exv10w1



 





DENDREON CORPORATION




4.75% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2014




 






INDENTURE




DATED AS OF JUNE 11, 2007




 






THE BANK OF NEW YORK TRUST COMPANY, N.A.




AS TRUSTEE




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 1.01	 	Definitions	 	 	1	 
	 
	 	Section 1.02	 	Other Definitions	 	 	8	 
	 
	 	Section 1.03	 	Trust Indenture Act Provisions	 	 	9	 
	 
	 	Section 1.04	 	Rules of Construction	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 2 THE SECURITIES	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 2.01	 	Form and Dating	 	 	10	 
	 
	 	Section 2.02	 	Execution and Authentication	 	 	12	 
	 
	 	Section 2.03	 	Registrar, Paying Agent and Conversion Agent	 	 	13	 
	 
	 	Section 2.04	 	Paying Agent to Hold Money in Trust	 	 	13	 
	 
	 	Section 2.05	 	Lists of Holders of Securities	 	 	14	 
	 
	 	Section 2.06	 	Transfer and Exchange	 	 	14	 
	 
	 	Section 2.07	 	Replacement Securities	 	 	15	 
	 
	 	Section 2.08	 	Outstanding Securities	 	 	15	 
	 
	 	Section 2.09	 	Treasury Securities	 	 	16	 
	 
	 	Section 2.10	 	Temporary Securities	 	 	16	 
	 
	 	Section 2.11	 	Cancellation	 	 	16	 
	 
	 	Section 2.12	 	Legend; Additional Transfer and Exchange Requirements	 	 	17	 
	 
	 	Section 2.13	 	CUSIP Numbers	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 3 PURCHASE	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 3.01	 	Repurchase of Securities at Option of the Holder upon a Fundamental Change	 	 	21	 
	 
	 	Section 3.02	 	Effect of Fundamental Change Repurchase Notice	 	 	23	 
	 
	 	Section 3.03	 	Deposit of Fundamental Change Repurchase Price	 	 	24	 
	 
	 	Section 3.04	 	Repayment to the Company	 	 	24	 
	 
	 	Section 3.05	 	Securities Purchased in Part	 	 	24	 
	 
	 	Section 3.06	 	Compliance with Securities Laws upon Purchase of Securities	 	 	25	 
	 
	 	Section 3.07	 	Purchase of Securities in Open Market	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 4 CONVERSION	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 4.01	 	Conversion Privilege and Conversion Rate	 	 	25	 
	 
	 	Section 4.02	 	Conversion Procedure	 	 	28	 
	 
	 	Section 4.03	 	Fractional Shares	 	 	29	 
	 
	 	Section 4.04	 	Taxes on Conversion	 	 	29	 
	 
	 	Section 4.05	 	Company to Provide Stock	 	 	30	 
	 
	 	Section 4.06	 	Adjustment of Conversion Rate	 	 	30	 
	 
	 	Section 4.07	 	No Adjustment	 	 	37	 
	 
	 	Section 4.08	 	Notice of Adjustment	 	 	37	 






 









 









	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	Section 4.09	 	Notice of Certain Transactions	 	 	37	 
	 
	 	Section 4.10	 	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	 	 	37	 
	 
	 	Section 4.11	 	Trustee’s Disclaimer	 	 	39	 
	 
	 	Section 4.12	 	Voluntary Increase	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 5 SUBORDINATION	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 5.01	 	Agreement of Subordination	 	 	39	 
	 
	 	Section 5.02	 	Payments to Holders	 	 	40	 
	 
	 	Section 5.03	 	Subrogation of Securities	 	 	42	 
	 
	 	Section 5.04	 	Authorization to Effect Subordination	 	 	43	 
	 
	 	Section 5.05	 	Notice to Trustee	 	 	43	 
	 
	 	Section 5.06	 	Trustee’s Relation to Senior Indebtedness	 	 	44	 
	 
	 	Section 5.07	 	No Impairment of Subordination	 	 	44	 
	 
	 	Section 5.08	 	Certain Conversions Deemed Payment	 	 	45	 
	 
	 	Section 5.09	 	Article Applicable to Paying Agents	 	 	45	 
	 
	 	Section 5.10	 	Senior Indebtedness Entitled to Rely	 	 	45	 
	 
	 	Section 5.11	 	Reliance on Judicial Order or Certificate of Liquidating Agent	 	 	45	 
	 
	 	Section 5.12	 	Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 6 COVENANTS	 	 	46	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 6.01	 	Payment of Securities	 	 	46	 
	 
	 	Section 6.02	 	SEC and Other Reports	 	 	47	 
	 
	 	Section 6.03	 	Compliance Certificates	 	 	47	 
	 
	 	Section 6.04	 	Further Instruments and Acts	 	 	47	 
	 
	 	Section 6.05	 	Maintenance of Corporate Existence	 	 	47	 
	 
	 	Section 6.06	 	Rule 144A Information Requirement	 	 	47	 
	 
	 	Section 6.07	 	Stay, Extension and Usury Laws	 	 	48	 
	 
	 	Section 6.08	 	Payment of Liquidated Damages	 	 	48	 
	 
	 	Section 6.09	 	Maintenance of Office or Agency	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 7 CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 7.01	 	Company May Consolidate, etc., only on Certain Terms	 	 	49	 
	 
	 	Section 7.02	 	Successor Substituted	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 8 DEFAULT AND REMEDIES	 	 	50	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 8.01	 	Events of Default	 	 	50	 
	 
	 	Section 8.02	 	Acceleration	 	 	52	 
	 
	 	Section 8.03	 	Other Remedies	 	 	52	 
	 
	 	Section 8.04	 	Waiver of Defaults and Events of Default	 	 	53	 






ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	Section 8.05	 	Control by Majority	 	 	53	 
	 
	 	Section 8.06	 	Limitations on Suits	 	 	53	 
	 
	 	Section 8.07	 	Rights of Holders to Receive Payment and to Convert	 	 	54	 
	 
	 	Section 8.08	 	Collection Suit by Trustee	 	 	54	 
	 
	 	Section 8.09	 	Trustee may File Proofs of Claim	 	 	54	 
	 
	 	Section 8.10	 	Priorities	 	 	55	 
	 
	 	Section 8.11	 	Undertaking for Costs	 	 	55	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 9 TRUSTEE	 	 	55	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 9.01	 	Obligations of Trustee	 	 	55	 
	 
	 	Section 9.02	 	Rights of Trustee	 	 	57	 
	 
	 	Section 9.03	 	Individual Rights of Trustee	 	 	58	 
	 
	 	Section 9.04	 	Trustee’s Disclaimer	 	 	58	 
	 
	 	Section 9.05	 	Notice of Default or Events of Default	 	 	58	 
	 
	 	Section 9.06	 	Reports by Trustee to Holders	 	 	58	 
	 
	 	Section 9.07	 	Compensation and Indemnity	 	 	59	 
	 
	 	Section 9.08	 	Replacement of Trustee	 	 	60	 
	 
	 	Section 9.09	 	Successor Trustee by Merger, etc.	 	 	60	 
	 
	 	Section 9.10	 	Eligibility; Disqualification	 	 	60	 
	 
	 	Section 9.11	 	Preferential Collection of Claims against Company	 	 	61	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE	 	 	61	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 10.01	 	Satisfaction and Discharge of Indenture	 	 	61	 
	 
	 	Section 10.02	 	Application of Trust Money	 	 	62	 
	 
	 	Section 10.03	 	Repayment to Company	 	 	62	 
	 
	 	Section 10.04	 	Reinstatement	 	 	62	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 11 AMENDMENTS; SUPPLEMENTS AND WAIVERS	 	 	63	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 11.01	 	Without Consent of Holders	 	 	63	 
	 
	 	Section 11.02	 	With Consent of Holders	 	 	63	 
	 
	 	Section 11.03	 	Compliance with Trust Indenture Act	 	 	64	 
	 
	 	Section 11.04	 	Revocation and Effect of Consents	 	 	64	 
	 
	 	Section 11.05	 	Notation on or Exchange of Securities	 	 	65	 
	 
	 	Section 11.06	 	Trustee to Sign Amendments, etc.	 	 	65	 
	 
	 	Section 11.07	 	Effect of Supplemental Indentures	 	 	65	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 12 MISCELLANEOUS	 	 	65	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 12.01	 	Trust Indenture Act Controls	 	 	65	 
	 
	 	Section 12.02	 	Notices	 	 	65	 
	 
	 	Section 12.03	 	Communications by Holders with other Holders	 	 	66	 
	 
	 	Section 12.04	 	Certificate and Opinion as to Conditions Precedent	 	 	67	 






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	 	 	 	 	 	 	Page	 
	 
	 	Section 12.05	 	Record Date for Vote or Consent of Holders of Securities	 	 	67	 
	 
	 	Section 12.06	 	Rules by Trustee, Paying Agent, Registrar and Conversion Agent	 	 	67	 
	 
	 	Section 12.07	 	Legal Holidays	 	 	68	 
	 
	 	Section 12.08	 	Governing Law	 	 	68	 
	 
	 	Section 12.09	 	No Adverse Interpretation of other Agreements	 	 	68	 
	 
	 	Section 12.10	 	No Recourse against Others	 	 	68	 
	 
	 	Section 12.11	 	No Security Interest Created	 	 	68	 
	 
	 	Section 12.12	 	Successors	 	 	68	 
	 
	 	Section 12.13	 	Multiple Counterparts	 	 	68	 
	 
	 	Section 12.14	 	Separability	 	 	68	 
	 
	 	Section 12.15	 	Table of Contents, Headings, etc.	 	 	68	 
	 
	 	Section 12.16	 	Waiver of Jury Trial	 	 	68	 
	 
	 	Section 12.17	 	Force Majeure	 	 	69	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Exhibit A	 	 	 	 	A-1	 







iv









 








CROSS
REFERENCE
TABLE*




	 	 	 	 	 	 	 	 	 
	TIA Section	 	Indenture Section
	Section 310
	 	 

	 	 	12.01	 
	 	310(a	)(1)	 	 

	 	 	9.10	 
	 	(a	)(2)	 	 

	 	 	9.10	 
	 	(a	)(3)	 	 

	 	N.A.**

	 	(a	)(4)	 	 

	 	 	N.A.	 
	 	(a	)(5)	 	 

	 	 	9.10	 
	 	(b	)	 	 

	 	 	9.10	 
	 	(c	)	 	 

	 	 	N.A.	 
	Section 311
	 	 

	 	 	12.01	 
	 	311	(a)	 	 

	 	 	9.11	 
	 	(b	)	 	 

	 	 	9.11	 
	 	(c	)	 	 

	 	 	N.A.	 
	Section 312
	 	 

	 	 	12.01	 
	 	312	(a)	 	 

	 	 	N.A.	 
	 	(b	)	 	 

	 	 	12.03	 
	 	(c	)	 	 

	 	 	12.03	 
	Section 313
	 	 

	 	 	12.01	 
	 	313	(a)	 	 

	 	 	9.06	(a)
	 	(b	)(1)	 	 

	 	 	N.A.	 
	 	(b	)(2)	 	 

	 	 	9.06	(a)
	 	(c	)	 	 

	 	 	9.06	(a)
	 	(d	)	 	 

	 	 	9.06	(a)
	Section 314
	 	 

	 	 	12.01	 
	 	314	(a)	 	 

	 	 	6.02	(a)
	 	(b	)	 	 

	 	 	N.A.	 
	 	(c	)(1)	 	 

	 	 	12.04	 
	 	(c	)(2)	 	 

	 	 	12.04	 
	 	(c	)(3)	 	 

	 	 	N.A.	 
	 	(d	)	 	 

	 	 	N.A.	 
	 	(e	)	 	 

	 	 	12.04	 
	 	(f	)	 	 

	 	 	N.A.	 
	Section 315
	 	 

	 	 	12.01	 








 




			
	*	 	This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.
	 
	**	 	N.A. means Not Applicable.




v









 












	 	 	 	 	 	 	 	 	 
	TIA Section	 	Indenture Section
	 	315	(a)	 	 

	 	 	9.01	(b)
	 	(b	)	 	 

	 	 	9.05	 
	 	(c	)	 	 

	 	 	9.01	(a)
	 	(d	)(1)	 	 

	 	 	9.01	(d)
	 	(d	)(2)	 	 

	 	 	9.01	(d)
	 	(d	)(3)	 	 

	 	 	9.01	(d)
	 	(e	)	 	 

	 	 	8.11	 
	Section 316
	 	 

	 	 	12.01	 
	 	316	(a)	 	 

	 	 	2.09	 
	 	316(a)(1)(A)	 	 	 

	 	 	8.05	 
	 	316(a)(1)(B)	 	 	 

	 	 	8.04	 
	 	316(a	)(2)	 	 

	 	 	N.A.	 
	 	(b	)	 	 

	 	 	8.07	 
	 	(c	)	 	 

	 	 	12.05	 
	Section 317
	 	 

	 	 	12.01	 
	 	317(a	)(1)	 	 

	 	 	8.08	 
	 	317(a	)(2)	 	 

	 	 	8.09	 
	 	317	(b)	 	 

	 	 	2.04	 
	Section 318(a)
	 	 

	 	 	12.01	 
	 	318	(c)	 	 

	 	 	12.01	 






vi









 





     THIS INDENTURE dated as of June 11, 2007 is between Dendreon Corporation, a corporation duly
organized under the laws of the State of Delaware (the “Company”), and The Bank of New York Trust
Company, N.A., a national banking association duly organized and existing under the laws of the
United States of America, as Trustee (the “Trustee”).



     In consideration of the purchase of the Securities (as defined herein) by the Holders thereof,
both parties agree as follows for the benefit of the other and for the equal and ratable benefit of
the Holders of the Company’s 4.75% Convertible Senior Subordinated Notes Due June 15, 2014.



ARTICLE 1



DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



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



     “Agent” means any Registrar, Paying Agent or Conversion Agent.



     “Applicable Procedures” means, with respect to any transfer or exchange of beneficial
ownership interests in a Global Security, the rules and procedures of the Depositary, to the extent
applicable to such transfer or exchange.



     “Beneficial Ownership” means the definition such term is given in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act.



     “Board of Directors” means either the board of directors of the Company or any committee of
the Board of Directors authorized to act for it with respect to this Indenture.



     “Business Day” means any weekday that is not a day on which banking institutions in the City
of New York are authorized or obligated to close.



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



     “Cash” or “cash” means such coin or currency of the United States as at any time of payment is
legal tender for the payment of public and private debts.



     “Certificated Security” means a Security that is in substantially the form attached as Exhibit
A but that does not include the legend or the schedule called for by footnote 1 thereof.



 









 





     “Change of Control” means the occurrence of any of the following after the date hereof: (i)
the acquisition by any Person of 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 that Person to exercise 50% or more of the total voting power of all shares
of the Company’s Capital Stock entitled to vote generally in elections of directors, other than any
acquisition by the Company, any of its subsidiaries or any of its employee benefit plans; or (ii)
the consolidation or merger of the Company with or into any other Person, any merger of another
Person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company’s properties and assets to another Person other than to one or
more of the Company’s wholly-owned subsidiaries, provided that this clause (ii) shall not apply to
(A) any transaction (x) that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of the Company’s Capital Stock and (y) pursuant to which holders
of the Company’s Capital Stock immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting power of all shares of the
Capital Stock entitled to vote generally in elections of directors of the continuing or surviving
Person immediately after the transaction; or (B) any merger solely for the purpose of changing the
Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange
of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
or (iii) if, during any consecutive two-year period, individuals who at the beginning of that
two-year period constituted the Company’s Board of Directors, together with any new directors whose
election to the Company’s Board of Directors, or whose nomination for election by the Company’s
stockholders, was approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the Company’s Board of
Directors then in office. Notwithstanding anything to the contrary set forth herein, it will not
otherwise constitute a Change of Control if 100% of the consideration for the Common Stock
(excluding cash payments for fractional shares and cash payments made in respect of dissenters’
appraisal rights) in the transaction or transactions constituting a Change of Control consists of
common stock or American Depositary Shares representing shares of common stock, in each case which
are traded on a U.S. national securities exchange, or which will be so traded or quoted when issued
or exchanged in connection with the Change of Control, and as a result of such transaction or
transactions the Securities become convertible solely into such common stock or American Depositary
Shares; provided that, with respect to an entity organized under the laws of a jurisdiction outside
the United States, such entity has a worldwide total market capitalization (calculated in U.S.
Dollars) of its equity securities of at least three times the market capitalization of the Company
before giving effect to the consolidation or merger.



     “Closing Price” means on any Trading Day, the reported last sale price per share (or if no
last sale price is reported, the average of the bid and ask prices per share or, if more than one
in either case, the average of the average bid and the average ask prices per share) on such date
reported by the Nasdaq Global Market or, if the Common Stock (or the applicable security) is not
quoted on the Nasdaq Global Market, as reported by the principal national securities exchange on
which the Common Stock (or such other security) is listed, or if no such prices are available, the
Closing Price per share shall be the fair value of a share of Common Stock (or such other security)
as reasonably determined by the Board of Directors (which determination shall be conclusive and
shall be evidenced by an Officers’ Certificate delivered to the Trustee).



2









 





     “Common Stock” means the common stock of the Company, par value $0.001, as it exists on the
date of this Indenture and any shares of any class or classes of Capital Stock of the Company
resulting from any reclassification or reclassifications thereof, or, in the event of a merger,
consolidation or other similar transaction involving the Company that is otherwise permitted
hereunder in which the Company is not the surviving corporation, the common stock, common equity
interests, ordinary shares or depositary shares or other certificates representing common equity
interests of such surviving corporation or its direct or indirect parent corporation, and which
have no preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are not subject to
redemption by the Company; provided, however, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion of Securities shall
be substantially in the proportion which the total number of shares of such class resulting from
all such reclassifications bears to the total number of shares of all such classes resulting from
all such reclassifications.



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



     “Conversion Price” per share of Common Stock as of any day means the result obtained by
dividing (i) $1,000 by (ii) the then applicable Conversion Rate, rounded to the nearest cent.



     “Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon
conversion, which rate shall be initially 97.2644 shares of Common Stock for each $1,000 principal
amount of Securities, as adjusted from time to time pursuant to the provisions of this Indenture.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time the
trust created by this Indenture shall be administered, which initially will be the office of The
Bank of New York Trust Company, N.A. located at 700 South Flower Street, Suite 500, Los Angeles, CA
90017, Attention: Corporate Unit.



     “Default” means, when used with respect to the Securities, any event that is or, after notice
or passage of time, or both, would be, an Event of Default.



     “Designated Senior Indebtedness” means the Company’s obligations under any particular Senior
Indebtedness in which the instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Company is a party) expressly provides
that such Indebtedness shall be “Designated Senior Indebtedness” for purposes of this Indenture
(provided that such instrument, agreement or other document may place limitations and conditions on
the right of such Senior Indebtedness to exercise the rights of Designated Senior Indebtedness).
If any payment made to any holder of any Designated Senior Indebtedness or its representative with
respect to such Designated Senior Indebtedness is rescinded or must otherwise be returned by such
holder or representative of such holder upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, the reinstated Indebtedness of the Company arising as a result of such
rescission or return shall constitute Designated Senior Indebtedness effective as of the date of
such rescission or return.



