exv4w2



 





Exhibit 4.2




BLACKBOARD INC.




AS ISSUER




AND




U.S. BANK NATIONAL ASSOCIATION,




AS TRUSTEE




[•]% CONVERTIBLE SENIOR NOTES DUE JULY 1, 2027




INDENTURE




DATED AS OF JUNE [•], 2007




 









 







CROSS-REFERENCE TABLE*




	 	 	 	 	 
	TIA Indenture Section	 	Section
	Section 310
	 	(a)(1)	 	9.09
	 
	 	(a)(2)	 	9.09
	 
	 	(a)(3)	 	N.A.**
	 
	 	(a)(4)	 	N.A.
	 
	 	(a)(5)	 	9.09
	 
	 	(b)	 	9.08; 9.10
	 
	 	(c)	 	N.A.
	Section 311
	 	(a)	 	9.13
	 
	 	(b)	 	9.13
	 
	 	(c)	 	N.A.
	Section 312
	 	(a)	 	2.05
	 
	 	(b)	 	12.03
	 
	 	(c)	 	12.03
	Section 313
	 	(a)	 	9.15
	 
	 	(b)(1)	 	N.A.
	 
	 	(b)(2)	 	9.15
	 
	 	(c)	 	9.15; 12.02
	 
	 	(d)	 	9.15
	Section 314
	 	(a)	 	6.02; 6.03
	 
	 	(b)	 	N.A.
	 
	 	(c)(1)	 	12.04(a)
	 
	 	(c)(2)	 	12.04(a)
	 
	 	(c)(3)	 	N.A.
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	12.04(b)
	 
	 	(f)	 	N.A.
	Section 315
	 	(a)	 	9.01(a); 9.01(b)(i)
	 
	 	(b)	 	9.14; 12.02
	 
	 	(c)	 	9.01(a)
	 
	 	(d)	 	9.01(c)
	 
	 	(e)	 	8.11
	Section 316
	 	(a) (last sentence)	 	2.09
	 
	 	(a)(1)(A)	 	8.05
	 
	 	(a)(1)(B)	 	8.04
	 
	 	(a)(2)	 	N.A.
	 
	 	(b)	 	8.07
	 
	 	(c)	 	12.05
	Section 317
	 	(a)(1)	 	8.08; 12.01
	 
	 	(a)(2)	 	8.09; 12.01
	 
	 	(b)	 	2.04; 12.01
	Section 318
	 	(a)	 	12.01
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	12.01








 




			
	*	 	Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.

	 
	**	 	N.A. means Not Applicable.




 









 









TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 	 	 	 	 
	 	 	 	 
	Section 1.01	 	Definitions.
	 	 	1	 
	Section 1.02	 	Trust Indenture Act Provisions
	 	 	8	 
	Section 1.03	 	Rules of Construction
	 	 	8	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 2 THE SECURITIES	 	 	9	 
	 	 	 	 	 
	 	 	 	 
	Section 2.01	 	Form and Dating
	 	 	9	 
	Section 2.02	 	Execution and Authentication
	 	 	10	 
	Section 2.03	 	Registrar, Paying Agent and Conversion Agent
	 	 	11	 
	Section 2.04	 	Paying Agent to Hold Money and Securities in Trust
	 	 	12	 
	Section 2.05	 	Securityholder Lists
	 	 	12	 
	Section 2.06	 	Transfer and Exchange
	 	 	12	 
	Section 2.07	 	Replacement Securities
	 	 	13	 
	Section 2.08	 	Outstanding Securities
	 	 	14	 
	Section 2.09	 	Treasury Securities
	 	 	14	 
	Section 2.10	 	Temporary Securities
	 	 	15	 
	Section 2.11	 	Cancellation
	 	 	15	 
	Section 2.12	 	Additional Transfer and Exchange Requirements
	 	 	15	 
	Section 2.13	 	CUSIP Numbers
	 	 	17	 
	Section 2.14	 	Defaulted Interest
	 	 	17	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 3 REPURCHASE OF SECURITIES; REDEMPTION	 	 	18	 
	 	 	 	 	 
	 	 	 	 
	Section 3.01	 	Repurchase of Securities upon a Fundamental Change
	 	 	18	 
	Section 3.02	 	Effect of Fundamental Change Purchase Notice
	 	 	23	 
	Section 3.03	 	Deposit of Fundamental Change Purchase Price
	 	 	24	 
	Section 3.04	 	Securities Purchased in Part
	 	 	24	 
	Section 3.05	 	Repayment to the Company
	 	 	24	 
	Section 3.06	 	Compliance with Securities Laws upon Purchase of Securities
	 	 	24	 
	Section 3.07	 	Optional Redemption
	 	 	24	 
	Section 3.08	 	Notices to Trustee of Redemption
	 	 	25	 
	Section 3.09	 	Selection of Securities to Be Redeemed
	 	 	25	 
	Section 3.10	 	Notice of Redemption
	 	 	25	 
	Section 3.11	 	Effect of Notice of Redemption
	 	 	26	 
	Section 3.12	 	Deposit of Redemption Price
	 	 	26	 
	Section 3.13	 	Securities Redeemed in Part
	 	 	26	 
	Section 3.14	 	Repurchase of Securities on Specified Dates
	 	 	27	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 4 [RESERVED]	 	 	28	 
	 	 	 	 	 
	 	 	 	 






i









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 5 CONVERSION	 	 	29	 
	 	 	 	 	 
	 	 	 	 
	Section 5.01	 	Conversion Privilege
	 	 	29	 
	Section 5.02	 	Conversion Rate
	 	 	32	 
	Section 5.03	 	Increase of Conversion Rate upon a Fundamental Change
	 	 	32	 
	Section 5.04	 	Conversion Procedure
	 	 	33	 
	Section 5.05	 	Taxes on Conversion
	 	 	34	 
	Section 5.06	 	Company to Provide Stock
	 	 	35	 
	Section 5.07	 	Adjustment of Conversion Rate
	 	 	35	 
	Section 5.08	 	No Adjustment
	 	 	41	 
	Section 5.09	 	Stockholder Rights Plans
	 	 	41	 
	Section 5.10	 	Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege
	 	 	42	 
	Section 5.11	 	Other Adjustments
	 	 	42	 
	Section 5.12	 	Notice of Adjustment
	 	 	43	 
	Section 5.13	 	Trustee’s Disclaimer
	 	 	43	 
	Section 5.14	 	Payment Upon Conversion
	 	 	43	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 6 COVENANTS	 	 	44	 
	 	 	 	 	 
	 	 	 	 
	Section 6.01	 	Payment of Securities
	 	 	44	 
	Section 6.02	 	Reports and Certain Information
	 	 	45	 
	Section 6.03	 	Compliance Certificates
	 	 	45	 
	Section 6.04	 	Maintenance of Corporate Existence
	 	 	45	 
	Section 6.05	 	Stay, Extension and Usury Laws
	 	 	46	 
	Section 6.06	 	Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion Agent
	 	 	46	 
	Section 6.07	 	Notice of Default
	 	 	46	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	46	 
	 	 	 	 	 
	 	 	 	 
	Section 7.01	 	Company
May Consolidate, etc., Only on Certain Terms
	 	 	46	 
	Section 7.02	 	Successor Substituted
	 	 	47	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 8 DEFAULT AND REMEDIES	 	 	47	 
	 	 	 	 	 
	 	 	 	 
	Section 8.01	 	Events of Default
	 	 	47	 
	Section 8.02	 	Acceleration
	 	 	49	 
	Section 8.03	 	Other Remedies
	 	 	50	 
	Section 8.04	 	Waiver of Defaults and Events of Default
	 	 	50	 
	Section 8.05	 	Control by Majority
	 	 	50	 
	Section 8.06	 	Limitations on Suits
	 	 	51	 
	Section 8.07	 	Rights of Holders to Receive Payment and to Convert
	 	 	51	 
	Section 8.08	 	Collection Suit by Trustee
	 	 	51	 
	Section 8.09	 	Trustee May File Proofs of Claim
	 	 	51	 






ii









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	Section 8.10	 	Priorities
	 	 	52	 
	Section 8.11	 	Undertaking for Costs
	 	 	52	 
	Section 8.12	 	Delay or Omission Not Waiver
	 	 	53	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 9 TRUSTEE	 	 	53	 
	 	 	 	 	 
	 	 	 	 
	Section 9.01	 	Certain Duties and Responsibilities of Trustee
	 	 	53	 
	Section 9.02	 	Certain Rights of Trustee
	 	 	54	 
	Section 9.03	 	Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	56	 
	Section 9.04	 	May Hold Securities
	 	 	56	 
	Section 9.05	 	Moneys Held in Trust
	 	 	56	 
	Section 9.06	 	Compensation and Reimbursement
	 	 	57	 
	Section 9.07	 	Reliance on Officers’ Certificate
	 	 	57	 
	Section 9.08	 	Disqualification: Conflicting Interests
	 	 	58	 
	Section 9.09	 	Corporate Trustee Required; Eligibility
	 	 	58	 
	Section 9.10	 	Resignation and Removal; Appointment of Successor
	 	 	58	 
	Section 9.11	 	Acceptance of Appointment By Successor
	 	 	60	 
	Section 9.12	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	60	 
	Section 9.13	 	Preferential Collection of Claims Against the Company
	 	 	61	 
	Section 9.14	 	Notice of Defaults
	 	 	61	 
	Section 9.15	 	Reports by Trustee
	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 10 AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	Section 10.01	 	Without Consent of Holders
	 	 	61	 
	Section 10.02	 	With Consent of Holders
	 	 	62	 
	Section 10.03	 	Compliance with Trust Indenture Act
	 	 	64	 
	Section 10.04	 	Revocation and Effect of Consents
	 	 	64	 
	Section 10.05	 	Notation on or Exchange of Securities
	 	 	64	 
	Section 10.06	 	Trustee to Sign Amendments, Etc
	 	 	64	 
	Section 10.07	 	Effect of Supplemental Indentures
	 	 	64	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 11 SATISFACTION AND DISCHARGE	 	 	65	 
	 	 	 	 	 
	 	 	 	 
	Section 11.01	 	Satisfaction and Discharge of the Indenture
	 	 	65	 
	Section 11.02	 	Repayment to the Company
	 	 	65	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE 12 MISCELLANEOUS	 	 	66	 
	 	 	 	 	 
	 	 	 	 
	Section 12.01	 	Trust Indenture Act Controls
	 	 	66	 
	Section 12.02	 	Notices
	 	 	66	 
	Section 12.03	 	Communications by Holders with Other Holders
	 	 	67	 
	Section 12.04	 	Certificate and Opinion as to Conditions Precedent
	 	 	67	 
	Section 12.05	 	Record Date for Vote or Consent of Securityholders
	 	 	67	 
	Section 12.06	 	Rules by Trustee, Paying Agent, Registrar and Conversion Agent
	 	 	68	 
	Section 12.07	 	Legal Holidays
	 	 	68	 
	Section 12.08	 	Governing Law; Jury Trial Waiver
	 	 	68	 
	Section 12.09	 	No Adverse Interpretation of Other Agreements
	 	 	68	 






iii









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	Section 12.10	 	No Recourse Against Others
	 	 	68	 
	Section 12.11	 	Successors
	 	 	69	 
	Section 12.12	 	Multiple Counterparts
	 	 	69	 
	Section 12.13	 	Separability
	 	 	69	 
	Section 12.14	 	Calculations in Respect of the Securities
	 	 	69	 
	Section 12.15	 	Table of Contents, Headings, Etc
	 	 	69	 






	 	 	 
	Exhibit A

	 	Form of Note:
	 

	 	— Assignment Form
	 

	 	— Form of Repurchase Notice
	 

	 	— Form of Conversion Notice
	 

	 	— Form of Fundamental Change Purchase Notice
	 
	 	 
	Exhibit B

	 	Table showing the Increase in Conversion Rate in connection with a Make-Whole Fundamental Change






iv









 





     THIS INDENTURE, dated as of June [•], 2007, is between BLACKBOARD INC., a Delaware corporation
(the “Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (in
such capacity and not in its individual capacity, the “Trustee”).



     In consideration of the premises and the purchase of the Securities by the Holders thereof,
the parties hereto agree as follows for the equal and ratable benefit of the Holders of the
Securities.



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



     “Additional Interest” has the meaning specified in Section 8.01.



     “Additional Securities” has the meaning specified in Section 2.02(d).



     “Additional Shares” has the meaning specified in Section 5.03.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.



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



     “Agent Members” has the meaning specified in Section 2.01(b).



     “Applicable Conversion Price” means, at any time, an amount equal to $1,000 divided by the
Applicable Conversion Rate in effect at such time, rounded to the nearest cent.



     “Applicable Conversion Rate” has the meaning specified in Section 5.02.



     “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, in each case
to the extent applicable to such transfer or exchange.



     “Applicable Stock Price” is equal to the average of the Closing Sale Prices of the Company’s
Common Stock over the Cash Settlement Averaging Period.



     “Bankruptcy Law” has the meaning specified in Section 8.01.



     “Base Conversion Rate” per $1,000 principal amount of Securities is [•], subject to adjustment
as set forth in Section 5.03 and Section 5.07 hereof.



 









 





     “Base Conversion Price” is a dollar amount (initially $[•]) derived by dividing $1,000 by the
Base Conversion Rate.



     “beneficial owner” has the meaning specified in Section 3.01(a).



     “Board of Directors” means the board of directors of the Company or, except as used in the
definition of Fundamental Change and except where the context otherwise requires, any duly
authorized committee of such board of directors.



     “Business Combination” has the meaning specified in Section 5.01.



     “Business Day” means any day, except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York, New York or the city in which the Corporate Trust Office is
located are authorized or obligated by law or executive order to close.



     “capital stock” has the meaning specified in Section 3.01(a).



     “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.



     “Cash Settlement Averaging Period” has the meaning specified in Section 5.14.



     “Close of Business” means 5:00 p.m. New York City time.



     “Closing Sale Price” means, on any Trading Day, the reported last sale price per share of the
Common Stock (or, if no last sale price is reported, the average of the bid and ask prices per
share at 4:00 p.m. New York City time 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 Nasdaq or, if the Common
Stock is not quoted or listed for trading on Nasdaq, as reported by the principal national or
regional securities exchange on which the Common Stock is listed or otherwise as provided in this
Indenture.



     “Common Stock” means, subject to Section 5.10, shares of common stock of the Company, par
value $0.01 per share, at the date of this Indenture or shares of any class or classes resulting
from any reclassification or reclassifications thereof and that 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 that are not subject to redemption by the Company;
provided that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable upon conversion 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 Company.



     “Company Notice” has the meaning specified in Section 3.14.



2









 





     “Company Notice Date” has the meaning specified in Section 3.14.



     “Company Order” has the meaning specified in Section 2.02(d).



     “Conversion Agent” has the meaning specified in Section 2.03.



     “Conversion Date” has the meaning specified in Section 5.04(a).



     “Conversion Notice” has the meaning specified in Section 5.04(a).



     “Corporate Trust Office” means the office of the Trustee at which at any time the trust
created by this Indenture shall be principally administered, which office at the date of the
execution of this Indenture is located at One Federal Street, 3rd Floor, Boston, MA
02110, Attention: Corporate Trust Services, or such other office as the Trustee may designate by
written notice to the Company.



     “Custodian” has the meaning specified in Section 8.01.



     “Daily Conversion Value” has the meaning specified in Section 5.14.



     “Daily Settlement Amount” has the meaning specified in Section 5.14.



