     (a) the certificate or CUSIP number, as applicable, of the Security in respect of which
such notice of withdrawal is being submitted;




     (b) the aggregate principal amount of the Security with respect to which such notice of
withdrawal is being submitted; and




     (c) the aggregate principal amount, if any, of such Security which remains subject to
the original Option of Holder to Elect Repurchase Notice and which has been or will be
delivered for purchase by the Company.



          The Paying Agent shall promptly notify the Company of the receipt of any repurchase notice
specified in Section 3.08 or Section 3.09, as applicable, or written notice of withdrawal thereof.




          SECTION 3.12. Covenant to Comply With Securities Laws Upon Purchase of Securities.
When complying with the provisions of Section 3.08 or 3.09 hereof (provided that such offer or
purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange Act at the time of such offer
or purchase), the Company shall (i) comply with the applicable provisions of Rule 13e-4 and Rule
14e-1 (or any successor provisions) under the Exchange Act, and any other tender offer rules under
the Exchange Act that may then apply, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise comply with any applicable federal and
state securities laws so as to permit the rights and obligations under Sections 3.08 and 3.09 to be
exercised in the time and in the manner specified in Sections 3.08 and 3.09.





26









 








ARTICLE IV




Covenants




          SECTION 4.01. Payment of Securities. The Company shall pay all amounts due with
respect to the Securities on the dates and in the manner provided in the Securities. All such
amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Company is
acting as Paying Agent, if the Company has segregated and holds in trust in accordance with Section
2.04) on that date money sufficient to pay the amount then due with respect to the Securities.




          The Company shall pay interest on any overdue amount (including, to the extent permitted by
applicable law, overdue interest) at the rate borne by the Securities.




          SECTION 4.02. Maintenance of Office or Agency. The Company will maintain in the
Borough of Manhattan, the City of New York, an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee or Registrar) where Securities may be surrendered for
registration of transfer or exchange or conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company 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 of the Trustee.




          The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes. The Company 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 Company hereby designates the Corporate Trust Office of the Trustee as an agency of the
Company in accordance with Section 2.03.




          SECTION 4.03. Reports. The Company will promptly provide to the Trustee and shall,
upon request, provide to any Holder or beneficial owner of Securities or prospective purchaser of
Securities that so requests, the information required to be delivered pursuant to Rule 144A(d)(4)
until such time as the Securities and the underlying Common Stock have been registered by the
Company for resale under the Securities Act pursuant to the Registration Rights Agreement. In
addition, the Company will furnish such Rule 144A(d)(4) information if, at any time while the
Securities or the Common Stock issuable upon conversion of the Securities are restricted securities
within the meaning of the Securities Act, the Company is not subject to the informational
requirements of the Exchange Act.




          (a) The Company will comply with the provisions of TIA § 314(a).





27









 








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




          SECTION 4.04. Compliance Certificate. The Company shall deliver to the Trustee within
90 days after the end of each fiscal year of the Company an Officers’ Certificate stating whether
or not the signers know of any Default or Event of Default by the Company in performing any of its
obligations under this Indenture or the Securities. If they do know of any such Default or Event
of Default, the certificate shall describe the Default or Event of Default and its status.




          SECTION 4.05. Stay, Extension and Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it will 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 wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (in each case, to the extent that 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 has
been enacted.




          SECTION 4.06. Corporate Existence. Subject to Article V, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each of its Significant Subsidiaries in
accordance with the respective organizational documents of each Significant Subsidiary and the
rights (charter and statutory), licenses and franchises of the Company and its Significant
Subsidiaries; provided, however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate existence of any Significant Subsidiary, if in the judgment
of the Board of Directors (i) such preservation or existence is not material to the conduct of
business of the Company and (ii) the loss of such right, license or franchise or the dissolution of
such Significant Subsidiary does not have a material adverse impact on the Holders.




          SECTION 4.07. Notice of Default. In the event that any Default or Event of Default
shall occur, the Company will give prompt written notice of such Default or Event of Default to the
Trustee.




          SECTION 4.08. Tax Treatment of Securities. The Company and the Holders, by purchasing
a beneficial ownership interest in the Securities, agree that (i) the Securities are contingent
payment debt instruments as described in Section 1.1275-4 of the Treasury regulations promulgated
by the Department of Treasury pursuant to the Internal Revenue Code of 1986, amended (the
“Contingent Payment Regulations”), (ii) each Holder shall be bound by the Company’s application of
the Contingent Payment Regulations to the Securities, including the Company’s determination that
the rate at which interest will be deemed to accrue on the Securities for U.S. federal income tax
purposes, will be 6.8% compounded semiannually, which






28









 







is the rate comparable to the rate at which
the Company would borrow on a noncontingent, nonconvertible borrowing with no contingent payments,
but with terms and conditions otherwise comparable to the Securities (the “comparable yield”),
(iii) each Holder shall use the projected payment schedule with respect to the Securities provided
by the Company to the Holder, as provided in the Contingent Payment Regulations, to determine its
interest accruals and adjustments as provided in the Contingent Payment Regulations (iv) for
purposes of the Contingent Payment Regulations, to treat the fair market value of any Common Stock
received upon any conversion of the Securities as a contingent payment, and (v) the Company and
each Holder will not take any position on a tax return inconsistent with clauses (i), (ii), or
(iii) of this Section 4.08, unless required by applicable law.




          The comparable yield and the schedule of projected payments are not determined for any purpose
other than for the determination of interest accruals and adjustment thereof in respect of the
Securities for U.S. federal income tax purposes. The comparable yield and the schedule of
projected payments do not constitute a projection or representation regarding the future stock
price or the amount payable on the Securities. A Holder may obtain the issue date, comparable
yield and projected payment schedule (which schedule is attached as Exhibit E) by telephoning the
Company’s Investor Relations Department at (201) 414-2002 or submitting a written request to:
WebMD Corporation, 669 River Drive, Center 2, Elmwood Park, New Jersey 07407, Attn: Investor
Relations.




          On conversion of the Securities, that portion of accrued interest including accrued contingent
interest with respect to the converted Securities shall not be canceled, extinguished or forfeited,
but rather shall be deemed to be paid in full to the Holder thereof through delivery of the Common
Stock (together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Securities being converted pursuant to the provisions hereof, and the fair
market value of such shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in exchange for
interest accrued and unpaid through the conversion date and accrued and unpaid contingent interest,
and the balance, if any, of such fair market value of such Common Stock (and any such cash payment)
shall be treated as issued in exchange for the principal amount of the Securities being converted
pursuant to the provisions hereof.




ARTICLE V




Successors




          SECTION 5.01. When Company May Merge, etc. The Company shall not consolidate with or
merge with or into, or convey, transfer or lease all or substantially all of its properties and
assets to, another person unless such other person is a corporation organized under the laws of the
United States, any State thereof or the District of Columbia or a corporation or comparable legal
entity organized under the laws of a foreign jurisdiction and whose equity securities are listed on
a national securities exchange in the United States or authorized for quotation on The Nasdaq
National Market prior to or upon giving effect to the transaction (provided, however, that in the
case of a transaction where the surviving entity is organized under the laws of a foreign
jurisdiction, the Company may not consummate the transaction without first (i) making provision for
the satisfaction of its obligations to repurchase the






29









 







Securities following a change in control, if
any, (ii) amending the terms of the Securities to provide that, in the event the Company is
required under the laws of such foreign jurisdiction (or any political subdivision thereof) to
withhold or deduct amounts in respect of taxes from payments made to Securityholders on the
Securities, the Company will pay, subject to certain standard exceptions, such additional amounts
to the holders as may be necessary so that each Securityholder will receive the same amounts it
would have received had no such withholding or deduction been required, and (iii) obtaining an
opinion of tax counsel experienced in such matters to the effect that, under then existing United
States federal income tax laws, there would be no material adverse tax consequences to
Securityholders of the Securities resulting from such transaction); such person assumes by
supplemental indenture all the obligations of the Company, under the Securities and this Indenture;
and immediately after giving effect to the transaction, no Default or Event of Default shall exist
under the terms of this Indenture.




          The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers’ Certificate to the foregoing effect and an Opinion of Counsel, which may rely upon
such Officers’ Certificate as to the absence of Defaults and Events of Default, stating that the
proposed transaction and such supplemental indenture will, upon consummation of the proposed
transaction, comply with this Indenture.




          SECTION 5.02. Successor Substituted. Upon any consolidation or merger or transfer or
lease of all or substantially all of the assets of the Company in accordance with Section 5.01, the
successor person formed by such consolidation or into which the Company is merged or to which such
transfer or lease is made shall succeed to, and, except in the case of a lease, be substituted for,
and may exercise every right and power of, and shall assume every duty
and obligation of, the Company under this Indenture with the same effect as if such successor
had been named as the Company herein. When the successor assumes all obligations of the Company
hereunder, except in the case of a lease, all obligations of the predecessor shall terminate.




ARTICLE VI




Defaults and Remedies




          SECTION 6.01. Events of Default. An “Event of Default” occurs if:





     (a) the Company defaults in the payment of the principal amount, Redemption Price or
Repurchase Price with respect to any Security when the same becomes due and payable, whether
on the Maturity Date, Redemption Date, the Repurchase Date, Change in Control Repurchase
Date or otherwise;




     (b) the Company defaults in the payment of accrued and unpaid interest (including
contingent interest, if any) or liquidated damages, if any, on any Security when the same
becomes due and payable and such default continues for a period of 30 days;




     (c) the Company fails to comply with any of its other agreements in the Securities or
this Indenture and the default continues for the period and after the notice specified
below;



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     (d) the Company fails to provide a Change in Control Notice in accordance with Section
3.09;




     (e) the Company or any of its Significant Subsidiaries defaults in the payment at the
final maturity thereof, after the expiration of any applicable grace period, of principal
of, or premium, if any, on indebtedness for money borrowed, other than Non-Recourse
Indebtedness, in the aggregate principal amount then outstanding of $30,000,000 or more, or
the acceleration of indebtedness for money borrowed in such aggregate principal amount so
that it becomes due and payable prior to the date on which it would otherwise become due and
payable and such acceleration is not rescinded or such default is not cured within 30
business days after notice to the Company in accordance with this Indenture;




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




     (i) commences a voluntary case,




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




     (iii) consents to the appointment of a Custodian of it or for all or substantially all
of its property, or




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




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




     (i) is for relief against the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding, or adjudicates the Company or any Significant Subsidiary
insolvent or bankrupt,




     (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries for all
or substantially all of the property of the Company or any such Significant Subsidiary, as
the case may be, or




     (iii) orders the winding up or liquidation of the Company or any of its Significant
Subsidiaries, and the order or decree remains unstayed and in effect for 90 consecutive
days.



          The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or State
law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.




          A default under Section 6.01(c) above is not an Event of Default until the Trustee or the
Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify the
Company and the Trustee of the default and the default is not cured within 60 days after receipt of
the notice. The notice must specify the default, demand that it be remedied and






31









 







state that the
notice is a “Notice of Default.” If the Holders of 25% in aggregate principal amount of the
outstanding Securities request the Trustee to give such notice on their behalf, the Trustee shall
do so. When a default is cured, it ceases.




          SECTION 6.02. Acceleration. If an Event of Default (other than an Event of Default
specified in Section 6.01(f) or (g) with respect to the Company) as to which the Trustee has
received notice pursuant to the provisions of this Indenture occurs and is continuing, the Trustee
by notice to the Company or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding by notice to the Company and the Trustee may declare the Securities to
be due and payable. Upon such declaration such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(f) or (g) with respect to the
Company occurs, the principal of and accrued interest on all the Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Securityholder. The Holders of a majority in aggregate principal amount of the Securities
then outstanding by written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any order or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has become due solely
because of the acceleration and if all amounts due to the Trustee under Section 7.07 have been
paid.




          SECTION 6.03. Other Remedies. Notwithstanding any other provision of this Indenture,
if an Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of amounts due with respect to
the Securities or to enforce the performance of any provision of the Securities or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative.




          SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.07 and 9.02, the Holders
of a majority in aggregate principal amount of the Securities then outstanding by notice to the
Trustee may waive any past Default or Event of Default and its consequences, except a default in
the payment of the principal amount, accrued and unpaid interest (including contingent interest),
if any, and liquidated damages, if any, any Redemption Price, any Repurchase Price or obligation to
deliver Conversion Shares (or cash or a combination of cash and Conversion Shares at the Company’s
election). When a Default or an Event of Default is waived, it is cured and ceases for every
purpose of this Indenture.