3









 





     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.



     “Final Maturity Date” means June 15, 2014.



     “Fundamental Change” means the occurrence of a Change of Control or a Termination of Trading
following the original issuance of the Securities.



     “Fundamental Change Effective Date” means the date on which any Fundamental Change becomes
effective.



     “Fundamental Change Repurchase Price” of any Security, means 100% of the principal amount of
the Security to be purchased plus accrued and unpaid interest, if any, and Liquidated Damages, if
any, to, but excluding, the Fundamental Change Repurchase Date.



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, including those set forth in (1) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants, (2) the
statements and pronouncements of the Public Company Accounting Oversight Board and the Financial
Accounting Standards Board, (3) such other statements by such other entity as approved by a
significant segment of the accounting profession and (4) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial statements) in
registration statements filed under the Securities Act and periodic reports required to be filed
pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of the SEC.



     “Global Security” means a Security in global form that is in substantially the form attached
as Exhibit A and that includes the legend and schedule called for in footnote 1 thereof and
which is deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.



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



     “Indebtedness” means, with respect to any Person, without duplication:



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



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



4









 





               (3) all obligations and liabilities (contingent or otherwise)



                    (A) in respect of leases required, in conformity with GAAP, to be accounted for as capitalized
lease obligations on our balance sheet,



                    (B) as lessee under other leases for facilities equipment (and related assets leased together
therewith), whether or not capitalized, entered into or leased for financing purposes (as
determined by us), or



                    (C) under any lease or related document (including a purchase agreement) in connection with
the lease of real property or improvements (or any personal property included as part of any such
lease) which provides that we are contractually obligated to purchase or cause a third party to
purchase the leased property and thereby guarantee a minimum residual value of the leased property
to the lessor and all of our obligations under such lease or related document to purchase or to
cause a third party to purchase such leased property,


(whether or not such lease transaction is characterized as an operating lease or a capitalized
lease in accordance with generally accepted accounting principles);




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



               (5) all direct or indirect guarantees, agreements to be jointly liable or similar agreements
in respect of, and obligations or liabilities (contingent or otherwise) to purchase or otherwise
acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or
liabilities of another person of the kind described in clauses (1) through (4);



               (6) any indebtedness or other obligations described in clauses (1) through (5) secured by any
mortgage, pledge, lien or other encumbrance existing on property which is owned or held by us,
regardless of whether the indebtedness or other obligation secured thereby shall be assumed by us;
and



               (7) any and all deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of the kind described in
clauses (1) through (6).



     “Indenture” means this Indenture as amended or supplemented from time to time pursuant to the
terms of this Indenture, including the provisions of the TIA that are automatically deemed to be a
part of this Indenture by operation of the TIA.



     “Initial Purchaser” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.



     “Interest Payment Date” means June 15 and December 15 of each year, commencing December 15,
2007.



5









 





     “Issue Date” of any Security means the date on which the Security was originally issued or
deemed issued as set forth on the face of the Security.



     “Liquidated Damages” has the meaning specified in the Registration Rights Agreement. All
references herein to interest accrued or payable as of any date shall include any Liquidated
Damages accrued or payable as of such date as provided in the Registration Rights Agreement.



     “Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any
Senior Vice President, the Chief Financial Officer, the Controller, the Secretary, or any Assistant
Controller or any Assistant Secretary of the Company designated by one of the former officers.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers;
provided, however, that for purposes of Sections 4.11 and 6.03, “Officers’ Certificate” means a
certificate signed by (a) the principal executive officer, principal financial officer or principal
accounting officer of the Company and (b) one other officer.



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



     “Person” or “person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act or any other entity.



     “Principal” or “principal” of a debt security, including the Securities, means the principal
of the security plus, when appropriate, the premium, if any, on the security.



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 11,
2007, among the Company and the Initial Purchaser, as amended from time to time in accordance with
its terms.



     “Regular Record Date” means, with respect to each Interest Payment Date, the June 1 or
December 1, as the case may be, next preceding such Interest Payment Date.



     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust services department of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such person’s knowledge of and
familiarity with the particular subject.



     “Restricted Global Security” means a Global Security that is a Restricted Security.



     “Restricted Security” means a Security required to bear the restricted legend set forth in the
form of Security annexed as Exhibit A.



     “Rule 144” means Rule 144 under the Securities Act or any successor to such Rule.



6









 





     “Rule 144A” means Rule 144A under the Securities Act or any successor to such Rule.



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the up to $75,000,000 aggregate principal amount ($100,000,000 aggregate
principal amount if the Initial Purchaser exercises its over-allotment option to purchase up to an
additional $25,000,000 aggregate principal amount of notes in full) of 4.75% Convertible Senior
Subordinated Notes due 2014, or any of them (each a “Security”), as amended or supplemented from
time to time, that are issued under this Indenture.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.



     “Securities Custodian” means the Trustee, as custodian with respect to the Securities in
global form, or any successor thereto.



     “Senior Indebtedness” means the principal of, premium, if any, interest (including all
interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for postpetition interest is allowable as a claim in any such proceeding) and rent
payable on or in connection with, and all fees, costs, expenses and other amounts accrued or due on
or in connection with, indebtedness of the Company, whether secured or unsecured, absolute or
contingent, due or to become due, outstanding on the date of the indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company, including all deferrals,
renewals, extensions or refundings of, or amendments, modifications or supplements to, the
foregoing, unless in the case of any particular indebtedness the instrument creating or evidencing
the same or the assumption or guarantee thereof expressly provides that such indebtedness shall not
be senior in right of payment to the notes or expressly provides that such indebtedness is on the
same basis or junior to the notes. Senior Indebtedness does not include:



               (1) indebtedness that expressly provides that such indebtedness shall not be senior in right
of payment to the notes or expressly provides that such indebtedness is on the same basis or junior
to the notes;



               (2) any indebtedness of the Company to any of its subsidiaries; and



               (3) any obligation for federal, state, local or other taxes.



     “Stock Price” means the price paid, or deemed to be paid, per share of the Common Stock in
connection with a Fundamental Change as determined pursuant to Section 4.01(e).



     “Subsidiary” means Dendreon San Diego LLC.



     “Termination of Trading” means the termination (but not the temporary suspension) of trading
of the Common Stock, which will be deemed to have occurred if the Common Stock or other common
stock into which the Securities are convertible is neither listed for trading on a United States
national securities exchange nor approved for listing on any United States system of automated
dissemination of quotations of securities prices, or traded in over-the-counter



7









 







securities markets, and no American Depository Shares or similar instruments for such common
stock are so listed or approved for listing in the United States.



     “TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except to the extent that the Trust
Indenture Act or any amendment thereto expressly provides for application of the Trust Indenture
Act as in effect on another date.



     “Trading Day” means any day on which the Nasdaq Global Market or, if the Common Stock is not
quoted on the Nasdaq Global Market, the principal national securities exchange on which the Common
Stock is listed is open for trading or, if the Common Stock is not so listed, admitted for trading
or quoted, any Business Day. A Trading Day only includes those days that have a scheduled closing
time of 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the
relevant exchange or trading system.



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



     “Vice President” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president.”



     “Voting Stock” of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency within the control of such person to satisfy) to vote in the election
of directors, managers or trustees thereof.



     Section 1.02 Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section
	“Agent Members”
	 	 	2.01	 
	“Bankruptcy Law”
	 	 	8.01	 
	“Business Combination”
	 	 	4.10	 
	“Company Order”
	 	 	2.02	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	4.02	 
	“Current Market Price”
	 	 	4.06	 
	“DTC”
	 	 	2.01	 
	“Depositary”
	 	 	2.01	 
	“Determination Date”
	 	 	4.06	 
	“Distributed Securities”
	 	 	4.06	 
	“Event of Default”
	 	 	8.01	 
	“Expiration Date”
	 	 	4.06	 
	“Expiration Time”
	 	 	4.06	 
	“Fundamental Change Company Notice”
	 	 	3.01	 






8









 






	 	 	 	 	 
	Term	 	Defined in Section
	“Fundamental Change Repurchase Date”
	 	 	3.01	 
	“Fundamental Change Repurchase Notice”
	 	 	3.01	 
	“Legal Holiday”
	 	 	12.07	 
	“Legend”
	 	 	2.12	 
	“Make Whole Premium”
	 	 	4.01	 
	“Notice of Default”
	 	 	8.01	 
	“Paying Agent”
	 	 	2.03	 
	“Payment Blockage Notice”
	 	 	5.02	 
	“Primary Registrar”
	 	 	2.03	 
	“Purchase Agreement”
	 	 	2.01	 
	“Purchased Shares”
	 	 	4.06	 
	“record date”
	 	 	4.06	 
	“QIB”
	 	 	2.01	 
	“Receiver”
	 	 	8.01	 
	“Registrar”
	 	 	2.03	 
	“Resale Restriction Termination Date”
	 	 	2.12	 
	“Rights”
	 	 	4.06	 
	“Rights Plan”
	 	 	4.06	 
	“Spinoff Securities”
	 	 	4.06	 
	“Spinoff Valuation Period”
	 	 	4.06	 
	“tender offer”
	 	 	4.06	 
	“Triggering Distribution”
	 	 	4.06	 






     Section 1.03 Trust Indenture Act Provisions.



     Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by
reference in and made a part of this Indenture. This Indenture shall also include those provisions
of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act of
1990. The following TIA terms used in this Indenture have the following meanings:



     “indenture securities” means the Securities;



     “indenture security holder” means a Holder of a Security;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



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



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



9









 





     Section 1.04 Rules of Construction.



               (a) Unless the context otherwise requires:



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



                    (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;



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



                    (4) provisions apply to successive events and transactions;



                    (5) the term “merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;



                    (6) the masculine gender includes the feminine and the neuter;



                    (7) references to agreements and other instruments include subsequent amendments thereto; and



                    (8) all “Article”, “Exhibit” and “Section” references are to Articles, Exhibits and Sections,
respectively, of or to this Indenture unless otherwise specified herein, and the terms “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.



ARTICLE 2



THE SECURITIES




     Section 2.01 Form and Dating. The Securities and the Trustee’s certificate of
authentication shall be substantially in the respective forms set forth in Exhibit A, which
Exhibit is incorporated in and made part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange or automated quotation system rule or
regulation or usage. The Company shall provide any such notations, legends or endorsements to the
Trustee in writing. Each Security shall be dated the date of its authentication. The Securities
are being offered and sold by the Company pursuant to a Purchase Agreement dated June 5, 2007 (the
“Purchase Agreement”)
between the Company and the Initial Purchaser, in transactions exempt from, or not subject to, the
registration requirements of the Securities Act.



          (a) Restricted Global Securities. All of the Securities are initially being offered
and sold to qualified institutional buyers as defined in Rule 144A (collectively, “QIBS” or
individually, each a “QIB”) in reliance on Rule 144A under the Securities Act and shall be issued
initially in the form of one or more Restricted Global Securities, which shall be deposited on
behalf of the purchasers of the securities represented thereby with the Trustee, at its Corporate
Trust Office, as custodian for the depositary, The Depository Trust Company (“DTC”, and such
depositary, or any successor thereto, being hereinafter referred to as the “Depositary”), and
registered in the name of its nominee, Cede & Co. (or any successor thereto), for the accounts of

10









 








participants in the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Subject to Section 2.02 hereof, the aggregate principal amount of the
Restricted Global Securities may from time to time be increased or decreased by adjustments made on
the records of the Securities Custodian as hereinafter provided, subject in each case to compliance
with the Applicable Procedures.




          (b) Global Securities in General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect replacements, exchanges, purchases or conversions of such
Securities. Any adjustment of the aggregate principal amount of a Global Security to reflect the
amount of any increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.12 and shall be made on the records of the Trustee and the Depositary.




     Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary or under
the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall (1) 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 (2) impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any Security.



          (c) Book Entry Provisions. The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (1) shall be registered in the name of the Depositary or its nominee, (2) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (3)
shall bear legends substantially to the following effect:




     “UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 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 THEREOF. THIS SECURITY IS



11









 







EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS 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.”



     Section 2.02 Execution and Authentication.



          (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is limited, pursuant to the Purchase Agreement, to $75,000,000 aggregate
principal amount ($100,000,000 aggregate principal amount if the Initial Purchaser exercises its
over-allotment option in full), except as provided in Sections 2.06 and 2.07.




          (b) An Officer shall sign the Securities for the Company by manual or facsimile signature.
Typographic and other minor errors or defects in any such facsimile signature shall not affect the
validity or enforceability of any Security that has been authenticated and delivered by the
Trustee.




          (c) If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.




          (d) A Security shall not be valid until an authorized signatory of the Trustee by manual or
facsimile signature signs the certificate of authentication on the Security. The signature shall
be conclusive evidence that the Security has been authenticated under this Indenture.




          (e) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of up to $75,000,000 aggregate principal amount
($100,000,000 aggregate principal amount if the Initial Purchaser exercises its over-
allotment option in full by executing an over-allotment exercise notice and delivering such
executed over-allotment exercise notice to the Trustee) upon receipt of a written order or orders
of the Company signed by an Officer of the Company (a “Company Order”). The Company Order shall
specify the amount of Securities to be authenticated, shall provide that all such securities will
be represented by a Restricted Global Security and the date on which each original issue of
Securities is to be authenticated.




          (f) The Trustee shall act as the initial authenticating agent. Thereafter, 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 shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.




12









 








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




     Section 2.03 Registrar, Paying Agent and Conversion Agent.



          (a) The Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices
or agencies where Securities may be presented for payment (each, a “Paying Agent”), one or more
offices or agencies where Securities may be presented for conversion (each, a “Conversion Agent”)
and one or more offices or agencies where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will at all times maintain a Paying
Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served in the Borough of Manhattan,
The City of New York. One of the Registrars (the “Primary Registrar”) shall keep a register of the
Securities and of their transfer and exchange. The Company shall provide written notice to the
Trustee of any Registrar, Securities Agent, Conversion Agent or Paying Agent that is not also the
Trustee.




          (b) The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, provided that the Agent may be an Affiliate of the Trustee. 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, Conversion Agent, or agent for service of notices and
demands in any place required by this Indenture, or fails to give the foregoing notice, the Trustee
shall act as such. The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 6.01 and Article 10).




          (c) The Company hereby initially designates the Trustee as Paying Agent, Registrar, Securities
Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee as an
office or agency where notices and demands to or upon the Company in respect of the Securities and
this Indenture shall be served.




     Section 2.04 Paying Agent to Hold Money in Trust. Prior to 12:00 p.m. (noon), New York
City time, on each due date of the payment of principal of, or interest on, any Securities, the
Company shall deposit with the Paying Agent a sum sufficient to pay such principal or interest so
becoming due. Subject to Section 9.02, a Paying Agent shall hold in trust for the benefit of
Holders of Securities or the Trustee all money held by the Paying Agent for the payment of
principal of, or interest on, the Securities, and shall notify the Trustee of any failure by the
Company (or any other obligor on the Securities) to make any such payment. If the Company or an
Affiliate of the Company acts as Paying Agent, it shall, before 12:00 p.m. (noon), New York City
time, on each due date of the principal of, or interest on, any Securities, segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee, and the Trustee may at any time during the continuance of any
Default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other
than the Company) shall have no further liability for the money.



13









 





     Section 2.05 Lists of Holders of Securities. 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 Holders of Securities. If the Trustee is not the Primary 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 Holders of Securities.



     Section 2.06 Transfer and Exchange.



          (a) Subject to compliance with any applicable additional requirements contained in Section
2.12, when a Security is presented to a Registrar with a request to register a transfer thereof or
to exchange such Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested;
provided, however, that every Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, a transfer
certificate each in the form included in Exhibit A, and completed in a manner satisfactory
to the Registrar and duly executed by the Holder thereof or its attorney duly authorized in
writing. To permit registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant to Section 2.03,
the Company shall execute and the Trustee shall authenticate Securities of a like aggregate
principal amount at the Registrar’s request. Any exchange or transfer shall be without charge,
except that the Company or the Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto; provided that this sentence
shall not apply to any exchange pursuant to Section 2.10, 2.12(a), 3.05, 4.02(e) or 11.05.




          (b) Neither the Company, any Registrar nor the Trustee shall be required to exchange or
register a transfer of any Securities or portions thereof in respect of which a Fundamental Change
Repurchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case
of the purchase of a Security in part, the portion thereof not to be purchased).




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




          (d) Any Registrar appointed pursuant to Section 2.03 shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.




          (e) Each Holder of a Security agrees to indemnify and hold harmless the Company and the
Trustee against any liability that may result from the transfer, exchange or assignment of such
Holder’s Security in violation of any provision of this Indenture and/or applicable United States
federal or state securities law.




          (f) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under




14









 







applicable law
with respect to any transfer of any interest in any Security (including any transfers between or
among Agent Members or other beneficial owners of interests in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof.




     Section 2.07 Replacement Securities.



          (a) If any mutilated Security is surrendered to the Company, a Registrar or the Trustee, and
the Company, a Registrar and the Trustee receive evidence to their satisfaction of the destruction,
loss or theft of any Security, and there is delivered to the Company, the applicable Registrar and
the Trustee such security or indemnity as will be required by them to save each of them harmless,
then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute, and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.




          (b) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, or is about to be purchased by the Company pursuant to Article 3, or converted
pursuant to Article 4, the Company in its discretion may, instead of issuing a new Security, pay,
purchase or convert such Security, as the case may be.




          (c) Upon the issuance of any new Securities under this Section 2.07, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the reasonable fees and expenses
of the Trustee or the Registrar) in connection therewith.




          (d) Every new Security issued pursuant to this Section 2.07 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.




          (e) The provisions of this Section 2.07 are (to the extent lawful) exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.




     Section 2.08 Outstanding Securities.



          (a) Securities outstanding at any time are all Securities authenticated by the Trustee, except
for those canceled by it, those purchased pursuant to Article 3, those converted pursuant to
Article 4, those delivered to the Trustee for cancellation or surrendered for transfer or exchange
and those described in this Section 2.08 as not outstanding.




15









 








          (b) If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Company receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.




          (c) If a Paying Agent (other than the Company or an Affiliate of the Company) holds in respect
of the outstanding Securities on a Fundamental Change Repurchase Date or the Final Maturity Date
money sufficient to pay the principal of (including premium, if any) and accrued interest on
Securities (or portions thereof) payable on that date, then on and after such Fundamental Change
Repurchase Date or Final Maturity Date, as the case may be, such Securities (or portions thereof,
as the case may be) shall cease to be outstanding and cash interest on them shall cease to accrue.




          (d) Subject to the restrictions contained in Section 2.09, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Security.