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



     “Depositary” has the meaning specified in Section 2.01(b).



     “Distributed Property” has the meaning specified in Section 5.07(c).



     “Effective Date” has the meaning specified in Section 5.03(b).



     “Event of Default” has the meaning specified in Section 8.01.



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



     “Ex Date” means (i) when used with respect to any dividend or distribution, the first date on
which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from
which the sale price was obtained without the right to receive such dividend or distribution; and
(ii) when used with respect to any tender offer or exchange offer, the first date on which the
Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the
sale price was obtained after the expiration time.



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



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



3









 





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



     “Fundamental Change Purchase Notice” has the meaning specified in Section 3.01(c).



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



     “GAAP” means generally accepted accounting principles in the United States as set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a
significant segment of the accounting profession in the United States, which are in effect from
time to time and consistently applied.



     “Global Security” means a permanent Global Security that is in substantially the form attached
hereto as Exhibit A and that includes the information and schedule called for by footnotes 1 and 2
thereof and which is deposited with the Depositary or its custodian and registered in the name of
the Depositary or its nominee.



     “Holder” or “Securityholder” means the person in whose name a Security is registered in the
Register.



     “Incremental Share Factor” is [•], subject to the same proportional adjustments as the Base
Conversion Rate.



     “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 explicitly incorporated in
this Indenture by reference to the TIA.



     “Initial Securities” means the Securities issued on the date hereof in the aggregate principal
amount of $150,000,000, and any Securities issued in replacement thereof.



     “Interest Payment Date” has the meaning set forth in the Securities.



     “Interest Payment Record Date” has the meaning set forth in the Securities.



     “Legal Holiday” has the meaning specified in Section 12.07.



     “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change pursuant to clauses (i), (ii) and (iii) under the definition of Fundamental Change specified
in Section 3.01(a), after giving effect to all exceptions and exclusions to such definition.



     “Market Disruption Event” means (a) a failure by the primary exchange or quotation system on
which the Common Stock trades or is quoted to open for trading during its regular trading session
or (b) the occurrence or existence on any Trading Day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Stock or in any options,



4









 






contracts or future contracts relating to the Common Stock for an aggregate period in excess
of one half hour.



     “Maturity Date” means July 1, 2027.



     “Merger Event” has the meaning specified in Section 5.10.



     “Nasdaq” means the Nasdaq Stock Market.



     “Notice of Default” has the meaning specified in Section 8.01.



     “NYSE” means the New York Stock Exchange.



     “Officer” means, with respect to any Person, the Chairman or any Co-Chairman of the Board, any
Vice Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer, the Chief
Legal Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of such Person.



     “Officers’ Certificate” means a certificate signed by at least two Officers of the Company;
provided, however, that for purposes of Section 5.12 and Section 6.03, “Officers’ Certificate”
means a certificate signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company and at least one other Officer of the Company.



     “Opening of Business” means 9:00 a.m. New York City time.



     “Opinion of Counsel” means a written opinion from legal counsel containing, as applicable, the
information specified in Section 12.04. The counsel may be an employee of or counsel to the
Company who is reasonably satisfactory to the Trustee.



     “Paying Agent” has the meaning specified in Section 2.03.



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



     “Principal Amount” of a Security means the Principal Amount as set forth on the face of the
Security.



     “Prospectus” means the Prospectus Supplement dated June [•], 2007.



     “Record Date” means (i) with respect to any payment of interest on the Securities, each June
15 and December 15 (whether or not a Business Day) and (ii) with respect to the events specified in
Section 5.07, the meaning specified in Section 5.07(f).



     “Redemption Date” has the meanings specified in Section 3.07.



     “Redemption Price” has the meanings specified in Section 3.07.



5









 





     “Reference Property” has the meaning specified in Section 5.10.



     “Register” has the meaning specified in Section 2.03.



     “Registrar” has the meaning specified in Section 2.03.



     “Repurchase Date” has the meaning specified in Section 3.14.



     “Repurchase Price” has the meaning specified in Section 3.14.



     “Repurchase Right” has the meaning specified in Section 3.14.



     “Responsible Officer”, when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.



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



     “Security” or “Securities” means the Company’s [•]% Convertible Senior Notes due 2027, as
amended or supplemented from time to time pursuant to the terms of this Indenture, that are issued
under this Indenture.



     “Securities Act” means the United States 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 Global Securities,
or any successor thereto.



     “Settlement Amount” has the meaning specified in Section 5.14.



     “Significant Subsidiary” means any Subsidiary of the Company which has: (i) consolidated
assets or in which the Company and its other Subsidiaries have investments equal to or greater than
10% of the Company’s total consolidated assets; or (ii) consolidated gross revenue equal to or
greater than 10% of the Company’s consolidated gross revenue, measured as at the end of the
Company’s most recently completed fiscal year in the case of consolidated assets or investments or
for the most recently completed fiscal year in case of consolidated gross revenue.



     “Specified Indebtedness” has the meaning specified in Section 8.01(f).



     “Spin-Off” has the meaning specified in Section 5.07(c).



     “Spin-Off Securities” has the meaning specified in Section 5.07(c).



6









 





     “Stock Price” has the meaning specified in Section 5.03(b).



     “Subsidiary” means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than 50% of the outstanding voting stock (as defined in Section
3.01) or other interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers, general partners or
trustees thereof, or persons performing similar functions, is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such
Person; or (iii) one or more Subsidiaries of such Person.



     “TIA” means the United States Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, then “TIA” means, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.



     “Trading Day” means a day during which (i) trading in the Common Stock generally occurs and
(ii) there is no Market Disruption Event.



     “Trading Price” on any date of determination means the average of the secondary market bid
quotations per $1,000 principal amount of Securities obtained by the Trustee for $1,000,000
principal amount of the notes at approximately 3:30 p.m., New York City time, on such determination
date from three independent nationally recognized securities dealers the Company selects, provided
that if at least three such bids cannot reasonably be obtained by the Trustee, but two such bids
can reasonably be obtained by the Trustee, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained by the Trustee, this one bid shall be used. If the
Trustee cannot reasonably obtain at least one bid for $1,000,000 principal amount of the Securities
from a nationally recognized securities dealer or, in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the notes, then the Trading
Price of the notes will be deemed to be less than 95% of the product of (a) the Applicable
Conversion Rate of the Securities as of the determination date multiplied by (b) the Closing Sale
Price of the Company’s Common Stock on such determination date. The Trustee will determine the
Trading Price of the Securities unless the Company appoints a different bid solicitation agent, who
shall not be the Company’s affiliate.



     “Trust Officer” means, with respect to the Trustee, any officer within the Corporate Trust
Services department (or any successor department) of the Trustee located at the Corporate Trust
Office of the Trustee, who shall have direct responsibility for the administration of this
Indenture, and also means, with respect to any particular corporate trust matter, any other officer
of the Trustee to whom such corporate trust matter is referred because of such officer’s knowledge
of and familiarity with the particular subject.



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     “Trustee” means U.S. Bank National Association, not in its individual capacity, but solely in
its capacity as trustee hereunder, until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor Trustee.



     “Underwriters” means Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc.



     “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” has the meaning specified in Section 3.01(a).



     Section 1.02 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. The Indenture
shall also include those provisions of the TIA required to be included herein by the provisions of
the TIA. The following TIA terms used in this Indenture have the following meanings:



     “Commission” means the SEC;




     “indenture securities” means the Securities;




     “indenture security Holder” means a Securityholder;




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




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



     Section 1.03 Rules of Construction. Unless the context otherwise requires:




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




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




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




     (d) provisions apply to successive events and transactions;




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



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




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




     (h) references to “interest” include Additional Interest;




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




     (j) unless context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or Section, as the case may be, of this Indenture;




     (k) “or” is not exclusive; and




     (l) “including” means including without limitation.



ARTICLE 2

THE SECURITIES




     Section 2.01 Form and Dating. The Securities and the corresponding Trustee’s certificate of authentication
shall be substantially in the respective forms set forth in Exhibit A, which Exhibit A is
incorporated in and made part of this Indenture. The Securities may have notations, legends or
endorsements required by law, exchange rule, Applicable Procedures 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 terms and provisions contained in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby;
provided, however, to the extent permitted by applicable law, if any provision of any Security
conflicts with the express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.




     (a) 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 exchanges, purchases or
conversions of such Securities, in each case in accordance with this Indenture. 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 this Section 2.12, or otherwise in accordance with this Indenture, and shall be
made on the records of the Trustee and the Depositary.



9









 





     The Company shall issue and the Trustee shall, upon receipt of a Company Order, authenticate
and deliver in accordance with Section 2.02, initially one or more Global Securities that (i) shall
be registered in the name of Cede & Co. or as otherwise instructed by the Depositary, (ii) shall be
delivered by the Trustee to the Depositary or to the Securities Custodian pursuant to the
Depositary’s instructions and (iii) shall bear legends required for Global Securities as set forth
in Exhibit A hereto.




     (b) Book Entry Provisions. No members of, or participants in, the Depositary
(“Agent Members”) nor any owner of a beneficial interest in the Securities shall have any
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 (A) 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 (B) impair, as between the Depositary and its Agent Members, the
Applicable Procedures or the operation of customary practices governing the exercise of the
rights of a Holder of any Security.



     None of the Company, the Trustee, the Registrar, any Paying Agent or any agent of any of them
shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in the Securities, for maintaining, supervising
or reviewing any records relating to such beneficial owner interests, or for any acts or omissions
of a Depositary or for any transactions between a Depositary and any beneficial owner or between or
among beneficial owners.




     (c)
Certificated Securities. Certificated Securities shall be issued only under the
circumstances provided in Section 2.12(a)(ii).



     Section 2.02 Execution and Authentication. (a) A duly authorized Officer of the Company shall sign the
Securities for the Company by manual or facsimile signature.




     (b) If an Officer of the Company 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.




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




     (d) The Trustee shall initially authenticate and make available for delivery Securities
for original issue in the aggregate principal amount of up to $150,000,000 upon receipt of a
written order or orders of the Company signed by an Officer of the Company (a “Company
Order”). The Company may, without the consent of the Holders, issue additional Securities
(the “Additional Securities”) with the same terms and with the same CUSIP number as the
Securities in an unlimited aggregate principal



10









 






amount; provided, however that no such Additional Securities may be issued unless
fungible with the notes offered hereby for U.S. federal income tax purposes. The Trustee
shall authenticate Additional Securities thereafter in unlimited aggregate principal amount
(so long as permitted by the terms of this Indenture) for original issue upon a Company
Order of the Company in aggregate principal amount as specified in such order. Each such
Company Order shall specify the amount of Securities to be authenticated and the date on
which the Securities are to be authenticated. Such Additional Securities shall have terms
identical to the Initial Securities except for issuance dates and prices and with respect to
interest accruing prior to their date of issuance, and will constitute the same series as
the Initial Securities for all purposes hereunder, including, without limitation, waivers,
amendments and offers to purchase.




     (e) 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.



     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. The Company shall maintain an office or agency
where Securities may be presented for registration of transfer or for exchange (“Registrar”), an
office or agency in the United States where Securities may be presented for purchase or payment
(“Paying Agent”), an office or agency where Securities may be presented for conversion (“Conversion
Agent”), 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. The Registrar shall keep a register of the Securities
(“Register”) and of their transfer and exchange.



     The Company may have one or more co-registrars, one or more additional paying agents, and one
or more additional conversion agents. The term “Registrar” includes any co-registrar, including
any named pursuant to Section 6.06. The term “Paying Agent” includes any additional paying agent,
including any named pursuant to Section 6.06. The term “Conversion Agent” includes any additional
conversion agent, including any named pursuant to Section 6.06.



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



     The Company hereby initially appoints the Trustee as Registrar, Paying Agent and Conversion
Agent in connection with the Securities.




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     Section 2.04 Paying Agent to Hold Money and Securities in Trust. Prior to 11:00 a.m.,
New York City time, on each due date of payments in respect of Securities, or delivery
of Cash or shares of Common Stock, as applicable and as provided herein, the Company
shall deposit with the Paying Agent Cash (in immediately available funds if deposited
on the due date) or with the Conversion Agent such number of shares of Common Stock or
other consideration sufficient to make such payments or deliveries when so becoming
due. The Company shall require each Paying Agent or Conversion Agent, as applicable
(other than the Trustee), to agree in writing that such Agent shall hold in trust for
the benefit of Securityholders or the Trustee all Cash, Common Stock or other
consideration, as applicable, held by such Agent for the making of payments or
deliveries in respect of the Securities and shall notify the Trustee in writing of any
default by the Company in making any such payment or delivery. If the Company or an
Affiliate of the Company acts as Paying Agent or Conversion Agent, as applicable, it
shall segregate the Cash, Common Stock and other consideration, as applicable, held by
it as Paying Agent or Conversion Agent, as applicable, and hold it as a separate trust
fund.



     The Company at any time may require a Paying Agent or Conversion Agent, as applicable, to pay
all Cash, Common Stock or other consideration, as applicable, held by it to the Trustee, and the
Trustee may at any time during the continuance of any Default, upon written request to the Paying
Agent or the Conversion Agent, as applicable, require such Paying Agent or Conversion Agent, as
applicable, to pay forthwith to the Trustee all Cash, Common Stock or other consideration, as
applicable, so held in trust by such Paying Agent or Conversion Agent. Upon doing so, the Paying
Agent or the Conversion Agent, as applicable, shall have no further liability for such Cash, Common
Stock or other consideration, as applicable.



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



     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, if such Security is a Certificated Security, be duly endorsed or
accompanied by an assignment form, in the form included in Exhibit A attached hereto
and, if applicable, a transfer certificate, in the form included in Exhibit A attached
hereto, and in form reasonably satisfactory to the Registrar 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, upon receipt of a
Company Order, 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, assessment or other governmental charge that may be imposed in relation
thereto, other than exchanges



12









 






pursuant to Section 2.10, Section 10.05, Article 3 or
Article 5, in each case, not involving any transfer.



     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 Purchase
Notice has been delivered and not validly withdrawn by the Holder thereof (except, in the case of
the purchase of a Security in part, the portion thereof not to be purchased).



     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.




     (b) Any Registrar appointed pursuant to Section 2.03 or Section 6.06 hereof shall
provide to the Trustee such information as the Trustee may reasonably request in connection
with the delivery by such Registrar of Securities upon transfer or exchange of Securities.



     Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only through a book-entry
system maintained by the Depositary (or its agent), and that ownership of a beneficial interest in
a Global Security shall be required to be reflected in a book-entry system.



     Section 2.07 Replacement Securities. If (a) any mutilated security is surrendered to the
Company, a Registrar or the Trustee, or (b) the Company, the Registrar and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and, in either case, there is delivered to the Company, the Registrar and the
Trustee such security or indemnity as shall be reasonably 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 or protected purchaser, the
Company shall issue, and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), 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.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or purchased by the Company pursuant to Article 3, the Company in its
discretion may, instead of issuing a new Security, pay or purchase such Security, as the case may
be, in accordance herewith.



     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, assessment 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.



     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



13









 






enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued and outstanding hereunder.



     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. Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those paid or
repurchased pursuant to Section 2.07, those delivered to it for cancellation and those
described in this Section 2.08 as not outstanding.



     If a Security is replaced pursuant to Section 2.07 (other than a mutilated Security
surrendered for replacement), it ceases to be outstanding unless the Trustee receives, subsequent
to the new Security’s authentication, proof satisfactory to the Company that the replaced Security
is held by a bona fide or protected purchaser. A mutilated Security ceases to be outstanding upon
surrender and replacement thereof pursuant to Section 2.07.