          SECTION 6.05. Control by Majority. The Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, is unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.






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          SECTION 6.06. Limitation on Suits. Except as provided in Section 6.07, a
Securityholder may pursue a remedy with respect to this Indenture or the Securities only if:





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




     (b) the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding make a written request to the Trustee to pursue the remedy;




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




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




     (e) during such 60-day period, the Holders of a majority in aggregate principal amount
of the Securities then outstanding do not give the Trustee a direction inconsistent with the
request.



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




          SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of all amounts due with
respect to the Securities, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.




          Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit
for the enforcement of the right to convert the Security shall not be impaired or affected without
the consent of the Holder.




          SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section
6.01(a) or (b) occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount due with respect to the
Securities, including any unpaid and accrued interest (including contingent interest, if any) or
liquidated damages, if any.




          SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee, any predecessor Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company or its creditors or properties.




          The Trustee may collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any amount







33









 







due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07.




          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 the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.




          SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this Article
VI, it shall pay out the money in the following order:




          First: to the Trustee for amounts due under Section 7.07;




          Second: to Securityholders for all amounts due and unpaid on the Securities, without
preference or priority of any kind, according to the amounts due and payable on the Securities; and




          Third: to the Company.




          The Trustee, upon prior written notice to the Company may fix a record date and payment date
for any payment by it to Securityholders pursuant to this Section 6.10.




          SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant in the suit
other than the Trustee of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in the suit, having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount
of the outstanding Securities.




ARTICLE VII




Trustee




          SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own affairs.




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





     (i) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and




34










 







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



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:





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




     (ii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to the
provisions of this Section 7.01.




          (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




          SECTION 7.02. Rights of Trustee. (a) Subject to Section 7.01, the Trustee may
conclusively rely on any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated in the document;
if, however, the Trustee shall determine to make such further inquiry or investigation, it shall be
entitled during normal business hours to examine the relevant books, records and premises of the
Company, personally or by agent or attorney upon reasonable prior notice.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.




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




          (d) The Trustee may consult with counsel (such counsel to be reasonably acceptable to the
Company) and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.




          (e) The Trustee may act through agents or attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.




35









 








          (f) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its discretion, rights or powers conferred upon it by
this Indenture.




          (g) Except with respect to Section 6.01, the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article IV. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (1) any Default or
Event of Default occurring pursuant to Sections 6.01(a) and 6.01(b) or (2) any Default or Event of
Default of which a Responsible Officer of the Trustee shall have received written notification or
obtained actual knowledge. Delivery of reports, information and documents to the Trustee under
Article IV (other than Sections 4.04 and 4.07) is for informational purposes only and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates).




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




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




          (j) The Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.




          SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee, however, must comply with Sections 7.10 and
7.11.




          SECTION 7.04. Trustee’s Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities; it shall not be accountable for the
Company’s use of the proceeds from the Securities; and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.




          SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs and is
continuing as to which the Trustee has received notice pursuant to the provisions of this
Indenture, the Trustee shall mail to each Securityholder a notice of the Default or Event of




36









 








Default within 30 days after it occurs unless such Default or Event of Default has been cured
or waived. Except in the case of a Default or Event of Default in payment of any amounts due with
respect to any Security, the Trustee may withhold the notice if and so long as it in good faith
determines that withholding the notice is in the interests of Securityholders.



          SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each May 15
beginning with May 15, 2006, the Trustee shall mail to each Securityholder if required by TIA §
313(a) a brief report dated as of such May 15 that complies with TIA § 313(c). In such event, the
Trustee also shall comply with TIA § 313(b).




          A copy of each report at the time of its mailing to Securityholders shall be mailed to the
Company and filed by the Trustee with the SEC and each stock exchange, if any, on which the
Securities are listed. The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange.




          SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from
time to time such compensation for its services as shall be agreed upon in writing. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred
by it. Such expenses shall include the reasonable compensation and out-of-pocket expenses of the
Trustee’s agents and counsel.




          The Company shall indemnify the Trustee against any and all loss, liability, damage, claim or
expense (including the reasonable fees and expenses of counsel and taxes other than those based
upon the income of the Trustee) incurred by it in connection with the acceptance or administration
of this trust and the performance of its duties hereunder, including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the Company, any Holder or any
other person) or liability in connection with the exercise or performance of any of its powers and
duties hereunder. The Company need not pay for any settlement made without its consent. The
Trustee shall notify the Company promptly of any claim for which it may seek indemnification. The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the
Trustee through the Trustee’s negligence, bad faith or willful misconduct.




          To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay amounts due on particular Securities.




          The indemnity obligations of the Company with respect to the Trustee provided for in this
Section 7.07 shall survive any resignation or removal of the Trustee.




          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(f) or (g) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.




          SECTION 7.08. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.




37









 








          The Trustee may resign by so notifying the Company in writing 30 business days prior to such
resignation. The Holders of a majority in aggregate principal amount of the Securities then
outstanding may remove the Trustee by so notifying the Trustee and the Company in writing and may
appoint a successor Trustee with the Company’s consent. The Company may remove the Trustee if:





     (a) the Trustee fails to comply with Section 7.10;




     (b) the Trustee is adjudged a bankrupt or an insolvent;




     (c) a receiver or other public officer takes charge of the Trustee or its property; or




     (d) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee.




          If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the Company’s expense), the Company or the Holders of at
least 10% in aggregate principal amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.




          If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.07.




          SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be the successor
Trustee, if such successor corporation is otherwise eligible hereunder.




          SECTION 7.10. Eligibility; Disqualification. There shall at all times be a Trustee
hereunder that is a corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA § 310(b).




          SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee shall
comply with TIA § 311(a), excluding any creditor relationship listed in TIA




38









 








§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated.



ARTICLE VIII




Discharge of Indenture




          SECTION 8.01. Termination of the Obligations of the Company. The Company may
terminate all of its obligations under this Indenture if all Securities previously authenticated
and delivered (other than mutilated, destroyed, lost or stolen Securities which have been replaced
or paid as provided in Section 2.07) have been delivered to the Trustee for cancellation or if:





     (a) the Securities mature within one year or all of them are to be called for
redemption within one year under arrangements satisfactory to the Trustee for giving the
notice of redemption;




     (b) the Company irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations sufficient to pay the principal or Redemption Price of and any unpaid and
accrued interest on the Securities to maturity or redemption, as the case may be.
Immediately after making the deposit, the Company shall give notice of such event to the
Securityholders;




     (c) the Company has paid or caused to be paid all sums then payable by the Company to
the Trustee hereunder as of the date of such deposit; and




     (d) the Company has delivered to the Trustee an opinion of counsel and an Officers’
Certificate stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been complied with. The Company may make
the deposit only during the one-year period.



However, the Company’s obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.15,
2.16, 2.17, 4.01, 4.02, 7.07, 7.08 and Article VIII and Article X shall survive until the
Securities are no longer outstanding. Thereafter the obligations of the Company in Sections 7.07
and 8.03 shall survive.



          After a deposit pursuant to this Section 8.01, the Trustee upon request shall acknowledge in
writing the discharge of the obligations of the Company under the Securities and this Indenture,
except for those surviving obligations specified above.




          In order to have money available on a payment date to pay the principal or Redemption Price of
and any unpaid and accrued interest on the Securities, the U.S. Government Obligations shall be
payable as to principal and any unpaid and accrued interest on or before such payment date in such
amounts as will provide the necessary money.




          “U.S. Government Obligations” means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the payment of which the
full faith and credit of the United States of America is pledged.




39









 








          SECTION 8.02. Application of Trust Money. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to Section 8.01. It shall apply the
deposited money and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of the principal or Redemption Price of and any
unpaid and accrued interest on the Securities.




          SECTION 8.03. Repayment to Company. The Trustee and the Paying Agent shall promptly
notify the Company of, and pay to the Company upon the request of the Company, any excess money or
securities held by them at any time. The Trustee and the Paying Agent shall pay to the Company
upon the written request of the Company any money held by them for the payment of the principal,
premium, Repurchase Price or Redemption Price of and any unpaid and accrued interest (including
contingent interest, if any) or liquidated damages, if any, that remains unclaimed for two years;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may, at the expense and request of the Company, cause to be published once in a
newspaper of general circulation in The City of New York or cause to be mailed to each Holder,
notice stating that such money remains and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After repayment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of the Trustee and
the Paying Agent shall cease.




          SECTION 8.04. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Sections 8.01 and 8.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company
under this Indenture and the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Sections 8.01 and 8.02 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance with Sections 8.01
and 8.02; provided, however, that if the Company has made any payment of amounts due with respect
to any Securities because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.




ARTICLE IX




Amendments




          SECTION 9.01. Without Consent of Holders. The Company, with the consent of the
Trustee, may amend or supplement this Indenture or the Securities without notice to or the consent
of any Securityholder:





     (a) to evidence a successor to the Company and the assumption by that successor of the
Company’s obligations under this Indenture and the Securities;



40









 






     (b) to evidence and provide for the acceptance of the appointment under this Indenture
of a successor Trustee;




     (c) to add to the covenants of the Company described in this Indenture for the benefit
of Securityholders or to surrender any right or power conferred upon the Company;




     (d) to secure the obligations of the Company in respect of the Securities;




     (e) to make any changes or modifications to this Indenture necessary in connection with
the registration of the Securities under the Securities Act and the qualification of the
Indenture under the TIA;




     (f) to cure any ambiguity, inconsistency or other defect in this Indenture; or




     (g) to comply with Sections 5.01, 10.05 and 10.13.



          Notwithstanding the foregoing, no supplemental indenture pursuant to the foregoing clauses
(c), (d), (e) or (f) may be entered into without the consent of the holders of a majority in
principal amount of the Securities if such supplemental indenture would materially and adversely
affect the interests of the Holders of the Securities.




          SECTION 9.02. With Consent of Holders. The Company, with the consent of the Trustee,
may amend or supplement this Indenture or the Securities without notice to any Securityholder but
with the written consent of the Holders of a majority in aggregate principal amount of the
outstanding Securities. Subject to Section 6.07, the Holders of a majority in aggregate principal
amount of the outstanding Securities may waive compliance by the Company with any provision of this
Indenture or the Securities without notice to any other Securityholder. However, without the
consent of each Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:





     (a) reduce the rate of or change the time for payment of interest (including any
contingent interest, if any) or any liquidated damages, if any, on any Security;




     (b) make any Security payable in money or securities other than as stated in such
Security;




     (c) change the stated maturity of any Security;




     (d) reduce the principal amount, Redemption Price or Repurchase Price of any Security;




     (e) make any change that adversely affects the right of a Holder to require the Company
to repurchase a Security in accordance with Article III;




     (f) make any change that adversely affects the right to convert (subject to the
Company’s right to elect to satisfy its Conversion Obligation in Cash or in any combination
of Cash and shares of Common Stock), or receive payment with respect to,



41









 







any Security or the right to institute suit for the enforcement of any payment with
respect to, or conversion of, any Security; or




     (g) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver.



          Promptly after an amendment under Section 9.01 and this Section 9.02 becomes effective, the
Company shall mail to Securityholders a notice briefly describing the amendment. Any failure of
the Company to mail such notice shall not in any way impair or affect the validity of such
amendment, supplement or waiver.




          It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment or supplement, but it shall be sufficient if such
consent approves the substance thereof.




          SECTION 9.03. Compliance with Trust Indenture Act. Every amendment, waiver or
supplement to this Indenture or the Securities shall comply with the TIA as then in effect.




          SECTION 9.04. Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion
of a Security if the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Securityholder.




          After an amendment, supplement or waiver becomes effective with respect to the Securities, it
shall bind every Securityholder unless it makes a change described in Section 9.02. In that case,
the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it
and, provided that notice of such amendment, supplement or waiver is reflected on a Security that
evidences the same debt as the consenting Holder’s Security, every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s Security.




          SECTION 9.05. Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the Security as
directed and prepared by the Company about the changed terms and return it to the Holder.
Alternatively, if the Company so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed terms.




          SECTION 9.06. Trustee Protected. The Trustee need not sign any amendment, supplement
or waiver authorized pursuant to this Article IX that adversely affects the Trustee’s rights,
duties, liabilities or immunities. The Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel and an Officers’ Certificate that any supplemental indenture, amendment
or waiver is permitted or authorized pursuant to the Indenture.