     Section 2.09 Treasury Securities. In determining whether the Holders of the required
principal amount of Securities have concurred in any notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded, except that, for purposes of determining
whether the Trustee shall be protected in relying on any such notice, direction, waiver or consent,
only Securities which a Responsible Officer of the Trustee with responsibility for this Indenture
actually knows are so owned shall be so disregarded. Securities so owned which have been pledged
in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to the Securities and that the pledgee is not the Company or any other obligor on
the Securities or any Affiliate of the Company or of such other obligor.



     Section 2.10 Temporary Securities. Until definitive Securities are ready for delivery, the
Company may prepare and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities. Temporary Securities shall be substantially in the
form of definitive securities but may have variations that the Company with the consent of the
Trustee considers appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate and deliver 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, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Securities surrendered to them for transfer, exchange, purchase, payment
or conversion. The Trustee and no one else shall cancel, in accordance with its standard
procedures, all Securities surrendered for transfer, exchange, purchase, payment, conversion or
cancellation and shall dispose of the cancelled Securities in accordance with its customary
procedures or deliver the canceled Securities to the Company upon its request therefor. All
Securities which are purchased or otherwise acquired by the Company or any of its Subsidiaries
prior to the Final Maturity Date pursuant to Article 3 shall be delivered to the Trustee for
cancellation, and the Company may not hold or resell such Securities or issue any new Securities to
replace any such Securities or any Securities that any Holder has converted pursuant to Article 4.



16









 





     Section 2.12 Legend; Additional Transfer and Exchange Requirements.



          (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the forms of Securities attached
as Exhibit A (collectively, the “Legend”), or if a request is made to remove the Legend on
a Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed, as
the case may be, unless there is delivered to the Company and the Registrar such satisfactory
evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar,
as may be reasonably required by the Company and the Registrar, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are
not “restricted” within the meaning of Rule 144 under the Securities Act; provided that no such
evidence need be supplied in connection with the sale of such Security pursuant to a registration
statement that is effective at the time of such sale. Upon (1) provision of such satisfactory
evidence if requested, or (2) notification by the Company to the Trustee and Registrar of the sale
of such Security pursuant to a registration statement that is effective at the time of such sale,
the Trustee, at the written direction of the Company, shall authenticate and deliver a Security
that does not bear the Legend. If the Legend is removed from the face of a
Security and the Security is subsequently held by an Affiliate of the Company, the Legend
shall be reinstated.




          (b) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer of a Security that
is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such Person. Notwithstanding any other provisions
of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be
made only in accordance with this Section 2.12.




          (c) Subject to Section 2.12(b) and in compliance with Section 2.12(d), every Security shall be
subject to the restrictions on transfer provided in the Legend. Whenever any Restricted Security
other than a Restricted Global Security is presented or surrendered for registration of transfer or
in exchange for a Security registered in a name other than that of the Holder, such Security must
be accompanied by a certificate in substantially the form set forth in Exhibit A, dated the
date of such surrender and signed by the Holder of such Security, as to compliance with such
restrictions on transfer. The Registrar shall not be required to accept for such registration of
transfer or exchange any Security not so accompanied by a properly completed certificate.




          (d) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for




17









 







exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company or the Registrar, an
Opinion of Counsel reasonably acceptable to the Company and the Registrar and addressed to the
Company and the Registrar, to the effect that the transfer of such Security has been made in
compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company
shall inform the Trustee of the effective date of any registration statement registering the offer
and sale of the Securities under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the aforementioned
Opinion of Counsel or registration statement.




     As used in Sections 2.12(c) and (d), the term “transfer” encompasses any sale, pledge,
transfer, hypothecation or other disposition of any Security.



          (e) The provisions below shall apply only to Global Securities:




               (1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single Security for purposes
of this Indenture.



               (2) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered, and no transfer of a
Global Security in whole or in part shall be registered in the name of any Person other than the
Depositary or one or more nominees thereof; provided that a Global Security may be exchanged for
securities registered in the names of any person designated by the Depositary in the event that (A)
the Depositary has notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or such Depositary has ceased to be a “clearing agency” registered under
the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days after
receiving such notice or becoming aware that the Depositary has ceased to be a “clearing agency,”
or (B) an Event of Default has occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to subclause (A) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to subclause (B) above may be exchanged in whole
or from time to time in part as directed by the Depositary. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security; provided further that any such
Security so issued that is registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.



               (3) Securities issued in exchange for a Global Security or any portion thereof shall be issued
in definitive, fully registered form, without interest coupons, shall have an aggregate principal
amount equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depositary shall designate
and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any
Global Security to be exchanged in part, either such Global



18









 







Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect
to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of
the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an authorized
representative thereof.



               (4) Subject to clause (6) of this Section 2.12(e), the registered Holder may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this Indenture or the
Securities.



               (5) In the event of the occurrence of any of the events specified in clause (2) of this
Section 2.12(e), the Company will promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form, without interest coupons.



               (6) Neither Agent Members nor any other Persons on whose behalf Agent Members may act shall
have any rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or
such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global 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 such nominee, as the case may be, or impair,
as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member
may act, the operation of customary practices of such Persons governing the exercise of the rights
of a holder of any Security.



               (7) At such time as all interests in a Global Security have been converted, cancelled or
exchanged for Securities in certificated form, such Global Security shall, upon receipt thereof, be
cancelled by the Trustee in accordance with standing procedures and instructions existing between
the Depositary and the Securities Custodian, subject to Section 2.11 of this Indenture. At any
time prior to such cancellation, if any interest in a Global Security is converted, canceled or
exchanged for Securities in certificated form, the principal amount of such Global Security shall,
in accordance with the standing procedures and instructions existing between the Depositary and the
Securities Custodian, be appropriately reduced, and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction of the Trustee, to reflect
such reduction.



          (f) Until the expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision thereto), any stock certificate representing
Common Stock issued upon conversion of any Security shall bear a legend in substantially the
following form, unless such Common Stock has been sold pursuant to a registration statement that
has been declared effective under the Securities Act (and which continues to be effective at the
time of such transfer) or transferred in compliance with Rule 144




19









 







under the Securities Act (or any
successor provision thereto), or such Common Stock has been issued upon conversion of Securities
that have been transferred pursuant to a registration statement that has been declared effective
under the Securities Act or pursuant to Rule 144 under the Securities Act (or any successor
provision thereto), or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent:




     THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY
NOT BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES ACT.



     BY ITS ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THE COMMON
STOCK EVIDENCED HEREBY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE
HEREOF AND THE LAST DATE ON WHICH DENDREON CORPORATION (THE “COMPANY”) OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THE COMMON STOCK EVIDENCED HEREBY (OR ANY PREDECESSOR OF THE COMMON STOCK
EVIDENCED HEREBY) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, OR (C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRANSFER AGENT’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS CERTIFICATE IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.



     Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the foregoing legend set
forth therein have been satisfied may, upon surrender of the certificates representing such shares
of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of shares of Common
Stock, which shall not bear the restrictive legend required by this section. The Trustee may
reasonably rely on an Opinion of Counsel in order to determine whether the legend is required upon
transfer.



     Section 2.13 CUSIP Numbers. The Company in issuing the Securities may use one or more
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of purchase as a convenience to Holders; provided that any such notice may



20









 







state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a purchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such purchase shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee of any
change in the “CUSIP” numbers.



ARTICLE 3



PURCHASE




     Section 3.01 Repurchase of Securities at Option of the Holder upon a Fundamental
Change.



          (a) If a Fundamental Change occurs prior to the Final Maturity Date, each Holder of a Security
shall have the right, at the option of the Holder, to require the Company to repurchase for cash
all or any portion of the Securities of such Holder equal to $1,000 principal amount (or an
integral multiple thereof) at the Fundamental Change Repurchase Price, on the date that is not less
than 30 days nor more than 45 days after the date of the Fundamental Change Company Notice pursuant
to subsection 3.01(b) (the “Fundamental Change Repurchase Date”).




          (b) As promptly as practicable following the date on which the Company announces such
transaction, but in no event less than 20 days prior to the anticipated effective date of a
Fundamental Change, the Company shall mail a written notice of the Fundamental Change and of the
resulting repurchase right to the Trustee, Paying Agent and to each Holder (and to beneficial
owners as required by applicable law) (the “Fundamental Change Company Notice”). The Fundamental
Change Company Notice shall include the form of a Fundamental Change Repurchase Notice to be
completed by the Holder and shall state:




               (1) the events causing such Fundamental Change;



               (2) the date (or expected date) of such Fundamental Change;



               (3) the last date by which the Fundamental Change Repurchase Notice must be delivered to elect
the repurchase option pursuant to this Section 3.01;



               (4) the Fundamental Change Repurchase Date;



               (5) the Fundamental Change Repurchase Price;



               (6) the Holder’s right to require the Company to purchase the Securities;



               (7) the name and address of each Paying Agent and Conversion Agent;



               (8) the then effective Conversion Rate and any adjustments to the Conversion Rate resulting
from such Fundamental Change;



               (9) the procedures that the Holder must follow to exercise conversion rights under Article 4
and that Securities as to which a Fundamental Change Repurchase Notice



21









 







has been given may be
converted into Common Stock pursuant to Article 4 of this Indenture only to the extent that the
Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this
Indenture;



               (10) the procedures that the Holder must follow to exercise rights under this Section 3.01;



               (11) the procedures for withdrawing a Fundamental Change Repurchase Notice;



               (12) that, unless the Company fails to pay such Fundamental Change Repurchase Price,
Securities covered by any Fundamental Change Repurchase Notice will cease to be outstanding and
interest and Liquidated Damages, if any, will cease to accrue on and after the Fundamental Change
Repurchase Date; and



               (13) the CUSIP number of the Securities.



     At the Company’s request, the Trustee shall give such Fundamental Change Company Notice in the
Company’s name and at the Company’s expense; provided, that, in all cases, the text of such
Fundamental Change Company Notice shall be prepared by the Company. If any of the Securities is in
the form of a Global Security, then the Company shall modify such notice to the extent necessary to
accord with the Applicable Procedures relating to the purchase of Global Securities.



          (c) A Holder may exercise its rights specified in Section 3.01(a) upon delivery of a written
notice (which shall be in substantially the form attached as Exhibit A under the heading
“Fundamental Change Repurchase Notice” and which may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the Depositary’s
Applicable Procedures) of the exercise of such rights (a “Fundamental Change Repurchase Notice”) to
the Company or any Paying Agent at any time prior to the close of business on the Business Day next
preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable
law.




          (1) The Fundamental Change Repurchase Notice shall state: (A) the certificate number (if such
Security is held other than in global form) of the Security which the Holder will deliver to be
purchased (or, if the Security is held in global form, any other items required to comply with the
Applicable Procedures), (B) the portion of the principal amount of the Security which the Holder
will deliver to be purchased, in integral multiples of $1,000, and (C) that such Security shall be
purchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions
specified in the Securities and in this Indenture.




          (2) The delivery of a Security for which a Fundamental Change Repurchase Notice has been
timely delivered to any Paying Agent and not validly withdrawn prior to, on or after the
Fundamental Change Repurchase Date (together with all necessary endorsements) at the office of such
Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase
Price therefor.




22









 








          (3) The Company shall only be obliged to purchase, pursuant to this Section 3.01, a portion of
a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000
(provisions of this Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security).




          (4) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent
the Fundamental Change Repurchase Notice contemplated by this Section 3.01(c) shall have the right
to withdraw such Fundamental Change Repurchase Notice in whole or in a portion thereof that is a
principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of
business on the Business Day prior to the Fundamental Change Repurchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 3.02.




          (5) A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Repurchase Notice or written withdrawal thereof.




          (6) Anything herein to the contrary notwithstanding, in the case of Global Securities, any
Fundamental Change Repurchase Notice may be delivered or withdrawn and such Securities may be
surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect
from time to time.




     Section 3.02 Effect of Fundamental Change Repurchase Notice.



          (a) Upon receipt by any Paying Agent of a properly completed Fundamental Change Repurchase
Notice from a Holder, the Holder of the Security in respect of which such Fundamental Change
Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as
specified in Section 3.02(b)) thereafter be entitled to receive the Fundamental Change Repurchase
Price with respect to such Security, subject to the occurrence of the Fundamental Change Effective
Date and an absence of an Event of Default, or a continuation thereof (other than a Default in the
payment of the Fundamental Change Repurchase Price). Such Fundamental Change Repurchase Price
shall be paid to such Holder promptly following the later of (1) the Fundamental Change Repurchase
Date (provided that the conditions in Section 3.01 have been satisfied) and (2) the time of
delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section
3.01(c). Securities in respect of which a Fundamental Change Repurchase Notice has been given by
the Holder thereof may not be converted into shares of Common Stock pursuant to Article 4 on or
after the date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental
Change Repurchase Notice has first been validly withdrawn in accordance with Section 3.02(b) with
respect to the Securities to be converted.




          (b) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice
(which may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered by other means in
accordance with the Applicable Procedures) of withdrawal delivered by the Holder to a Paying Agent
at any time prior to the close of business on the Business Day immediately prior to the Fundamental
Change Repurchase Date, specifying (1) the principal amount of the Security or portion thereof
(which must be a principal amount of $1,000 or an




23









 







integral multiple of $1,000 in excess thereof)
with respect to which such notice of withdrawal is being submitted, (2) if certificated Securities
have been issued, the certificate number of the Security being withdrawn in whole or in
withdrawable part (or if the Securities are not
certificated, such written notice must comply with the Applicable Procedures) and (3) the
portion of the principal amount of the Security that will remain subject to the Fundamental Change
Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple
thereof.




     Section 3.03 Deposit of Fundamental Change Repurchase Price.



          (a) On or before 12:00 p.m. (noon) New York City time on the Business Day following the
applicable Fundamental Change Repurchase Date, the Company shall deposit with the Trustee or with a
Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.04) an amount of money (in immediately
available funds if deposited on or after such Fundamental Change Repurchase Date), sufficient to
pay the aggregate Fundamental Change Repurchase Price of all the Securities or portions thereof
that are to be purchased as of such Fundamental Change Repurchase Date.




          (b) If a Paying Agent or the Trustee holds, in accordance with the terms hereof, money
sufficient to pay the Fundamental Change Repurchase Price of any Security for which a Fundamental
Change Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture
then, on the Business Day following the applicable Fundamental Change Repurchase Date, such
Security will cease to be outstanding, whether or not the Security is delivered to the Paying Agent
or the Trustee, and interest and Liquidated Damages, if any, shall cease to accrue, and the rights
of the Holder in respect of the Security shall terminate (other than the right to receive the
Fundamental Change Repurchase Price as aforesaid). The Company shall publicly announce the
principal amount of Securities repurchased on or as soon as practicable after the Fundamental
Change Repurchase Date.




          (c) The Paying Agent will promptly return to the respective Holders thereof any Securities
with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with
this Indenture.




          (d) If a Fundamental Change Repurchase Date falls after a Regular Record Date and on or before
the related Interest Payment Date, then interest on the Securities payable on such Interest Payment
Date will be payable to the Holders in whose names the Securities are registered at the close of
business on such Regular Record Date.




     Section 3.04 Repayment to the Company. To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 3.03 exceeds the aggregate Fundamental Change
Repurchase Price of the Securities or portions thereof that the Company is obligated to purchase,
then promptly after the Fundamental Change Repurchase Date the Trustee or a Paying Agent, as the
case may be, shall return any such excess cash to the Company.



     Section 3.05 Securities Purchased in Part. Any Security that is to be purchased only in part shall be surrendered at the office of a Paying
Agent, and promptly after the Fundamental



24









 







Change Repurchase Date, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a
new Security or Securities, of such authorized denomination or denominations as may be requested by
such Holder (which must be equal to $1,000 principal amount or any integral thereof), in aggregate
principal amount equal to, and in exchange for, the portion of the principal amount of the Security
so surrendered that is not purchased.



     Section 3.06 Compliance with Securities Laws upon Purchase of Securities. In connection
with any offer to purchase of Securities under Section 3.01, the Company shall (a) comply with Rule
13e-4 and Rule 14e-1 (or any successor to either such Rule), and any other tender offer rules, if
applicable, under the Exchange Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c) otherwise comply with all
federal and state securities laws in connection with such offer to purchase or purchase of
Securities, all so as to permit the rights of the Holders and obligations of the Company under
Sections 3.01 through 3.04 to be exercised in the time and in the manner specified therein. To the
extent that compliance with any such laws, rules and regulations would result in a conflict with
any of the terms hereof, this Indenture is hereby modified to the extent required for the Company
to comply with such laws, rules and regulations.



     Section 3.07 Purchase of Securities in Open Market. The Company may surrender any Security
purchased by the Company pursuant to this Article 3 to the Trustee for cancellation. Any
securities surrendered to the Trustee for cancellation may not be reissued or resold by the Company
and will be canceled promptly in accordance with Section 2.11. The Company may repurchase
Securities in the open market, by tender at any price or by negotiated transactions.



ARTICLE 4



CONVERSION




     Section 4.01 Conversion Privilege and Conversion Rate.



          (a) Subject to and upon compliance with the provisions of this Article 4, at the option of the
Holder thereof, any Security or portion thereof that is an integral multiple of $1,000 principal
amount may be converted into fully paid and non-assessable shares (calculated as to each conversion
to the nearest 1/100th of a share) of Common Stock prior to the close of business on the Business
Day immediately preceding the Final Maturity Date or such earlier date set forth in this Article 4,
unless purchased by the Company at the Holder’s option, at the Conversion Rate in effect at such
time, determined as hereinafter provided.




          (b) Provisions of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.




          (c) A Holder of Securities is not entitled to any rights of a holder of Common Stock until
such Holder has converted its Securities into Common Stock, and only to the extent such Securities
are deemed to have been converted into Common Stock pursuant to this Article 4.




          (d) The Conversion Rate shall be adjusted in certain instances as provided in Section 4.01(e)
and Section 4.06.




25









 








          (e) If there shall have occurred a Fundamental Change, the Company shall pay a “Make Whole
Premium” to the Holders of the Securities who convert their Securities during the period beginning
10 Trading Days before the date the Company announces as the anticipated Fundamental Change
Effective Date and ending at the close of business on the Trading Day immediately preceding the
Fundamental Change Repurchase Date or 10 Trading Days after the effective date of the Fundamental
Change, if later, by increasing the Conversion Rate for such Securities. The number of additional
shares of Common Stock per $1,000 principal amount of Securities constituting the Make Whole
Premium shall be determined by the Company by reference to the table below, based on the
Fundamental Change Effective Date and the Stock Price of such Fundamental Change; provided that if
the Stock Price or Fundamental Change Effective Date are not set forth on the table: (i) if the
actual Stock Price on the Fundamental Change Effective Date is between two Stock Prices on the
table or the actual Fundamental Change Effective Date is between two Fundamental Change Effective
Dates on the table, the Make Whole Premium will be determined by a straight-line interpolation
between the Make Whole Premiums set forth for the two Stock Prices and the two Fundamental Change
Effective Dates on the table based on a 365-day year, as applicable, (ii) if the Stock Price on the
Fundamental Change Effective Date exceeds $100.00 per share, subject to adjustment as set forth
herein, no Make Whole Premium will be paid, and (iii) if the Stock Price on the Fundamental Change
Effective Date is less than $8.75 per share, subject to adjustment as set forth herein, no Make
Whole Premium will be paid. If Holders of the Common Stock receive only cash in the Fundamental
Change, the Stock Price shall be the cash amount paid per share of the Common Stock in connection
with the Fundamental Change. Otherwise, the Stock Price shall be equal to the average Closing
Prices of the Common Stock for each of the 10 Trading Days immediately preceding, but not
including, the applicable Fundamental Change Effective Date.