     If the Paying Agent holds, in accordance with the terms of this Indenture, prior to 11:00
a.m., New York City time, on the Maturity Date or on a Fundamental Change Purchase Date, as the
case may be, Cash sufficient to pay all Initial Securities and all Additional Securities then
payable, then on and after such Maturity Date or Fundamental Change Purchase Date, as the case may
be, such Securities shall cease to be outstanding and interest on such Securities shall cease to
accrue.



     If a Security is converted in accordance with Article 5, then on the Conversion Date, such
Security shall cease to be outstanding and interest on such Security shall cease to accrue, unless
there shall be a default in the delivery of the consideration payable hereunder upon such
conversion.



     Subject to the restrictions contained in Section 2.09, a Security does not cease to be
outstanding solely 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 given or concurred in any notice, request, demand,
authorization, 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 and deemed not to be outstanding for such purposes, except
that, for purposes of determining whether the Trustee shall be protected in relying on
any such notice, request, demand, authorization, direction, waiver or consent, only
Securities which a Trust Officer 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, and is not acting on the behalf of, the
Company or any other obligor on the Securities or any Affiliate of the Company or of
such other obligor. If requested by the Trustee, the Company agrees to notify the
Trustee in writing of the existence of any such Treasury Securities or Securities
owned



14









 






by the Company, any other obligor on the Securities, or, to the knowledge of
the Company, any Affiliate of the Company.



     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 reasonably considers appropriate for temporary Securities. After the
preparation of definitive Securities, the temporary Securities shall be exchangeable
for definitive Securities upon surrender of the temporary Securities at the office or
agency of the Company designated for such purpose pursuant to Section 2.03, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall, upon receipt of a Company
Order (which the Company agrees to deliver promptly), authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.



     Section 2.11 Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent shall
forward to the Trustee any Securities surrendered to them for transfer, exchange,
payment or conversion. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment, conversion or cancellation in accordance with its
customary procedures. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article 5.



     Section 2.12 Additional Transfer and Exchange Requirements. (a) (i) All Securities that are
purchased pursuant to Article 3 or otherwise acquired by the Company shall be delivered
to the Trustee for cancellation. If the Company shall acquire any of the Securities,
such acquisition shall not operate as a repurchase or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.



          (ii) Certificated Securities shall be issued in exchange for interests in the Global
Securities only (x) if the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Securities or if it at any time ceases to be a “clearing
agency” registered under the Exchange Act, if so required by applicable law or regulation, and a
successor Depositary is not appointed by the Company within 90 days of such notice or (y) if an
Event of Default has occurred and is continuing. In any such case, the Company shall execute, and
the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver Certificated Securities in an
aggregate principal amount equal to the principal amount of such Global Securities in exchange
therefor. Certificated Securities issued in exchange for beneficial interests in Global Securities
shall be registered in such names and shall be in such authorized denominations as the Depositary,
pursuant to instructions from its Agent Members or otherwise in accordance with the Applicable
Procedures, shall instruct the Trustee. The Trustee shall deliver or cause to be delivered such
Certificated Securities to the Persons in whose name such Securities are so registered. Such
exchange shall be effected in accordance with the Applicable Procedures. In the event that the
Certificated Securities are not issued to each such beneficial owner promptly



15









 




after the Registrar
has received a request from the Depositary to issue such Certificated Securities, the Company
expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to
Section 8.06 or 8.07 hereof, the right of any beneficial holder of Securities to pursue such remedy
with respect to the portion of the Global Security that represents such Beneficial Owner’s
Securities as if such Certificated Securities had been issued.




          (iii) Notwithstanding any other provisions of this Indenture other than the provisions set
forth in Section 2.12(a)(ii), a Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.





     (b) Transfer and Exchange of Certificated Securities. In the event that
Certificated Securities are issued in exchange for beneficial interests in Global Securities
in accordance with Section 2.12(a)(ii), and, on or after such event, Certificated Securities
are presented by a Holder to the Registrar with a request:




     (x) to register the transfer of the Certificated Securities to a person who shall take
delivery thereof in the form of Certificated Securities only; or




     (y) to exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,


such Registrar shall register the transfer or make the exchange as requested; provided, however,
that the Certificated Securities presented or surrendered for register of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the
proviso to the first sentence of Section 2.06(a).





     (c) Transfers of Certificated Securities for Beneficial Interest in Global
Securities. In the event that Certificated Securities are issued in exchange for
beneficial interests in Global Securities and, thereafter, the events or conditions
specified in Section 2.12(a)(ii) which required such exchange shall cease to exist, the
Company shall mail notice to the Trustee and to the Holders stating that Holders may
exchange Certificated Securities for interests in Global Securities by complying with the
procedures set forth in this Indenture and (ii) briefly describing such procedures and the
events or circumstances requiring that such notice be given. Thereafter, if Certificated
Securities are presented by a Holder to a Registrar with a request:




     (x) to register the transfer of such Certificated Securities to a Person who will take
delivery thereof in the form of a beneficial interest in a Global Security; or




     (y) to exchange such Certificated Securities for an equal principal amount of
beneficial interests in a Global Security, which beneficial interests will be owned by the
Holder transferring such Certificated Securities,


the Registrar shall register the transfer or make the exchange as requested by canceling such
Certificated Security and causing the aggregate principal amount of the applicable Global Security
to be increased accordingly and, if no such Global Security is then outstanding, the


16









 





Company shall
issue and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver
promptly) authenticate and deliver a new Global Security; provided, however, that the Certificated
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instrument of transfer in accordance with the proviso to the first
sentence of Section 2.06(a).




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



     Section 2.14 Defaulted Interest. If the Company defaults on a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent permitted by law)
any interest payable on the defaulted interest, in accordance with the terms hereof, to
the Persons who are Holders on a subsequent special record date, which date shall be at
least five Business Days prior to the payment date. The Company shall fix such special
record date and payment date in a reasonable manner. At least 10 days before such
special record date, the Company shall mail to each Holder a notice that states the
special record date, the payment date and the amount of defaulted interest, and
interest payable on defaulted interest, if any, to be paid. The Company may make
payment of any defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Securities may be
listed and, upon such notice as may be required by such exchange.




17









 






ARTICLE 3

REPURCHASE OF SECURITIES; REDEMPTION




     Section 3.01 Repurchase of Securities upon a Fundamental Change. (a) In the event a
Fundamental Change shall occur at any time when any Securities remain outstanding, each
Holder shall have the right, at such Holder’s option, to require the Company to
purchase all of such Holders’ Securities or any portion of the principal amount thereof
that is equal to $1,000 or an integral multiple thereof on a date specified by the
Company (the “Fundamental Change Purchase Date”) that is not less than 15 nor more than
45 Business Days after the date the Company mails the Fundamental Change Company Notice
pursuant to Section 3.01(b), at a purchase price in Cash equal to 100% of the principal
amount of the Securities tendered for purchase, plus accrued and unpaid interest, if any, to, but not including, the Fundamental Change
Purchase Date (the “Fundamental Change Purchase Price”) (unless the Fundamental Change
Purchase Date is between an Interest Payment Record Date and the following Interest
Payment Date, in which case the Company will pay any accrued interest to the Holder of
record on the Interest Payment
Record Date), subject to satisfaction by or on behalf of any Holder of the
requirements set forth in Section 3.01(c).



     A “Fundamental Change” shall be deemed to have occurred upon the occurrence of any of the
following:




	 	(i)	 	any “person” or “group” (other than the Company
or its employee benefit plans) becomes the “beneficial owner,” directly
or indirectly, of shares of the Company’s voting stock representing 50%
or more of the total voting power of all outstanding classes of the
Company’s voting stock or has the power, directly or indirectly, to
elect a majority of the members of the board of directors of the
Company;
	 
	 	(ii)	 	the Company consolidates with, or merges with
or into, another Person or, in a single transaction or a series of
transactions, the Company sells, assigns, conveys, transfers, leases or
otherwise




18









 





	 	 	 	disposes of all or substantially all of the Company’s assets,
or any Person consolidates with, or merges with or into, the Company,
provided, however, that for purposes of this clause (ii) the following
transactions will be deemed not to be a Fundamental Change:






	 	(1)	 	any transaction (A) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the Company’s
capital stock or (B) pursuant to which holders of the Company’s capital stock
immediately prior to the transaction are entitled to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of capital
stock entitled to vote generally in the election of directors of the continuing
or surviving person immediately after the transaction; or
	 
	 	(2)	 	any merger, share exchange, transfer of assets or similar transaction
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.






	 	(iii)	 	the Common Stock into which the Securities are
then convertible ceases to be listed on the NYSE, Nasdaq or another
national securities exchange and is not then quoted on an established
automated over-the-counter trading market in the United States;
	 
	 	(iv)	 	during any period of two consecutive years,
individuals who at the beginning of such period constituted the
Company’s Board of Directors (together with any new directors whose
election to such Board of Directors or whose nomination for election by
the Company’s shareholders was approved by a vote of at least a
majority of the Company’s 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; or
	 
	 	(v)	 	the Company’s stockholders approve any plan or
proposal for the Company’s liquidation or dissolution.





     Notwithstanding anything to the contrary set forth in this Indenture, a Fundamental Change or
Make-Whole Fundamental Change shall be deemed not to have occurred in the case of a merger or
consolidation, if at least 90% of the consideration (excluding Cash payments for fractional shares
and Cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation consists
of common stock (or depositary shares or receipts in respect thereof) of a company traded on a
national securities exchange or quoted on the Nasdaq Global Market or Nasdaq Global Select Market
(or which shall be so traded or quoted when issued or exchanged in connection with the transaction)
and as a result of such transaction or transactions the Securities



19









 






are convertible into cash and
the consideration received by holders of the Company’s Common Stock as set forth under Section
5.10.



     For purposes of this Section 3.01:




	 	(1)	 	"person” and “group” shall have the meanings given to them for
purposes of Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions, and the term “group” includes any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, or any successor provision;
	 
	 	(2)	 	a “beneficial owner” shall be determined in accordance with
Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture;
	 
	 	(3)	 	"beneficially own” and “beneficially owned” have meanings
correlative to that of beneficial owner;
	 
	 	(4)	 	"board of directors” means the board of directors or other
governing body charged with the ultimate management of any person;
	 
	 	(5)	 	"capital stock” means: (i) in the case of a corporation,
corporate stock; (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership interests (whether general or limited) or
membership interests; or (iv) any other interest or participation that confers
on a person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing person; and
	 
	 	(6)	 	"voting stock” means any class or classes of capital stock or
other interests then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of the board of
directors.






     (b) Notice of Fundamental Change. No later than 15 days prior to the
anticipated effective date of a Fundamental Change or five days after such later date on
which the Company has actual knowledge of such Fundamental Change, the Company shall notify
the Trustee of the Fundamental Change Purchase Date and shall mail a written notice of the
Fundamental Change (the “Fundamental Change Company Notice”) to each Holder (and to
beneficial owners as required by applicable law) in accordance with Section 12.02. The
notice shall include the form of a Fundamental Change Purchase Notice to be completed by the
Holder and shall state, as applicable:




	 	(i)	 	the events causing such Fundamental Change and
the date of such Fundamental Change;




20









 





	 	(ii)	 	that the Holder has a right to require the
Company to purchase the Holder’s Securities;
	 
	 	(iii)	 	the date by which the Fundamental Change
Purchase Notice must be delivered to the Paying Agent in order for a
Holder to exercise the Fundamental Change purchase right;
	 
	 	(iv)	 	the Fundamental Change Purchase Date;
	 
	 	(v)	 	the Fundamental Change Purchase Price;
	 
	 	(vi)	 	the procedures that the Holder must follow to
exercise its Fundamental Change purchase right under this Section 3.01;
	 
	 	(vii)	 	the names and addresses of the Paying Agent
and the Conversion Agent;
	 
	 	(viii)	 	that the Securities must be surrendered to the Paying Agent to
collect payment of the Fundamental Change Purchase Price;
	 
	 	(ix)	 	that the Fundamental Change Purchase Price for
any Security as to which a Fundamental Change Purchase Notice has been
duly given and not withdrawn shall be paid promptly following the later
of the Fundamental Change Purchase Date and the time of surrender of
such Security;
	 
	 	(x)	 	the Base Conversion Rate, the number of
Additional Shares (to the extent determinable) and the Incremental
Share Factor;
	 
	 	(xi)	 	that the Securities with respect to which a
Fundamental Change Purchase Notice has been given may be converted
pursuant to Article 5 of this Indenture only if either (i) the
Fundamental Change Purchase Notice has been withdrawn in accordance
with
the terms of this Indenture or (ii) there shall be a default in the
payment of the Fundamental Change Purchase Price;
	 
	 	(xii)	 	the procedures for withdrawing a Fundamental
Change Purchase Notice;
	 
	 	(xiii)	 	that, unless the Company defaults in making payment of such
Fundamental Change Purchase Price, interest on Securities surrendered
for purchase by the Company shall cease to accrue on and after the
Fundamental Change Purchase Date; and
	 
	 	(xiv)	 	the CUSIP number(s) of the Securities.




21









 










     If any of the Securities are in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures for repurchases.



     At the Company’s request, the Trustee shall give the Fundamental Change Company Notice on
behalf of the Company and at the Company’s expense; provided, however, that the Company makes such
request at least three Business Days (unless a shorter period shall be consented to by the Trustee)
prior to the date by which such Fundamental Change Company Notice must be given to the Holders in
accordance with this Section 3.01(b); provided further, however, that the text of such notice shall
be prepared by the Company.




     (c) Fundamental Change Purchase Notice. A Holder may exercise its right
specified in Section 3.01(a) upon delivery of a written notice (which shall be in
substantially the form included in Exhibit A hereto and which may be delivered by letter,
overnight courier, hand delivery, facsimile transmission or in any other written form) of
the exercise of such rights (a “Fundamental Change Purchase Notice”) to and actually
received by a Paying Agent at any time prior to the Close of Business on the Business Day
immediately preceding the Fundamental Change Purchase Date. The Fundamental Change Purchase
Notice must state:




	 	(i)	 	if Certificated Securities are to be delivered,
the certificate numbers of the Securities that the Holder shall deliver
to be purchased;
	 
	 	(ii)	 	the portion of the principal amount of the
Securities that the Holder shall deliver to be purchased, which portion
must be in principal amounts of $1,000 or an integral multiple thereof;
and
	 
	 	(iii)	 	that such Securities are being tendered for
and shall be purchased by the Company on the Fundamental Change
Purchase Date pursuant to the terms and conditions specified in this
Indenture.





     The delivery of such Security to any Paying Agent (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 Purchase Price; provided, however, that such Fundamental
Change Purchase Price shall be paid pursuant to this Section 3.01 only if the Security so
delivered to the Paying Agent shall conform in all material respects to the description thereof in
the related Fundamental Change Purchase Notice.



     The Company shall purchase from the Holder thereof, 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 Section 3.01 that apply to the purchase of all of a Security also apply to the
purchase of such a portion of such Security.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.01(c) shall have the right to
withdraw such Fundamental Change Purchase Notice at any time prior to the Close of Business on the
Business Day immediately preceding the Fundamental Change Purchase Date



22









 






by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 3.02(b).



     A Paying Agent shall promptly notify the Company once each Business Day of the receipt by it
of any Fundamental Change Purchase Notices or written notices of withdrawal thereof.