42









 








ARTICLE X




Conversion




          SECTION 10.01. Right to Convert; Restrictive Legend. Subject to the provisions of
this Article X, a Holder of a Security shall have the right, at such Holder’s option, to convert
such Security into Common Stock (the number of full shares of Common Stock issuable upon such
conversion, the “Conversion Shares”), at the conversion rate in effect at such time (or
into Cash or a combination of Cash and shares of Common Stock if the Company so elects pursuant to
Section 10.03), by surrender of the Security so to be converted in whole or in part, together with
any required funds, in the manner provided in Section 10.02. Initially, a Holder may convert such
Security at a conversion rate of 64.2446 shares of Common Stock per $1,000 principal amount of
Security (such conversion rate, as such may be adjusted as provided in this Indenture, the
“conversion rate”) (equivalent to a Conversion Price of approximately $15.57 per share).




          All Conversion Shares shall bear the Private Placement Legend until after the second
anniversary of the later of (i) the issue date for the Securities, (ii) the last date on which the
Company or any Affiliate of the Company was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such
longer period of time as may be required under the Securities Act or applicable state securities
laws in the opinion of counsel for the Company, unless otherwise agreed by the Company and the
Holder thereof).




          SECTION 10.02. Conversion Procedure. To convert a Security, a Holder must satisfy the
requirements in Paragraph 10 of the Securities. The date on which the Holder satisfies all those
requirements is the “conversion date.” Subject to the Company’s right to deliver, in lieu of
Conversion Shares, cash or a combination of cash and Conversion Shares, as promptly as practicable
following the conversion date, the Company shall deliver to the Holder through the Trustee (who
shall deliver to the Conversion Agent) a certificate for, or a book-entry notation of, the
Conversion Shares and Cash in lieu of any fractional share. The person in whose name the
certificate is registered shall be treated as a stockholder of record on and after the conversion
date.




          Except as described below, no payment or adjustment will be made for accrued interest
(including contingent interest, if any) on, or liquidated damages, if any, with respect to, a
converted Security or for dividends or distributions on any shares of Common Stock issued on or
prior to conversion (provided that the shares of Common Stock received upon conversion of
Securities shall not accrue liquidated damages, if any), pursuant to Section 10.03. Delivery by
the Company to the Holder of the Security converted of the Conversion Shares, at the Conversion
Price in effect at such time (or into Cash or a combination of Cash and Conversion Shares if the
Company so elects, pursuant to Section 10.03), shall satisfy the obligations of the Company to pay
the principal amount of such Security being converted and the accrued but unpaid interest on such
Security through the conversion date; any such accrued but unpaid interest shall be deemed to be
paid in full rather than canceled, extinguished or forfeited. The




43









 








conversion rate in effect at any time will be adjusted only in accordance with Section 10.06
through 10.13; the conversion rate will not be adjusted to account for accrued interest.



          If any Holder surrenders a Security for conversion after the close of business on the record
date for the payment of an installment of interest and prior to the opening of business on the
immediately succeeding interest payment date, then, notwithstanding such conversion, the interest
(including contingent interest, if any) or liquidated damages, if any, payable on such interest
payment date shall be paid to the Holder of such Security on such record date; provided, however,
that such Security, when surrendered for conversion, must be accompanied by payment to the
Conversion Agent on behalf of the Company of an amount equal to the interest (including contingent
interest, if any) or liquidated damages, if any, payable on such interest payment date on the
portion so converted; provided, further, however, that such payment to the Conversion Agent
described in the immediately preceding proviso shall not be required in connection with any
conversion of a Security called for redemption pursuant to Section 3.01 hereof on a Redemption Date
that is from and including the record date for the payment of interest and on or before the next
succeeding interest payment date.




          If a Security has been called for redemption, Holders will be entitled to convert such
Security from the date of notice of the redemption until the close of business on the second
business day immediately preceding the Redemption Date. If a Holder has delivered an Option of
Holder to Elect Repurchase Notice pursuant to Section 3.08 or Section 3.09, the Holder may not
surrender that Security for conversion until the Holder has withdrawn the Option of Holder to Elect
Repurchase Notice pursuant to Section 3.08 or Section 3.09 in accordance with Section 3.11. A
Holder may convert fewer than all of such holder’s Securities so long as the Securities converted
are an integral multiple of $1,000 principal amount.




          If a Holder converts more than one Security at the same time, the number of full shares
issuable upon the conversion shall be based on the total principal amount of the Securities
converted.




          Upon surrender of a Security that is converted in part the Trustee shall authenticate for the
Holder a new Security equal in principal amount to the unconverted portion of the Security
surrendered.




          If the last day on which a Security may be converted is a Legal Holiday in a place where a
Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next
succeeding day that is not a Legal Holiday.




          SECTION 10.03. Settlement Upon Conversion. Except to the extent that the Company has
irrevocably elected Net Share Settlement pursuant to Section 10.04, the Company may satisfy all or
any portion of the Company’s obligation to deliver Conversion Shares upon conversion of Securities
(the “Conversion Obligation”) in cash or in any combination of cash and Conversion Shares
selected by the Company, in accordance with the following procedures:




          (a) If the Company chooses to satisfy all or any portion of the Conversion Obligation in cash
pursuant to clause (c) or clause (d) of this Section 10.03, the Company will notify the Holder
through the Trustee of the method chosen by the Company to satisfy the




44









 








Conversion Obligation (such notice, the “Settlement Method Election Notice”) at any
time on or before the date that is two Trading Days following the related conversion date (the
“Settlement Method Notice Period”). The Settlement Method Election Notice shall specify
the amount to be satisfied in Cash as a percentage of the Conversion Obligation or a fixed dollar
amount. The Company may, in lieu of sending individual notices, send one notice to all Holders of
the method chosen by the Company to satisfy the Conversion Obligation for conversions (x) following
notice of redemption of the Securities and before the applicable Redemption Date or (y) on or
following the twenty-fifth Trading Day preceding the Maturity Date. The Company shall satisfy the
Conversion Obligation in respect of each Security to be converted on any conversion date with the
same consideration to be provided (i) in respect of the Conversion Obligation in respect of all
other Securities to be converted on such conversion date, (ii) during the period beginning on the
date the Company has issued a notice of redemption and ending on the related Redemption Date, or
(iii) during the period beginning twenty-five Trading Days preceding the Maturity Date and ending
one Trading Day preceding the Maturity Date but, other than in such instances, shall not have any
obligation to settle the Conversion Obligations arising on different Trading Days in the same
manner. If the Company timely elects to pay cash (other than cash in lieu of fractional shares)
for any portion of the Conversion Shares otherwise issuable to such Holder, the Conversion Notice
may be retracted by the Holder at any time during the two Trading Day period (the “Conversion
Retraction Period”) beginning on the Trading Day after the Company has given the Settlement
Method Election Notice to the Trustee (and the last Trading Day in the Conversion Retraction Period
is referred to as the “Retraction Date”); provided that no such retraction can be made (and
a Conversion Notice shall be irrevocable) if (x) the Company has irrevocably elected Net Share
Settlement upon conversion pursuant to Section 10.04 before such Holder delivers the Conversion
Notice; (y) the Holder is converting its Securities during the period beginning on the date the
Company has issued a notice of redemption and ending on the related Redemption Date; or (z) the
Holder is converting its Securities during the period beginning twenty-five Trading Days preceding
the Maturity Date and ending one Trading Day preceding the Maturity Date, even if the Company has
not otherwise notified the Holder prior to the conversion date of its settlement method election.
If the Company does not give any Settlement Method Election Notice within the applicable time
period as to the method of settlement, the Company shall satisfy its Conversion Obligation only in
Conversion Shares (and Cash in lieu of fractional shares in accordance with Section 10.07).
Settlement of the Company’s Conversion Obligation that it has not elected to satisfy partially or
entirely in Cash will occur in shares of the Common Stock as soon as practicable after the Company
notifies the Holder that it has chosen this method of settlement, subject to determination of the
Conversion Rate following any adjustment pursuant to this Indenture. Settlement of the Company’s
Conversion Obligation that it has elected to satisfy partially or entirely in Cash will occur on
the third Trading Day following the final Trading Day of the Cash Settlement Averaging Period.



          (b) If the Company elects to satisfy its entire Conversion Obligation in shares of Common
Stock, the Company will deliver to Holders surrendering Securities for conversion a number of
shares of Common Stock equal to (x) the aggregate principal amount of Securities surrendered for
conversion by such Holder divided by $1,000, multiplied by (y) the conversion rate (provided that
the Company will deliver Cash in lieu of fractional shares in accordance with Section 10.07);




45









 








          (c) if the Company elects to satisfy its entire Conversion Obligation in cash, the Company
will deliver to such Holder cash in an amount equal to the product of: (1) a number equal to (x)
the aggregate principal amount of Securities to be converted divided by $1,000, multiplied by (y)
the applicable conversion rate, and (2) the average Closing Sale Price of the Common Stock during
the Cash Settlement Averaging Period; and




          (d) if the Company elects to satisfy a fixed amount (but not all) of its Conversion Obligation
per $1,000 principal amount of Securities in cash, the Company will deliver to such converting
Holder:





     (1) such fixed cash amount per $1,000 principal amount Securities to be
converted (the “Cash Amount”); and




     (2) a number of shares of Common Stock per $1,000 principal amount of
Securities equal to the sum, for each Trading Day of the Cash Settlement Averaging
Period, of the greater of:




     (i) zero, and




     (ii) a number of shares of Common Stock equal to a fraction:




     (A) the numerator of which equals (x) the product of the Closing Sale Price of
the Common Stock on such Trading Day multiplied by the conversion rate minus (y) the
Cash Amount; and




     (B) the denominator of which equals the product of (x) the Closing Sale Price
of the Common Stock on such Trading Day multiplied by (y) the number of Trading Days
in the Cash Settlement Averaging Period;



provided, however, that the Company will pay cash in lieu of fractional shares of Common
Stock in accordance with Section 10.07.



          SECTION 10.04. Irrevocable Election by Company of Net Share Settlement Upon
Conversion. (a) At any time on or prior to the twenty-sixth Trading Day preceding the Maturity
Date, the Company may irrevocably elect, in its sole discretion without the consent of the Holders
of the Securities, by notice to the Trustee and the Holders of the Securities, to satisfy its
Conversion Obligation with respect to the principal amount of the Securities to be converted after
the date of such election with a combination of cash and Conversion Shares as set forth in
paragraph (b) below (“Net Share Settlement”). If the Company makes such election, it will
notify the Trustee and the Holders of Securities at their last addresses appearing on the Security
register on the Registrar’s books.




     (b) For each $1,000 principal amount of Securities surrendered for conversion following the
date of the Company’s irrevocable election pursuant to Section 10.04(a), Holders will receive a
settlement amount, computed as follows:



46









 






     (i) where the relevant Conversion Value is less than or equal to $1,000, the settlement
amount shall be an amount in cash equal to such Conversion Value; or




     (ii) where the Conversion Value is greater than $1,000, the settlement amount shall be
computed as if the Company had elected to settle a portion of the Conversion Obligation with
a combination of Cash and Conversion Shares pursuant to Section 10.03(d) with a Cash Amount
equal to $1,000.



     (c) For purposes of this Section 10.04:



          (i) “Conversion Value” per $1,000 principal amount of Securities will be an amount
equal to the sum of the Daily Conversion Value Amounts for each of the Trading Days in the Cash
Settlement Averaging Period; and




          (ii) “Daily Conversion Value Amount” shall mean, for each Trading Day of the Cash
Settlement Averaging Period and for each $1,000 principal amount of Securities, the amount equal to
(x) the product of (A) the Closing Sale Price of the Common Stock on such Trading Day multiplied by
(B) the conversion rate in effect on such Trading Day divided by (y) 20.




          SECTION 10.05. Make Whole Amount and Public Acquirer Change of Control. (a) If the
effective date (the “Effective Date”) or anticipated effective date of a transaction (a
“Make Whole Change of Control”) that (1) constitutes a Change in Control (with the
exclusions set forth in the sentence immediately following such definition not taken into account
for these purposes) and (2) pursuant to which (i) the outstanding Common Stock is converted into,
exchanged for or constitutes solely the right to receive cash, securities or other property and
(ii) more than 10% of the consideration received in connection with such transaction consists of
Cash (excluding cash payments for fractional shares of the Common Stock and cash payments pursuant
to dissenters’ appraisal rights), or of securities or other property that are not, or upon issuance
will not be, traded on a national securities exchange or quoted on The Nasdaq National Market
occurs on or prior to September 1, 2012, and a Holder surrenders its Securities for conversion
during the period commencing 20 days prior to the anticipated effective date of the Make Whole
Change of Control until 20 days after the Effective Date of the Make Whole Change of Control, the
Company will increase the conversion rate for the Securities surrendered for conversion during this
period by a number of additional shares of Common Stock (the “Additional Shares”) as set
forth below. The number of Additional Shares will be determined by reference to the table in
paragraph 10.05(b) (based on the conversion date and the Applicable Price).