26









 








Make Whole Premium upon a Fundamental Change



(Number of Additional Shares)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Effective Date
	 	 	June 11,	 	June 15,	 	June 15,	 	June 15,	 	June 15,	 	June 15,	 	June 15,	 	June 15,
	Stock Price	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012	 	2013	 	2014
	$8.75
	 	 	17.0213	 	 	 	17.0213	 	 	 	17.0213	 	 	 	17.0213	 	 	 	17.0213	 	 	 	17.0213	 	 	 	17.0213	 	 	 	17.0213	 
	$10.00
	 	 	14.8674	 	 	 	14.0363	 	 	 	13.0502	 	 	 	11.9332	 	 	 	10.6149	 	 	 	9.1240	 	 	 	7.3853	 	 	 	2.7356	 
	$12.50
	 	 	11.8910	 	 	 	11.1989	 	 	 	10.3156	 	 	 	9.2178	 	 	 	7.8579	 	 	 	6.1708	 	 	 	3.8400	 	 	 	0.0000	 
	$15.00
	 	 	9.9346	 	 	 	9.3247	 	 	 	8.5631	 	 	 	7.6199	 	 	 	6.3999	 	 	 	4.8278	 	 	 	2.7518	 	 	 	0.0000	 
	$17.50
	 	 	8.5417	 	 	 	7.9966	 	 	 	7.3394	 	 	 	6.4961	 	 	 	5.4345	 	 	 	4.0663	 	 	 	2.2788	 	 	 	0.0000	 
	$20.00
	 	 	7.5002	 	 	 	7.0110	 	 	 	6.4231	 	 	 	5.6778	 	 	 	4.7384	 	 	 	3.5276	 	 	 	1.9769	 	 	 	0.0000	 
	$22.50
	 	 	6.6737	 	 	 	6.2435	 	 	 	5.7080	 	 	 	5.0470	 	 	 	4.2089	 	 	 	3.1281	 	 	 	1.7538	 	 	 	0.0000	 
	$25.00
	 	 	6.0259	 	 	 	5.6392	 	 	 	5.1455	 	 	 	4.5449	 	 	 	3.7840	 	 	 	2.8127	 	 	 	1.5778	 	 	 	0.0000	 
	$27.50
	 	 	5.5046	 	 	 	5.1370	 	 	 	4.6846	 	 	 	4.1354	 	 	 	3.4355	 	 	 	2.5564	 	 	 	1.4343	 	 	 	0.0000	 
	$30.00
	 	 	5.0564	 	 	 	4.7229	 	 	 	4.3042	 	 	 	3.7965	 	 	 	3.1502	 	 	 	2.3434	 	 	 	1.3146	 	 	 	0.0000	 
	$32.50
	 	 	4.6877	 	 	 	4.3668	 	 	 	3.9784	 	 	 	3.5086	 	 	 	2.9096	 	 	 	2.1629	 	 	 	1.2135	 	 	 	0.0000	 
	$35.00
	 	 	4.3685	 	 	 	4.0671	 	 	 	3.7036	 	 	 	3.2588	 	 	 	2.7041	 	 	 	2.0096	 	 	 	1.1268	 	 	 	0.0000	 
	$37.50
	 	 	4.0671	 	 	 	3.8011	 	 	 	3.4625	 	 	 	3.0424	 	 	 	2.5245	 	 	 	1.8755	 	 	 	1.0517	 	 	 	0.0000	 
	$40.00
	 	 	3.8291	 	 	 	3.5695	 	 	 	3.2542	 	 	 	2.8576	 	 	 	2.3706	 	 	 	1.7589	 	 	 	0.9857	 	 	 	0.0000	 
	$42.50
	 	 	3.6192	 	 	 	3.3723	 	 	 	3.0697	 	 	 	2.6910	 	 	 	2.2320	 	 	 	1.6561	 	 	 	0.9278	 	 	 	0.0000	 
	$45.00
	 	 	3.4306	 	 	 	3.1950	 	 	 	2.9078	 	 	 	2.5470	 	 	 	2.1102	 	 	 	1.5638	 	 	 	0.8759	 	 	 	0.0000	 
	$50.00
	 	 	3.1051	 	 	 	2.8865	 	 	 	2.6250	 	 	 	2.2959	 	 	 	1.9014	 	 	 	1.4078	 	 	 	0.7885	 	 	 	0.0000	 
	$75.00
	 	 	2.1378	 	 	 	1.9591	 	 	 	1.7771	 	 	 	1.5575	 	 	 	1.2771	 	 	 	0.9376	 	 	 	0.5241	 	 	 	0.0000	 
	$100.00
	 	 	1.6624	 	 	 	1.5086	 	 	 	1.3481	 	 	 	1.1777	 	 	 	0.9653	 	 	 	0.7021	 	 	 	0.3882	 	 	 	0.0000	 






     The Stock Prices set forth in the first column of the table above will be adjusted as of
any date on which the Conversion Rate of the Securities is adjusted. The adjusted Stock Prices
will equal the Stock Prices applicable immediately prior to such adjustment multiplied by a
fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving
rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of additional shares set forth in the table above will be adjusted in the
same manner as the Conversion Rate as set forth in Section 4.06 hereof, other than as a result of
an adjustment of the Conversion Rate by adding the Make Whole Premium as described above.



     Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common
Stock issuable upon conversion of a Security exceed 114.2857 per $1,000 principal amount, subject
to adjustment in the same manner as the Conversion Rate as set forth in clauses (1) through (7) of
Section 4.06(a) hereof.



     The additional shares issuable pursuant to this Section 4.01(e) shall be delivered upon the
later of (i) the settlement date for the conversion and (ii) promptly following the Fundamental
Change Effective Date.



          (f) By delivering the number of shares of Common Stock issuable on conversion to the Trustee,
or to the Conversion Agent, if the Conversion Agent is other than the Trustee, the Company will be
deemed to have satisfied its obligation to pay the principal amount of the Securities so converted
and its obligation to pay accrued and unpaid interest, and Liquidated Damages if any, attributable
to the period from the most recent Interest Payment Date

27









 








through the Conversion Date (which amount will be deemed paid in full rather than cancelled,
extinguished or forfeited).




          (g) The Trustee may conclusively rely on the Company’s calculations of the Make Whole Premium.




     Section 4.02 Conversion Procedure.



          (a) To convert a Security, a Holder must (1) complete and manually sign the conversion notice
on the back of the Security and deliver such notice to a Conversion Agent, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (4) pay all transfer or similar taxes, if
required pursuant to Section 4.04. The date on which the Holder satisfies all of those
requirements is the “Conversion Date.” Upon the conversion of a Security, the Company will pay the
cash and deliver the shares of Common Stock, to the Trustee (or to the Conversion Agent, if the
Conversion Agent is other than the Trustee), as applicable, as promptly as practicable after the
later of the Conversion Date and the date that all calculations necessary to make such payment and
delivery have been made, but in no event later than five Business Days after the later of those
dates. Anything herein to the contrary notwithstanding, in the case of Global Securities,
conversion notices may be delivered and such Securities may be surrendered for conversion in
accordance with the Applicable Procedures as in effect from time to time.




          (b) The person in whose name the shares of Common Stock are issuable upon conversion shall be
deemed to be a holder of record of such Common Stock on the Conversion Date; provided, however,
that no surrender of a Security on any Conversion Date when the stock transfer books of the Company
shall be closed shall be effective to constitute the person or persons entitled to receive the
shares of Common Stock upon conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the person or persons
entitled to receive such shares of Common Stock as the record holder or holders thereof for all
purposes at the close of business on the next succeeding day on which such stock transfer books are
open; provided further that such conversion shall be at the Conversion Rate in effect on the
Conversion Date as if the stock transfer books of the Company had not been closed. Upon conversion
of a Security, such person shall no longer be a Holder of such Security. Except as set forth in
this Indenture, no payment or adjustment will be made for dividends or distributions declared or
made on shares of Common Stock issued upon conversion of a Security prior to the issuance of such
shares.




          (c) Holders of Securities surrendered for conversion (in whole or in part) during the period
from the close of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date will receive the semi-annual interest payable on such Securities
on the corresponding Interest Payment Date notwithstanding the conversion. Upon surrender of any
such Securities for conversion during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date, unless (1) such
Securities have been surrendered for conversion following the Regular Record Date immediately
preceding the final interest payment date
(June 15, 2014), (2) the Company has specified a Fundamental Change Purchase Date that is
after a Regular Record Date and on or prior to the Business Day following the corresponding




28









 







Interest Payment Date, or (3) to the extent of overdue interest, if any, which exists at the time
of the Conversion with respect to such Security, such Securities shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest payable on such
corresponding Interest Payment Date. Except as otherwise provided in this Section 4.02(c), no
payment or adjustment will be made for accrued interest on a converted Security.



               (d) Subject to Section 4.02(c), nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a Regular Record Date to receive
the interest payable on such Security on the related Interest Payment Date in accordance with the
terms of this Indenture, the Securities and the Registration Rights Agreement. If a Holder
converts more than one Security at the same time, the number of shares of Common Stock issuable
upon the conversion, if any, (and the amount of any cash in lieu of fractional shares pursuant to
Section 4.03) shall be based on the aggregate principal amount of all Securities so converted.



               (e) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without
service charge, a new Security or Securities of authorized denominations in an aggregate principal
amount equal to the, and in exchange for, unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount of such part is an
integral multiple of $1,000 and the principal amount of such Security to remain outstanding after
such conversion is equal to $1,000 or any integral multiple of $1,000 in excess thereof.




     Section 4.03 Fractional Shares. The Company will not issue fractional shares of Common
Stock upon conversion of Securities. If more than one Security shall be surrendered for conversion
at one time by the same Holder, the number of full shares that shall be issuable upon conversion
shall be computed on the basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered. In lieu of any fractional share,
the Company will pay an amount in cash for the current market value of the fractional share. The
current market value of a fractional share shall be determined (calculated to the nearest 1/100th
of a share) by multiplying the average of the Closing Price of the Common Stock on the Trading Day
immediately preceding the Conversion Date by such fractional share and rounding the product to the
nearest whole cent.



     Section 4.04 Taxes on Conversion. If a Holder converts a Security, the Holder shall pay
any transfer, stamp or similar taxes or duties related to the issue or delivery of shares of Common
Stock upon such conversion. The Holder shall also pay any such tax with respect to cash received
in lieu of fractional shares. In addition, the Holder shall pay any such tax which is due because
the Holder requests the shares to be issued in a name other than the Holder’s name. The Conversion
Agent may refuse to deliver the certificate representing the Common Stock being issued in a name
other than the
Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder’s name. Nothing herein shall
preclude any tax withholding required by law or regulation.



29









 





     Section 4.05 Company to Provide Stock.



          (a) The Company shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a sufficient number of
shares of Common Stock to permit the conversion of all outstanding Securities into shares of Common
Stock.




          (b) All shares of Common Stock delivered upon conversion of the Securities shall be newly
issued shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be
free from preemptive or similar rights and free of any lien or adverse claim as the result of any
action by the Company.




          (c) The Company will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities.




     Section 4.06 Adjustment of Conversion Rate.



          (a) The Conversion Rate shall be adjusted from time to time by the Company as follows:




               (1) If the Company shall pay a dividend or make a distribution on outstanding Common Stock in
shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the
determination of shareholders entitled to receive such dividend or other distribution shall be
increased so that the same shall equal the rate determined by the Company by multiplying the
Conversion Rate in effect immediately prior to such record date by a fraction of which the
numerator of shall be the sum of the number of shares of Common Stock outstanding at the close of
business on such record date plus the total number of shares of Common Stock constituting such
dividend or other distribution and of which the denominator shall be the number of shares of Common
Stock outstanding at the close of business on such record date. Such adjustment shall be made
successively whenever any such dividend or distribution is made and shall become effective
immediately after such record date. For the purpose of this clause (1), the number of shares of
Common Stock at any time outstanding shall not include shares held in the treasury of the Company.
The Company will not pay any dividend or make any distribution on Common Stock held in the treasury
of the Company. If any dividend or distribution of the type described in this clause is declared
but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.



               (2) If the Company shall subdivide its outstanding Common Stock into a greater number of
shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion
Rate in effect immediately prior to the day upon which such subdivision or combination becomes
effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in
the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made
successively whenever any such subdivision or combination of the Common Stock occurs and shall
become effective immediately after the date upon which such subdivision or combination becomes
effective.




30









 





               (3) If the Company shall issue certain rights or warrants to all or substantially all
holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after
such issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price per share (or having a conversion price per share) less than the Current
Market Price per share of Common Stock (as determined in accordance with clause (9) of this Section
4.06(a)) on the record date for the determination of shareholders entitled to receive such rights
or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the
same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior
to such record date by a fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on such record date plus the number of additional shares
of Common Stock that such rights or warrants entitle holders thereof to subscribe for or purchase
(or into which such convertible securities are convertible) and of which the denominator shall be
the number of shares of Common Stock outstanding at the close of business on such record date plus
the number of shares which the aggregate offering price of the total number of shares of Common
Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible
securities so offered for subscription or purchase, which shall be determined by multiplying the
number of shares of Common Stock issuable upon conversion of such convertible securities by the
conversion price per share of Common Stock pursuant to the terms of such convertible securities)
would purchase at the Current Market Price per share of Common Stock on such record date. Such
adjustment shall be made successively whenever any such rights or warrants (or convertible
securities) are issued, and shall become effective immediately after such record date. To the
extent that shares of Common Stock (or securities convertible into 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 of such
rights or warrants been made on the basis of delivery of only the number of shares of Common Stock
(or securities convertible into 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 the record date for the determination of shareholders entitled to receive such
rights or warrants had not been fixed. In determining whether any rights or warrants entitle the
shareholders to subscribe for or purchase shares of Common Stock at a price less than the Current
Market Price per share of Common Stock and in determining the aggregate offering price of the total
number of shares of Common Stock so offered, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be determined by the
Board of Directors.



               (4) If the Company shall make a dividend or other distribution to all or substantially all
holders of its Common Stock of Capital Stock, other than Common Stock, or evidences of indebtedness
or other assets of the Company, including securities (excluding (x) any issuance of rights or
warrants for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends or
distributions in connection with a reclassification, consolidation, merger, combination, sale or
conveyance resulting in a change in the conversion consideration pursuant to Section 4.10, or
pursuant to any Rights Plan or (z) any dividend or distribution paid exclusively in cash for which
an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each
such case (unless the Company distributes such Distributed Securities for distribution to the
Holders of Securities on such



31









 







dividend or distribution date as if each Holder had converted such Security into Common Stock
immediately prior to the record date with respect to such distribution) the Conversion Rate in
effect immediately prior to the record date fixed for the determination of shareholders entitled to
receive such dividend or distribution shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to such record date by a
fraction of which the numerator shall be the Current Market Price per share of the Common Stock on
such record date and of which the denominator shall be Current Market Price per share on such
record date less the fair market value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive evidence of such fair market value and which shall be
evidenced by an Officers’ Certificate delivered to the Trustee) on such record date of the portion
of the Distributed Securities so distributed applicable to one share of Common Stock (determined on
the basis of the number of shares of Common Stock outstanding at the close of business on such
record date). Such adjustment shall be made successively whenever any such distribution is made
and shall become effective immediately after the record date for the determination of shareholders
entitled to receive such distribution. In the event that 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 fair market value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock is equal to or greater than the Current Market
Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of a Security shall have the right to receive
upon conversion the amount of Distributed Securities so distributed that such Holder would have
received had such Holder converted each Security on such record date. If the Board of Directors
determines the fair market value of any distribution for purposes of this Section 4.06(a)(4) 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
of the Common Stock.



     Notwithstanding the foregoing, if the securities distributed by the Company to all holders of
its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other
business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted,
unless the Company makes an equivalent distribution to the Holders of the Securities, so that the
same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the
record date fixed for the determination of shareholders entitled to receive such distribution by a
fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of
Common Stock over the ten consecutive Trading Day period (the “Spinoff Valuation Period”)
commencing on and including the fifth Trading Day after the date on which ex-dividend trading
commences for such distribution on the Nasdaq Global Market or such other U.S. national or regional
exchange or market on which the Common Stock is then listed or quoted and (B) the average of the
Closing Prices over the Spinoff Valuation Period of the Spinoff Securities multiplied by the number
of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of
which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation
Period, such adjustment to become effective immediately prior to the opening of business on the
fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however,
that the Company may in lieu of the



32









 







foregoing adjustment elect to make adequate provision so that each Holder of Securities shall
have the right to receive upon conversion thereof the amount of such Spinoff Securities that such
Holder of Securities would have received if such Securities had been converted on the record date
with respect to such distribution.



               (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed
pursuant to any rights plan of the Company currently in effect or that the Company implements after
the date of this Indenture (a “Rights Plan”), or if the Company’s current Rights Plan is still in
effect, in lieu of any adjustment required by any other provision of this Section 4.06 upon
conversion of the Securities into Common Stock, to the extent that such Rights Plan is in effect
upon such conversion, the Holders of Securities will receive, with respect to the shares of Common
Stock issued upon conversion, the Rights described therein (whether or not the Rights have
separated from the Common Stock at the time of conversion), subject to the limitations set forth in
and in accordance with any such Rights Plan; provided that in the case of the Company’s current
Rights Plan or a future Rights Plan to the extent applicable, if, at the time of conversion,
however, the Rights have separated from the shares of Common Stock in accordance with the
provisions of the Rights Plan so that Holders would not be entitled to receive any rights in
respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the
timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed
to all holders of Common Stock Distributed Securities constituting such rights as provided in the
first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the
event of the expiration, termination, repurchase or redemption of the Rights. Any distribution of
rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the
immediately preceding sentence of this paragraph shall not constitute a distribution of rights or
warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this
Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the
issuance of any Rights, the distribution of separate certificates representing such Rights, the
exercise or redemption of such Rights in accordance with any Rights Plan or the termination or
invalidation of any Rights.