     (d) Notwithstanding anything herein to the contrary, in the case of Global Securities,
any Fundamental Change Purchase Notice may be delivered or withdrawn, and such Securities
may be surrendered or delivered for purchase, in accordance with the Applicable Procedures.



     Section 3.02 Effect of Fundamental Change Purchase Notice. (a) Upon receipt by any Paying
Agent of a Fundamental Change Purchase Notice, the Holder of the Security in respect of
which such Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified below) thereafter be entitled to
receive the Fundamental Change Purchase Price with respect to such Security. Such
Fundamental Change Purchase Price shall be paid to such Holder promptly following the
later of (i) the Fundamental Change Purchase Date (provided such Holder has satisfied
the conditions in Section 3.01(c) with respect to such Security) and (ii) the time of
delivery of such Security to a Paying Agent by the Holder thereof in the manner
required by Section 3.01(c). A Security in respect of which a Fundamental Change
Purchase Notice has been given by the Holder thereof may not be converted pursuant to
Article 5 hereof on or after the date of the delivery of such Fundamental Change
Purchase Notice, unless either (i) such Fundamental Change Purchase Notice has first
been validly withdrawn in accordance with Section 3.02(b); or (ii) there shall be a
default in the payment of the Fundamental Change Purchase Price, provided, that the
conversion right with respect to such Security shall terminate at the Close of Business
on the date immediately prior to the date such default is cured and such Security is
purchased in accordance herewith.




     (b) A Fundamental Change Purchase Notice may be withdrawn by any Holder delivering such
Fundamental Change Purchase Notice upon delivery of a written notice of withdrawal (which
may be delivered by mail, overnight courier, hand delivery,
facsimile transmission or in any other written form) to and actually received by the
Paying Agent at any time prior to the Close of Business on the Business Day immediately
preceding the Fundamental Change Purchase Date, specifying:




	 	(i)	 	if Certificated Securities are to be withdrawn,
the certificate numbers of the Securities in respect of which such
notice of withdrawal is being submitted;
	 
	 	(ii)	 	the principal amount of the Securities in
respect of which such notice of withdrawal is being submitted, which
principal amount must be $1,000 or an integral multiple thereof; and
	 
	 	(iii)	 	the principal amount, if any, of the
Securities that remains subject to the original Fundamental Change
Purchase Notice and that has been or shall be delivered for purchase by
the Company.




23









 










     Section 3.03 Deposit of Fundamental Change Purchase Price. Prior to 10:00 a.m., New York
City time, on a Fundamental Change Purchase Date, the Company shall deposit with the
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 in Cash
(in immediately available funds if deposited on such Fundamental Change Purchase Date)
sufficient to pay the aggregate Fundamental Change Purchase Price of all the Securities
or portions thereof that are to be purchased on that Fundamental Change Purchase Date.



     If a Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City
time, on a Fundamental Change Purchase Date, Cash sufficient to pay the aggregate Fundamental
Change Purchase Price of all Securities for which a Fundamental Change Purchase Notice has been
delivered and not validly withdrawn in accordance with this Indenture, then, on and after such
Fundamental Change Purchase Date, such Securities shall cease to be outstanding and interest on such Securities shall cease to accrue, whether or not such
Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof
shall terminate (other than the right to receive the Fundamental Change Purchase Price upon
delivery of such Securities by their Holders to the Paying Agent).



     Section 3.04 Securities Purchased in Part. Upon surrender of a Security that is to be
repurchased in part, the Company shall issue and the Trustee shall authenticate for the
Holder, at the expense of the Company, a new Security equal in aggregate amount to the
unpurchased portion of the Security surrendered.



     Section 3.05 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 Purchase Price of the Securities or portions thereof that the Company is
obligated to purchase on the Fundamental Change Purchase
Date, then, within one day after the Fundamental Change Purchase Date, the Paying
Agent shall return any such excess Cash to the Company.



     Section 3.06 Compliance with Securities Laws upon Purchase of Securities. When complying
with the provisions of Article 3 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange Act at the time of
such offer or purchase), and subject to any exemptions available under applicable law,
the Company shall:




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




     (b) otherwise comply with all federal and state securities laws so as to permit the
rights and obligations in connection with any purchase pursuant to this Article 3 to be
exercised in the time and in the manner specified herein.



     Section 3.07 Optional Redemption. On or after July 1, 2011, the Company, at its option, may
redeem the Securities in whole at any time or in part from time to time, in any integral multiple
of $1,000, for cash at a price equal to 100% of the principal amount of the Securities to be
redeemed (the “Redemption Price”), together with accrued but unpaid interest thereon, if any, up to, but not including, the date selected for



24









 






redemption (the
"Redemption Date”); provided that if the Redemption Date is between the Close of Business on a
Record Date and the Opening of Business on the related Interest Payment Date, accrued but unpaid
interest, if any, will be payable to the Holders in whose names the
Securities are registered at the Close of Business on the relevant Record Date.



     The Company may not redeem the Securities, in whole or in part, upon less than 30 nor more
than 60 days prior notice by first-class mail, postage prepaid, with a copy to the Trustee, to each
Holder at the address of such Holder appearing in the security register.



     Section 3.08 Notices to Trustee of Redemption. If the Company elects to redeem Securities
pursuant to Section 3.07, it shall notify the Trustee at least 15 days prior to the
mailing of the notice of redemption (unless a shorter notice period shall be
satisfactory to the Trustee) of the Redemption Date and the aggregate principal amount
of Securities to be redeemed.



     Section 3.09 Selection of Securities to Be Redeemed. If the Company elects to redeem
Securities pursuant to Section 3.07 and less than all the Securities are to be
redeemed, the Trustee shall select the Securities to be redeemed on a pro rata basis.
The Trustee shall make the selection from Securities outstanding not previously called
for redemption. Securities and portions of them the Trustee selects shall be in
amounts of $1,000 principal amount or positive integral multiples of $1,000 principal
amount.
The Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and the principal amount thereof to be redeemed.



     The Registrar need not transfer or exchange any Securities selected for redemption, except the
unredeemed portion of the Securities redeemed in part. Also, the Registrar need not transfer or
exchange any Securities for a period of 15 days before any selection of Securities for redemption
and ending at the Close of Business on the date on which the relevant notice of redemption is
deemed to have been given.



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



     Section 3.10 Notice of Redemption At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail by first-class mail a notice of redemption to
each Holder whose Securities are to be redeemed.



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




     (i) the Redemption Date;




     (ii) the Redemption Price, plus the amount of accrued and unpaid interest to be paid on the Securities called for redemption;



25









 






     (iii) the Applicable Conversion Rate and Applicable Conversion Price;




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




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




     (vi) that Securities are convertible prior to the Close of Business on the date that is
one Business Day prior to the Redemption Date;




     (vii) that Holders who want to convert Securities must satisfy the requirements in
Article 5;




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




     (ix) that unless the Company shall default in the payment of the Redemption Price and
interest (including Additional Interest, if any) on
Securities called for redemption ceases to accrue on and after the Redemption Date and
that the Securities will cease to be convertible after the Close of Business on the Business
Day immediately preceding the Redemption Date; and




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



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



     Section 3.11 Effect of Notice of Redemption. Once notice of redemption is mailed,
Securities called for redemption become due and payable on the Redemption Date at the
Redemption Price, plus accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any) to, but excluding, the date of redemption, and, on and
after such date (unless the Company shall default in the payment of the Redemption
Price), such Securities shall cease to bear interest and
Additional Interest. Upon surrender to the Paying Agent, such Securities shall be paid
at the Redemption Price, plus accrued interest (including Additional Interest, if any) to, but excluding, the Redemption Date, subject to the
proviso to Section 3.07.



     Section 3.12 Deposit of Redemption Price. On or before the Redemption Date, the Company
shall deposit with the Paying Agent money in funds immediately available on the
Redemption Date sufficient to pay the Redemption Price of and accrued interest
(including Additional Interest, if any) on all Securities to be
redeemed on that date. The Paying Agent shall return to the Company, as soon as
practicable, any money not required for that purpose.



     Section 3.13 Securities Redeemed in Part. Upon surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the Holder a



26









 






new
Security or Securities in an aggregate principal amount equal to the unredeemed portion
of the Security surrendered.



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




     Section 3.14 Repurchase of Securities on Specified Dates. (a) At the option of the Holder, a
Holder shall have the right (a “Repurchase Right”) to cause the Company to repurchase on July 1,
2011, July 1, 2017 and July 1, 2022 (each, a “Repurchase Date”) all or a portion of the Securities
held by such Holder for cash at a price per Security equal to 100% of the aggregate principal
amount of the Security (the “Repurchase Price”), together with accrued but unpaid interest
thereon, if any, up to, but not including, the Repurchase Date;
provided that if the Repurchase Date is between the Close of Business on a Record Date and the
Opening of Business on the related Interest Payment Date, accrued but unpaid interest, if any, will be payable
to the Holders in whose names the Securities are registered at the Close of Business on the
relevant Record Date.



          Unless the Company has given a notice of redemption pursuant to Section 3.07, the Company
shall give written notice of each Repurchase Date to the Holders (the “Company Notice”). The
Company Notice shall be sent by first-class mail to the Trustee and to each Holder not less than 30
Business Days prior to any Repurchase Date (the “Company Notice Date”). The Company will also
disseminate the Company Notice via a press release through Dow Jones & Company, Inc. or Bloomberg
Business News or other similarly broad public medium that is customary for such press releases.
Each Company Notice shall include a form of Option of Holder to Elect Repurchase Notice to be
completed by a Holder that wishes to exercise its Repurchase Right and shall state:





     (i) the Repurchase Date;




     (ii) the Repurchase Price, plus the amount of accrued and unpaid interest (including
Additional Interest, if any) to be paid on the Securities called for
redemption;




     (iii) the then Applicable Conversion Rate and Applicable Conversion Price;




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




     (v) that Holders who want to convert Securities must satisfy the requirements in
Article 5;




     (vi) that Securities must be surrendered to the Paying Agent to collect the Repurchase
Price;




     (vii) that unless the Company shall default in the payment of the Repurchase Price and
interest (including Additional Interest, if any) on Securities will
cease to accrue on and after the Repurchase Date and that the Securities will cease to be
convertible at the Close of Business on the Business Day immediately preceding the
Repurchase Date; and



27









 






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



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




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




          In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the
Company shall, on the later of the Repurchase Date and the time of compliance will all delivery
requirements with respect to the Securities to be repurchased, deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in
accordance with Section 2.04), an amount of Cash (to be available on the Repurchase Date)
sufficient to pay the Repurchase Price (plus accrued and unpaid interest, including Additional Interest, if any) with respect to all of the Securities which are to be
repurchased on that date.




          (b) Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent
the Option of Holder to Elect Repurchase Notice contemplated by this Section 3.14 shall have the
right to withdraw such notice at any time prior to the close of business on the second business day
prior to the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent at
the principal office of the Paying Agent in accordance with Section 3.11.




        .



ARTICLE 4

[RESERVED]




28









 






ARTICLE 5

CONVERSION




     Section 5.01 Conversion Privilege. (a) Subject to the provisions of this Article Five, the
Securities will be convertible into Cash, and, if applicable, Common Stock or other
property as provided herein, only in the circumstances described below in clauses
(i)-(v), and prior to the Close of Business on the Business Day immediately preceding
the Maturity Date, unless such Securities have been previously redeemed or repurchased.
A Holder’s right to convert a Security called for redemption will terminate at the
Close of Business on the Business Day immediately preceding the redemption date or
repurchase date for the Security, unless the Company defaults in making the payment due
upon redemption or repurchase. In addition, if a Holder has exercised its right to
require the Company to repurchase Securities under Article 3, such Holder may convert
its Securities only if it withdraws its notice and converts its Securities before the



29









 






Close of Business on the Business Day immediately preceding such repurchase date.
Subject to the foregoing, the Securities are convertible if any of the following
conditions is satisfied:



     (i) Conversion Upon Satisfaction of Common Stock Price Condition. Prior to January 1, 2027,
during any quarter commencing after June 30, 2007, and only during such quarter, if the Closing
Sale Price of the Common Stock for at least 20 Trading Days during the period of 30 consecutive
Trading Days ending on the last Trading Day of the quarter immediately preceding such quarter
(appropriately adjusted to take into account the occurrence, during such 30 consecutive Trading-Day
period, of any event requiring adjustment of the Base
Conversion Price under this Indenture) is more than 130% of the Base Conversion Price on such
30th Trading Day;



     (ii) Conversion Upon Satisfaction of Trading Price Condition. During the five consecutive
Business-Day period after any five consecutive Trading-Day period in which the Trading Price per
$1,000 principal amount of Securities, as determined following a request by a Holder in accordance
with the procedures described below in Section 5.01(c), for each Trading Day of such five
Trading-Day period was less than 95% of the product of the average of the Closing Sale Prices of
the Common Stock for such five Trading-Day period and the Applicable Conversion Rate;



     (iii) Conversion Upon Notice of Redemption. Such Security has been called for redemption by
the Company pursuant to Section 3.07 and the redemption has not yet occurred, so long as the Holder
surrenders such Security for conversion (or if the Security is held in book-entry form, complete
and deliver to the Depository appropriate instructions in accordance with the Applicable
Procedures) prior to the Close of Business on the date that is one Business Day prior to the
applicable Redemption Date (provided that if the Company shall default in paying the Redemption
Price when due, the conversion right shall continue until such time as such default is cured and
such Security is redeemed), whether or not the Security is otherwise convertible at such time;



     (iv) Conversion Prior to Maturity. At any time beginning on January 1, 2027 and ending at the
Close of Business on the Business Day immediately preceding the Maturity Date.



     (v) Conversion Upon Specified Corporate Transactions. (A) There occurs a distribution to all
or substantially all holders of Common Stock of rights, warrants or options entitling them (for a
period commencing no earlier than the date of distribution and expiring not more than 60 days after
the date of distribution) to subscribe for or purchase shares of Common Stock at a price less than
the average Closing Sale Prices of the Common Stock for the 10 Trading Days immediately preceding
the date such distribution was first publicly announced; or



     (B) There occurs a distribution to all or substantially all holders of Common Stock of Cash or
other assets, evidences of Company indebtedness, rights or warrants to purchase or subscribe for
Capital Stock or other securities of the Company, where the fair market value of such distribution
per share of Common Stock (as determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value) exceeds 10% of the Closing Sale Price of the Common
Stock on the Trading Day immediately preceding the date such distribution was first publicly
announced;



30









 




provided that any Holder of a Security shall have no right to convert any Security pursuant to this
Section 5.01(a)(v) (A) or (B) if such Holder otherwise participates in the distribution described
in this Section 5.01(a)(v) (A) or (B) on an as-converted basis (assuming for this purpose that the
Securities are convertible solely into Common Stock at the Applicable Conversion Rate) without
conversion of such Holder’s Securities;




     (C) If the Company is party to a consolidation, merger, share exchange, sale of all or
substantially all of its assets or other similar transaction (a “Business Combination”), in each
case pursuant to which the Common Stock would be converted into (or holders of Common Stock
would be entitled to receive) cash, securities or other property; or



     (D) A Make-Whole Fundamental Change occurs.