     (b) The Applicable Prices set forth in the first row of the table below shall be adjusted as
of any date on which the conversion rate of the Securities is adjusted pursuant to Section 10.06.
The adjusted Applicable Prices will equal the Applicable Prices applicable immediately prior to
such adjustment, multiplied by a fraction,



          (i) the numerator of which is the conversion rate immediately prior to the adjustment giving
rise to the Applicable Price adjustment; and




47









 








          (ii) the denominator of which is the conversion rate as so adjusted.




The number of Additional Shares will be adjusted in the same manner and for the same events as the
conversion rate is adjusted pursuant to Section 10.06.



     The following table shows the number of Additional Shares per $1,000 principal amount of
Securities that would be payable for each hypothetical Applicable Price and conversion date set
forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Price at Conversion Date
	Conversion Date	 	$ 11.53	 	 	$ 13.00	 	 	$ 15.00	 	 	$ 17.00	 	 	$ 19.00	 	 	$ 30.00	 	 	$ 40.00	 	 	$ 50.00	 	 	$100.00	 
	 
	August 30, 2005
	 	 	22.5285	 	 	 	18.2408	 	 	 	13.8162	 	 	 	10.8588	 	 	 	8.8033	 	 	 	3.9931	 	 	 	2.5642	 	 	 	1.8310	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2006
	 	 	22.1535	 	 	 	17.1996	 	 	 	12.6723	 	 	 	9.7165	 	 	 	7.7141	 	 	 	3.3173	 	 	 	2.1213	 	 	 	1.5205	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2007
	 	 	21.1631	 	 	 	15.9473	 	 	 	11.2824	 	 	 	8.3332	 	 	 	6.4077	 	 	 	2.5577	 	 	 	1.6358	 	 	 	1.1807	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2008
	 	 	20.0237	 	 	 	14.4205	 	 	 	9.5518	 	 	 	6.6196	 	 	 	4.8165	 	 	 	1.7262	 	 	 	1.1180	 	 	 	0.8156	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2009
	 	 	18.7559	 	 	 	12.4444	 	 	 	7.1822	 	 	 	4.2940	 	 	 	2.7392	 	 	 	0.8441	 	 	 	0.5699	 	 	 	0.4189	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2010
	 	 	23.2600	 	 	 	13.3653	 	 	 	3.0173	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2011
	 	 	22.8729	 	 	 	13.0219	 	 	 	2.7197	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	September 1, 2012
	 	 	22.4857	 	 	 	12.6785	 	 	 	2.4221	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






The exact Applicable Price and conversion date may not be set forth in the table above, in
which case:




     (i) if the Applicable Price is between two Applicable Price amounts in the table or
the conversion date is between two dates in the table, the number of Additional Shares
will be determined by straight-line interpolation between the numbers of Additional
Shares set forth for the higher and lower Applicable Price amounts, and/or the two dates,
based on a 365 day year, as applicable;




     (ii) if the Applicable Price is equal to or in excess of $100.00 per share (subject
to adjustment), the Company will not increase the conversion rate applicable to the
converted Security by any Additional Shares; and




     (iii) if the Applicable Price is equal to or less than $11.53 per share (subject to
adjustment), the Company will not increase the conversion rate applicable to the
converted Security by any Additional Shares.



               Notwithstanding the foregoing, in no event will the Company increase the conversion rate as
described in this Section 10.05 to the extent the increase will cause the conversion rate to exceed
86.7303 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment in
the same manner as the conversion rate as set forth in Section 10.06.



48









 





     (c) The Company will mail a notice to Holders and issue a press release no later than 25 days
prior to a Make Whole Change of Control’s anticipated effective date. If a Make Whole Change of
Control also constitutes a Public Acquirer Change of Control, the notice will also state whether
the Company elects to have the Securities convert into Public Acquirer Common Stock as described
below.



     (d) Notwithstanding the foregoing, and in lieu of increasing the conversion rate as set forth
in paragraphs (a) and (b) above by a number of Additional Shares, in the case of a Public Acquirer
Change of Control, the Company may elect that, from and after the Effective Date of such Public
Acquirer Change of Control, the right to convert a Security into Cash and, if applicable,
Conversion Shares will be changed into the right to convert it into Cash and, if applicable, shares
of Public Acquirer Common Stock as specified below. The conversion rate on and following the
Effective Date of such Public Acquirer Change of Control shall initially be a number of shares of
Public Acquirer Common Stock equal to the product of:




   (i) the conversion rate in effect immediately prior to the effective date of such
Public Acquirer Change of Control; and




   (ii) the average of the quotients obtained, for each Trading Day in the 10
consecutive Trading Day period commencing on the Trading Day immediately after the
Effective Date of such Public Acquirer Change of Control (the “Valuation Period”), by
dividing




     (a) the Acquisition Value per share of Common Stock on such Trading Day, by




     (b) the Closing Sale Price per share of the Public Acquirer Common Stock on
such Trading Day.



          The Acquisition Value per share of the Common Stock on each Trading Day in the Valuation
Period means the sum of:





	 	(i)	 	if any of such consideration consists of cash, 100% of the face amount of such
cash consideration per share of the Common Stock;
	 
	 	(ii)	 	if any of such consideration consists of shares of Public Acquirer Common
Stock, the product of 100% of the Closing Sale Price of such Public Acquirer Common
Stock on such Trading Day and the number of shares of Public Acquirer Common Stock paid
per share of the Common Stock; and
	 
	 	(iii)	 	if any of such consideration consists of any other securities, assets or
property, 100% of the fair market value, on such Trading Day, of the amount of such
security, asset or property paid per share of the Common Stock, as determined in good
faith by the Board of Directors.





     (e) If the Company elects to change the conversion rate in accordance with paragraph (d) above
in connection with a Public Acquirer Change of Control, then:



49









 






     (i) such change will apply to all Holders from and after the Effective Date of the
Public Acquirer Change of Control;




     (ii) the Company’s right to elect to settle its Conversion Obligation in Conversion
Shares, Cash or a combination of Cash and Conversion Shares, as described in Section 10.03
and the Company’s right to irrevocably elect Net Share Settlement will be based on the
Public Acquirer Common Stock;




     (iii) the conversion rate will be subject to further adjustments in the manner
described in Section 10.06; and




     (iv) no change will be made to the conversion right pursuant to Section 10.13 in
connection with such Public Acquirer Change of Control.



          SECTION 10.06. Adjustment of Conversion Rate. The conversion rate shall be subject to
adjustment from time to time as follows:




          (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders
of the outstanding Common Stock in shares of Common Stock, or shall effect a subdivision into a
greater number of shares of Common Stock or combination into a lesser number of shares of Common
Stock, the conversion rate shall be adjusted so that the same shall equal the rate determined by
multiplying the conversion rate in effect at the close of business on the Record Date for such
dividend or other distribution or subdivision or combination, as applicable, by a fraction,





     (i) the numerator of which shall be the number of shares of Common Stock outstanding
immediately after the close of business on such Record Date as if such dividend payment,
distribution, subdivision or combination had occurred at such time; and




     (ii) the denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on such Record Date,



such adjustment to become effective immediately after the opening of business on the day following
the Record Date for such determination.



          (b) In case the Company shall issue or distribute rights or warrants to all holders of its
outstanding shares of Common Stock entitling them (for a period expiring 60 days or less from the
date of issuance of such rights or warrants) to purchase shares of Common Stock (or securities
convertible into Common Stock) at less than (or having a conversion price per share less than) the
Current Market Price of the Common Stock on the Record Date for such issuance or distribution, the
conversion rate shall be adjusted so that the same shall equal the rate determined by multiplying
the conversion rate in effect at the close of business on the Record Date for such distribution by
a fraction,





     (i) the numerator of which shall be the number of shares of Common Stock outstanding at
the close of business on the Record Date for such issuance or distribution



50









 







plus the total number of additional shares of Common Stock offered for subscription or
purchase or issuable pursuant to such rights or warrants, and




     (ii) the denominator of which shall be (1) the number of shares of Common Stock
outstanding at the close of business on the Record Date for such issuance or distribution
plus (2) the quotient obtained by dividing (x) the aggregate price payable to exercise such
rights by (y) the average of the Closing Sale Prices of the Common Stock for the 10
consecutive Trading Days prior to the business day immediately preceding the announcement
date for such distribution.



Such adjustment shall be successively made whenever any such rights or warrants are issued, and
shall become effective immediately after the opening of business on the day following the Record
Date for such issuance or distribution. To the extent that shares of Common Stock are not
delivered after the expiration of such rights or warrants, the conversion rate shall be readjusted
to the conversion rate that would then be in effect had the adjustments made upon the issuance or
distribution of such rights or warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. If such rights or warrants are not so issued, the
conversion rate shall again be adjusted to be the conversion rate that would then be in effect if
such Record Date for such issuance or distribution had not been fixed.



          (c) (i) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock shares of any class of Capital Stock of the Company (other than Common Stock as
covered by Section 10.06(a)) or evidences of its indebtedness, cash or other assets (including
securities other than Common Stock, but excluding dividends and distributions covered by Section
10.06(b), Section 10.06(d) or Section 10.06(e)) (any of such shares of Capital Stock, indebtedness,
cash or other assets hereinafter in this Section 10.06(c)) called the “Distributed
Property”)), then, in each such case the conversion rate shall be increased so that the same
shall be equal to the rate determined by multiplying the conversion rate in effect at the close of
business on the Record Date with respect to such issuance or distribution by a fraction,





          (1) the numerator of which shall be the Current Market Price on such Record Date; and




          (2) the denominator of which shall be the Current Market Price on such Record Date
less the fair market value (as determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the Board of Directors) on the Record
Date of the portion of the Distributed Property so distributed applicable to one share of
Common Stock (determined on the basis of the number of shares of Common Stock outstanding on
the Record Date),



such adjustment to become effective immediately after the opening of business on the day following
such Record Date; provided that if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to receive, for each
$1,000 principal amount of Securities upon conversion, the amount of Distributed Property such
Holder would have received had such Holder owned an amount of shares of



51









 








Common Stock equal to the conversion rate on the Record Date. If such dividend or distribution is
not so paid or made, the conversion rate shall again be adjusted to be the conversion rate that
would then be in effect if such dividend or distribution had not been declared. If the Board of
Directors determines the fair market value of any distribution for purposes of this Section
10.06(c) by reference to the actual or when issued trading market for any securities, it must in
doing so consider the prices in such market over the same period used in computing the Current
Market Price on the applicable Record Date.



          (ii) Notwithstanding Section 10.06(c)(i), if the Distributed Property distributed by the
Company to all holders of its Common Stock consists of shares of Capital Stock of, or similar
equity interests in, a subsidiary or other business unit of the Company that are, or, when issued,
will be, traded on a U.S. securities exchange or quoted on The Nasdaq National Market or The Nasdaq
Small Cap Market, the conversion rate shall be increased, in lieu of the adjustment provided for by
Section 10.06(c)(i), so that the same shall be equal to the rate determined by multiplying the
conversion rate in effect on the Record Date with respect to such distribution by a fraction,





     (1) the numerator of which shall be the sum of (A) the average of the Closing Sale Prices of
the Capital Stock or equity interests applicable to one share of Common Stock for the 10
consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend
Date for such distribution plus (B) the average of the Closing Sale Prices of the Common Stock for
the 10 consecutive Trading Days commencing on and including the third Trading Day after the
Ex-Dividend Date; and




     (2) the denominator of which shall be the average of the Closing Sale Prices of the Common
Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after
the Ex-Dividend Date,



such adjustment to become effective immediately after the opening of business on the day following
such Record Date.



     If Distributed Property distributed by the Company to all Holders of its Common Stock consists
of shares of Capital Stock of, or similar equity interests in a subsidiary or other business unit
of the Company that are not, or, when issued, will be, traded on a U.S. securities exchange or
quoted on The Nasdaq National Market or The Nasdaq Small Cap Market, then the conversion rate then
in effect will be adjusted as provided in paragraph (i) of this Section 10.06(c).