               (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering
Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash
(excluding any dividend or distribution in connection with the liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary) the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately
prior to the close of business on the record date for such Triggering Distribution (a
“Determination Date”) by a fraction of which the numerator shall be such Current Market Price per
share of the Common Stock on the Determination Date and the denominator of which shall be the
Current Market Price per share of the Common Stock on the Determination Date less the amount of
such cash dividend or distribution applicable to one share of Common Stock (determined on the basis
of the number of shares of Common Stock outstanding at the close of business on the Determination
Date), such increase to become effective immediately prior to the opening of business on the day
following the date on which the Triggering Distribution is paid. If the amount of cash dividend or
distribution applicable to one share of Common Stock is equal to or greater than the Current Market
Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of a Security shall have the right to receive
upon



33









 







conversion the amount of cash so distributed that such Holder would have received had such
Holder converted each Security on such Determination Date. In the event that 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 divided or distribution had not been declared.



               (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion
of Common Stock shall expire, then, if the tender offer shall require the payment to shareholders
of consideration per share of Common Stock having a fair market value (determined as provided
below) that exceeds Closing Price per share of Common Stock on the Trading Day next succeeding the
last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it
may be amended) (the last time at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately
prior to the close of business on the Expiration Date by a fraction of which the numerator shall be
the sum of (A) the fair market value of the aggregate consideration (the fair market value as
determined in good faith by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officer’s Certificate
delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of
the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as
the “Purchased Shares”) and (B) the product of the number of shares of Common Stock outstanding
(less any Purchased Shares and excluding any shares held in the treasury of the Company) at the
Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding
the Expiration Date and the denominator of which shall be the product of the number of shares of
Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury
of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Date, such increase to become effective
immediately prior to the opening of business on the day following the Expiration Date. In the
event that the Company is obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law from effecting any or all such purchases or any
or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would have been in effect based upon the number of shares actually purchased,
if any. If the application of this clause (7) of Section 4.06(a) to any tender offer would result
in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this
clause (7).



               (8) For purposes of this Section 4.06, the term “tender offer” shall mean and include both
tender offers and exchange offers, all references to “purchases” of shares in tender offers (and
all similar references) shall mean and include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all
similar references) shall mean and include shares tendered in both tender offers and exchange
offers.



               (9) For purposes of any computation under this Section 4.06, “Current Market Price” shall mean
the average of the daily Closing Prices per share of Common Stock for



34









 







each of the ten consecutive Trading Days immediately prior to the date in question; provided,
however, that if



                    (A) the “ex” date (as hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the Conversion Rate
pursuant to Section 4.06(a) (1), (2), (3), (4), (5), (6) or (7) occurs during such ten consecutive
Trading Days, the Closing Price for each Trading Day prior to the “ex” date for such other event
shall be adjusted by dividing such Closing Price by the same fraction by which the Conversion Rate
is so required to be adjusted as a result of such other event;



                    (B) the “ex” date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Rate pursuant to Section 4.06(a) (1),
(2), (3), (4), (5), (6) or (7) occurs on or after the “ex” date for the issuance or distribution
requiring such computation and prior to the day in question, the Closing Price for each Trading Day
on and after the “ex” date for such other event shall be adjusted by dividing such Closing Price by
the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a
result of such other event; and



                    (C) the “ex” date for the issuance or distribution requiring such computation is prior to the
day in question, after taking into account any adjustment required pursuant to the immediately
preceding clause (A) or (B) of this Section 4.06(a)(9), the Closing Price for each Trading Day on
or after such “ex” date shall be adjusted by adding thereto the amount of any cash and the fair
market value (as determined in good faith by the Board of Directors in a manner consistent with any
determination of such value for purposes of Section 4.06(a)(4) or (7), whose determination shall be
conclusive and set forth in a Board Resolution) of the evidences of indebtedness, shares of capital
stock or assets being distributed applicable to one share of Common Stock as of the close of
business on the day before such “ex” date.



     For purposes of any computation under Section 4.06(a)(7), if the “ex” date for any event
(other than the tender offer that is the subject of the adjustment pursuant to Section 4.06(a)(7))
that requires an adjustment to the Conversion Rate pursuant to Section 4.06(a)(1), (2), (3), (4),
(5) or (6) occurs on the date of the Expiration Time for the tender or exchange offer requiring
such computation or on the Trading Day next following the Expiration Time, the Closing Price for
each Trading Day on and after the “ex” date for such other event shall be adjusted by dividing such
Closing Price by the reciprocal of the fraction by which the Conversion Rate is so required to be
adjusted as a result of such other event. For purposes of this Section 4.06(a)(9) the term “ex”
date, when used:



                    (A) with respect to any issuance or distribution, means the first date on which the Common
Stock trades regular way on the relevant exchange or in the relevant market from which the Closing
Price was obtained without the right to receive such issuance or distribution;



                    (B) with respect to any subdivision or combination of shares of Common Stock, means the first
date on which the Common Stock trades regular way on such



35









 







exchange or in such market after the time at which such subdivision or combination becomes
effective, and



                    (C) with respect to any tender or exchange offer, means the first date on which the Common
Stock trades regular way on such exchange or in such market after the Expiration Time of such
offer.



     Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are
called for pursuant to this Section 4.06, such adjustments shall be made to the Current Market
Price as may be necessary or appropriate to effectuate the intent of this Section 4.06 and to avoid
unjust or inequitable results as determined in good faith by the Board of Directors and evidenced
by an Officers’ Certificate delivered to the Trustee.



          (b) In any case in which this Section 4.06 shall require that an adjustment be made following
a record date, a Determination Date or Expiration Date, as the case may be, established for the
purposes specified in this Section 4.06, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the certificate described in
Section 4.08) issuing to the Holder of any Security converted after such record date, Determination
Date or Expiration Date the shares of Common Stock and other Capital Stock of the Company issuable
upon such conversion over and above the shares of Common Stock and other Capital Stock of the
Company (or other cash, property or securities, as applicable) issuable upon such conversion only
on the basis of the Conversion Rate prior to adjustment; and, in lieu of any cash, property or
securities the issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company of the right to
receive such cash, property or securities. If any distribution in respect of which an adjustment
to the Conversion Rate is required to be made as of the record date, Determination Date or
Expiration Date therefore is not thereafter made or paid by the Company for any reason, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such
record date had not been fixed or such record date, Determination Date or Expiration Date had not
occurred.



          (c) For purposes of this Section 4.06, “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 or converted into any combination of cash, securities or other property, the
date fixed for determination of shareholders entitled to receive such cash, security or other
property (whether or not such date is fixed by the Board of Directors or by statute, contract or
otherwise).



          (d) If one or more event occurs requiring an adjustment be made to the Conversion Rate for a
particular period, adjustments to the Conversion Rate shall be determined by the Company’s Board of
Directors to reflect the combined impact of such Conversion Rate adjustment events, as set out in
this Section 4.06, during such period.



          (e) Notwithstanding the provisions set forth in Section 4.06(a), in no event shall the total
number of shares of Common Stock issuable upon conversion of a Security exceed



36









 




114.2857 shares per $1,000 principal amount of Securities, subject to adjustments in the same
manner as the Conversion Rate as set forth in clauses (1) through (7) of Section 4.06(a).




     Section 4.07 No Adjustment.



          (a) No adjustment in the Conversion Rate shall be required if Holders may participate in the
transactions set forth in Section 4.06 above (to the same extent as if the Securities had been
converted into Common Stock immediately prior to such transactions) without converting the
Securities held by such Holders.



          (b) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Rate as last adjusted; provided,
however, that any adjustments which would be required to be made but for this Section 4.07(b) shall
be carried forward and taken into account in any subsequent adjustment. The Company shall adjust
for any carry forward amount upon conversion regardless of the 1% threshold. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest one-ten thousandth of a
share, as the case may be, with one half cent and 0.00005 of a share, respectively, being rounded
upward.



          (c) No adjustment in the Conversion Rate shall be required for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends, the issuance of Common Stock or options
to purchase shares of Common Stock pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company, upon the issuance of Common Stock
pursuant to any option, warrant or right, or exercise of any exchangeable or convertible security
outstanding as of the Issue Date, repurchases by the Company of Common Stock not expressly
discussed in this Article 4 or interest or for a change to a par value of the Common Stock.



          (d) To the extent that the Securities become convertible into the right to receive cash, no
adjustment need be made thereafter as to the cash.



     Section 4.08 Notice of Adjustment. Whenever the Conversion Rate or conversion privilege is
required to be adjusted pursuant to this Indenture, the Company shall promptly mail to Holders a
notice of the adjustment and file with the Trustee an Officers’ Certificate briefly stating the
facts requiring the adjustment and the manner of computing it. Failure to mail such notice or any
defect therein shall not affect the validity of any such adjustment. Unless and until the Trustee
shall receive an Officers’ Certificate setting forth an adjustment of the Conversion Rate, the
Trustee may assume without inquiry that the Conversion Rate has not been adjusted and that the last
Conversion Rate of which it has knowledge remains in effect.



     Section 4.09 Notice of Certain Transactions. In the event that there is a dissolution or
liquidation of the Company, the Company shall mail to Holders and file with the Trustee a notice
stating the proposed effective date. The Company
shall mail such notice at least 10 days before such proposed effective date. Failure to mail such
notice or any defect therein shall not affect the validity of any transaction referred to in this
Section 4.09.



     Section 4.10 Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.
If any of following events occur (each, a “Business Combination”):



37









 





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



               (2) a consolidation, merger or combination involving the Company,



               (3) a sale, conveyance or lease to another corporation of all or substantially all of the
property and assets of the Company, other than one or more of the Company’s subsidiaries, or



               (4) any statutory share exchange,


in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, 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
then required to so comply) providing that the Holders of the Securities then outstanding will be
entitled thereafter to convert such Securities into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) which they would
have owned or been entitled to receive upon such Business Combination had such Securities been
converted into Common Stock immediately prior to such Business Combination, except that such
Holders will not receive the Make Whole Premium if such Holder does not convert its Securities “in
connection with” the relevant Fundamental Change. A conversion of the Securities by a Holder will
be deemed for these purposes to be “in connection with” a Fundamental Change if the notice of such
conversion is provided in compliance with Section 4.02(a) to the Conversion Agent on or subsequent
to the date 10 Trading Days prior to the date announced by the Company as the anticipated
Fundamental Change Effective Date but before the close of business on the Business Day immediately
preceding the related Fundamental Change Repurchase Date. In the event holders of Common Stock
have the opportunity to elect the form of consideration to be received in such Business
Combination, the Notes will be convertible into the weighted average of the kind and amount of
consideration received by the holders of the Common Stock that affirmatively make such an election.
The Company may not become a party to any such transaction unless its terms are consistent with
this Section 4.10. 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 4. If, in
the case of any such Business Combination, the stock or other securities and assets receivable
thereupon by a holder of shares of Common Stock 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 Business Combination, 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 practicable the provisions providing
for the Repurchase Rights set forth in Article 3 hereof. Notwithstanding anything contained in
this Section, and for the avoidance of doubt, this Section shall not affect the right of a Holder
to convert its Securities into shares of Common Stock prior to the effective date of the Business
Combination.




38









 








     Section 4.11 Trustee’s Disclaimer.



          (a) The Trustee shall have no duty to determine when an adjustment under this Article 4 should
be made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be protected in relying
upon, an Officers Certificate and/or an Opinion of Counsel, including the Officers’ Certificate
with respect thereto which the Company is obligated to file with the Trustee pursuant to Section
4.08. 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 Company’s
failure to comply with any provisions of this Article 4.



          (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.10, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the officers, Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 12.04.



     Section 4.12 Voluntary Increase. The Company from time to time may increase the Conversion
Rate, to the extent permitted by law, by any amount for any period of time if the period is at
least 20 days, and the Company provides 15 days prior written notice to any increase in the
Conversion Rate to the Trustee and Holders. The Company may also make such an increase to the
Conversion Rate as the Board of Directors determines would avoid or diminish U.S. federal income
tax to holders of shares of Common Stock in connection with a dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for U.S. federal income tax purposes.



     Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common
Stock issuable upon conversion of a Security exceed 114.2857 shares per $1,000 principal amount,
subject to adjustment in the same manner as the Conversion Rate as set forth in clauses (1) through
(7) of Section 4.06(a) hereof.



ARTICLE 5



SUBORDINATION




     Section 5.01 Agreement of Subordination. The Company covenants and agrees, and each Holder of Securities issued hereunder by its
acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 5; and each Person holding any Security, whether upon original issue
or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such
provisions.



     The payment of the principal of, premium, if any, and interest on, all Securities (including,
but not limited to, the Fundamental Change Repurchase Price with respect to the Securities subject
to purchase in accordance with Article 3 as provided in this Indenture) issued hereunder shall, to
the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment
to the prior payment in full in cash, or other payment satisfactory to the holders of Senior
Indebtedness, of all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.



39









 





     No provision of this Article 5 shall prevent the occurrence of any default or Event of Default
hereunder.



     Section 5.02 Payments to Holders. The Company shall not make any payment with respect to
the principal of, or premium, if any, or interest on the Securities (including, but not limited to,
the Fundamental Change Repurchase Price with respect to the Securities subject to purchase in
accordance with Article 3 as provided in this Indenture), except payments and distributions made by
the Trustee as permitted by the first or second paragraph of Section 5.05, and shall not purchase
or otherwise acquire for value any Securities if:



          (a) a default in the payment of principal, premium, interest, rent or other obligations due on
any Senior Indebtedness occurs and is continuing (or, in the case of Senior Indebtedness for which
there is a period of grace, in the event of such a default that continues beyond the period of
grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness), unless
and until such default shall have been cured or waived or shall have ceased to exist and notice
thereof has been given to the Trustee; or



          (b) a default, other than a payment default, on Designated Senior Indebtedness occurs and is
continuing that then permits holders of such Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from the
Company or a holder of Designated Senior Indebtedness or a representative of such holder.



     The Company may and shall resume payments on and distributions in respect of the Securities
upon:



               (1) in the case of a payment default of Senior Indebtedness, upon the date on which such
default is cured or waived or otherwise ceases to exist; and



               (2) in the case of a non-payment default on Designated Senior Indebtedness referred to in
clause (b) above, the earlier of (i) 179 days after the date on which a Payment Blockage Notice is
received, and (ii) the date on which the non-payment default is
cured or waived or otherwise ceases to exist, unless this Article 5 otherwise prohibits the
payment or distribution at the time of such payment or distribution.



     Subject to the provisions of Section 5.05, no subsequent Payment Blockage pursuant to this
Section 5.02 may be commenced unless (i) at least 365 days shall have elapsed since the Company’s
receipt of the immediately prior Payment Blockage Notice and (ii) all scheduled payments of
principal premium or interest on the Securities that have come due have been paid in full in cash.
No nonpayment default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee (unless such default was waived, cured or otherwise ceased to exist
and thereafter subsequently reoccurred) shall be, or be made, the basis for a subsequent Payment
Blockage Notice.



     Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company (whether voluntary or involuntary) or in
bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become



40









 







due upon
all Senior Indebtedness shall first be paid in full in cash, or other payment satisfactory to the
holders of Senior Indebtedness (except payments made pursuant to Article 10 from monies deposited
with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other
similar proceeding, any payment by the Company, or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provision of this Article 5, shall (except as
aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders of the Securities or
by the Trustee under this Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, or as otherwise required by law or a court order) or their
representative or representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in full in cash, or
other payment satisfactory to the holders of Senior Indebtedness, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment
or distribution is made to the Holders of the Securities or to the Trustee.



     In the event of the acceleration of the Securities because of an Event of Default, no payment
or distribution shall be made to the Trustee or any Holder of Securities in respect of the
principal of, premium, if any, or interest on the Securities (including, but not limited to, the
Fundamental Change Repurchase Price with respect to the Securities subject to purchase in
accordance with Article 3 as provided in this Indenture), except payments and distributions made by
the Trustee as permitted by the first or second paragraph of Section 5.05, until all Senior
Indebtedness has been paid in full in cash or other payment satisfactory to the holders of Senior
Indebtedness or such acceleration is rescinded in accordance with the terms of this Indenture. If
payment of the Securities is accelerated because of an Event of Default, the Company shall promptly
notify holders of Senior Indebtedness of such acceleration.



     In the event that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received
by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, in
cash or other payment satisfactory to the holders of Senior Indebtedness, or provision is made for
such payment thereof in accordance with its terms in cash or other payment satisfactory to the
holders of Senior Indebtedness, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full, in
cash or other payment satisfactory to the holders of Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior Indebtedness.



41









 





     Nothing in this Section 5.02 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 9.07. This Section 5.02 shall be subject to the further provisions of Section
5.05.



     For purposes of this Article 5, the words, “cash, property or securities” shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article 5 with respect to
the Securities to the payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from
any reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness
(other than leases which are not assumed by the Company or the new corporation, as the case may be)
are not, without the consent of such Holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer of its property as
an entirety, or substantially as an entirety, to another corporation upon the terms and conditions
provided for in Article 7 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 5.02 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 7.



     Section 5.03 Subrogation of Securities. Subject to the payment in full, in cash or other
payment satisfactory to the holders of Senior Indebtedness, of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of this Article 5
(equally and ratably with the holders of all indebtedness of the Company which by its express terms
is subordinated to other indebtedness of the Company to substantially the same extent as the
Securities are subordinated and is entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash, property or securities
of the Company applicable to the
Senior Indebtedness until the principal, premium, if any, and interest on the Securities shall be
paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness. For the
purposes of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article 5, and no payment pursuant to
the provisions of this Article 5, to or for the benefit of the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness. No payments or distributions of cash,
property or securities to or for the benefit of the Holders of the Securities, pursuant to the
subrogation provisions of this Article 5, which would otherwise have been paid to the holders of
Senior Indebtedness shall be deemed to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article 5 are and are intended solely for
the purposes of defining the relative rights of the Holders of the Securities, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.



42









 





     Nothing contained in this Article 5 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of, and premium, if any,
and interest on the Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article 5 of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.



     Upon any payment or distribution of assets of the Company referred to in this Article 5, the
Trustee, subject to the provisions of Section 9.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this Article 5.



     Section 5.04 Authorization to Effect Subordination. Each Holder of a Security by the
Holder’s acceptance thereof authorizes and directs the Trustee on the Holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination as provided in this
Article 5 and appoints the Trustee to act as the Holder’s attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form
required in any proceeding referred to in Section 5.03 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any
Senior Indebtedness or their representatives are hereby authorized to file an appropriate claim for
and on behalf of the Holders of the Securities.