     In the case of the foregoing Sections 5.01(a)(v)(A) and 5.01(a)(v)(B), the Company shall cause
a notice of such distribution to be filed with the Trustee and the Conversion Agent and to be
mailed to each Holder of Securities no later than 20 Trading Days prior to the Ex-Dividend Date for
such distribution. Once the Company has given such notice, Holders may surrender their Securities
for conversion at any time thereafter until the earlier of the Close of Business on the Business
Day immediately preceding the Ex-Dividend Date or the Company’s announcement that such distribution
will not take place; provided that any Holder may withdraw its Securities if such distribution does
not occur.



     The Company shall give notice to all Holders and the Trustee prior to the anticipated
Effective Date of any such Business Combination or Make-Whole Fundamental Change or, if later,
promptly upon becoming aware of such transaction.



     In the case of a Business Combination under Section 5.01(a)(v)(C), the Holder may surrender
its Securities for conversion at any time from and after the Effective Date of such transaction
until and including the date that is thirty days after the Effective Date of such transaction.



     In the case of a Make-Whole Fundamental Change, a Holder may surrender its Securities for
conversion at any time from and including the date that is 10 days prior to the anticipated
Effective Date of the Make-Whole Fundamental Change until and including the date that is thirty
days after the Effective Date of such Make-Whole Fundamental Change; provided however, the Company
will have no obligation to deliver any Settlement Amount in respect of such conversion prior to the
Effective Date of such Make-Whole Fundamental Change.




     (b) For each quarter of the Company commencing prior to January 1, 2027, the Trustee,
on behalf of the Company, shall determine, on the first Business Day following the last
Trading Day of the immediately preceding quarter, whether the Securities are convertible
pursuant to clause (i) of Section 5.01(a), and, if so, shall notify the Company in writing.
If the conditions set forth in clause (i) of Section 5.01(a) have been met, the Company
shall so notify the Holders.




     (c) The Trustee shall have no obligation to determine the Trading Price of the
Securities pursuant to clause (ii) of Section 5.01(a) unless the Company has requested such
determination in writing; and the Company shall have no obligation to make such



31









 






request
unless a Holder of the Securities provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Securities is reasonably likely to be less than
95% of the product of the Closing Sale Price and the Applicable Conversion Rate then in
effect per $1,000 principal amount of Securities. If a Holder provides such evidence or if
the Company otherwise elects to require such determination, the Company shall instruct the
Trustee to determine the Trading Price of the Securities beginning on the next Trading Day
and on each successive Trading Day until the Trading Price of the
Securities is greater than or equal to 95% of the product of the Closing Sale Price of
the Common Stock and the Applicable Conversion Rate. The Trustee shall promptly notify the
Company of its determination on each such day. If the condition set forth in clause (ii) of
Section 5.01(a) has been met, the Company shall so notify the Holders.



     Section 5.02 Conversion Rate. If the Applicable Stock Price is less than or equal to the
Base Conversion Price, the “Applicable Conversion
Rate” will be the Base Conversion Rate,
or if the Applicable Stock Price is greater than the Base Conversion Price, the
Applicable Conversion Rate will be determined in accordance with the following formula:







The Applicable Conversion Rate, including any Additional Shares added to the Applicable Conversion
Rate in connection with a Make-Whole Fundamental Change, will not exceed [•] (which is equal to a
conversion price of $[•] per share), however such maximum Applicable Conversion Rate will be
adjusted for all Base Conversion Rate adjustments as described in Section 5.07 hereof.




     Section 5.03 Increase of Conversion Rate upon a Fundamental Change. (a) If a Holder elects
to convert its Securities in connection with a Make-Whole Fundamental Change that
occurs prior to July 1, 2011, then the Applicable Conversion Rate of the Securities
being converted by such Holder shall be increased by an additional number of shares of
Common Stock (the “Additional Shares”) set forth in Exhibit B. For the avoidance of
doubt, the increases provided for in this Section 5.03(a) shall only be made with
respect to the Securities being converted in connection with such Make-Whole
Fundamental Change and shall not be effective as to any Securities not so converted.
For purposes of this Section 5.03, a conversion shall be deemed to be “in connection”
with a Make-Whole Fundamental Change to the extent that notice of
conversion is received by the conversion agent on a date from and
including the date that is ten (10) Trading Days prior to the anticipated
Effective Date of such Make-Whole Fundamental Change until and including the date that
is 30 days after the Effective Date of such Make-Whole Fundamental Change.




     (b) The increase in the Applicable Conversion Rate, expressed as a number of Additional
Shares to be received per $1,000 principal amount of Securities, will be determined by the
Company by reference to the table attached as Exhibit B hereto, based on the date the
Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the
price paid or deemed to be paid per share of Common Stock in the transaction constituting
the Make-Whole Fundamental Change (the “Stock Price”);



32









 






provided that if a holder of the
Common Stock receives only Cash in connection with a Fundamental Change described in clause
(ii) of the definition thereof contained in Section 3.01(a), the Stock Price shall be the
Cash amount paid per share. In all other cases, the Stock Price will be the average of the
Closing Sale Price of the Common Stock over the five consecutive Trading-Day period ending
on the Trading Day preceding the
Effective Date, provided that if the Stock Price is between two Stock Price amounts in
the table or the Effective Date is between two Effective Dates in the table, the Company
shall determine the increase in the Applicable Conversion Rate by a straight-line
interpolation between the number of Additional Shares set forth for the next higher and next
lower Stock Price amounts and the next earliest and next latest Effective Dates, based on a
365 day year, as applicable. If (1) the Stock Price is greater than $[•] per share of
Common Stock (subject to adjustment pursuant to the following sentence as of any date on
which the Base Conversion Rate is adjusted pursuant to Section 5.07), no Additional Shares
will be added to the Applicable Conversion Rate, and (2) the Stock Price is less than $[•]
per share (subject to adjustment pursuant to the following sentence as of any date on which
the Base Conversion Date is adjusted pursuant to Section 5.07), no Additional Shares will be
added to the Applicable Conversion Rate. The Stock Price on and after the Base Conversion
Rate is adjusted pursuant to Section 5.07 will equal the Stock Price applicable immediately
prior to such adjustment, multiplied by a fraction, the numerator of which is the Base
Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Base Conversion Rate as so adjusted.



     Section 5.04 Conversion Procedure. (a) The right of conversion attaching to any Security
may be exercised at any time during which conversion is permitted in accordance with
Section 5.01 (i) if such Security is represented by a Global Security, by book-entry
transfer to the Conversion Agent through the facilities of the Depositary in accordance
with the Applicable Procedures, or (ii) if such Security is represented by a
Certificated Security, by delivery of such Security at the specified office of the
Conversion Agent, accompanied, in either case, by: (i) a duly signed and completed
conversion notice, in the form as set forth on the reverse of Security attached hereto
as Exhibit A (a “Conversion Notice”); (2) if such Certificated Security has been lost,
stolen, destroyed or mutilated, a notice to the Conversion Agent in accordance with
Section 2.07 regarding the loss, theft, destruction or mutilation of the Security; (3)
appropriate endorsements and transfer documents if required by the Conversion Agent;
and (4) payment of any tax or duty, in accordance with Section 5.05, which may be
payable in respect of any transfer involving the issue or delivery of the Common Stock
in the name of a Person other than the Holder of the Security. The date on which the
Holder satisfies all of those requirements is the “Conversion Date.” The Company shall
deliver to the Holder through a Conversion Agent a certificate for the number of whole
shares of Common Stock issuable upon the conversion (and Cash in lieu of any fractional
shares pursuant to Section 5.14) as promptly as practicable after the Conversion Date,
but in no event later than the third Business Day after the later of the Conversion
Date or the Cash Settlement Averaging Period; provided that in the case of a conversion
in connection with a Business Combination or Make-Whole Fundamental Change, settlement
shall not occur prior to the Effective Date of such a Business Combination or
Make-Whole Fundamental Change.



33









 





     (b) The Securities shall be deemed to have been converted immediately prior to the Close of
Business on the Conversion Date. Delivery of shares of Common Stock (if any) will be accomplished
by delivery to the Conversion Agent of certificates for the relevant number of shares, other than
in the case of Holders of Securities in book entry form with DTC, which
shares shall be delivered in accordance with Applicable Procedures. A Holder will not be
entitled to any rights as a Holder of the Company’s Common Stock, including, among other things,
the right to vote and receive dividends and notices of stockholder meetings, until the conversion
is effective and to the extent that any shares of the Company’s Common Stock are issued upon
conversion.



     (c) No payment or adjustment shall be made for accrued but unpaid interest, if any, on a converted Security or for dividends or distributions on shares
of Common Stock issued upon conversion of a Security. By delivering to the holder the shares of
Common Stock issuable upon conversion, together with a cash payment in lieu of any fractional
shares, the Company will satisfy its obligation with respect to the conversion of the Securities.
Accordingly, accrued interest (including Additional Interest, if any)
on the Securities is deemed paid in full rather than cancelled, forfeited or extinguished.
Notwithstanding the foregoing, if Securities are converted after the Close of Business on a regular
Record Date and prior to the Opening of Business on the next Interest Payment Date, including the
Maturity Date, Holders of such Securities at the Close of Business on such regular Record Date
shall receive the accrued but unpaid interest payable on such Securities on the corresponding
Interest Payment Date notwithstanding the conversion. In such event, such Security, when
surrendered for conversion, must be accompanied by delivery of payment to the Conversion Agent in
an amount equal to the accrued but unpaid interest payable on such Interest Payment Date on the
portion so converted. If such payment does not accompany such Security, the Security shall not be
converted; provided that no such payment shall be required if (1) any overdue interest exists at
the time of conversion with respect to the notes being converted but only to the extent of such
overdue interest, (2) the Holder surrenders its Securities for conversion after the Close of
Business on the Record Date relating to the Interest Payment Date on July 1, 2011 and the Interest
Payment Date at the Maturity Date, or (3) such Security has been called for redemption on a
Redemption Date within the period between the Close of Business on such Record Date and the Opening
of Business on such Interest Payment Date. If the Company defaults in the payment of interest
payable on the Interest Payment Date, the Conversion Agent shall promptly repay such funds to the
Holder.



     (d) A Holder may convert a portion of a Security equal to $1,000 or any integral multiple
thereof. Provisions of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security. Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall, upon receipt of an order from the Company,
authenticate and deliver to the Holder, a new Security equal in principal amount to the unconverted
portion of the Security surrendered.



     Section 5.05 Taxes on Conversion. If a Holder converts a Security, the Company shall pay
any documentary, stamp or similar issue or transfer taxes or duties relating to the
issuance or delivery of shares of Common Stock upon exercise of such conversion rights.
However, the Holder shall pay any tax or duty which may be payable relating to any
transfer involving the issuance or delivery of shares of Common Stock in a name other
than the Holder’s name. The



34









 






Conversion Agent may refuse to deliver the certificate
representing shares of 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 or duties
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.



     The Company may, at its option, set-off withholding taxes due with respect to Securities
against payments of Cash and Common Stock on the Securities. In the case of any such set-off
against Common Stock delivered upon conversion of the Securities, such Common Stock shall be valued
based on the arithmetic average of the Closing Sale Prices for each Trading Day in the relevant
Cash Settlement Averaging Period.



     Section 5.06 Company to Provide Stock. (a) The Company shall, prior to the issuance of any
Securities hereunder, and from time to time as may be necessary, reserve at all times
and keep available, free from preemptive rights, out of its authorized but unissued
Common Stock, a sufficient number of shares of Common Stock deliverable upon conversion
of all of the Securities.




     (b) All shares of Common Stock that may be issued upon conversion of the Securities
shall be newly issued shares or shares held in the treasury of the Company, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free of any preemptive
rights and free of any lien or adverse claim.




     (c) The Company shall comply with all applicable securities laws regulating the offer
and delivery of any Common Stock upon conversion of Securities and, if the Common Stock is
then listed or quoted on the NYSE, Nasdaq or any other United States national or regional
securities exchange or other market, shall list or cause to have quoted and keep listed and
quoted the shares of Common Stock issuable upon conversion of the Notes to the extent
permitted or required by the rules of such exchange or market; provided, however, that, if
the rules of such automated quotation system or exchange permit the Company to defer the
listing of such Common Stock until the first conversion of the Securities into Common Stock
in accordance with the provisions of this Indenture, the Company covenants to list such
Common Stock issuable upon conversion of the Securities in accordance with the requirements
of such automated quotation system or exchange at such time.




     (d) Notwithstanding anything herein to the contrary, nothing herein shall give to any
Holder any rights as a creditor solely in respect of its right to conversion.



     Section 5.07 Adjustment of Conversion Rate. The Base Conversion Rate shall be adjusted (and
Incremental Share Factor shall be adjusted in the same manner) from time to time by the
Company if any of the following events occur, except that the Company will not make any
adjustment if Holders of Securities may participate, as a result of holding the
Securities, in the transactions described without having to convert their Securities:




     (a) If the Company, at any time or from time to time while any of the Securities are
outstanding, issues shares of its Common Stock as a dividend or



35









 






distribution on shares of
Common Stock, or if the Company effects a share split or share
combination in respect of the Common Stock, then the Base Conversion Rate shall be
adjusted based on the following formula:







where




	 	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately prior to the Ex Date of such dividend or distribution,
or effective date of such subdivision or combination, as applicable;
	 
	 	 	 	 
	CR’

	 	=
	 	the Base Conversion Rate in effect on and after the Ex Date or Effective Date;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the Ex Date or Effective Date; and
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding on and after the Ex Date or Effective Date after
giving effect to the dividend or distribution.






     If any dividend or distribution of the type described in this Section 5.07(a) is declared but
not so paid or made, or the outstanding shares of Common Stock are not subdivided or combined, as
the case may be, the Base Conversion Rate shall again be adjusted to the Base Conversion Rate which
would then be in effect if such dividend, distribution, subdivision or combination had not been
declared.




     (b) If the Company, at any time or from time to time while any of the Securities are
outstanding, issues to all holders of its outstanding shares of Common Stock any rights or
warrants entitling them for a period of not more than 60 calendar days to subscribe for or
purchase shares of Common Stock at a price per share less than the average of the Closing
Sale Prices for the five consecutive Trading-Day period ending on the Business Day
immediately preceding the date of announcement of such issuance, the Base Conversion Rate
shall be adjusted based on the following formula:







where




	 	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately prior to the Ex Date for such issuance;
	 
	 	 	 	 
	CR’

	 	=
	 	the Base Conversion Rate in effect on and after the Ex Date for such issuance;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the Ex Date for such issuance;
	 
	 	 	 	 
	X

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






36









 





	 	 	 	 	 
	Y

	 	=
	 	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or
warrants divided by the average of the Closing Sale Prices per share for the five consecutive
Trading-Day period ending on the Business Day immediately preceding the date of announcement of the
issuance of such rights or warrants.






     To the extent that shares of Common Stock are not delivered pursuant to such rights or
warrants prior to or upon the expiration or termination of such rights or warrants, the Base
Conversion Rate shall be readjusted to the Base Conversion Rate which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made on the basis of the
delivery of only the number of shares of Common Stock actually delivered. In the event that such
rights or warrants are not so issued, the Base Conversion Rate shall again be adjusted to be the
Base Conversion Rate which would then be in effect if the announcement with respect to such rights,
warrants or convertible securities had not been made.



     In determining whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than the average of the Closing Sale Prices for the five consecutive
Trading-Day period ending on the Business Day immediately preceding the date of announcement of
such issuance, and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for such rights or
warrants and any amount payable on exercise thereof, the value of such consideration, if other than
Cash, to be determined in good faith by the Board of Directors.