          (iii) Rights or warrants distributed by the Company to all holders of Common Stock entitling
the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a specified event or
events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section 10.06 (and no
adjustment to the conversion rate under this Section 10.06 will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the conversion rate shall be made
under this Section 10.06(c). If any such right or warrant, including any such




52









 








existing rights or warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date of the occurrence of any and
each such event shall be deemed to be the date of distribution and record date with respect to new
rights or warrants with such rights (and a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the conversion rate under
this Section 10.06 was made, (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the conversion rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any holders thereof, the
conversion rate shall be readjusted as if such rights and warrants had not been issued.



          (iv) For purposes of this Section 10.06(c), Section 10.06(a) and Section 10.06(b), any
dividend or distribution to which this Section 10.06(c) is applicable that also includes shares of
Common Stock to which Section 10.06(a) applies, or rights or warrants to subscribe for or purchase
shares of Common Stock to which Section 10.06(b) applies (or both), shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock
other than such shares of Common Stock to which Section 10.06(a) applies, or rights or warrants to
which Section 10.06(b) applies (and any conversion rate adjustment required by this Section
10.06(c) with respect to such dividend or distribution shall then be made) immediately followed by
(2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any
further conversion rate adjustment required by Section 10.06(a) and Section 10.06(b) with respect
to such dividend or distribution shall then be made).




          (d) In case the Company shall, by dividend or otherwise, distribute exclusively cash to all
holders of its Common Stock then the conversion rate shall be adjusted by multiplying the
conversion rate in effect immediately prior to the close of business on the Record Date for such
dividend or distribution by a fraction,





     (i) the numerator of which shall be the Current Market Price on such Record Date; and




     (ii) the denominator of which shall be the Current Market Price on such Record Date
minus the amount of cash so distributed applicable to one share of Common Stock (determined
on the basis of the number of Shares of Common Stock outstanding on the Record Date),



53









 





such adjustment to be effective immediately after the opening of business on the day following the
Record Date; provided that if the portion of the cash so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right
to receive, for each $1,000 principal amount of Securities upon conversion, the amount of cash such
Holder would have received had such Holder owned a number of shares of Common Stock equal to the
conversion rate on the Record Date. If such dividend or distribution is not so paid or made, the
conversion rate shall again be adjusted to be the conversion rate that would then be in effect if
such dividend or distribution had not been declared.



          (e) In case a tender or exchange offer made by the Company or any subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of cash and any other consideration
per share of Common Stock having a fair market value (as determined by the Board of Directors, and
described in a resolution of the Board of Directors) that as of the last date (the “Expiration
Date”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) exceeds the Current Market Price of the Common Stock on the Trading Day next preceding the
Expiration Date, the conversion rate shall be increased so that the same shall equal the rate
determined by multiplying the conversion rate in effect at the close of business on the Expiration
Date by a fraction,





     (i) the numerator of which shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer) of all shares of
Common Stock validly tendered or exchanged and not withdrawn as of the Expiration Date (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of (A) the number of shares of Common Stock outstanding at
as of the last time tenders or exchanges may be made pursuant to such tender or exchange
offer (the “Expiration Time”), less any Purchased Shares, and (B) the average of the
Closing Sale Prices of the Common Stock for the ten consecutive Trading Days commencing on
the Trading Day immediately following the Expiration Date, and




     (ii) the denominator of which shall be (A) the number of shares of Common Stock
outstanding at the Expiration Time (including any Purchased Shares) multiplied by (B) the
average of the Closing Sale Prices of the Common Stock for the ten consecutive Trading Days
commencing on the Trading Day immediately following the Expiration Date,



such adjustment to become effective immediately after the opening of business on the day following
the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the conversion rate shall again be adjusted to be
the conversion rate that would then be in effect if such tender or exchange offer had not been
made.



54









 








          (f) For purposes of this Section 10.06 the term “Record Date” shall mean, with respect
to any dividend, distribution or other transaction or event in which the holders of Common Stock
have the right to receive any cash, securities or other property or in which the Common Stock (or
other applicable security) is exchanged for or converted into any combination of cash, securities
or other property, the date fixed for determination of holders of Common Stock entitled to receive
such cash, securities or other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).




          (g) Notwithstanding the above, in no case will the Company adjust the conversion rate pursuant
to clauses (a), (b), (c), (d), (e) or (f) of this Section 10.06 to the extent that the adjustment
would reduce the Conversion Price below the par value per share of Common Stock. To the extent
that the Company has a shareholder rights plan in effect, upon conversion of the Securities into
Common Stock, a holder will receive, with respect to the Common Stock, if any, received upon
conversion, the rights under the rights plan, whether or not the rights have separated from the
Common Stock, prior to any conversion. So long as the Company complies with the preceding
sentence, a distribution of rights pursuant to such a rights plan will not trigger a conversion
rate adjustment.




          (h) For the avoidance of doubt, for purposes of this Section 10.06, in the event of any
reclassification of the Common Stock, as a result of which the Securities become convertible into
more than one class of Common Stock, if an adjustment to the conversion rate is required pursuant
to this Section 10.06, references in this Section to one share of Common Stock or to the Current
Market Price or Closing Sale Price of one share of Common Stock shall be deemed to refer to a unit
or to the price of a unit consisting of the number of shares of each class of Common Stock into
which the Securities are then convertible equal to the numbers of shares of such class issued in
respect of one share of Common Stock in such reclassification. The above provisions of this
paragraph shall similarly apply to successive reclassifications.




          (i) No adjustment to the conversion rate shall be made in connection with the initial public
offering of the Company’s subsidiary formed to own its portal business.




          SECTION 10.07. Fractional Shares. The Company will not issue fractional shares of
Common Stock upon conversion of Securities. Instead, the Company will pay cash for all fractional
shares based on (i) if the Company will issue only shares of Common Stock upon conversion, the
Closing Sale Price of Common Stock on the last Trading Day prior to the conversion date or (ii) if
the Company will pay only cash or will pay cash and Conversion Shares, based on the Closing Sale
Price of Common Stock of Common Stock on the last Trading Day of the Cash Settlement Averaging
Period. The Closing Sale Price of a fractional share shall be determined by multiplying the
applicable Closing Sale Price of a full share by the fractional amount and rounding to the nearest
whole cent. If a Holder elects to have more than one Security converted, the number of shares of
Common Stock issuable upon conversion and the cash payment in lieu of fractional shares shall be
based on the aggregate principal amount of Securities converted.




          SECTION 10.08. No Adjustment. No adjustment in the conversion rate shall be required
until cumulative adjustments amount to 1% or more of the conversion rate as last adjusted;
provided, however, that any adjustments which by reason of this Section 10.08 are not





55









 





required to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article X shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be. No adjustment need be made for rights to
purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest. No
adjustment need be made for a change in the par value of the Common Stock.




          If any rights, options or warrants issued by the Company as described in Section 10.06 are
only exercisable upon the occurrence of certain triggering events, then the conversion rate will
not be adjusted as provided in Section 10.06 until the earliest date such triggering event occurs.




          No adjustment need be made for a transaction referred to in this Article X if the Company
makes provision for the Holders to participate in the transaction without conversion on a basis and
with notice that the Board of Directors determines to be fair and appropriate in light of the basis
and notice on which holders of Common Stock participate in the transaction.




          SECTION 10.09. Other Adjustments. In the event that, as a result of an adjustment
made pursuant to Section 10.06, the Holder of any Security thereafter surrendered for conversion
shall become entitled to receive any shares of Capital Stock other than shares of Common Stock,
thereafter the conversion rate of such other shares so receivable upon conversion of any Security
shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this Article X.




          SECTION 10.10. Adjustments for Tax Purposes. In addition to those required by Section
10.06 hereof, and to the extent permitted by applicable law or applicable rules of the Nasdaq
National Market, the Company from time to time may increase the conversion rate by any amount, for
any period of at least 20 days, the Board of Directors deems advisable including such increases
that would avoid or diminish any income tax to holders of Common Stock or rights to purchase Common
Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes or would otherwise be in the best interests of the
Company, which determination shall be conclusive. Whenever the conversion rate is increased
pursuant to the preceding sentence, the Company shall mail to the holder of each Security at his
last address appearing on the Security register on the Registrar’s books a notice of the increase
at least fifteen 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.




          SECTION 10.11. Notice of Adjustment. Whenever the conversion rate is adjusted as
herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other
than 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




56









 








rate and the date on which each adjustment becomes effective and shall mail such notice of
such adjustment of the conversion rate to the holder of each Security at its last address appearing
on the Security register on the Registrar’s books, within twenty (20) days of the effective date of
such adjustment. Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.



            SECTION 10.12. Notice of Certain Transactions. In the event that:





     (a) the Company takes any action which would require an adjustment in the conversion
rate;




     (b) the Company takes any action that would require a supplemental indenture pursuant
to Section 10.13; or




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



a Holder of a Security may wish to convert such Security into shares of Common Stock prior to the
record date for or the effective date of the transaction so that he may receive the rights,
warrants, securities or assets which a holder of shares of Common Stock on that date may receive.
Therefore, the Company shall mail to Holders at the addresses appearing on the Registrar’s books
and the Trustee a notice stating the proposed record or effective date, as the case may be, of any
transaction referred to in clause (1), (2) or (3) of this Section 10.12. The Company shall mail
such notice at least 15 days before such date; however, failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of
this Section 10.12.



          SECTION 10.13. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege. Upon (i) any reclassification or change of the outstanding shares of Common Stock
issuable upon conversion of the Securities (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a split, subdivision or
combination), (ii) any consolidation, merger or combination of the Company with another Person as a
result of which holders of shares of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for such shares of Common
Stock (other than a merger in which the Company is the continuing corporation and which does not
result in any reclassification of, or change (other than a change in name, or par value, or from
par value to no par value, or from no par value to par value or as a result of a subdivision or
combination) in, the Common Stock), or (iii) any sale, lease, transfer or conveyance of all or
substantially all of the properties and assets of the Company and its subsidiaries substantially as
an entirety to any other Person, or any statutory share exchange, as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or assets (including
cash or any combination thereof) with respect to or in exchange for such Common Stock (any such
event a “Merger Event”), then:




          (a) the Company or the successor or purchasing corporation, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date
of execution of such supplemental indenture if such supplemental indenture is




57









 







then required to so comply) permitted under Section 9.01(g) providing for the conversion and
settlement of the Securities as set forth in this Indenture. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article or pursuant to Section 10.05 in the case of a Public
Acquirer Change of Control, as the case may be. If, in the case of any Merger Event, the Reference
Property includes shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such reclassification, change,
consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also
be executed by such other corporation and shall contain such additional provisions to protect the
interests of the holders of the Securities 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 repurchase rights set forth in Article III herein.




          In the event the Company shall execute a supplemental indenture pursuant to this Section
10.13, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefor, the kind or amount of shares of stock or other securities or property
(including cash) that will constitute the Reference Property after any such Merger Event any
adjustment to be made with respect thereto and shall promptly mail notice thereof to all Holders.




          (b) Notwithstanding the provisions of Section 10.02, and subject to the provisions of Section
10.01 and Section 10.05 in the case of a Public Acquirer Change of Control, at the effective time
of such Merger Event, (i) the right to convert each $1,000 principal amount of Securities will be
changed to a right to convert such Security into the kind and amount of shares of stock, 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 transaction would
have owned or been entitled to receive (the “Reference Property”) and (ii) the related
Conversion Obligation shall be settled at the times and otherwise as set forth under clause (c)
below. In the event holders of shares of Common Stock have the opportunity to elect the form of
consideration to be received in such Merger Event, the type and amount of consideration that
Securityholders would have been entitled to receive shall be deemed to be the weighted average of
the types and amounts of consideration received by holders of shares of Common Stock that
affirmatively make an election. The Company shall not become a party to any such transaction
unless its terms are consistent with the preceding. None of the foregoing provisions shall affect
the right of a holder of Securities to convert its Securities into cash and shares of Common Stock,
as set forth in Section 10.01 and Section 10.02 prior to the effective date of such Merger Event.




          (c) If the Securities shall be convertible into Reference Property as set forth above, the
related Conversion Obligation, with respect to each $1,000 principal amount of Securities tendered
for conversion after the effective time of any such Merger Event, shall be settled in units of
Reference Property or, at the Company’s option, cash or a combination of cash and units of
Reference Property in accordance with Section 10.03 and 10.04; provided that for purposes of
determining the conversion consideration, amounts shall be based on the per unit
average value of the Reference Property during the applicable period, such per unit value
shall be (A) for any shares of common stock that are included in the Reference Property, using the
procedures set forth in the definition of “Closing Sale Price”; (B) for any other property (other




58









 







than cash) included in the Reference Property, as determined in good faith by the Board of
Directors or by a New York Stock Exchange member firm selected by the Board of Directors and (C)
for any cash, the face amount of such cash.