     Section 5.05 Notice to Trustee. The Company shall give prompt written notice in the form
of an Officers’ Certificate to a Responsible Officer of the Trustee and to any Paying Agent of (a)
all Senior Indebtedness incurred by the Company, including the names of representatives of such
holders (if actually known by the Company) of holders of Senior Indebtedness and (b) any fact known
to the Company which would prohibit the making of any payment of monies to or by the Trustee or any
Paying Agent in respect of the Securities pursuant to the provisions of this Article 5.
Notwithstanding the provisions of this Article 5 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article 5, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office from the Company (in the form of an
Officers’ Certificate) or a holder or holders of Senior Indebtedness (or a representative of such
holder or holders) or from any trustee thereof; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 9.01, shall be entitled in all respects to assume
that no such facts exist; provided that if



43









 







on a date not fewer than one Business Day prior to the
date upon which by the terms hereof any such monies may become payable for any purpose (including,
without limitation, the payment of the principal of, or premium, if any, or interest on any
Security) the Trustee shall not have received, with respect to such monies, the notice provided for
in this Section 5.05, then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date. Notwithstanding anything in this Article 5 to the
contrary, nothing shall prevent any payment by the Trustee to the Holders of monies deposited with
it pursuant to Article 10, and any such payment shall not be subject to the provisions of Article
5.



     The Trustee, subject to the provisions of Section 9.01, shall be entitled to rely on the
delivery to it of a written notice by a representative of such a holder of Senior Indebtedness or a
person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such
holder) to establish that such notice has been given by a representative of a holder of Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any person
as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this
Article 5, the Trustee may request such Person to furnish evidence to the reasonable satisfaction
of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 5, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.



     Section 5.06 Trustee’s Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article 5 in respect of any Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in Section 9.11 or elsewhere in this Indenture
shall deprive the Trustee of any of its rights as such holder.



     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article 5,
and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and, subject to the provisions of Section 9.01, the
Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or deliver to
Holders of Securities, the Company or any other person money or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article 5 or otherwise.



     Section 5.07 No Impairment of Subordination. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.



44









 





     Section 5.08 Certain Conversions Deemed Payment. For the purposes of this Article 5 only,
(1) the issuance and delivery of junior securities upon conversion of Securities in accordance with
Article 4 shall not be deemed to constitute a payment or distribution on account of the principal
of (or premium, if any) or interest on Securities or on account of the purchase or other
acquisition of Securities, and (2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 4.03), property or securities (other than
junior securities) upon conversion of a Security shall be deemed to constitute payment on account
of the principal of such Security. For the purposes of this Section 5.08, the term “junior
securities” means (a) shares of any Capital Stock of any class of the Company, or (b) securities of
the Company which are subordinated in right of payment to all Senior Indebtedness which may be
outstanding at the time of issuance or delivery of such securities to substantially the same extent
as, or to a greater extent than, the Securities are so subordinated as provided in this Article.
Nothing contained in this Article 5 or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among the Company, its creditors other than holders of Senior Indebtedness
and the Holders, the right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article 4.



     Section 5.09 Article Applicable to Paying Agents. If at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article shall (unless the context otherwise requires) be construed as
extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that the first paragraph of
Section 5.05 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.



     Section 5.10 Senior Indebtedness Entitled to Rely. The holders of Senior Indebtedness
(including, without limitation, Designated Senior Indebtedness) shall have the right to rely upon
this Article 5, and no amendment or modification of the provisions contained herein shall diminish
the rights of such holders unless such holders shall have agreed in writing thereto.



     Section 5.11 Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any
payment or distribution of assets of the Company referred to in this Article, the Trustee, subject
to the provisions of Section 6.01, and the Holders of the Securities shall be entitled to
conclusively rely upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating
trustee, Securities Custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.



     Section 5.12 Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s
Rights. The Trustee or any authenticating agent in its individual capacity shall be entitled
to all the rights set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior Indebtedness, and



45









 







nothing
in this Indenture shall deprive the Trustee or any authenticating agent of any of its rights as
such holder.



     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 9.07.



ARTICLE 6



COVENANTS




     Section 6.01 Payment of Securities.



          (a) The Company shall promptly make all payments in respect of the Securities on the dates and
in the manner provided in the Securities and this Indenture. A payment of principal or interest or
Liquidated Damages, if any, shall be considered paid on the date it is due if the Paying Agent
(other than the Company) holds by 12:00 p.m. (noon), New
York City time, on that date money, deposited by or on behalf of the Company sufficient to
make the payment. Subject to Section 4.02, accrued and unpaid interest on any Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to
the Person in whose name that Security is registered at the close of business on the Regular Record
Date for such interest at the office or agency of the Company maintained for such purpose.
Principal, Fundamental Change Repurchase Price, and interest and Liquidated Damages, if any, in
each case if payable, shall be considered paid on the applicable date due if on such date (or, in
the case of Fundamental Change Repurchase Price, on the Business Day following the applicable
Fundamental Change Repurchase Date) the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all such amounts then due. The Company shall, to the fullest
extent permitted by law, pay interest in immediately available funds on overdue principal amount
and interest at the annual rate borne by the Securities compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such interest shall be
payable on demand.



          (b) Payment of the principal of and interest, if any, on the Securities shall be made at the
office or agency of the Company maintained for that purpose (which shall initially be at the
address set forth in Section 2.03(c)) in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address appears in the Register; provided further that a Holder
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 if such Holder has provided wire
transfer instructions to the Trustee at least 10 Business Days prior to the payment date. Any wire
transfer instructions received by the Trustee will remain in effect until revoked by the Holder.
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.



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     Section 6.02 SEC and Other Reports.



          (a) The Company shall file in a timely fashion all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act
(including its Annual Report on Form 10-K and its Quarterly Reports on Form 10-Q), and within 15
days after it files them with the SEC, the Company shall file copies of all such reports,
information and other documents with the Trustee; provided that any such reports, information and
documents filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval (or
EDGAR) system shall be deemed to be filed with the Trustee. In the event that the Company is no
longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall continue to provide the Trustee with reports containing substantially the same
information as would be required to be filed with the SEC had the Company continued to have been
subject to such reporting requirements. In such event, such reports will be provided at the times
the Company would have been required to
provide reports had it continued to be subject to such reporting requirements. The Company
also shall comply with the provisions of TIA Section 314(a).



          (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 Officers’ Certificates).



     Section 6.03 Compliance Certificates. The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2007), an Officers’ Certificate as to the signer’s knowledge of the Company’s
compliance with all conditions and covenants on its part contained in this Indenture and stating
whether or not the signer knows of any Default or Event of Default. If such signer knows of such a
Default or Event of Default, the Officers’ Certificate shall describe the Default or Event of
Default and the efforts to remedy the same. For the purposes of this Section 6.03, compliance
shall be determined without regard to any grace period or requirement of notice provided pursuant
to the terms of this Indenture.



     Section 6.04 Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.



     Section 6.05 Maintenance of Corporate Existence. Subject to Article 7, the Company will do
or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence.



     Section 6.06 Rule 144A Information Requirement. Within the period prior to the expiration
of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or
any successor provision), the Company covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, upon the request of any
Holder or beneficial holder of the Securities make available to such Holder or beneficial holder of
Securities or any Common Stock issued upon conversion thereof which



47









 







continue to be Restricted
Securities in connection with any sale thereof and any prospective purchaser of Securities or such
Common Stock designated by such Holder or beneficial holder, the information required pursuant to
Rule 144A(d)(4) under the Securities Act and it will take such further action as any Holder or
beneficial holder of such Securities or such Common Stock may reasonably request, all to the extent
required from time to time to enable such Holder or beneficial holder to sell its Securities or
Common Stock without registration under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such Rule may be amended from time to time. Whether a person is a
beneficial holder shall be determined by the Company.



     Section 6.07 Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the principal of or accrued
but unpaid interest or Liquidated Damages, if any, on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



     Section 6.08 Payment of Liquidated Damages. If Liquidated Damages are payable by the
Company pursuant to the Registration Rights Agreement, the Company shall deliver to the Trustee an
Officers’ Certificate to that effect stating (i) the amount of such Liquidated Damages that are
payable, (ii) the reason why such Liquidated Damages are payable and (iii) the date on which such
Liquidated Damages are payable. Unless and until a Responsible Officer of the Trustee receives
such a certificate, the Trustee may assume without inquiry that no such Liquidated Damages are
payable. If the Company has paid Liquidated Damages directly to the Persons entitled to such
Liquidated Damages, the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment. The Trustee may conclusively rely on the correctness of the
Liquidated Damages calculations provided by the Company without investigation.



     Section 6.09 Maintenance of Office or Agency. The Company will maintain an office or
agency of the Trustee, Registrar and Paying Agent where securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or purchase and where
notices and demands to or upon the company in respect of the Securities and this Indenture may be
served. The Corporate Trust Office shall initially be one such office or agency for all of the
aforesaid purposes. The Company shall give prompt written notice to the Trustee of the location,
and of any change in the location, of any such office or agency (other than a change in the
location of the office of the Trustee). 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 address of the Trustee
set forth in Section 12.02.



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     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.



ARTICLE 7



CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE




     Section 7.01 Company May Consolidate, etc., only on Certain Terms. The Company may not consolidate with or merge into any Person (unless the Company is the
surviving corporation) or convey, transfer or lease the property and assets, substantially as an
entirety, of the Company to another Person, other than to one or more of the Company’s wholly-owned
subsidiaries, unless:



               (1) the Person (if other than the Company) formed by such consolidation or into which the
Company is merged, or the Person which acquires by conveyance, transfer or lease all or
substantially all of the properties and assets of the Company, shall (i) be a corporation, limited
liability company, partnership, trust or other business entity organized and existing under the
laws of the United States of America, any State thereof or the District of Columbia and (ii) such
Person (if other than the Company) expressly assumes, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the obligations of the Company
under the Securities and this Indenture and the performance or observance of every covenant and
provision of this Indenture and the Securities required on the part of the Company to be performed
or observed and the conversion rights shall be provided for in accordance with Article 4, by
supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee,
by the Person (if other than the Company) formed by such consolidation or into which the Company
shall have been merged or by the Person which shall have acquired the Company’s assets;



               (2) after giving effect to such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have occurred and be
continuing; and



               (3) if the Company will not be the resulting or surviving corporation, the Company shall have,
at or prior to the effective date of such consolidation, merger or transfer, delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer complies with this Section 7.01 and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture complies with this Article, and that
all conditions precedent herein provided for relating to such transaction have been complied with.



     Section 7.02 Successor Substituted. Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, transfer or lease substantially as an
entity, of the properties and assets of the Company and its Subsidiaries, taken as a whole, in
accordance with Section 7.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company



49









 







under this Indenture with
the same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, and except for obligations the predecessor Person may have under a
supplemental indenture, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.



ARTICLE 8



DEFAULT AND REMEDIES




     Section 8.01 Events of Default.



          (a) An “Event of Default” shall occur if:



               (1) the Company shall fail to pay when due the Principal or any Fundamental Change Repurchase
Price of any Security, including any Make-Whole Premium, when the same becomes due and payable,
whether or not such payment is prohibited by the subordination provisions hereunder; or



               (2) the Company shall fail to pay an installment of interest or Liquidated Damages, if any, on
any of the Securities, which failure continues for 30 days after the date when due whether or not
such payment is prohibited by the subordination provisions hereunder; or



               (3) the Company shall fail to deliver when due all shares of Common Stock, if any, deliverable
upon conversion of the Securities, which failure continues for 10 days; or



               (4) the Company shall fail to perform or observe (or obtain a waiver with respect to) any
other term, covenant or agreement contained in the Securities or this Indenture for a period of 75
days after receipt by the Company of a Notice of Default specifying such failure; or



               (5) the Company shall fail to pay any principal by the end of any applicable grace period or
resulting in acceleration of other Indebtedness of the Company for borrowed money where the
aggregate principal amount with respect to which the default or acceleration has occurred exceeds
$10 million, provided that if any such default is cured, waived, rescinded or annulled, then the
Event of Default by reason thereof would be deemed not to have occurred; or



               (6) the Company pursuant to or within the meaning of any Bankruptcy Law:



                    (A) commences as a debtor a voluntary case or proceeding; or



                    (B) consents to the entry of an order for relief against it in an involuntary case or
proceeding or the commencement of any case against it;



                    (C) consents to the appointment of a Receiver of it or for all or substantially all of its
property; or



50









 





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



                    (E) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or



                    (F) consents to the filing of such a petition or the appointment of or taking possession by a
Receiver; or



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



                    (A) grants relief against the Company in an involuntary case or proceeding or adjudicates the
Company insolvent or bankrupt;



                    (B) appoints a Receiver of the Company or for all or substantially all of the property of the
Company; or



                    (C) orders the winding up or liquidation of the Company;



     and in each case the order or decree remains unstayed and in effect for 60 consecutive days.



     The term “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto)
or any similar federal or state law for the relief of debtors. The term “Receiver” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.



          (b) Notwithstanding Section 8.01(a), no Event of Default under clauses (4) or (5) of Section
8.01(a) shall occur until the Trustee notifies the Company in writing upon the written direction of
the Holders of at least 25% in aggregate principal amount of the Securities then outstanding, or
the Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify
the Company and the Trustee in writing, of the Default (a “Notice of Default”), and the Company
does not cure the Default within the time specified in clause (4) or (5) of Section 8.01(a), as
applicable, after receipt of such notice. A notice given pursuant to this Section 8.01 shall be
given by registered or certified mail, must specify the Default, demand that it be remedied and
state that the notice is a Notice of Default. When any Default under this Section 8.01 is cured,
it ceases.



          (c) The Company will deliver to the Trustee, within five Business Days after becoming aware of
the occurrence of a Default or Event of Default, written notice thereof.



     The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Responsible Officer with responsibility for this Indenture at
the Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder or any agent
of any Holder or unless a Responsible Officer with responsibility for this Indenture acquires
actual knowledge of such Event of Default in the course of performing other duties pursuant to this
Indenture.



51









 





     Section 8.02 Acceleration. If an Event of Default (other than an Event of Default specified in clause (6) or (7) of Section
8.01(a)) occurs and is continuing with respect to the Company, the Trustee may, by notice to the
Company, and shall upon the written direction of the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by notice to the Company and the Trustee, declare
the principal amount and accrued and unpaid interest, if any, and accrued and unpaid Liquidated
Damages, if any, through the date of declaration on all the Securities to be immediately due and
payable. Upon such a declaration, such principal amount and such accrued and unpaid interest, if
any, and such accrued and unpaid Liquidated Damages, if any, shall be due and payable immediately.
If an Event of Default specified in Section 8.01(a)(6) or (7) occurs in respect of the Company and
is continuing, the principal amount and accrued but unpaid interest, if any, and accrued and unpaid
Liquidated Damages, if any, on all the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders of Securities. The
Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to
the Trustee may rescind an acceleration and its consequences if (a) all existing Events of Default,
other than the nonpayment of the principal of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived; (b) to the extent the payment of such
interest is lawful, interest (calculated at the rate per annum borne by the Securities) on overdue
installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid; (c) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction; and (d) all payments due to the Trustee and any
predecessor Trustee under Section 9.07 have been made. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.



     Notwithstanding the acceleration provision above, to the extent elected by the Company, the
sole remedy for an Event of Default relating to the failure to comply with the reporting
obligations in the indenture with respect to SEC filings that are described above under Section
6.02(a), and for any failure to comply with the requirements of Section 314(a)(1) of the Trust
Indenture Act, will for the first 180 days after the occurrence of such an Event of Default consist
exclusively of the right to receive special interest on the Securities at an annual rate equal to
1.0% of the outstanding principal amount of the Securities. This special interest will be paid
semi-annually in arrears, with the first semi-annual payment due on the first Interest Payment Date
following the date on which the special interest began to accrue on any Securities. The special
interest will accrue on all outstanding Securities from and including the date on which an Event of
Default relating to a failure to comply with the reporting obligations hereunder first occurs to
but not including the 180th day (or earlier, if the Event of Default relating to the reporting
obligations is cured or waived prior to such 180th day), such special interest will cease to accrue
and, if the Event of Default relating to reporting obligations has not been cured or waived prior
to such 180th day, the Securities will be subject to acceleration as provided above. In the event
the Company does not elect to pay special interest upon an Event of Default in accordance with this
paragraph, the Securities will be subject to acceleration as provided above.



     Section 8.03 Other Remedies.



          (a) If an Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy by proceeding at law or in equity to collect



52









 







payment of
the principal amount and accrued and unpaid interest, if any, and accrued and unpaid Liquidated
Damages, if any, on the Securities or to enforce the performance of any provision of the Securities
or this Indenture.



          (b) 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 Holder
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. No remedy is exclusive
of any other remedy. All available remedies are cumulative to the extent permitted by applicable
law.



     Section 8.04 Waiver of Defaults and Events of Default. Subject to Sections 8.02, 8.07 and
11.02, the Holders of a majority in aggregate principal amount of the Securities then outstanding
by notice to the Trustee may waive an existing Default or Event of Default and its consequences,
except an uncured Default or Event of Default in the payment of the principal of, premium, if any,
or any accrued but unpaid interest on any Security, an uncured failure by the Company to convert
any Securities into Common Stock or any Default or Event of Default in respect of any provision of
this Indenture or the Securities which, under Section 11.02, cannot be modified or amended without
the consent of the Holder of each Security affected. When a Default or Event of Default is waived,
it is cured and ceases to exist.



     Section 8.05 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, that the Trustee determines may be unduly prejudicial to the rights of another Holder or
the Trustee, or that may involve the Trustee in personal liability unless the Trustee is offered
security or indemnity satisfactory to it; provided, however, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction.



     Section 8.06 Limitations on Suits.



          (a) A Holder may not pursue any remedy with respect to this Indenture or the Securities
(except actions for payment of overdue principal, premium, if any, or interest or for the
conversion of the Securities pursuant to Article 4) unless:



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



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



               (3) such Holder or Holders offer to the Trustee security or indemnity acceptable to the
Trustee against any loss, liability or expense;



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



53









 





               (5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in aggregate principal amount of the Securities
then outstanding.



          (b) No Holder of a Security shall have any right under any provision of this Indenture or the
Securities to affect, disturb, or prejudice the rights of another Holder of a Security or to obtain
a preference or priority over another Holder of a Security.



     Section 8.07 Rights of Holders to Receive Payment and to Convert. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to receive payment of the
principal amount, Fundamental Change Repurchase Price, or Make-Whole Premium and interest, if any
or Liquidated Damages, if any, in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities and this Indenture, (whether upon repurchase or
otherwise), and to convert such Security in accordance with Article 4, and to bring suit for the
enforcement of any such payment on or after such respective due dates or for the right to convert
in accordance with Article 4, is, subject to compliance with the provisions of Section 8.06,
absolute and unconditional and shall not be impaired or affected without the consent of the Holder.



     Section 8.08 Collection Suit by Trustee. If an Event of Default described in clause (1) or
(2) of Section 8.01(a) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company or another obligor on the Securities for the
whole amount owing with respect to the Securities and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.



     Section 8.09 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 (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor on the Securities), its creditors or its property and
shall be entitled and empowered to collect and
receive any money or other property payable or deliverable on any such claims and to distribute the
same, and any Receiver in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to 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 9.07, and to the extent that such payment of the
reasonable compensation, expenses, disbursements and advances in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other property which the Holders may be
entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt 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.