     (c) If the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock shares of any class of capital stock of the Company (other than Common Stock as
covered by Section 5.07(a)), evidences of its indebtedness or other non-Cash assets or
property of the Company (excluding (i) dividends and distributions and rights or warrants
covered by Section 5.07(a), Section 5.07(b) or Section 5.07(e), (ii) dividends or
distributions covered by Section 5.07(d) and (iii) to the extent provided in Section 5.09,
rights distributed pursuant to a stockholder rights plan) (any of such shares of Capital
Stock, indebtedness, or other assets or property hereinafter in this Section 5.07(c) called
the “Distributed Property”), then, in each such case the Base Conversion Rate shall be
adjusted based on the following formula:







where




	 	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately prior to the Ex Date for such distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the Base Conversion Rate in effect on and after the Ex Date for such distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Closing Sale Prices over the five consecutive Trading-Day period ending on the
Trading Day immediately preceding the Ex Date for such distribution; and






37









 





	 	 	 	 	 
	FMV

	 	=
	 	the fair market value (as determined by the Company’s Board of Directors) of the shares of capital stock
of the Company, evidences of indebtedness, assets or property distributed with respect to each
outstanding share of Common Stock on the Ex Date for such distribution;






     provided that if the then fair market value (as so determined) of the portion of the
Distributed Property so distributed applicable to one share of Common Stock is equal to or greater
than SP0 as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made
so that each Holder shall have the right to receive, for each $1,000 principal amount of Securities
upon conversion, the amount of Distributed Property such holder would have received had such holder
owned a number of shares of Common Stock equal to the Applicable Conversion Rate on the record
date. If such dividend or distribution is not so paid or made, the Base Conversion Rate shall
again be adjusted to be the Base Conversion Rate that would then be in effect if such record date
had not been fixed. If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 5.07(c) by reference to the actual or when issued trading market for
any securities, it shall in doing so consider the prices in such market over the same period used
in computing the average of the Closing Sale Prices of the Common Stock.



     With respect to an adjustment pursuant to this Section 5.07(c) where there has been a payment
of a dividend or other distribution on the Common Stock consisting of shares of capital stock of
any class or series, or similar equity interest, of or relating to a Subsidiary or other business
unit of the Company (a “Spin-Off,” and any such dividend or distribution of Common Stock, shares of
capital stock or equity interests being “Spin-Off Securities”), the Base Conversion Rate shall be
adjusted based on the following formula:







where




	 	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately
prior to the Ex Date for the distribution of the
Spin-Off Securities;
	 
	 	 	 	 
	CR’

	 	=
	 	the Base Conversion Rate in effect from and after
the Ex Date for the distribution of the Spin-Off
Securities;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Closing Sale Prices of the
capital stock or similar equity interest
distributed to holders of Common Stock applicable
to one share of Common Stock over the first 10
consecutive Trading-Day period commencing on, and
including, the fifth Trading Day after the Ex
Date for such distribution; and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Closing Sale Prices of Common
Stock over the first 10 consecutive Trading-Day
period commencing on, and including, the fifth
Trading Day after the Ex Date for such
distribution.







     (d) If a cash dividend or distribution is made to all holders of Common Stock (other
than (i) in connection with the Company’s liquidation, dissolution or winding up or



38









 






(ii) distributions described in Section 5.07(e)), the Base Conversion Rate shall be
adjusted based on the following formula:







where




	 	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect at the Close of Business on the Business Day immediately prior to
the Ex Date for such dividend or distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the Base Conversion Rate in effect on and after the Ex Date for such distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Closing Sale Prices of the Common Stock for the five consecutive Trading-Day period
ending on the Trading Day immediately preceding the Ex Date for such dividend or distribution; and
	 
	 	 	 	 
	C

	 	=
	 	the amount in cash per share the Company dividends or distributes to holders of Common Stock;






     provided that if the portion of the cash so distributed applicable to one share of Common
Stock is equal to or greater than SP0 as set forth above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to receive, for each
$1,000 principal amount upon conversion, the amount of cash such Holder would have received had
such Holder owned a number of shares of Common Stock equal to the Applicable Conversion Rate on the
record date. If such dividend or distribution is not so paid or made, the Base Conversion Rate
shall again be adjusted to be the Base Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.




     (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender
offer or exchange offer for all or any portion of the Common Stock, to the extent that the
cash and value of any other consideration included in the payment per share of Common Stock
validly tendered or exchanged exceeds the Closing Sale Price of the Common Stock on the
tenth Trading Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer (such last date, as it may be amended, the
“expiration date”), the Base Conversion Rate shall be increased based on the following
formula:







where




	 	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately
before the Close of Business on the expiration
date;
	 
	 	 	 	 
	CR’

	 	=
	 	the Base Conversion Rate in effect on and after
the Close of Business on the expiration date;






39









 





	 	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other
consideration (as determined in good faith by the
Company’s Board of Directors) paid or payable for
shares purchased in such tender or exchange offer;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the date such tender or
exchange offer expires (without giving effect to
the purchase of shares validly tendered and not
withdrawn pursuant to the tender or exchange offer
but excluding shares held in treasury);
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding
as of the last time tenders or exchanges could
have been made pursuant to such tender or exchange
offer (after giving effect to the purchase of
shares validly tendered and not withdrawn pursuant
to the tender or exchange offer or shares held in
treasury); and
	 
	 	 	 	 
	SP’

	 	=
	 	the Closing Sale Price on the tenth Trading Day
immediately following the expiration date.






     If the Company is obligated to repurchase shares pursuant to any such tender or exchange
offer, but the Company is permanently prevented by applicable law from effecting any such purchases
or all or any portion of such purchases are rescinded, the Base Conversion Rate shall again be
adjusted to be the Base Conversion Rate that would then be in effect if such tender or exchange
offer had not been made or had only been made in respect of the purchases that had been effected.




     (f) For purposes of this Section 5.07 the term “record date” shall mean, with respect
to any dividend, distribution or other transaction or event in which the holders of Common
Stock have the right to receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property (whether such date
is fixed by the Board of Directors or by statute, contract or otherwise).




     (g) If application of the formulas provided in Sections 5.07(a), 5.07(b), 5.07(c),
5.07(d) or 5.07(e) would result in a decrease in the Base Conversion Rate, no adjustment to
the Base Conversion Rate shall be made except in the case of a combination or reverse split
of the Common Stock.




     (h) If one or more events occur requiring an adjustment be made to the Base Conversion
Rate for a particular period, adjustments to the Base Conversion Rate shall be determined by
the Company’s Board of Directors to reflect the combined impact of such Base Conversion Rate
adjustments, as set out in this Section 5.07, during such period.



     For the avoidance of doubt, for purposes of this Section 5.07, in the event of any
reclassification of the Common Stock, as a result of which the Securities become convertible into
more than one class of Common Stock, if an adjustment to the Base Conversion Rate is required
pursuant to Section 5.07(d), references in this Section to one share of Common Stock or Closing
Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a
unit consisting of the number of shares of each class of Common Stock into which the Securities



40









 






are then convertible equal to the numbers of shares of such class issued in respect of one
share of Common Stock in such reclassification. The above provisions of this paragraph shall
similarly apply to successive reclassifications.



     Section 5.08 No Adjustment. No adjustment in the Base Conversion Rate or Incremental Share
Factor shall be required unless the adjustment would result in a change in the Base
Conversion Rate of at least 1.00%; provided, however, that any adjustment which by
reason of this Section 5.08 is not required to be made shall be carried forward and
taken into account in subsequent adjustments and in connection with any conversion of
Securities. All calculations under this Article 5 shall be made to the nearest one-ten
thousandth (1/10,000) of a cent or to the nearest one-ten thousandth (1/10,000) of a
share, as the case may be, provided that the Company shall make any carry forward
adjustments not otherwise effected on each anniversary of the issue date of the
Securities, upon conversion pursuant to Article 5, upon repurchase or redemption
pursuant to Article 3, and five Business Days prior to the Maturity Date of the
Securities.



     No adjustment in the Base Conversion Rate or Incremental Share Factor need be made for (i)
issuances of Common Stock pursuant to any present or future Company plan for reinvestment of
dividends or interest payable on the Company’s securities or the investment of additional optional
amounts thereunder in shares of Common Stock, (ii) upon the issuance of any shares of Common Stock
or options or rights 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 or any of its
Subsidiaries or (iii) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described either in (ii)
above or in Section 5.07.



     No adjustment to the Base Conversion Rate or Incremental Share Factor need be made pursuant to
Section 5.07 for a transaction if Holders are permitted to participate in the transaction without
conversion on a basis and with notice that the Board of Directors of the Company determines in good
faith to be fair and appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction.



     No adjustment to the Base Conversion Rate or Incremental Share Factor need be made for accrued
and unpaid interest, if any.



     Whenever a provision of the Indenture requires the calculation of an average of the Closing
Sale Price over a span of multiple days, the Company will make appropriate adjustments to account
for any adjustment to the Base Conversion Rate and Incremental Share Factor as described above at
any time during the period from which the average is to be calculated.



     Section 5.09 Stockholder Rights Plans. Upon conversion of the Securities, the Holders shall
receive, in addition to any shares of Common Stock issuable upon such conversion, any
associated rights issued under any future stockholder rights plan the Company adopts
that provides that each share of Common Stock issued upon conversion of the Securities
at any time prior to the distribution of separate certificates representing such rights
will be entitled to receive such rights unless, prior to
conversion, the rights have separated from the Common Stock, expired, terminated or
been redeemed or exchanged in accordance with such rights plan, and no



41









 






adjustment
shall be made to the Base Conversion Rate pursuant to Section 5.07. If the rights
have separated from the Common Stock, the Base Conversion Rate and Incremental Share
Factor shall be adjusted at the time of separation as if the Company distributed to
all holders of Common Stock, shares of Capital Stock, evidences of indebtedness or
assets as described in Section 5.07(c), subject to readjustment in the event of the
expiration, termination or redemption of such rights.



     Section 5.10 Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock (other than
a change only in par value, or from par value to no par value or from no par value to par value, or
a change as a result of a subdivision or combination of the Company’s Common Stock); (b) a
consolidation, merger or combination involving the Company; or (c) a sale or conveyance to another
Person of the property and assets of the Company as an entirety or substantially as an entirety;
and (2) pursuant to such reclassification, consolidation, merger, combination, sale or conveyance,
holders of outstanding shares of Common Stock would be entitled to receive stock (other than
Common Stock), other securities, other property, or assets (including Cash) or any combination
thereof for such shares of Common Stock (any such event a “Merger Event”), then the Company, or
such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a
condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental
indenture providing that, at the effective time of the Merger Event, the right to convert a
Security will be changed into a right to convert it into the kind and amount of shares of stock,
other securities or other property or assets (including Cash) or any combination thereof that a
holder of a number of shares of Common Stock equal to the Applicable Conversion Rate immediately
prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”)
upon such transaction (assuming for such purposes that such conversion were settled entirely in
Common Stock and without giving effect to any adjustment to the Base Conversion Rate with respect
to a Fundamental Change) immediately prior to such Merger Event, except that such Holders will not
be entitled to an increase in the Base Conversion Rate if such Holder does not convert its
Securities in connection with the relevant Fundamental Change. For purposes of this Section 5.10,
"in connection with” has the meaning set forth in Section 5.03(a). If the Merger Event causes the
Common Stock to be converted into the right to receive more than a single type of consideration
(determined based in part upon any form of stockholder election), the Reference Property into which
the Securities will be convertible will be deemed to be the weighted average of the types and
amounts of consideration received by the holders of Common Stock that affirmatively make such an
election. None of the foregoing provisions shall affect the right of a Holder of Securities to
convert its Securities in accordance with the provisions of this Article 5 prior to the effective
date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base
Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the
Base Conversion Rate provided for in this Article 5. The provisions of this Section 5.10 shall
similarly apply to successive Merger Events.



     Section 5.11 Other Adjustments. Subject to applicable stock exchange rules and listing
standards, the Company shall be entitled to increase the Conversion Rate by any amount
for a period of at least 20 Business Days if the Board of Directors determines that
such increase would be in the best interests in the Company, provided the Company has
given to Holders at least 15 days’ prior notice, in accordance with Section 12.02, of
any such increase in the Base Conversion Rate. Subject to applicable stock exchange
rules and listing standards, the Company shall be entitled to increase the applicable
Base Conversion Rate, in addition to the events requiring an increase in the Base



42









 






Conversion Rate pursuant to Section 5.07, as it in its discretion shall determine to
be advisable in order to avoid or diminish any tax to stockholders in connection with
any stock dividends, subdivisions of shares, distributions of rights to purchase stock
or securities or distributions of securities convertible into or exchangeable for
stock hereafter made by the Company to its stockholders or from any event treated as
such for tax purposes.



     Section 5.12 Notice of Adjustment. Whenever the Base Conversion Rate or conversion
privilege is adjusted, the Company shall promptly mail to Holders a notice of the
adjustment in accordance with Section 12.02, and file with the Trustee an Officers’
Certificate briefly stating the Base Conversion Rate, the facts requiring the
adjustment and the manner of computing it. Unless and until the Trustee shall receive
an Officers’ Certificate setting forth an adjustment of the Base Conversion Rate, the
Trustee may assume without inquiry that the Base Conversion Rate has not been adjusted
and that the last Base Conversion Rate of which it has knowledge remains in effect.



     Section 5.13 Trustee’s Disclaimer. The Trustee shall have no duty to determine when an
adjustment under this Article 5 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 set forth in, and shall be protected in relying
upon, an Officers’ Certificate, including the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to Section
5.12. 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 5.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 5.10, 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 10.06.



     Section 5.14 Payment Upon Conversion. Subject to certain exceptions set forth in Section
5.03, the Company shall deliver to Holders in respect of each $1,000 principal amount of Securities
surrendered for conversion a “Settlement Amount” equal to the sum of the Daily Settlement Amounts
for each of the 20 consecutive Trading Days during the applicable Cash Settlement Averaging Period.



     The “Daily Settlement Amount” for each of the 20 consecutive Trading Days during a Cash
Settlement Averaging Period, shall consist of:




	 	•	 	cash equal to the lesser of $50 and the Daily Conversion Value; and
	 
	 	•	 	to the extent the Daily Conversion Value exceeds $50, a number of shares equal to
(A) the difference between the Daily Conversion Value and $50, divided by (B) the
Closing Sale Price of the Company’s Common Stock for such day.






43










 





     The “Daily Conversion Value” means, for each of the 20 consecutive Trading Days during a
Cash Settlement Averaging Period, one-twentieth (1/20) of the product of (1) the Applicable
Conversion Rate on such day and (2) the Closing Sale Price of the Company’s Common Stock on such
day.



     The “Cash Settlement Averaging Period” with respect to any Security being converted means the
20 consecutive Trading-Day period beginning on and including the second Trading Day after a
Conversion Notice in respect of such Security is delivered to the Conversion Agent, except that
with respect to any Conversion Notice received during the 30 day period prior to the Maturity Date
or a Redemption Date, as applicable, the Cash Settlement Averaging Period means the 20 consecutive
trading days beginning on and including the 22nd scheduled Trading Day prior to the Maturity Date
or Redemption Date, as the case may be.