          (d) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Securityholder, at its last address appearing on the Security register on the
Registrar’s books provided for in this Indenture, within twenty (20) days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture.




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




          SECTION 10.14. Trustee’s Disclaimer. The Trustee has no duty to determine when an
adjustment under this Article X should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of the correctness of any such adjustment, and
shall be protected in relying upon the Officers’ Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 10.11 hereof. The Trustee makes no
representation as to the validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the failure by the Company to comply with
any provisions of this Article X.




          The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 10.13, but may
accept as conclusive evidence of the correctness thereof, and shall be protected in relying upon,
the Officers’ Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 10.11 hereof.




ARTICLE XI




Miscellaneous




          SECTION 11.01. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision of the TIA shall control.




          SECTION 11.02. Notices. Any notice or communication by the Company or the Trustee to
one or both of the others is duly given if in writing and delivered in person, mailed by
first-class mail or by express delivery to the other parties’ addresses stated in this Section
11.02. The Company or the Trustee by notice to the others may designate additional or different
addresses for subsequent notices or communications.




          Any notice or communication to a Securityholder shall be mailed to its last address appearing
on the Security register on the Registrar’s books. Failure to mail a notice or
communication to a Securityholder or any defect in it shall not affect its sufficiency with
respect to other Securityholders.




59









 








          If a notice or communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.




          If the Company mails a notice or communication to Securityholders, it shall mail a copy to the
other and to the Trustee and each Agent at the same time.




          All notices or communications shall be in writing.




          The Company’s address is:



WebMD Corporation

669 River Drive, Center 2

Elmwood Park, New Jersey 07407-1361

Facsimile: (201) 703-3401

Attention: Executive Vice President—Chief Financial Officer



          The Trustee’s address is:



The Bank of New York

101 Barclay Street, Floor 8 W

New York, NY 10286

Facsimile: (212) 815-5704

Attention: Corporate Trust Administration



          SECTION 11.03. Communication by Holders with Other Holders. Securityholders may
communicate pursuant to TIA § 312(b) with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).




          SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Subject to Section
2.02, upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:





     (a) an Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and




     (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



          Each signer of an Officers’ Certificate or an Opinion of Counsel may (if so stated) rely,
effectively, upon an Opinion of Counsel as to legal matters and an Officers’ Certificate as to
factual matters if such signer reasonably and in good faith believes in the accuracy of the
document relied upon.




     SECTION 11.05. Statements Required in Certificate or Opinion. Each Officers’
Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



60









 






     (a) a statement that the person making such certificate or opinion has read such
covenant or condition;




     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




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




     (d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.



          SECTION 11.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or at a meeting of Securityholders. The Registrar, Paying Agent or Conversion Agent may
make reasonable rules and set reasonable requirements for their respective functions.




          SECTION 11.07. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or a day on
which banking institutions are not required to be open in the City of New York, in the State of New
York or in the city in which the Trustee or the applicable agent administers its corporate trust
business. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on that
payment for the intervening period.




          A “business day” is a day other than a Legal Holiday.




          SECTION 11.08. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Securities or this Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.




          SECTION 11.09. Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. Delivery of an executed counterpart by facsimile shall be effective as delivery of a
manually executed counterpart thereof.




          SECTION 11.10. Governing Law. The laws of the State of New York shall govern this
Indenture and the Securities.




          SECTION 11.11. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Company or any of its
subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.




61









 








          SECTION 11.12. Successors. All agreements of the Company in this Indenture and the
Securities shall bind their respective successors. All agreements of the Trustee in this Indenture
shall bind its successors.




          SECTION 11.13. Separability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall
have no claim therefor against any party hereto.




          SECTION 11.14. Table of Contents, Headings, etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof and shall in no
way modify or restrict any of the terms or provisions hereof.




62









 








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




	 	 	 	 	 
	 	WEBMD CORPORATION

 	 
	 	By:  	   /s/ Tim Sayre
 	 
	 	 	Name:  	Tim Sayre 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK

 	 
	 	By:  	   /s/ Robert A. Massimillo
 	 
	 	 	Name:  	Robert A. Massimillo 	 
	 	 	Title:  	Vice President 	 



63









 






	 	 	 	 	 



EXHIBIT A




[Face of Security]




WEBMD CORPORATION




[Certificate No. _______]




[INSERT PRIVATE PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND AS REQUIRED]




3 1/8% Convertible Note due September 1, 2025

CUSIP No. 94769M AF 2 (144A)

CUSIP No. 94769M AG 0





     WEBMD CORPORATION, a Delaware corporation (herein called the “Company”), for value
received, hereby promises to pay to [___]/[if Global Security: Cede & Co.] or registered
assigns, the principal sum of ___ Dollars ($___) [if Global Security: ,
as such amount may be increased or decreased in accordance with the Indenture and as set forth on
Schedule A hereto,] on September 1, 2025, and to pay interest (including contingent interest, if
any) and liquidated damages, if any, thereon, as provided on the reverse hereof, until the
principal and any unpaid and accrued interest is paid or duly provided for.



     Interest Payment Dates: March 1 and September 1, with the first payment to be made on March
1, 2006.



     Record Dates: February 15 and August 15 immediately preceding each Interest Payment Date.



     The provisions on the back of this certificate are incorporated as if set forth on the face
hereof.



     IN WITNESS WHEREOF, WEBMD CORPORATION has caused this instrument to be duly signed.



	 	 	 	 	 
	 	WEBMD CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         




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TRUSTEE’S CERTIFICATE OF AUTHENTICATION




This is one of the Securities referred

to in the within-mentioned Indenture.




THE BANK OF NEW YORK, as Trustee




	 	 	 	 	 	 	 
	By: 
	 	 	 	 	 	 
	 	 	 	 
	 

	 	 	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	Dated:

	 	 	 	 	 
	 

	 	 

	 	 






A-2









 






[REVERSE OF SECURITY]




WEBMD CORPORATION




3 1/8% Convertible Note due September 1, 2025




     1. Interest. WebMD Corporation, a Delaware corporation (the “Company”), promises to
pay interest on the principal amount of this Security at the rate per annum shown above. The
Company will pay interest semiannually on March 1 and September 1 of each year, with the first
payment to be made on March 1, 2006, to the Holders of record on the immediately preceding February
15 and August 15, respectively, whether or not such day is a business day. Interest on the
Securities will accrue on the principal amount from the most recent date to which interest has been
paid or provided for or, if no interest has been paid, from August 30, 2005. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Company will not be required
to make any interest payment on the Securities (including contingent interest, if any) or
liquidated damages, if any, on any day that is not a business day until the next succeeding
business day. Such interest payment made on the next succeeding business day will be treated as
though it were paid on the original due date and no interest will accrue on the payment for the
additional period of time.



     The Company shall pay contingent interest to the Holders during the period from September 1,
2012 to February 28, 2013 and during any period from March 1 to August 31 and from September 1 to
February 28 thereafter (each, a “Contingent Interest Period”) if the average Trading Price
(as determined by the Trustee) per $1,000 principal amount of Securities for the five Trading Days
ending on the second Trading Day immediately preceding the first day of the applicable Contingent
Interest Period equals 120% or more of the $1,000 principal amount of such Securities. The amount
of contingent interest payable per $1,000 principal amount of Securities in respect of any
Contingent Interest Period shall equal 0.25% per annum of the average Trading Price of such
Securities for the five Trading Days ending on the second Trading Day immediately preceding such
Contingent Interest Period. Upon determination that Holders will be entitled to receive contingent
interest which may become payable during a Contingent Interest Period, on or prior to the start of
such Contingent Interest Period, the Company will provide notice to the Trustee setting forth the
amount of contingent interest per $1,000 principal amount of Securities and disseminate a press
release through Dow Jones & Company, Inc. or Bloomberg Business News or other similarly broad
public medium that is customary for such press releases. The Company will pay contingent interest,
if any, in the same manner as it will pay interest as described above.



     2. Maturity. The Securities will mature on September 1, 2025.



     3. Method of Payment. The Company will pay interest on the Securities (except defaulted
interest), including contingent interest, if any, and liquidated damages, if any, to the persons
who are registered Holders of Securities at the close of business on the record date set forth on
the face of this Security immediately preceding the applicable interest payment date. Liquidated
damages, if any, would be paid in accordance with the terms and subject to the conditions set forth
in the Registration Rights Agreement. Holders must surrender Securities to a
Paying Agent to collect the principal, Redemption Price or Repurchase Price of the Securities.



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The Company will pay all amounts due with respect to the Securities in money of the United
States that at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay interest (including contingent interest, if any), liquidated damages,
if any, the Redemption Price, Repurchase Price, the premium, if any, and the principal amount at
maturity, as the case may be, by check or wire payable in such money; provided, however, that a
Holder holding Securities with an aggregate principal amount in excess of $2,000,000 will be paid
by wire transfer in immediately available funds at the election of such Holder. The Company may
mail an interest check to the Holder’s last address appearing on the Security register on the
Registrar’s books. Notwithstanding the foregoing, so long as this Security is registered in the
name of a Depositary or its nominee, all payments hereon shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.




     4. Paying Agent, Registrar, Conversion Agent. Initially, The Bank of New York (the
“Trustee”) will act as Paying Agent, Registrar and Conversion Agent. The Company may
change any Paying Agent, Registrar or Conversion Agent without notice. The Company may act as
Paying Agent.



     5. Indenture; Ranking. The Company issued the Securities under an Indenture, dated as of
August 30, 2005 (the “Indenture”), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the “Act”) as in effect
on the date of the Indenture. The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the Act for a statement of such terms. The Securities are
general unsecured obligations of the Company limited to $300,000,000 aggregate principal amount
($345,000,000 if the Initial Purchaser (as defined in the Indenture) has elected to exercise in
full its option to purchase an additional $45,000,000 of the Securities), except as otherwise
provided in Section 2.07 of the Indenture. Terms used and not otherwise defined herein that are
defined in the Indenture have the meanings assigned to them in the Indenture.



     6. Redemption by the Company. The Securities are not redeemable by the Company prior to
September 5, 2010. On or after September 5, 2010, the Company may redeem the Securities, at once
or over time, at the Redemption Prices set forth below, plus accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, to, but not including, the Redemption
Date (subject to the right of holders of record on the relevant interest record date to receive
interest due on the relevant interest payment date). The following cash prices are for Securities
redeemed during the 12-month period commencing on September 5 of the years set forth below, and are
expressed as percentages of principal amount of the Securities to be redeemed:



	 	 	 	 	 
	Redemption Year	 	Price	 
	2010
	 	 	100.893	%
	2011
	 	 	100.446	%
	2012 and thereafter
	 	 	100.000	%






     No sinking fund is provided for the Securities.



A-4









 





     7. Notice of Redemption. Notice of redemption will be mailed at least 15 days but not more
than 60 days before the Redemption Date to each Holder to be redeemed at its last address
appearing on the Security register on the Registrar’s books. Securities in denominations larger
than $1,000 principal amount may be redeemed in part but only in positive integral multiples of
$1,000 principal amount. On and after the Redemption Date interest (including contingent interest,
if any) and liquidated damages, if any, cease to accrue on Securities or portions of them called
for redemption.



     8. Repurchase at Option of Holder. Each Holder shall have the right (the “Repurchase
Right”), at the Holder’s option, to require the Company to repurchase in Cash such Holder’s
Securities, or a portion thereof which is $1,000 in principal amount or any positive integral
multiple thereof, on September 1, 2012, September 1, 2015 and September 1, 2020 (each, a
“Repurchase Date”) at the Repurchase Price plus accrued and unpaid interest (including
contingent interest, if any) and liquidated damages, if any, thereon, up to but not including the
Repurchase Date; provided that if the Repurchase Date is on or after an interest record date but on
or prior to the related interest payment date, interest (including contingent interest, if any) and
liquidated damages, if any, will be payable to the Holders in whose names the Securities are
registered at the close of business on the relevant record date. To exercise a Repurchase Right, a
Holder shall deliver an Option of Holder to Elect Repurchase Notice as required by the Indenture,
together with the Securities subject thereto, at any time from the opening of business on the date
that is 30 business days prior to the Repurchase Date until the close of business on the fifth
business day prior to the Repurchase Date, as set forth in the Indenture.