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     Section 8.10 Priorities.



          (a) If the Trustee collects any money pursuant to this Article 8, it shall pay out the money
in the following order:



               (1) First, to the Trustee for amounts due under Section 9.07;



               (2) Second, to the Holders of Senior Indebtedness to the extent required by Article 5;



               (3) Third, to Holders for amounts due and unpaid on the Securities for the principal amount,
interest, and Liquidated Damages, as applicable, ratably, without preference or priority of any
kind, according to such respective amounts due and payable on the Holders’ Securities; and



               (4) Fifth, the balance, if any, to the Company.



          (b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to
this Section 8.10.



     Section 8.11 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 of an
undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses (whether incurred before trial, at trial,
on appeal or in any bankruptcy or arbitration or other administrative proceeding), 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 8.11 does not apply to a suit made by the
Trustee, a suit by a Holder pursuant to Section 8.07, or a suit
by Holders of more than 10% in aggregate principal amount of the Securities then outstanding. This
Section 8.11 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby
expressly excluded from this Indenture, as permitted by the TIA.



ARTICLE 9



TRUSTEE




     Section 9.01 Obligations of Trustee.



          (a) If an Event of Default of which a Responsible Officer of the Trustee shall have actual
knowledge has occurred and is continuing, the Trustee may (and shall upon the written direction of
the Holders of at least 25% in aggregate principal amount of the Securities then outstanding and
being furnished with indemnity acceptable to it) exercise such of the rights and powers vested in
it by this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall
have actual knowledge has occurred and is continuing, the Trustee shall use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.



55









 





          (b) Except during the continuance of an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge, the Trustee need perform only those duties as are specifically
set forth in this Indenture and no others.



     This Section 9.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the TIA.



          (c) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, shall examine any certificates and opinions which by any provision hereof are
specifically required to be delivered to the Trustee to determine whether or not they conform on
their face to the requirements of this Indenture, but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein



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



               (1) this paragraph does not limit the effect of Section 9.01(b);



               (2) 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 grossly negligent in ascertaining the
pertinent facts; and



               (3) the Trustee shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with this Indenture or a direction received by it pursuant to Section
8.05.



     This Section 9.01(d) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the
TIA and such Sections are hereby expressly excluded from this Indenture as permitted by the TIA.



          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers unless the Trustee shall have received adequate
security or indemnity in its opinion against potential costs and liabilities incurred by it
relating thereto.



          (f) Every provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c), (d) and (e) of this Section 9.01.



          (g) 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.



          (h) The Trustee shall not be liable for any delays occurring as a result of force majeure.



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     Section 9.02 Rights of Trustee.



          (a) Subject to Section 9.01:



               (1) The Trustee may rely conclusively and shall be protected in acting or refraining from
acting upon 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.



               (2) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel, which shall conform to Section 12.04(b). 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.



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



               (4) 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 rights or powers.



               (5) The Trustee may consult with counsel of its selection, and the advice or opinion of such
counsel as to matters of law shall be full and complete authorization and protection in respect of
any such action taken, omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.



               (6) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture or to institute, conduct or defend any litigation hereunder or in relation
hereto 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 satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance with such request
or direction.



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



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



57









 







Securities and this
Indenture. In the absence of receipt of such notice or actual knowledge, the Trustee may
conclusively assume that there is no Default, Event of Default, or Fundamental Change.



               (9) 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, including, without limitation as
Paying Agent, Registrar and Conversion Agent, and to each agent, custodian and other Person
employed to act hereunder.



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



     Section 9.03 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
an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections 9.10 and 9.11.



     Section 9.04 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 9.05 Notice of Default or Events of Default. If a Default or an Event of Default
occurs and is continuing and if it is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Holder of a Security notice of all uncured Defaults or Events of Default known
to it within 90 days after it occurs or, if later, within 15 days after it becomes known to the
Trustee. However, the Trustee may withhold the notice if and for so long as a committee of its
Responsible Officers in good faith determines that withholding notice is in the interests of
Holders of Securities, except in the case of a Default or an Event of Default in payment of the
principal of, or premium, if any, or interest on any Security when due or in the payment of any
purchase obligation, or the Company’s failure to convert Securities when obligated to convert them.
This Section 9.05 is in lieu of section 315(b) of the TIA and such provision is expressly excluded
from this Indenture as permitted by the TIA.



     Section 9.06 Reports by Trustee to Holders.



          (a) If a report is required by TIA Section 313, within 60 days after each May 15, beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to each Holder of
Securities a brief report dated as of such May 15 that complies with TIA Section 313(a). If
required by TIA Section 313, the Trustee also shall comply with TIA Sections 313(b)(2), (c) and
(d).



          (b) A copy of each report at the time of its mailing to Holders of Securities shall be mailed
to the Company and, to the extent required by the TIA, filed with the SEC, and



58









 







each stock exchange,
if any, on which the Securities are listed. The Company shall notify the Trustee whenever the
Securities become listed on any stock exchange or listed or admitted to trading on any quotation
system and any changes in the stock exchanges or quotation systems on which the Securities are
listed or admitted to trading and of any delisting thereof.



     Section 9.07 Compensation and Indemnity.



          (a) The Company shall pay to the Trustee from time to time such compensation (as agreed to
from time to time by the Company and the Trustee in writing) for its services (which compensation
shall not be limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses may include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



          (b) The Company shall indemnify and hold harmless the Trustee or any predecessor Trustee
(which for purposes of this Section 9.07 shall include its officers, directors, employees and
agents) for, and hold it harmless against, any and all loss, liability, claim, damage
or expense including taxes (other than franchise taxes and taxes based upon, measured by or
determined by the income of the Trustee), incurred by it in connection with the acceptance or
administration of its duties under this Indenture or any action or failure to act as authorized or
within the discretion or rights or powers conferred upon the Trustee hereunder including the
reasonable costs and expenses of the Trustee and its counsel in defending (including reasonable
legal fees and expenses whether incurred before trial, at trial, on appeal or in any bankruptcy or
arbitration or other administrative proceeding) itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company need not pay for any settlement effected without its prior written consent,
which shall not be unreasonably withheld.



          (c) The Company need not reimburse the Trustee for any expense or indemnify it against any
loss or liability incurred by it determined to have been caused by its gross negligence, willful
misconduct or bad faith.



          (d) To secure the Company’s payment obligations in this Section 9.07, the Trustee shall have a
senior claim to which the Securities are hereby made subordinate on all money or property held or
collected by the Trustee. The obligations of the Company under this Section 9.07 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.



          (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in clause (6) or (7) of Section 8.01(a) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of
this Section shall survive the termination of this Indenture.



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     Section 9.08 Replacement of Trustee.



          (a) The Trustee may resign by so notifying the Company. 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 and may, with the Company’s written consent, appoint a
successor Trustee. The Company may remove the Trustee at any time, so long as no Default or Event
of Default has occurred and is continuing, and appoint a Successor Trustee in accordance with this
Section 9.08.



          (b) 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. The resignation or removal of
a Trustee shall not be effective until a successor Trustee shall have delivered the written
acceptance of its appointment as described below.



          (c) If a successor Trustee does not take office within 45 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of 10% in principal amount
of the Securities then outstanding may petition any court of competent jurisdiction at the expense
of the Company for the appointment of a successor Trustee at the expense of the Company.



          (d) If the Trustee fails to comply with Section 9.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



          (e) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee and be released from its obligations
(exclusive of any liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, 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.
A successor Trustee shall mail notice of its succession to each Holder.



          (f) A retiring Trustee shall not be liable for the acts or omissions of any successor Trustee
after its succession.



          (g) Notwithstanding replacement of the Trustee pursuant to this Section 9.08, the Company’s
obligations under Section 9.07 shall continue for the benefit of the retiring Trustee.



     Section 9.09 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 (including the
administration of this Indenture) to, another corporation, the resulting, surviving or transferee
corporation, without any further act, shall be the successor Trustee; provided such transferee
corporation shall qualify and be eligible under Section 9.10. Such successor Trustee shall
promptly mail notice of its succession to the Company and each Holder.



     Section 9.10 Eligibility; Disqualification. The Trustee shall always satisfy the
requirements of paragraphs (1), (2) and (5) of TIA Section 310(a). The Trustee (or its parent




60










 




holding company) shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. If at any time the Trustee shall
cease to satisfy any such requirements, it shall resign immediately in the manner and with the
effect specified in this Article 9. The Trustee shall be subject to the provisions of TIA Section
310(b). Nothing herein shall prevent the Trustee from filing with the SEC the application referred
to in the penultimate paragraph of TIA Section 310(b).




     Section 9.11 Preferential Collection of Claims against Company. The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.



ARTICLE 10

SATISFACTION AND DISCHARGE OF INDENTURE




     Section 10.01 Satisfaction and Discharge of Indenture.



          (a) This Indenture shall cease to be of further force and effect (except as to any surviving
rights of conversion, registration of transfer or exchange of Securities herein expressly provided
for and except as further provided below), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when either:




                    (A) all Securities theretofore authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
2.07 and (ii) Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section 10.03) have been delivered to the Trustee
for cancellation; or



                    (B) all such Securities not theretofore delivered to the Trustee for cancellation,



                         (i) have become due and payable, or



                         (ii) will become due and payable at the Final Maturity Date within one year; provided in the
case of clause (B), that



               (1) the Company has deposited with the Trustee or a Paying Agent (other than the Company or
any of its Affiliates) as trust funds in trust for the purpose of and in an amount sufficient to
pay and discharge all indebtedness related to such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Final Maturity Date, as the case may be;



               (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and



Indenture


61









 





               (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein relating to the satisfaction and
discharge of this Indenture have been complied with.



          (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the conversion privilege and the Conversion Rate of the Securities pursuant
to Article 4, the obligations of the Company to the Trustee under Section 9.07 and, if money shall
have been deposited with the Trustee pursuant to clause (2) of Section 10.01(a), the provisions of
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 6.01 and 12.05, Article 4, and this Article 10, shall
survive until the Securities have been paid in full.




     Section 10.02 Application of Trust Money. Subject to the provisions of Section 10.03, the
Trustee or a Paying Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 10.01 and shall apply the deposited money in accordance with this
Indenture and the Securities to the payment of the principal of and interest on the Securities.



     Section 10.03 Repayment to Company.



          (a) The Trustee and each Paying Agent shall promptly pay to the Company upon request any
excess money (1) deposited with them pursuant to Section 10.01 and (2) held by them at any time.




          (b) The Trustee and each Paying Agent shall, subject to applicable abandonment property laws,
pay to the Company upon request any money held by them for the payment of principal or interest
that remains unclaimed for two years after a right to such money has matured; provided, however,
that the Trustee or such Paying Agent, before being required to make any such payment, may at the
expense of the Company cause to be mailed to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein, which shall be at least 30 days
from the date of such mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law designates another person.




          Section 10.04 Reinstatement. If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 10.02 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, then the Company’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 10.01 until such time
as the Trustee or such Paying Agent is permitted to apply all such money in accordance with
Section 10.02; provided, however, that if the Company has made any payment of the principal of or
interest on 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 any such payment from the
money held by the Trustee or such Paying Agent.



Indenture

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ARTICLE 11

AMENDMENTS; SUPPLEMENTS AND WAIVERS




     Section 11.01 Without Consent of Holders.



          (a) The Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to or consent of any Holder of a Security for the purpose of:




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



               (2) adding to the Company’s covenants for the benefit of the Holders or surrendering any right
or power conferred upon the Company;



               (3) securing the Company’s obligations in respect of the Securities;



               (4) evidencing and providing for the acceptance of the appointment of a successor trustee in
accordance with Article 9;



               (5) complying with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA, as contemplated by this Indenture or otherwise;



               (6) curing any ambiguity, omission, inconsistency or correcting or supplementing any defective
provision contained in this Indenture; or



               (7) making any other changes to the Indenture that does not adversely affect the interests of
the Holders in any material respect.



     Section 11.02 With Consent of Holders.



          (a) The Company and the Trustee may amend or supplement this Indenture or the Securities with
the written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding. However, subject to Section 11.04, without the written consent of
each Holder affected, an amendment, supplement or waiver may not:




               (1) alter the manner of calculation or rate of accrual of interest on any Security or change
the time of payment of any installment of interest on, or any Liquidated Damages with respect to,
any Security;



               (2) make any of the Securities payable in money or securities other than that stated in the
Securities;



               (3) change the stated maturity of any Security;



               (4) reduce the principal amount or Fundamental Change Repurchase Price (including any Make
Whole Premium payable) (as applicable) with respect to any of the



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63









 







Securities, or any Liquidated
Damages, or the amount payable upon purchase pursuant to Article 3, with respect to any Security;



               (5) make any change that adversely affects the rights of Holders to require the Company to
purchase Securities at the option of Holders;



               (6) impair the right to institute suit for the enforcement of any payment on or with respect
to any Security or with respect to the conversion of any Security;



               (7) change the currency of payment of principal of, or interest on, the Securities;



               (8) except as otherwise permitted or contemplated by Section 4.11, adversely affect the
conversion rights of the Securities; or



               (9) change the percentage in aggregate principal amount of Securities outstanding necessary to
modify or amend this Indenture or to waive any past Default.



          (b) Without limiting the provisions of Section 11.02(a) hereof, the Holders of a majority in
principal amount of the Securities then outstanding may, on behalf of all the Holders of all
Securities, (i) waive compliance by the Company with the restrictive provisions of this Indenture,
and (ii) waive any past Default or Event of Default under this Indenture and its consequences,
except an uncured failure to pay when due the principal amount, accrued and unpaid interest,
accrued and unpaid Liquidated Damages or Fundamental Change Repurchase Price, or in the obligation
to deliver Common Stock, if any and as applicable, or in respect of any provision which under this
Indenture cannot be modified or amended without the consent of the Holder of each outstanding
Security affected.




          (c) After an amendment, supplement or waiver under this Section 11.02 becomes effective, the
Company shall promptly mail to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.




     Section 11.03 Compliance with Trust Indenture Act. Every amendment to or supplement of
this Indenture or the Securities shall comply with the TIA as in effect at the date of such
amendment or supplement.



     Section 11.04 Revocation and Effect of Consents.



          (a) 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.



Indenture

64









 








          (b) After an amendment, supplement or waiver becomes effective, it shall bind every Holder of
a Security.




     Section 11.05 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 about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms.



     Section 11.06 Trustee to Sign Amendments, etc. The Trustee shall sign any amendment or
supplemental indenture authorized pursuant to this Article 11 if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, in its sole discretion, but need not sign it. In signing or refusing
to sign such amendment or supplemental indenture, the Trustee shall be provided with and, subject
to Section 9.01, shall be fully protected in relying upon, an Opinion of Counsel and an Officers’
Certificate stating that such amendment or supplemental indenture is authorized or permitted by
this Indenture. The Company may not sign an amendment or supplemental indenture until the Board of
Directors approves it.



     Section 11.07 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article 11, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



ARTICLE 12

MISCELLANEOUS




     Section 12.01 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by any
of Sections 310 to 317, inclusive, of the TIA through operation of Section 318(c) thereof, such
imposed duties shall control.



     Section 12.02 Notices. Any demand, authorization notice, request, consent or communication
shall be given in writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows or transmitted by facsimile transmission (confirmed by delivery in person or
mail by first-class mail, postage prepaid, or by guaranteed overnight courier) to the following
facsimile numbers:


If to the Company, to:



Dendreon Corporation

3005 First Avenue

Seattle, Washington 98121

Attention: General Counsel

Fax: 206-256-0571



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65









 







with a copy to:



Jones Day

1755 Embarcadero Road

Palo Alto, California 94303

Attention: Esmé C. Smith

Fax: 650-739-3900



if to the Trustee, to:



The Bank of New York Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, California 90017

Attention: Corporate Unit

(Dendreon Corporation 4.75% Convertible Senior Subordinated Notes due 2014)

Fax: 213-630-6298




     Such notices or communications shall be effective when received.



     The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications. Notice to or from the Trustee shall not be via
electronic mail. Notices to the Trustee via facsimile shall promptly be followed by the original
written notice.



     Any notice or communication mailed to a Holder of a Security shall be mailed by first-class
mail or delivered by an overnight delivery service to it at its address shown on the register kept
by the Primary Registrar.



     The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Indenture given by the Company, provided, however that: (i) the
Company, subsequent to such facsimile transmission of written instructions and/or directions, shall
provide the originally executed instructions and/or directions to the Trustee in a timely manner
and (ii) such originally executed instructions and/or directions shall be signed by an “Officer” of
the Company



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



     If the Company mails any notice to a Holder of a Security, it shall mail a copy to the Trustee
and each Registrar, Paying Agent and Conversion Agent.



     Section 12.03 Communications by Holders with other Holders. Holders of Securities may
communicate pursuant to TIA Section 312(b) with other Holders of Securities with respect to their
rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and any
other person shall have the protection of TIA Section 312(c).


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     Section 12.04 Certificate and Opinion as to Conditions Precedent.



          (a) 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 at the request of the Trustee:




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



               (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent (including any covenants, compliance with which constitutes a condition precedent) have
been complied with.



          (b) Each Officers’ Certificate and Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:




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



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



               (3) a statement that, in the opinion of such 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



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


provided, however, that with respect to matters of fact an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.




     Section 12.05 Record Date for Vote or Consent of Holders of Securities. The Company (or,
in the event deposits have been made pursuant to Section 10.01, the Trustee) may set a record date
for purposes of determining the identity of Holders entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture, which record date shall not be more
than 30 days prior to the date of the commencement of solicitation of such action. Notwithstanding
the provisions of Section 11.04, if a record date is fixed, those persons who were Holders of
Securities at the close of business on such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders after such record
date.



     Section 12.06 Rules by Trustee, Paying Agent, Registrar and Conversion Agent. The Trustee
may make reasonable rules (not inconsistent with the terms of this Indenture) for action



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by or at a
meeting of Holders. Any Registrar, Paying Agent or Conversion Agent may make reasonable rules for
its functions.




     Section 12.07 Legal Holidays. A “Legal Holiday” is a Saturday, Sunday or a day on which
state or federally chartered banking institutions in New York, New York or Los Angeles, California
are authorized or obligated to close. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a Regular Record Date is a Legal Holiday, the record date shall not be
affected.



     Section 12.08 Governing Law. This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.



     Section 12.09 No Adverse Interpretation of other Agreements. This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the
Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.



     Section 12.10 No Recourse against Others. All liability described in paragraph 17 of the Securities of any director, officer, employee or
shareholder, as such, of the Company hereby is waived and released by each of the Holders.



     Section 12.11 No Security Interest Created. Nothing in this Indenture or in the
Securities, express or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, now in effect or hereafter enacted and made
effective, in any jurisdiction.



     Section 12.12 Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.



     Section 12.13 Multiple Counterparts. The parties may sign multiple counterparts of this
Indenture. Each signed counterpart shall be deemed an original, but all of them together represent
the same agreement.