     The Company shall deliver the Settlement Amount to Holders who have tendered Securities for
conversion on the third Business Day immediately following the last day of the Cash Settlement
Averaging Period in respect of such Securities; provided that, in the event of a Business
Combination or Make-Whole Fundamental Change, the consideration for which consists entirely of
cash, the Settlement Amount will be determined based solely on the amount of Cash which Holders of
the Company’s Common Stock are entitled to receive in respect of each share of Common Stock upon
such Business Combination. In such event, the Company shall pay the Holders in Cash as promptly as
practicable, but in no event later than the third Business Day after the Securities are surrendered
for conversion and in no event prior to the occurrence of the Business Combination or Make-Whole
Fundamental Change.



     No fractional shares of Common Stock or securities representing fractional shares of Common
Stock will be issued upon conversion. Any fractional interest in a share of Common Stock resulting
from conversion will be paid in Cash based on the average of the Closing Sale Prices on each day
during the relevant Cash Settlement Averaging Period. For purposes of the foregoing, fractional
shares arising from the calculation of the Daily Settlement Amount for any day in the Cash
Settlement Averaging Period shall be aggregated with fractional shares for all other days in such
period in determining the Settlement Amount, and any whole shares resulting therefrom shall be
issued and any remaining fractional shares shall be paid in Cash.



ARTICLE 6

COVENANTS




     Section 6.01 Payment of Securities. 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, including payments of Cash and shares
of Common Stock due upon conversion. The principal amount, Redemption Price, Repurchase Price, or
Fundamental Change Purchase Price and accrued and unpaid interest, if any, shall be considered paid
on the date such amount is due if the Paying Agent holds by 10:00 a.m., New York City time, on
such date, in accordance with this Indenture, Cash designated and sufficient for the payment of
all such amounts then due. The Company shall, to the fullest extent permitted by law, pay interest on overdue principal and overdue
installments of interest at the rate borne by the Securities per annum.



44









 





     Interest shall be computed on the basis of a 360-day year of twelve 30-day months.



     Each
installment of accrued and unpaid interest and Additional Interest,
if any, on the Securities due on any Interest Payment Date may be paid by mailing checks for the
amount payable to or upon the written order of the Holders entitled thereto as they shall appear on
the registry books of the Company, provided that, with respect to any Holder with an aggregate
principal amount in excess of $2,000,000, at the application of such Holder in writing to the
Registrar not later than the relevant Record Date, accrued and unpaid interest and Additional Interest, if any, on such Holder’s Securities shall be paid by wire
transfer in immediately available funds to such Holder’s account in the United States supplied by
such Holder from time to time to the Trustee and Paying Agent (if different from Trustee); provided
further that payment of accrued and unpaid interest and Additional
Interest, if any, made to the Depositary shall be paid by wire transfer in immediately available
funds in accordance with such wire transfer instructions and other procedures provided by the
Depositary from time to time.



     Section 6.02 Reports and Certain Information. (a) The Company shall file with the Trustee, within 15 days after it is required to file
such annual and quarterly reports, information, documents and other reports with the SEC, copies of
its annual report and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; provided that
any such reports, information or documents filed with the SEC pursuant to its Electronic Date
Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed filed with the Trustee. The
Company shall comply with the provisions of TIA Section 314(a), whether or not the Company is
required to file reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding anything to the contrary herein, the Trustee shall have no duty to review such
documents for purposes of determining compliance with any provisions of this Indenture or any
applicable law.




     (b) Delivery of such reports, documents and information 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 120 days after the end of each fiscal
year of the Company ending after the date hereof, an Officers’ Certificate signed by the principal
executive officer, principal financial officer or principal accounting officer of the Company and
at least one other Officer of the Company, as to his or her knowledge of the
Company’s compliance with all terms, conditions and covenants under this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and status thereof of which he or
she may have knowledge.



     Section 6.04 Maintenance of Corporate Existence. The Company shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence



45









 




or, following any consolidation, merger, conveyance,
transfer or lease in accordance with Section 7.01, its legal existence as a Person permitted to be
the resulting, surviving or transferee Person in accordance with Section 7.01.




     Section 6.05 Stay, Extension and Usury Laws. The Company covenants, to the extent it may lawfully do so, that it shall not at any time
insist upon, plead or in any manner whatsoever claim or take 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 amount or Fundamental Change Purchase Price in respect of Securities,
or any interest (including Additional Interest, 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 shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee or any Agent, but shall suffer and permit the execution of
every such power as though no such law had been enacted.



     Section 6.06 Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and
Conversion Agent. The Company shall maintain an office or agency of the Trustee, Registrar, Paying Agent and
Conversion Agent in the United States where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer, exchange, purchase or
conversion and where notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company hereby designates the Corporate Trust Office as 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 Corporate Trust 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.



     Section 6.07 Notice of Default. In the event that any Default or Event of Default shall occur, the Company shall give
prompt (and in any event within thirty (30) days after the Company becomes aware of such Default
or Event of Default) written notice by an Officers’ Certificate of such Default or Event of
Default, and any remedial action proposed to be taken, to the Trustee.



ARTICLE 7

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




     Section 7.01 Company May Consolidate, etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease all or substantially all of the Company’s properties and assets
to any successor Person, unless:




     (a) either:




	 	(i)	 	the resulting, surviving or transferee Person
is the Company; or





46









 






	 	(ii)	 	the resulting, surviving or transferee Person
is a corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all of the obligations of the Company under the Securities and
this Indenture;






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




     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel (upon which the Trustee may conclusively rely), each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply 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 of all or substantially all of the properties and assets of
the Company 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 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, 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. An “Event of Default” shall occur if:




     (a) the Company defaults in the payment of any principal of any of the Securities when
the same becomes due and payable (whether at maturity, upon redemption, upon exercise of a
repurchase right or otherwise);




     (b) the Company defaults in the payment of any accrued and unpaid interest (including
Additional Interest, if any) when due and payable, and such default
continues for a period of 30 days;




     (c) the Company fails to deliver the Settlement Amount when such Settlement Amount is
required to be delivered upon conversion of any Securities, and such default continues for 5
days;



47









 






     (d) the Company fails to provide the Fundamental Change Company Notice when required by
this Indenture, if such failure continues for 30 days after the Company receives notice of
such failure to do so;




     (e) the Company fails to comply with any of its other agreements contained in the
Securities or in this Indenture (other than a covenant or warranty or default whose
performance or breach is elsewhere in this Section 8.01 specifically provided for) and such
failure continues for 90 days after receipt by the Company of a Notice of Default;




     (f) (i) the Company fails to make any payment by the end of any applicable grace period
after maturity of principal or accrued interest with respect to any obligations (other than
nonrecourse obligations) of the Company for borrowed money or evidenced by bonds, notes or
similar instruments owed to third parties (“Specified Indebtedness”), where the amount of
such due and unpaid principal and/or accrued interest is in an aggregate amount in excess of
$20.0 million, or (ii) the acceleration of principal or accrued interest with respect to
Specified indebtedness, where the amount of such accelerated principal and interest because
of a default with respect to such Specified Indebtedness is in an amount in excess of $20.0
million, in any such case of (i) or (ii), without such Specified Indebtedness having been
paid or discharged or such acceleration having been cured, waived, rescinded or annulled
within a period of 30 days after receipt by the Company of a Notice of Default. However, if
any such failure or acceleration referred to in (i) or (ii) of this clause (f) shall cease
or be cured, waived, rescinded or annulled, then the event of default by reason thereof
shall be deemed not to have occurred and any acceleration as a result of the related event
of default shall be automatically rescinded;




     (g) the Company, or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law: commences a voluntary case or proceeding; 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; consents to the appointment of a Custodian of it or for any substantial part of
its property; or makes a general assignment for the benefit of its creditors; or




     (h) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that: is for relief against the Company or a Significant Subsidiary in an involuntary
case or proceeding; appoints a Custodian of the Company or a Significant Subsidiary for any
substantial part of the property of the Company or such Significant Subsidiary; or orders
the winding up or liquidation of the Company or a Significant Subsidiary; and in each case
of this subclause (h) 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 “Custodian” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.



48









 





     Notwithstanding the foregoing, to the extent the Company so elects, the sole remedy for an
Event of Default relating to the Company’s failure to comply with its obligations as pursuant to
Section 6.02 or for any failure to comply with the requirements of Section 314(a)(1) of the Trust
Indenture Act shall for the first 90 days after the occurrence of such an Event of Default consist
exclusively of the right to receive additional interest (the “Additional Interest”) on the
Securities at an annual rate equal to 0.50% of the principal amount of the Securities.



     The Additional Interest will accrue on all outstanding Securities from and including the date
on which an Event of Default under Section 8.01(e) relating to a failure to comply with Section
6.02 first occurs, to but not including the 90th day thereafter (or such earlier date on which the
Event of Default under Section 8.01(e) relating to the reporting obligations shall have been cured
or waived). On such 90th day (or earlier, if the Event of Default relating to the reporting
obligations is cured or waived prior to such 90th day), the Additional Interest shall cease to
accrue and, if the Event of Default under Section 8.01(e) relating to reporting obligations has not
been cured or waived prior to such 90th day, the Securities shall be subject to acceleration as
pursuant to Section 8.02. These provisions will not affect the rights of Holders of Securities in
the event of the occurrence of any other Event of Default. In the event that the Company does not
elect to pay the Additional Interest upon an Event of Default relating to reporting obligations,
the Securities shall be subject to acceleration as provided below.



     A Default under clause (e) or (f) above is not an Event of Default until the Trustee notifies
the Company, 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, and the Company does not
cure the Default (and such Default is not waived) within the time period specified in clauses (e)
or (f) above, as applicable, after actual receipt of such notice. The notice given pursuant to
this Section 8.01 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 in accordance herewith,
it shall cease to be a Default.



     The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by
the Company (including, without limitation, pursuant to Section 6.03), a Paying Agent, any Holder
or any agent of any Holder, which notice references the Securities and this Indenture.



     Section 8.02 Acceleration. If an Event of Default (other than an Event of Default with respect to the Company
specified in clauses (g) or (h) of Section 8.01) occurs and is continuing, the Trustee may, by
notice to the Company, 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 all unpaid
principal of, plus interest accrued and unpaid through the
date of such declaration on, all the Securities then outstanding to be due and payable upon any
such declaration, and the same shall thereupon become and be immediately due and payable.



     If an Event of Default with respect to the Company specified in clause (g) or (h) of Section
8.01 occurs, all unpaid principal of, plus interest accrued
and unpaid through the date of such default on, all the Securities then outstanding shall



49









 




become and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.




     The Holders of a majority in aggregate principal amount of the Securities then outstanding or
the Holders originally causing the acceleration by notice to the Trustee may rescind an
acceleration of Securities and its consequences before a judgment or decree for the payment of
money has been obtained by the Trustee if (a) the rescission would not conflict with any existing
order or decree, (b) all existing Events of Default, other than the nonpayment of the principal of,
plus accrued and unpaid interest on, the Securities that has become due solely by such declaration
of acceleration, have been cured or waived and (c) all payments due to the Trustee and any
predecessor Trustee under Section 9.06 have been made. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.



     Section 8.03 Other Remedies. 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 the payment
of the principal of or accrued and unpaid interest on the Securities, the payment of Cash and, if
applicable, shares of Common Stock upon conversion or to enforce the performance of any provision
of the Securities or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by
law.



     Section 8.04 Waiver of Defaults and Events of Default. Subject to Section 8.07 and 10.02, the Holders of a majority in aggregate principal amount
of the Securities then outstanding by notice to the Trustee may waive an existing or future Default
or Event of Default and its consequences, except an uncured Default or Event of Default in the
payment of the principal of, or any interest, if any, on any
Security, or the payment of any applicable Redemption Price, Repurchase Price, or
Fundamental Change Purchase Price, or an uncured failure by the Company to deliver Cash or
shares of Common Stock (and Cash in lieu of any fractional shares) upon conversion in accordance
with Article 5 or any uncured Default or Event of Default in respect of any provision of this
Indenture or the Securities that, under Section 10.02, cannot be modified or amended without the
consent of the Holders of each outstanding Security. When a Default or Event of Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair
any consequent right. This Section 8.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and
such Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the
TIA.



     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 under this Indenture. 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



50









 




unless the Trustee is offered security or
indemnity reasonably satisfactory to it; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction. This Section 8.05 shall be in
lieu of Section 316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.




     Section 8.06 Limitations on Suits. Subject to Section 8.07, a Holder of a Security may not pursue any remedy with respect to
this Indenture or the Securities unless:




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




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




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




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




     (e) 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.



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



     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 in Cash of the principal amount, Redemption Price, Repurchase Price,
Fundamental Change Purchase Price or interest on any
Security, on or after the respective due dates expressed in the Security and this Indenture,
receive Cash, shares of Common Stock (and Cash in lieu of fractional shares) upon conversion in
accordance with Article 5 and to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, is 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 in the payment of principal or interest or
Additional Interest specified in clause (a) or (b) of Section 8.01 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 the amounts provided for in Section 9.06.



     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



51









 




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 Custodian 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 9.06, 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.




     Section 8.10 Priorities. Any money or property collected by the Trustee pursuant to this Article 8, and after an
Event of Default, any money or other property distributable in respect of the Company’s obligations
under this Indenture shall be paid out in the following order:



     First, to the Trustee (including any predecessor Trustee) for amounts due under Section 9.06;



     Second, to Securityholders for amounts due and unpaid on the Securities for the principal
amount, interest, the Redemption Price, the Repurchase
Price, the Fundamental Change Purchase Price, and amounts due upon conversion (including amounts
resulting from a Fundamental Change), as the case may be, ratably, without preference or priority
of any kind, according to such amounts due and payable on the Securities; and



     Third, the balance, if any, to the Company.



     The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 8.10. At least 15 days before such record date, the Trustee shall mail to each Holder and
the Company a notice that states the record date, the payment date and the amount to be paid.



     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, 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.



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     Section 8.12 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article 8 or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



ARTICLE 9

TRUSTEE




     Section 9.01 Certain Duties and Responsibilities of Trustee. (a) In case an Event of Default with respect to the Securities has occurred (that has not
been cured or waived), the Trustee shall exercise with respect to the Securities such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in the conduct of his
or her own affairs.




     (b) Prior to the occurrence of an Event of Default with respect to the Securities and
after the curing or waiving of all such Events of Default with respect to the Securities
that may have occurred:




	 	(i)	 	the duties and obligations of the Trustee shall
with respect to the Securities be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with
respect to the Securities except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
	 
	 	(ii)	 	in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform on
their face to the requirements of this Indenture (but need not confirm
or investigate the accuracy of any mathematical calculations or other
facts stated therein).






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




	 	(i)	 	this subsection shall not be construed to limit
the effect of Section 9.01(b);





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	 	(ii)	 	the Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer or Trust Officers,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
	 
	 	(iii)	 	the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Securities at the time Outstanding
(determined as provided in Section 2.08) relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities; and
	 
	 	(iv)	 	none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.






     (d) Whether or not expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability or affording protection to the Trustee (in any
capacity, including Paying Agent, Registrar or Conversion Agent) shall be subject to the
provisions of this Section.