     9. Repurchase Upon a Change in Control. Upon any Change in Control (as defined below) with
respect to the Company, each Holder shall have the right (the “Change in Control Repurchase
Right”), at the Holder’s option, to require the Company to repurchase all of such Holder’s
Securities, or a portion thereof which is $1,000 in principal amount or any positive integral
multiple thereof, on the date (the “Change in Control Repurchase Date”) that is 30 business
days after the date of the Change in Control Notice (as defined below) at the Repurchase Price,
plus accrued and unpaid interest (including contingent interest, if any) and liquidated damages, if
any, to, but not including, the Change in Control Repurchase Date. At the option of the Company,
the Repurchase Price for Securities the Company is required to repurchase pursuant to a Change in
Control may be paid in Cash, Common Stock or a combination of both, subject to certain conditions
as set forth in the Indenture.



     Within 30 days after the occurrence of a Change in Control of the Company, the Company shall
mail to all Holders of record of the Securities a notice (the “Change in Control Notice”)
of the occurrence of such Change in Control and the Change in Control Repurchase Right arising as a
result thereof. The Company shall deliver a copy of the Change in Control Notice to the Trustee
and shall disseminate a copy via a press release through Dow Jones & Company, Inc. or Bloomberg
Business News or other similarly broad public medium that is customary for such press releases. To
exercise the Change in Control Repurchase Right, a Holder of Securities must deliver on or before
the close of business on the 30th day after the date of the Change in Control Notice
irrevocable written notice to the Trustee, or to a Paying Agent
designated by the Company for such purpose in the Change in Control Notice, in the form of the
Option of Holder to Elect Repurchase Notice on the back of the Security, of the Holder’s



A-5









 




exercise of such right together with the Securities with respect to which the right is being
exercised, duly endorsed for transfer.




          A “Change in Control” of the Company shall be deemed to have occurred at such time as:





     (i) any person acquires beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of transactions, of shares of
the Company’s capital stock entitling the person to exercise 50% or more of the total voting
power of all shares of the Company’s capital stock that are entitled to vote generally in
elections of directors, other than an acquisition by the Company, any of its subsidiaries or
any of its employee benefit plans; or




     (ii) the conveyance, sale transfer or lease by the Company of all or substantially all
of its assets to another person.



          However, a Change in Control will not be deemed to have occurred if:





	 	(X)	 	the Closing Sale Price for any five Trading Days within the
period of ten consecutive Trading Days ending immediately after the later of
the Change in Control or the public announcement of the Change in Control, in
the case of a Change in Control relating to an acquisition of capital stock, or
the period of ten consecutive Trading Days ending immediately before the Change
in Control, in the case of a Change in Control relating to a merger,
consolidation or asset sale, equals or exceeds 105% of the Conversion Price of
the Securities in effect on each of those five Trading Days; or
	 
	 	(Y)	 	all or substantially all (but in no event less than 90%) of the
consideration, excluding Cash payments for fractional shares of Common Stock
and Cash payments made pursuant to dissenters’ appraisal rights, in a merger or
consolidation otherwise constituting a Change in Control in the preceding
paragraph (X) consists of shares of common stock, depositary receipts or other
certificates representing common equity interests traded on a national
securities exchange or quoted on the Nasdaq National Market, or will be so
traded or quoted immediately following such merger or consolidation, and as a
result of such merger or consolidation the Securities become convertible solely
into such consideration.





          For purposes of this “Change in Control” definition:





     (1) whether a person is a “beneficial owner” will be determined in accordance
with Rule 13d-3 under the Exchange Act; and




     (2) a “person” includes any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Exchange Act.



A-6









 





     10. Conversion. Subject to the provisions of Article X of the Indenture, a Holder of a
Security may convert such Security into shares of Common Stock of the Company (subject to the
Company’s right to deliver, in lieu of shares of Common Stock, cash or a combination of cash and
shares of Common Stock, and except to the extent that the Company has irrevocably elected Net Share
Settlement pursuant to Section 10.04 of the Indenture). The initial conversion rate is 64.2446
shares of Common Stock per $1,000 principal amount of Securities, or an effective initial
Conversion Price of approximately $15.57 per share, subject to adjustment in the event of certain
circumstances as specified in the Indenture. The Company will deliver Cash in lieu of any
fractional share.



     If the Effective Date or anticipated effective date of a Make Whole Change of Control occurs
on or prior to September 1, 2012, and a Holder surrenders its Securities for conversion during the
period commencing 20 days prior to the anticipated effective date of the Make Whole Change of
Control until 20 days after the Effective Date of the Make Whole Change of Control, the Company
will increase the conversion rate for the Securities surrendered for conversion by a number of
additional shares of Common Stock as set forth in Section 10.05 of the Indenture.



     To convert a Security, a Holder must (1) complete and sign the Conversion Notice, with
appropriate signature guarantee, on the back of the Security, (2) surrender the Security to a
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the
Registrar or Conversion Agent, (4) if required by Article X of the Indenture, pay the amount of
interest (including contingent interest, if any) and liquidated damages, if any, the Holder may be
paid and (5) pay any transfer or similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 principal amount or a positive integral multiple of $1,000
principal amount.



     All Conversion Shares shall bear the Private Placement Legend until after the second
anniversary of the later of (i) the issue date for the Securities, (ii) the last date on which the
Company or any Affiliate of the Company was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such
longer period of time as may be required under the Securities Act or applicable state securities
laws in the Opinion of Counsel for the Company, unless otherwise agreed by the Company and the
Holder thereof).



     11. Denominations, Transfer, Exchange. The Securities are in registered form without coupons
in denominations of $1,000 principal amount and positive integral multiples of $1,000 principal
amount. The transfer of Securities may be registered and Securities may be exchanged as provided
in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. The Registrar need not exchange or
register the transfer of any Security selected for redemption
in whole or in part, except the unredeemed portion of Securities to be redeemed in part.
Also, it need not exchange or register the transfer of any Securities for a period of 15 days
before the mailing of a notice of redemption of the Securities selected to be redeemed and in
certain other circumstances provided in the Indenture.



A-7









 





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



     13. Merger or Consolidation. The Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its properties and assets to, another person
unless such other person is a corporation organized under the laws of the United States, any State
thereof or the District of Columbia or a corporation or comparable legal entity organized under the
laws of a foreign jurisdiction and whose equity securities are listed on a national securities
exchange in the United States or authorized for quotation on the Nasdaq National Market prior to or
upon giving effect to the transaction (provided, however, that in the case of a transaction where
the surviving entity is organized under the laws of a foreign jurisdiction, the Company may not
consummate the transaction without first (i) making provision for the satisfaction of its
obligations to repurchase the Securities following a Change in Control, if any, (ii) amending the
terms of the Securities to provide that, in the event the Company is required under the laws of
such foreign jurisdiction (or any political subdivision thereof) to withhold or deduct amounts in
respect of taxes from payments made to Securityholders on the Securities, the Company will pay,
subject to certain standard exceptions, such additional amounts to the holders as may be necessary
so that each Securityholder will receive the same amounts it would have received had no such
withholding or deduction been required, and (iii) obtaining an opinion of tax counsel experienced
in such matters to the effect that, under then existing United States federal income tax laws,
there would be no material adverse tax consequences to Securityholders of the Securities resulting
from such transaction); such person assumes by supplemental indenture all the obligations of the
Company, under the Securities and this Indenture; and immediately after giving effect to the
transaction, no Default or Event of Default shall exist.



     14. Amendments, Supplements and Waivers. Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding, and any existing Default or Event of
Default may be waived with the consent of the Holders of a majority in aggregate principal amount
of the Securities then outstanding. Without notice to or the consent of any Securityholder, the
Indenture or the Securities may be amended or supplemented, with the consent of the Trustee, to
cure any ambiguity, inconsistency or other defect in the Indenture; to comply with Sections 5.01,
10.05 and 10.12 of the Indenture; to evidence a successor to the Company and the assumption by that
successor of the Company’s obligations under the Indenture and the Securities; to evidence and
provide for the acceptance of the appointment under the Indenture of a successor Trustee; to make
any changes or modifications to the Indenture necessary in connection with the registration of the
Securities under the Securities Act and the qualification of the Indenture under the TIA; to secure
the obligations of the Company in respect of the Securities; or to add to covenants of the Company
described in the Indenture for the benefit of Securityholders or to surrender any right or power
conferred upon the Company.



     15. Defaults and Remedies. An Event of Default includes the occurrence of those events set
forth in Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may declare all the Securities to be due and payable immediately, except as provided in
the Indenture. If an Event of Default specified in Section 6.01(f) or (g) of



A-8









 




the Indenture with respect to the Company occurs, the principal of and accrued interest on all
the Securities shall ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholder. The Company must furnish an annual
compliance certificate to the Trustee.




     16. Registration Rights. The Holders are entitled to registration rights as set forth in the
Registration Rights Agreement (as defined in the Indenture). The Holders shall be entitled to
receive liquidated damages in certain circumstances, all as set forth in the Registration Rights
Agreement.



     17. Trustee Dealings with the Company. The Trustee under the Indenture, or any banking
institution serving as successor Trustee thereunder, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not Trustee.



     18. No Recourse Against Others. No past, present or future director, officer, employee or
stockholder, as such, of the Company shall have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issue of the
Securities.



     19. Authentication. This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.



     20. Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (Uniform Gifts to Minors Act).



     THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY
OF THE INDENTURE. REQUESTS MAY BE MADE TO:


WebMD Corporation

669 River Drive, Center 2

Elmwood Park, New Jersey 07407-1361

Attention: Executive Vice President—Chief Financial Officer



A-9









 








[FORM OF ASSIGNMENT]




I or we assign to




PLEASE
INSERT SOCIAL SECURITY OR 

OTHER IDENTIFYING NUMBER



 


 





(please print or type name and address)



 



 





the within Security and all rights thereunder, and hereby irrevocably constitutes and appoints




 





Attorney to transfer the Security on the books of the Company with full power of substitution in
the premises.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	NOTICE: The signature on this assignment must
correspond with the name as it appears upon
the face of the within Security in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.






	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 






          In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act of 1933, as amended (the “Securities Act”), covering
resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the Resale
Restriction Termination Date, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection
with transfer and confirms that this Security is being transferred:




A-10









 








[Check One]




     (1) ___
to the Company or any subsidiary thereof; or



     (2) ___
pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as
amended; or



     (3) ___
pursuant to the exemption from registration provided by Rule 144 under the Securities
Act of 1933, as amended; or



     (4) ___
pursuant to an effective registration statement under the Securities Act of 1933, as
amended.



and unless the box below is checked, the undersigned confirms that such Security is not being
transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act of
1933, as amended (an “Affiliate”):



     o The transferee is an Affiliate of the Company. (If the Security is transferred to an
Affiliate, the restrictive legend must remain on the Security for two years following the date of
the transfer).



          Unless one of the items is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any person other than the registered Holder thereof;
provided, however, that if item (3) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such written legal
opinions, certifications and other information as the Trustee or the Company have reasonably
requested to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act of 1933, as
amended.




          If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to
register this Security in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 2.16 of the
Indenture shall have been satisfied.




	 	 	 	 	 	 	 
	Dated:

	 	 	 	Signed:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	     (Sign exactly as name appears on the
	 

	 	 	 	 	 	     other side of this Security)






	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 





A-11









 






TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




          The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from registration provided
by Rule 144A.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	NOTICE: To be executed by an executive officer







A-12










 






CONVERSION NOTICE



To convert this Security into Common Stock (subject to the Company’s election
rights with respect to the delivery of Common Stock, cash or a combination
thereof upon conversion), check the box: o



To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):




	 	 	 	 	 
	 

	 	$	 	 





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



 

(Insert other person’s soc. sec. or tax I.D. no.)



 



 




 



 




 



 




 



 

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




	 	 	 	 	 	 	 	 	 
	Date:

	 	 


	 	 	 	Signature(s):
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	(Sign exactly as your
name(s) appear(s) on the other side
of this Security)






	 	 	 
	Signature(s) guaranteed by:
	 	 
	 

	 	 
	 

	 	(All signatures must be guaranteed by a guarantor institution
	 

	 	participating in the Securities Transfer Agents Medallion
	 

	 	Program or in such other guarantee program acceptable to the
	 

	 	Trustee.)