     Section 12.14 Separability. If any provisions 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.



     Section 12.15 Table of Contents, Headings, etc. The table of contents, cross-reference
sheet 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.



     Section 12.16 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL



Indenture

68









 




PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.




     Section 12.17 Force Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



[SIGNATURE PAGE FOLLOWS]




Indenture

69









 








     IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date and year
first above written.



	 	 	 	 	 
	 	 	DENDREON CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	Richard F. Hamm, Jr.
	 

	 	Title:
	 	Senior Vice President, Corporate
Development, General Counsel and
Secretary
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	Raymond Torres
	 

	 	Title:
	 	Assistant Vice President






Indenture

 









 






EXHIBIT A




[FORM OF FACE OF SECURITY]




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 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 THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS 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.1



     THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.2



     BY ITS ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH DENDREON CORPORATION (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) (THE “RESALE RESTRICTION TERMINATION





 




			
	1	 	This paragraph should be included only if the
Security is a Global Security.
	 
	2	 	This paragraph to be included only if the
Security is a Restricted Security.




A-1









 









DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION
DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.




     THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS
SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE
HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.3



DENDREON CORPORATION

4.75% Convertible Senior Subordinated Notes due

2014




			
	 	 	 
	No. [           ]
	 	CUSIP: 24823Q AA5






     Dendreon Corporation, a Delaware corporation, promises to pay to Cede & Co. or registered
assigns the principal amount of ($           ) on June 15, 2014.



     This Security shall bear interest as specified on the other side of this Security. This
Security is convertible as specified on the other side of this Security.



     Additional provisions of this Security are set forth on the other side of this Security.



     Dated:



SIGNATURE PAGE FOLLOWS






 




			
	3	 	This paragraph to be included only if the
Security is a Restricted Security.




A-2









 










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



	 	 	 	 	 
	 	DENDREON CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated: June 11, 2007




Trustee’s Certificate of Authentication:

This is one of the Securities referred to in

the within-mentioned Indenture.




	 	 	 	 	 
	THE BANK OF NEW YORK TRUST COMPANY, N.A., as
Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-3









 






[FORM OF REVERSE SIDE OF SECURITY]




DENDREON CORPORATION

4.75% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2014




     1. INTEREST



     Dendreon Corporation, a Delaware corporation (the “Company”, which term shall include any
successor corporation under the Indenture hereinafter referred to), promises to pay interest on the
principal amount of this Security at the rate of 4.75% per annum. The Company shall pay interest
semiannually on June 15 and December 15 of each year (each an “Interest Payment Date”), commencing
December 15, 2007. Each payment of interest will include interest accrued for the period
commencing on and including the immediately preceding Interest Payment Date, provided that the
first interest payment on December 15, 2007, will include interest from June 11, 2007 through the
day before the relevant Interest Payment Date (or purchase date, as the case may be). Cash
interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. Any
payment required to be made on a day that is not a Business Day shall be made on the next
succeeding Business Day. Any reference herein to interest accrued or payable as of any date shall
include any Liquidated Damages accrued or payable on such date as provided in the Registration
Rights Agreement.



     No sinking fund is provided for the Securities.



     2. METHOD OF PAYMENT



     The Company shall pay interest on this Security (except defaulted interest) to the person who
is the Holder of this Security at the close of business on June 1 or December 1, as the case may
be, (each, a “Regular Record Date”) next preceding the related Interest Payment Date. The Holder
must surrender this Security to a Paying Agent to collect payment of principal. The Company will
pay principal and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal and interest in
respect of any Certificated Security by check or wire payable in such money; provided, however,
that a Holder 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 if such Holder has provided
wire transfer instructions to the Trustee at least 10 Business Days prior to the Payment Date. The
Company may mail an interest check to the Holder’s registered address. 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.



     Any wire transfer instructions received by the Trustee will remain in effect until revoked by
the Holder.



     3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT



     Initially, The Bank of New York Trust Company, N.A. (the “Trustee”, which term shall include
any successor trustee under the Indenture hereinafter referred to) will act as Paying Agent,
Registrar and Conversion Agent. The Company may change any Paying Agent, Registrar



A-4









 







or Conversion Agent without notice to the Holder. The Company or any of its Subsidiaries may,
subject to certain limitations set forth in the Indenture, act as Paying Agent or Registrar.



     4. INDENTURE, LIMITATIONS



     This Security is one of a duly authorized issue of Securities of the Company designated as its
4.75% Convertible Senior Subordinated Notes Due 2014 (the “Securities”), issued under an Indenture
dated as of June 11, 2007 (together with any supplemental indentures thereto, the “Indenture”),
between the Company and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended, as in effect on the date of the Indenture. This Security is subject to
all such terms, and the Holder of this security is referred to the Indenture and said Act for a
statement of them. Capitalized terms not defined herein have the meaning ascribed to such terms in
the Indenture.



     The Securities are unsecured, senior subordinated obligations of the Company limited to
$75,000,000 aggregate principal amount ($100,000,000 aggregate principal amount if the Initial
Purchaser exercises its over-allotment option in full, except as provided for in the Indenture).
The Indenture does not limit other debt of the Company, secured or unsecured.



     5. PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE



     If a Fundamental Change occurs prior to the Final Maturity Date, at the option of the Holder
and subject to the terms and conditions of the Indenture, the Company shall become obligated to
purchase for cash, subject to certain exceptions described in the Indenture all or any part
specified by the Holder (so long as the principal amount of such part is $1,000 or an integral
multiple of $1,000) of the Securities held by such Holder on a date specified by the Company that
is not less than 30 nor more than 45 days after the date of the Fundamental Change Company Notice,
at a purchase price equal to 100% of the principal amount thereof together with accrued and unpaid
interest, if any, and accrued and unpaid Liquidated Damages, if any, to, but excluding, the
Fundamental Change Repurchase Date. The Holder shall have the right to withdraw any Fundamental
Change Repurchase Notice (in whole or in a portion thereof that is $1,000 or an integral multiple
of $1,000) at any time prior to the close of business on the Business Day next preceding the
Fundamental Change Repurchase Date by delivering a written notice of withdrawal to the Paying Agent
in accordance with the terms of the Indenture.



     6. CONVERSION



     Subject to and upon compliance with the provisions of the Indenture, a Holder may surrender
for conversion any Security that is $1,000 principal amount or integral multiples thereof.



     7. SUBORDINATION



     To the extent provided in the Indenture, the Securities are subordinated to Senior
Indebtedness, as defined in the Indenture, of the Company. To the extent provided in the
Indenture, Senior Indebtedness must be paid in full before the Securities may be paid. The



A-5









 







Company agrees, and each Security holder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.



     8. DENOMINATIONS, TRANSFER, EXCHANGE



     The Securities are in registered form, without coupons, in denominations of $1,000 principal
amount and integral multiples of $1,000 principal amount. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to pay any taxes or
other governmental charges that may be imposed in relation thereto by law or permitted by the
Indenture.



     9. PERSONS DEEMED OWNERS



     The Holder of a Security may be treated as the owner of it for all purposes.



     10. UNCLAIMED MONEY



     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and any Paying Agent will pay the money back to the Company at its written request, subject to
applicable unclaimed property law and the provisions of the Indenture. After that, Holders
entitled to money must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.



     11. AMENDMENT, SUPPLEMENT AND WAIVER



     Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Securities may be waived in a particular
instance with the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities as provided in the Indenture.



     12. SUCCESSOR ENTITY



     When a successor corporation assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the Indenture, the
predecessor corporation (except in certain circumstances specified in the Indenture) shall be
released from those obligations.



     13. DEFAULTS AND REMEDIES



     Under the Indenture, an Event of Default shall occur if:



A-6









 





               (1) the Company shall fail to pay when due the Principal or any Fundamental Change Repurchase
Price of any Security, including any Make-Whole Premium, when the same becomes due and payable,
whether or not such payment is prohibited by the subordination provisions under the Indenture; or



               (2) the Company shall fail to pay an installment of interest or Liquidated Damages, if any, on
any of the Securities, which failure continues for 30 days after the date when due, whether or not
such payment is prohibited by the subordination provisions under the Indenture; or



               (3) the Company shall fail to deliver when due all shares of Common Stock, if any, deliverable
upon conversion of the Securities, which failure continues for 10 days; or



               (4) the Company shall fail to perform or observe (or obtain a waiver with respect to) any
other term, covenant or agreement contained in the Securities or the Indenture for a period of 75
days after receipt by the Company of a Notice of Default specifying such failure; or



               (5) the Company shall fail to pay any principal by the end of any applicable grace period or
resulting in acceleration of other Indebtedness of the Company for borrowed money where the
aggregate principal amount with respect to which the default or acceleration has occurred exceeds
$10 million, provided that if any such default is cured, waived, rescinded or annulled, then the
Event of Default by reason thereof would be deemed not to have occurred; or



               (6) the Company pursuant to or within the meaning of any Bankruptcy Law:



                    (A) commences as a debtor a voluntary case or proceeding; or



                    (B) consents to the entry of an order for relief against it in an involuntary case or
proceeding or the commencement of any case against it;



                    (C) consents to the appointment of a Receiver of it or for all or substantially all of its
property; or



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



                    (E) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or



                    (F) consents to the filing of such a petition or the appointment of or taking possession by a
Receiver; or



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



A-7









 





                    (A) grants relief against the Company in an involuntary case or proceeding or adjudicates the
Company insolvent or bankrupt;



                    (B) appoints a Receiver of the Company or for all or substantially all of the property of the
Company; or



                    (C) orders the winding up or liquidation of the Company;


and in each case the order or decree remains unstayed and in effect for 60 consecutive days.




     The term “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto)
or any similar federal or state law for the relief of debtors. The term “Receiver” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.



     Notwithstanding the above, no Event of Default under clauses (4) or (5) above shall occur
until the Trustee notifies the Company in writing upon the written direction of the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding, or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding notify the Company and
the Trustee in writing, of the Default (a “Notice of Default”), and the Company does not cure the
Default within the time specified in clause (4) or (5), as applicable, after receipt of such
notice.



     If an Event of Default (other than an Event of Default specified in clause (6) or (7) above) occurs
and is continuing with respect to the Company, the Trustee may, by notice to the Company, and shall
upon the written direction of the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding may, by notice to the Company and the Trustee, declare the principal
amount and accrued and unpaid interest, if any, and accrued and unpaid Liquidated Damages, if any,
through the date of declaration on all the Securities to be immediately due and payable. Upon such
a declaration, such principal amount and such accrued and unpaid interest, if any, and such accrued
and unpaid Liquidated Damages, if any, shall be due and payable immediately. If an Event of
Default specified in clauses (6) or (7) occurs in respect of the Company and is continuing, the
principal amount and accrued but unpaid interest, if any, and accrued and unpaid Liquidated
Damages, if any, on all the Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee
may rescind an acceleration and its consequences if (a) all existing Events of Default, other than
the nonpayment of the principal of the Securities which have become due solely by such declaration
of acceleration, have been cured or waived; (b) to the extent the payment of such interest is
lawful, interest (calculated at the rate per annum borne by the Securities) on overdue installments
of interest and overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under the Indenture have been made. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. Notwithstanding the acceleration provision above, to the
extent elected



A-8









 




by the Company, the sole remedy for an Event of Default relating to the failure to comply with the
reporting obligations in the indenture with respect to SEC filings that are described under Section
6.02(a) of the Indenture, and for any failure to comply with the requirements of Section 314(a)(1)
of the Trust Indenture Act, will for the first 180 days after the occurrence of such an Event of
Default consist exclusively of the right to receive special interest on the Securities at an annual
rate equal to 1.0% of the outstanding principal amount of the Securities. This special interest
will be paid semi-annually in arrears, with the first semi-annual payment due on the first Interest
Payment Date following the date on which the special interest began to accrue on any Securities.
The special interest will accrue on all outstanding Securities from and including the date on which
an Event of Default relating to a failure to comply with the reporting obligations hereunder first
occurs to but not including the 180th day (or earlier, if the Event of Default relating to the
reporting obligations is cured or waived prior to such 180th day), such special interest will cease
to accrue and, if the Event of Default relating to reporting obligations has not been cured or
waived prior to such 180th day, the Securities will be subject to acceleration as provided above.
In the event the Company does not elect to pay special interest upon an Event of Default in
accordance with this paragraph, the Securities will be subject to acceleration as provided above.
Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing Default (except a Default in payment of
principal or interest) if and so long as it determines that withholding notice is in their
interests. The Company is required to file periodic certificates with the Trustee as to the
Company’s compliance with the Indenture and knowledge or status of any Default.




     14. TRUSTEE DEALINGS WITH THE COMPANY



     The Bank of New York Trust Company, N.A., the initial Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and perform services for
the Company or an Affiliate of the Company, and may otherwise deal with the Company or an Affiliate
of the Company, as if it were not the Trustee.



     15. NO RECOURSE AGAINST OTHERS



     A director, officer, employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture nor for any
claim based on, in respect of or by reason of such obligations or their creation. The Holder of
this Security by accepting this Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Security.



     16. AUTHENTICATION



     This Security shall not be valid until the Trustee or an authenticating agent manually signs
the certificate of authentication on the other side of this Security.



     17. ABBREVIATIONS AND DEFINITIONS



A-9









 





     Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors
Act).



     All terms defined in the Indenture and used in this Security but not specifically defined
herein are defined in the Indenture and are used herein as so defined.



     18. INDENTURE TO CONTROL; GOVERNING LAW



     In the case of any conflict between the provisions of this Security and the Indenture, the
provisions of the Indenture shall control. This Security and the Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.


The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: Dendreon Corporation, 3005 First Avenue, Seattle, Washington
98121, Attention: General Counsel (Fax: 206-256-0571).




A-10









 








ASSIGNMENT FORM



To assign this Security, fill in the form below:



I or we assign and transfer this Security to




 




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




 





 





 




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



and irrevocably appoint




 




agent to transfer this Security on the books of the Company. The agent may substitute another to
act for him or her.




	 	 	 	 	 
	 

	 	 	 	Your Signature
	 
	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	(Sign exactly as your name
appears on the other side of
this Security)
	 
	 	 	 	 
	*Signature guaranteed by:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 








 




			
	*	 	The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP);
(ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock
Exchange Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.




A-11









 










CONVERSION NOTICE




     To convert this Security into Common Stock of the Company, check the box:



     To convert only part of this Security, state the principal amount to be converted (must be
$1,000 or a integral multiple of $1,000): $ .



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



 




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




 





 





 




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




	 	 	 	 	 
	 

	 	 	 	Your Signature
	 
	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	(Sign exactly as your name
appears on the other side of
this Security)
	 
	 	 	 	 
	*Signature guaranteed by:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 








 




			
	*	 	The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP);
(ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock
Exchange Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.




A-12









 










FUNDAMENTAL CHANGE REPURCHASE NOTICE




To: Dendreon Corporation




     The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from Dendreon Corporation (the “Company”) as to the occurrence of a Fundamental Change with
respect to the Company and requests and instructs the Company to purchase the entire principal
amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof)
below designated, in accordance with the terms of the Security and the Indenture referred to in the
Security at the Fundamental Change Repurchase Price, together with accrued and unpaid interest and
Liquidated Damages, if any, to, but excluding, such date, to the registered Holder hereof.



	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	Signature (s)
	 
	 	 	 	 
	 

	 	 	 	Signature(s) must be
guaranteed by a qualified
guarantor institution with
membership in an approved
signature guarantee program
pursuant to Rule 17Ad-15 under
the Securities Exchange Act of
1934.
	 
	 	 	 	 
	 

	 	 	 	 
	 

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








 




			
	NOTICE: The signature to the foregoing Election must correspond to the Name as written upon the
face of this Security in every particular, without any alteration or change whatsoever.




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SCHEDULE OF EXCHANGES OF SECURITIES(1)




     The following exchanges, purchases or conversions of a part of this Global Security have been
made:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal Amount of this	 	 	 	 	 	 	 	 	 	 
	Global Note Following	 	 	 	 	 	Amount of Decrease in	 	 	Amount of Increase in	 
	Such Decrease Date of	 	Authorized Signatory of	 	 	Principal Amount of this	 	 	Principal Amount of this	 
	Exchange (or Increase)	 	Securities Custodian	 	 	Global Note	 	 	Global Note	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	1	 	This schedule should be included only if the
Security is a Global Security.




A-14









 










CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF

TRANSFER OF RESTRICTED SECURITIES




	 	 	 	 	 
	Re:

	 
	 	 	4.75% Convertible Senior Subordinated Notes Due 2014 (the “Securities”)
of Dendreon Corporation






     This certificate relates to $           principal amount of Securities owned in (check applicable box)



o    
       book-entry or            
         o      
     definitive form by             
         (the “Transferor”).




     The Transferor has requested a Registrar or the Trustee to exchange or register the transfer
of such Securities.



     In connection with such request and in respect of each such Security, the Transferor does
hereby certify that the Transferor is familiar with transfer restrictions relating to the
Securities as provided in Section 2.12 of the Indenture dated as of June 11, 2007 between Dendreon
Corporation and The Bank of New York Trust Company, N.A., as trustee (the “Indenture”), and the
transfer of such Security is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Securities Act”) (check applicable box) or the transfer or
exchange, as the case may be, of such Security does not require registration under the Securities
Act because (check applicable box):



	 	 	 
	o

	 	Such Security is being transferred pursuant to an effective registration statement under
the Securities Act.
	 
	 	 
	o

	 	Such Security is being acquired for the Transferor’s own account, without transfer.
	 
	 	 
	o

	 	Such Security is being transferred to the Company or a Subsidiary (as defined in the
Indenture) of the Company.
	 
	 	 
	o

	 	Such security is being transferred to a person the Transferor reasonably believes is a
“qualified institutional buyer” (as defined in Rule 144A or any successor provision
thereto (“Rule 144A”) under the Securities Act) that is purchasing for its own account
or for the account of a “qualified institutional buyer”, in each case to whom notice has
been given that the transfer is being made in reliance on such Rule 144A, and in each
case in reliance on Rule 144A.
	 
	 	 
	o

	 	Such Security is being transferred pursuant to and in compliance with an exemption from
the registration requirements under the Securities Act in accordance with Rule 144 (or
any successor thereto) (“Rule 144”) under the Securities Act.
	 
	 	 
	o

	 	Such Security is being transferred pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act (other than an exemption referred to
above) and as a result of which such Security will, upon such transfer, cease to be a
“restricted security” within the meaning of Rule 144 under the Securities Act.






A-15









 






     The Transferor acknowledges and agrees that, if the transferee will hold any such Securities
in the form of beneficial interests in a Global Note which is a “restricted security” within the
meaning of Rule 144 under the Securities Act, then such transfer can only be made pursuant to Rule
144A under the Securities Act and such transferee must be a “qualified institutional buyer” (as
defined in Rule 144A).



	 	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	(Insert Name of Transferor)







A-16