A-13









 






OPTION OF HOLDER TO ELECT REPURCHASE NOTICE




Certificate No. of Security: ___________




     If you elect to have this Security purchased by the Company pursuant to Section 3.08 of the
Indenture, check the box: o



     If you elect to have this Security purchased by the Company pursuant to Section 3.09 of the
Indenture, check the box: o



     If you elect to have only part of this Security purchased by the Company pursuant to Section
3.08 or Section 3.09 of the Indenture, as the case may be, state the principal amount:



$ __________________________________

(in an integral multiple of $1,000)




	 	 	 	 	 	 	 	 
	Date:

	 	 

	 	 	Signature(s):
	 	 
	 	 	 	 	 	 	 	 






	 	 	 
	 

	 	 
	 

	 	(Sign exactly as your name(s) appear(s) on the other side
	 

	 	of this Security)
	Signature(s) guaranteed by:
	 	 
	 

	 	 
	 

	 	(All signatures must be guaranteed by a guarantor
	 

	 	institution participating in the Securities Transfer
	 

	 	Agents Medallion Program or in such other
	 

	 	guarantee program acceptable to the Trustee.)







A-14









 








SCHEDULE A




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY 1




     The following exchanges of a part of this Global Security for an interest in another
Global Security or for Securities in certificated form, have been made:



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








 




			
	1	 	This is included in Global Securities only.




1









 










EXHIBIT B-1




FORM OF PRIVATE PLACEMENT LEGEND



THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.



THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS SECURITY MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.



THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON
RESALES AND OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE
OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY AND SUCH SHARES SHALL
BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.



FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS
SECURITY IS A CONTINGENT PAYMENT DEBT INSTRUMENT AND WILL ACCRUE ORIGINAL ISSUE DISCOUNT AT THE
ISSUER’S “COMPARABLE YIELD” FOR U.S. FEDERAL INCOME TAX PURPOSES. PURSUANT TO SECTION 4.08 OF THE
INDENTURE, THE COMPANY AGREES, AND BY ACCEPTANCE OF A BENEFICIAL OWNERSHIP INTEREST IN THE
SECURITY, EACH BENEFICIAL HOLDER OF THE SECURITIES WILL BE DEEMED TO HAVE AGREED, FOR U.S. FEDERAL
INCOME TAX PURPOSES, (I) TO TREAT THE SECURITIES AS INDEBTEDNESS THAT IS SUBJECT TO SECTION
1.1275-4 OF THE UNITED STATES TREASURY REGULATIONS (THE “CONTINGENT PAYMENT REGULATIONS”), AND, FOR
PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF COMMON STOCK
RECEIVED BY A BENEFICIAL HOLDER




B-1-1









 







UPON ANY CONVERSION OF THE SECURITIES AS A CONTINGENT PAYMENT AND (II) TO BE BOUND BY THE ISSUER’S
DETERMINATION OF THE “COMPARABLE YIELD” AND “PROJECTED PAYMENT SCHEDULE,” WITHIN THE MEANING OF THE
CONTINGENT PAYMENT REGULATIONS, WITH RESPECT TO THE NOTES. THE ISSUER’S DETERMINATION OF THE
COMPARABLE YIELD IS 6.8% PER ANNUM, COMPOUNDED SEMIANNUALLY. THE PROJECTED PAYMENT SCHEDULE,
DETERMINED BY THE ISSUER, IS ATTACHED TO THE INDENTURE AS EXHIBIT E. YOU MAY OBTAIN THE ISSUE
DATE, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY BY TELEPHONING WEBMD
CORPORATION’S INVESTOR RELATIONS DEPARTMENT AT (201) 414-2002 OR SUBMITTING A WRITTEN REQUEST FOR
SUCH INFORMATION TO: WEBMD CORPORATION, 669 RIVER DRIVE, CENTER 2, ELMWOOD PARK, NEW JERSEY 07407,
ATTN: INVESTOR RELATIONS.




B-1-2









 








EXHIBIT B-2




FORM OF LEGEND FOR GLOBAL SECURITY




     Any Global Security authenticated and delivered hereunder shall bear a legend (which would be
in addition to any other legends required in the case of a Restricted Security) in substantially
the following form:




THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




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.




TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.




FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS SECURITY IS A CONTINGENT PAYMENT DEBT INSTRUMENT AND WILL ACCRUE ORIGINAL ISSUE
DISCOUNT AT THE ISSUER’S “COMPARABLE YIELD” FOR U.S. FEDERAL INCOME TAX PURPOSES. PURSUANT
TO SECTION 4.08 OF THE INDENTURE, THE ISSUER AGREES, AND BY ACCEPTANCE OF A BENEFICIAL
OWNERSHIP INTEREST IN THE SECURITY, EACH BENEFICIAL HOLDER OF THE SECURITIES WILL BE DEEMED
TO HAVE AGREED, FOR U.S. FEDERAL INCOME TAX PURPOSES,



B-2-1









 






(I) TO TREAT THE SECURITIES AS INDEBTEDNESS THAT IS SUBJECT TO SECTION 1.1275-4 OF THE
UNITED STATES TREASURY REGULATIONS (THE “CONTINGENT PAYMENT REGULATIONS”), AND, FOR PURPOSES
OF THE CONTINGENT PAYMENT REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF COMMON STOCK
RECEIVED BY A BENEFICIAL HOLDER UPON ANY CONVERSION OF THE SECURITIES AS A CONTINGENT
PAYMENT AND (II) TO BE BOUND BY THE ISSUER’S DETERMINATION OF THE “COMPARABLE YIELD” AND
“PROJECTED PAYMENT SCHEDULE,” WITHIN THE MEANING OF THE CONTINGENT PAYMENT REGULATIONS, WITH
RESPECT TO THE NOTES. THE ISSUER’S DETERMINATION OF THE COMPARABLE YIELD IS 6.8% PER ANNUM,
COMPOUNDED SEMIANNUALLY. THE PROJECTED PAYMENT SCHEDULE, DETERMINED BY THE ISSUER, IS
ATTACHED TO THE INDENTURE AS EXHIBIT E. YOU MAY OBTAIN THE ISSUE DATE, COMPARABLE YIELD AND
PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY BY TELEPHONING WEBMD CORPORATION’S INVESTOR
RELATIONS DEPARTMENT AT (201) 414-2002 OR SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION
TO: WEBMD CORPORATION, 669 RIVER DRIVE, CENTER 2, ELMWOOD PARK, NEW JERSEY 07407, ATTN:
INVESTOR RELATIONS.



B-2-2









 





EXHIBIT C




Form of Notice of Transfer Pursuant to Registration Statement




WebMD Corporation

669 River Drive, Center 2

Elmwood Park, New Jersey 07407-1361

Attention: Executive Vice President — Chief Financial Officer




The Bank of New York

101 Barclay Street, Floor 8 W

New York, NY 10286

Fax: (212) 815-5704

Attention: Corporate Trust Administration




     Re:
      WEBMD CORPORATION (the
“Company”) 3 1/8% Convertible Notes due September 1, 2025 (the “Securities”)



Ladies and Gentlemen:




     Please be advised that                                          has transferred $                                         aggregate principal amount
of the Securities or                                                     shares of the Common Stock, $0.001 par value per share, of the
Company issuable on conversion of the Securities (“Stock”) pursuant to an effective Shelf
Registration Statement on Form S-3 (File No. 333-                                        ).



     We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of
1933 as amended, have been satisfied with respect to the transfer described above and that the
above-named beneficial owner of the Securities or Stock is named as a “Selling Securityholder” in
the Prospectus dated                                         , or in amendments or supplements thereto, and that the
aggregate principal amount of the Securities, or number of shares of Stock transferred are [a
portion of] the Securities or Stock listed in such Prospectus, as amended or supplemented, opposite
such owner’s name.



	 	 	 	 
	 

	 	Very truly yours,	 
	 
	 	 	 
	 

	 	 	 
	 

	 	      (Name)	 






C-1









 






EXHIBIT D




Form of Opinion of Counsel in Connection with Registration of Securities




The Bank of New York

101 Barclay Street, Floor 8 W

New York, NY 10286

Fax: (212) 815-5704

Attention: Corporate Trust Administration




     Re:
      WEBMD CORPORATION (the
“Company”)

                  3 1/8% Convertible Notes due September 1, 2025 (the “Securities”)



Ladies and Gentlemen:




     Reference is made to the Securities issued pursuant to a certain indenture, dated as of August
30, 2005, by and between the Company and The Bank of New York, as trustee (the “Trustee”). The
Company issued $300,000,000 principal amount of Securities on August 30, 2005 [and an additional
$45,000,000 on                     , 2005 [IF THE INITIAL PURCHASER’S OVERALLOTMENT OPTION IS EXERCISED]] in
transactions exempt from registration under the Securities Act of 1933, as amended (the “Securities
Act”). The Company has filed with the Securities and Exchange Commission (the “SEC”) a
registration statement on Form S-3 (File No. 333-                                        ) (the “Registration Statement”)
relating to the registration under the Securities Act of $                                         principal amount of the
Securities and the shares of Common Stock of the Company (the “Shares”) issuable upon conversion of
the Securities being registered. The Registration Statement was declared effective by order of the
SEC dated [                                        ].



     We have acted as counsel for the Company in connection with the issuance of the Securities and
the preparation and filing of the Registration Statement and are familiar with the Securities, the
Indenture, the Registration Statement, the above-mentioned SEC order and such other documents as
are necessary to render this opinion.



     Based on the foregoing, it is our opinion that (1) the Registration Statement has become
effective under the Securities Act and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, (2) assuming that the Securities
covered by the Registration Statement and the Shares issuable upon conversion of such Securities
are sold by a relevant Holder specified in the Registration Statement in a manner specified in the
Registration Statement, such sale of the Securities and Shares issuable upon conversion of the
Securities will have been duly registered under the Securities Act and (3) the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended.




	 	 	Yours truly,




D-1









 











Projected Payment Schedule




3 1/8% Convertible Notes due September 1, 2025

(per $1000 principal amount)




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Non Contingent	 	Contingent	 	Total Projected
	Date	 	Payment	 	Payment	 	Payments
	3/1/2006
	 	$	15.71	 	 	$	0.00	 	 	$	15.71	 
	9/1/2006
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2007
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2007
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2008
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2008
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2009
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2009
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2010
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2010
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2011
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2011
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2012
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2012
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2013
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2013
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	3/1/2014
	 	$	15.63	 	 	$	0.00	 	 	$	15.63	 
	9/1/2014
	 	$	15.63	 	 	$	3.04	 	 	$	18.67	 
	3/1/2015
	 	$	15.63	 	 	$	3.13	 	 	$	18.76	 
	9/1/2015
	 	$	15.63	 	 	$	3.22	 	 	$	18.85	 
	3/1/2016
	 	$	15.63	 	 	$	3.32	 	 	$	18.94	 
	9/1/2016
	 	$	15.63	 	 	$	3.42	 	 	$	19.04	 
	3/1/2017
	 	$	15.63	 	 	$	3.52	 	 	$	19.14	 
	9/1/2017
	 	$	15.63	 	 	$	3.62	 	 	$	19.25	 
	3/1/2018
	 	$	15.63	 	 	$	3.73	 	 	$	19.35	 
	9/1/2018
	 	$	15.63	 	 	$	3.84	 	 	$	19.47	 
	3/1/2019
	 	$	15.63	 	 	$	3.95	 	 	$	19.58	 
	9/1/2019
	 	$	15.63	 	 	$	4.07	 	 	$	19.70	 
	3/1/2020
	 	$	15.63	 	 	$	4.19	 	 	$	19.82	 
	9/1/2020
	 	$	15.63	 	 	$	4.32	 	 	$	19.94	 
	3/1/2021
	 	$	15.63	 	 	$	4.44	 	 	$	20.07	 
	9/1/2021
	 	$	15.63	 	 	$	4.57	 	 	$	20.20	 
	3/1/2022
	 	$	15.63	 	 	$	4.71	 	 	$	20.34	 
	9/1/2022
	 	$	15.63	 	 	$	4.85	 	 	$	20.47	 
	3/1/2023
	 	$	15.63	 	 	$	4.99	 	 	$	20.62	 
	9/1/2023
	 	$	15.63	 	 	$	5.14	 	 	$	20.77	 
	3/1/2024
	 	$	15.63	 	 	$	5.29	 	 	$	20.92	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Non Contingent	 	Contingent	 	Total Projected
	Date	 	Payment	 	Payment	 	Payments
	9/1/2024
	 	$	15.63	 	 	$	5.45	 	 	$	21.07	 
	3/1/2025
	 	$	15.63	 	 	$	5.61	 	 	$	21.24	 
	9/1/2025
	 	$	15.63	 	 	$	2,385.00	1	 	$	2,400.62	 








 




			
	1	 	Consists of a contingent payment of $5.78 and a
payment upon conversion prior to maturity of $2,379.22.