     Section 9.02 Certain Rights of Trustee. Except as otherwise provided in Section 9.01:




     (a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper or document
(whether in original or facsimile form) believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need not
investigate any fact or matter stated in any such document;




     (b) Any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a resolution of the Company’s Board of Directors or an instrument
signed in the name of the Company, by one or more Officers thereof (unless other evidence in
respect thereof is specifically prescribed herein);




     (c) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. 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. The Trustee may consult with counsel of its own selection and the
advice of such counsel and Opinions of Counsel with respect to legal matters relating to



54









 






this Indenture and the Securities shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;




     (d) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities that may be incurred therein or thereby;




     (e) The Trustee shall not be liable for any action taken or omitted to be taken by it
in good faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;




     (f) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, but the
Trustee, in its discretion, may make even 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;




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




     (h) The Trustee shall not be deemed to have knowledge or be charged with knowledge of
an Event of Default except (i) if the Trustee is acting as Paying Agent, any Default or
Event of Default occurring pursuant to Sections 6.01, 8.01(a) or 8.01(b) and (ii) any
Default or Event of Default of which the Trustee shall have received written notification
which references the Securities and this Indenture or of which a Trust Officer shall have
obtained actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 6.02 is for informational purposes only and the Trustee’s receipt of the
foregoing shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates, except as otherwise provided herein);




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



55









 






     (j) The permissive right of the Trustee to take or refrain from taking any actions
enumerated in this Indenture shall not be construed as a duty;




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




     (l) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable
for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including but not limited to loss of profit), even if the Trustee has been advised as to
the likelihood of such loss or damage and regardless of the form of action; and




     (m) The Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without limitation,
acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer
(hardware or software) or communication services; accidents; labor disputes; acts of civil
or military authority and governmental action.



     Section 9.03 Trustee Not Responsible for Recitals or Issuance or Securities. (a) The recitals contained herein and in the Securities shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same.




     (b) The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.




     (c) The Trustee or any Authorized Agent shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or for the use or
application of any moneys received by any Paying Agent other than the Trustee.



     Section 9.04 May Hold Securities. The Trustee or any Paying Agent or Registrar, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent or Registrar.



     Section 9.05 Moneys Held in Trust. Subject to the provisions of Section 8.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder except such as it
may agree in writing with the Company to pay thereon.



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     Section 9.06 Compensation and Reimbursement. (a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such
compensation (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time to time agree in writing
for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may arise from the
Trustee’s gross negligence, bad faith or willful misconduct. The Company covenants and agrees to
indemnify the Trustee (and its officers, agents, directors, stockholders and employees) for, and to
hold it harmless against, any loss, liability or expense (including, without limitation, reasonable
attorney’s fees and expenses) incurred without gross negligence or bad faith or willful misconduct
on the part of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of defending itself
against any claim of liability in the premises.




     (b) The obligations of the Company under this Section to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit of the
Holders.




     (c) When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 8.01(g) or (h) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any Bankruptcy Law.




     (d) For the purposes of this Section 9.06, the “Trustee” shall include any predecessor
Trustee and the Trustee in any capacity, including Paying Agent,
Registrar or Conversion Agent; provided, however, that the gross negligence, bad faith or willful misconduct of
any Trustee or other indemnified party hereunder shall not affect the rights of any other
Trustee hereunder.




     (e) The provisions of this Section shall survive the discharge of this Indenture and
resignation or removal of the Trustee.



     Section 9.07 Reliance on Officers’ Certificate. Except as otherwise provided in Section 9.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the
absence of bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate or Opinion of Counsel delivered to the Trustee and such
certificate, in the absence of bad faith on the part of



57









 




the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.




     Section 9.08 Disqualification: Conflicting Interests. If the Trustee has or shall acquire any “conflicting interest” within the meaning of
Section 310(b) of the TIA, the Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the TIA.



     Section 9.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee with respect to the Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the SEC, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus, or being a member of a bank
holding company with a combined capital and surplus, of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 9.10.



     Section 9.10 Resignation and Removal; Appointment of Successor. (a) The Trustee or any successor hereafter appointed may at any time resign as Trustee with
respect to the Securities by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to the Securities by or pursuant to a
resolution of the Board of Directors. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor trustee with respect to the Securities, or any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee, in either
case at the sole cost and expense of the Company. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a successor trustee.




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




	 	(i)	 	the Trustee shall fail to comply with the
provisions of Section 9.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months;





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	 	(ii)	 	the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.09 and shall fail to resign
after written request therefor by the Company or by any such
Securityholder; or
	 
	 	(iii)	 	the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its property
shall be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;




then, in any such case, the Company may remove the Trustee with respect to all Securities and
appoint a successor trustee by or pursuant to a resolution of the Board of Directors, or, unless
the Trustee’s duty to resign is stayed, subject to Section 9.11, any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months may, on behalf of that Holder
and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.





     (c) The Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may at any time remove the Trustee by so notifying the Trustee and the
Company and may appoint a successor Trustee with the consent of the Company. If no
successor trustee shall have been so appointed and have accepted appointment within 30 days
after such notification of removal by the Holders, the Trustee to be removed may petition
any court of competent jurisdiction for the appointment of a successor trustee with respect
to the Securities, or any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee, in either case
at the sole cost and expense of the Company. Such court may, as it may deem proper
prescribe or appoint a successor trustee.




     (d) Notwithstanding anything herein to the contrary, any resignation or removal of the
Trustee and appointment of a successor trustee with respect to the Securities pursuant to
any of the provisions of this Section shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 9.11.




     (e) So long as no event which is, or after notice or lapse of time, or both, would
become, an Event of Default shall have occurred and be continuing, and except with respect
to a Trustee appointed by the Holders of a majority in principal amount of the Securities at
that time outstanding pursuant to Subsection (c) of this Section, if the Company shall have
delivered to the Trustee (i) a resolution of the Board of Directors appointing a successor
Trustee, effective as of a date specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such successor Trustee in accordance with
Section 9.11, the Trustee shall be deemed to have resigned as contemplated in subsection (a)
of this Section, the successor Trustee shall be deemed to have been appointed by the Company
pursuant to subsection (a) of this



59









 






Section and such appointment shall be deemed to have been
accepted as contemplated in Section 9.11, all as of such date, and all other provisions of
this Section and Section 9.11 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this subsection (e).




     (f) At any time there shall be only one Trustee with respect to the Securities.



     Section 9.11 Acceptance of Appointment By Successor. (a) In case of the appointment hereunder of a successor trustee with respect to the
Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges and all other amounts payable to
it hereunder, execute and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring Trustee hereunder, subject to
the lien provided for in Section 9.06(b).




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




     (c) No successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this Article 9.




     (d) Upon acceptance of appointment by a successor trustee as provided in this Section,
the Company shall transmit notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Register. If the Company fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.



     Section 9.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation or other business entity into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation or other business entity resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation
or other business entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation or other business entity shall
be qualified under the provisions of Section 9.08 and eligible under the provisions of Section
9.09, without the execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and



60









 




deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.




     Section 9.13 Preferential Collection of Claims Against the Company. The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship described in Section 311(b) of the TIA. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the TIA to the extent included therein.



     Section 9.14 Notice of Defaults. If a Default or Event of Default occurs and is continuing hereunder and if it is actually
known to a Trust Officer of the Trustee, the Trustee shall mail to each Holder notice of the
Default or Event of Default within 90 days after such Default or Event of Default. Except in the
case of a default in payment of principal of or interest on
any Security, the Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is not opposed to the interest of the
Holders of such Securities.



     Section 9.15 Reports by Trustee. (a) Within sixty (60) days after December 31 of each year commencing with the year 2008,
the Trustee shall transmit to Securityholders such reports dated as of December 31 of the year in
which such report is made concerning the Trustee and its actions under this Indenture as may be
required pursuant to the TIA, including, without limitation, Section 313(a) thereof, at the times
and in the manner provided pursuant thereto. In the event that, on any such reporting date, no
events have occurred under the applicable sections of the TIA within the 12 months preceding such
reporting date, the Trustee shall be under no duty or obligation to provide such reports. The
Trustee shall also comply with TIA Section 313(b)(2). The Trustee shall transmit by mail all
reports as required by TIA Section 313(c).




     (b) A copy of each such report shall, at the time of such transmission to
Securityholders, be delivered to the Company and filed by the Trustee with each stock
exchange upon which the Securities are listed and with the SEC in accordance with TIA
Section 313(d). The Company shall notify the Trustee when the Securities are listed on any
stock exchange and of any delisting thereof.



ARTICLE 10

AMENDMENTS, SUPPLEMENTS AND WAIVERS




     Section 10.01 Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to, or consent of, any Securityholder:




     (a) to cure any ambiguity, omission, defect or inconsistency, to correct or supplement
any provision herein which may be inconsistent with any other provision herein;




     (b) to provide for uncertificated Securities in addition to or in place of Certificated
Securities;



61









 






     (c) to provide for the assumption of the Company’s obligations to Holders of Securities
and the adjustment of conversion rights in the case of a share exchange, merger or
consolidation or sale of all or substantially all of the Company’s assets;




     (d) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect in any material respect the legal
rights under this Indenture of any Securityholder;




     (e) to add a guarantor;




     (f) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;




     (g) to secure the Securities;




     (h) to comply with the rules of any applicable securities depositary, including the
Depositary;




     (i) to increase the Base Conversion Rate;




     (j) to execute a supplemental indenture in accordance with Section 5.10;




     (k) to conform the text of this Indenture or the Securities to any provision of the
“Description of the Notes” contained in the Prospectus to the extent that the text of the
“Description of the Notes” was intended by the Company and the Underwriters to be a
recitation of the text of this Indenture or the Securities as represented by the Company to
the trustee in an Officers’ Certificate;




     (l) to provide for a successor Trustee in accordance with the terms of this Indenture
or to otherwise comply with any requirement of this Indenture;




     (m) to add to the covenants listed in Article 6 for the benefit of the Holders or
surrender any right or power conferred upon the Company;




     (n) to provide for the issuance of Additional Securities, to the extent that the
Company and the Trustee deem such amendment or supplement necessary or advisable in
connection with such issuance; provided that no such amendment or supplement shall impair
the rights or interests of any Holder of Initial Securities; or




     (o) to modify the restrictions and procedures for resale and other transfers of
Securities or Common Stock pursuant to law, regulation or practice relating to the resale or
transfer of restricted securities generally.



     Section 10.02 With Consent of Holders. The Company and the Trustee may amend or supplement the Securities or this Indenture with
the consent of the Holders of at least a majority in aggregate principal amount of the Securities
then outstanding. Subject to Section 8.04 and Section 8.07, the Holders of at least
a majority in aggregate principal amount of the Securities then outstanding may, without
notice to the Holders of Securities, waive compliance in any



62









 




instance by the Company with any
provision of the Securities or this Indenture or waive any past default under this Indenture and
its consequences, except an uncured default in the payment of any amount due, or in the obligation
to deliver Common Stock, with respect to any Security or in respect of any provision which under
this Indenture cannot be modified or amended without the consent of the Holder of each Security
affected. However, notwithstanding the foregoing but subject to Section 10.04, without the consent
of each affected Holder of each Security then outstanding, an amendment, supplement or waiver may
not:





     (a) change the stated maturity of the principal of or the payment date of any
installment of interest on or with respect to the
Securities;




     (b) reduce the principal amount of, the Redemption Price, the Repurchase Price, the
Fundamental Change Purchase Price, or the Conversion Rate (except as provided in this
Indenture) of any Security or the rate of interest on any Security;




     (c) reduce the amount of principal payable upon acceleration of the maturity of any
Security;




     (d) change the currency in which payment of principal of, the Redemption Price, the
Repurchase Price, the Fundamental Change Purchase Price of, or interest with respect to, the
Securities is payable;




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




     (f) modify the provisions with respect to the repurchase rights of Holders or
redemption rights of the Company as provided in Article 3 in a manner adverse to Holders;




     (g) adversely affect the right of Holders to convert Securities in any material
respect, other than as provided in this Indenture;




     (h) reduce the percentage in principal amount of the outstanding Securities, the
consent of whose Holders is required to take specific actions including, but not limited to,
the waiver of past defaults or the modification or amendment of this Indenture; or




     (i) alter the manner of calculation or rate of accrual of interest or Fundamental Change Purchase Price or the Base Conversion Rate, Incremental Share
Factor and Applicable Conversion Rate (except as permitted under Section 10.01(i)) on any
Security or extend the time for payment of any such amount.



     It shall not be necessary for the consent of the Holders under this Section 10.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.




63










 





     After an amendment, supplement or waiver under Section 10.01 or this Section 10.02 becomes
effective, the Company shall 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 10.03 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 10.04 Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is
a continuing consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes effective. After an
amendment, supplement or waiver becomes effective, it shall bind every applicable Securityholder.



     Section 10.05 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 10.06 Trustee to Sign Amendments, Etc. The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this
Article 10 if the amendment or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee in any material respect. If it does adversely affect the
rights, duties, liabilities or immunities of the Trustee in any material respect, 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 Officers’ Certificate and an Opinion of Counsel stating that
such amendment or supplemental indenture is authorized or permitted by this Indenture and that all
conditions precedent to the effectiveness of such amendment or supplement have been satisfied or
duly waived.



     Section 10.07 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, 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.



64









 





ARTICLE 11

SATISFACTION AND DISCHARGE




     Section 11.01 Satisfaction and Discharge of the Indenture. This Indenture shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for), 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




     (a) either




	 	(i)	 	all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
2.07) have been delivered to the Trustee for cancellation; or
	 
	 	(ii)	 	all such Securities not theretofore delivered
to the Trustee for cancellation have become due and payable whether at
the Maturity Date, upon acceleration, with respect to any Fundamental
Change Purchase Date or Repurchase Date and the Company deposits with
the Paying Agent or Conversion Agent as the case may be, Cash and other
Settlement Amounts sufficient to pay on such date all amounts due and
owing on all outstanding Securities (other than Securities replaced
pursuant to Section 2.07) on such date;






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




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



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 9.06 and, if money shall have been deposited with the Trustee
pursuant to Section 11.01(a)(ii), the obligations of the Trustee under Section 11.02 shall survive
such satisfaction and discharge.



     Notwithstanding anything herein to the contrary, Article 11, Section 2.04, Section 2.06,
Section 2.07, Section 2.08, Section 6.01, Section 6.05, Section 6.06 and Section 8.06 shall survive
any discharge of this Indenture until such time as there are no Securities outstanding.



     Section 11.02 Repayment to the Company. The Trustee, the Paying Agent and the Conversion Agent shall return to the Company upon
written request any Cash or securities held by them for the payment of any amount with respect to
the Securities that remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the Cash or securities must look to the Company
for payment as general creditors unless an applicable abandoned property law designates another
person and the Trustee, the



65









 






Paying Agent and the Conversion Agent shall have no further liability to the Securityholders
with respect to such Cash or securities for that period commencing after the return thereof.



ARTICLE 12

MISCELLANEOUS




     Section 12.01 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision
which is required to be included in this Indenture by the TIA, including, without limitation, the
duties imposed by TIA Section 318(c), the required provision of the TIA shall control.



     Section 12.02 Notices. Any demand, authorization notice, request, consent or communication shall be given in
writing and delivered in person, sent by overnight courier 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
parties hereto as follows:



     If to the Company, to:




Blackboard Inc.

1899 L Street, N.W.

Washington D.C. 20036

Attention: [•]

Facsimile No.: [•]



     If to the Trustee, to:




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Attention: Corporate Trust Services

Fax: (617) 603-6667



     Such notices or communications to the Trustee shall be effective when received.



     The Company or the Trustee by notice to the other in the manner prescribed above may designate
additional or different addresses or facsimile numbers for subsequent notices or communications.



     Any notice or communication mailed to a Securityholder shall be mailed by first-class mail,
postage prepaid, or delivered by hand or by an overnight delivery service to it at its address
shown on the Register and shall be sufficiently given if so mailed or delivered within the time
prescribed. Any notice or communication shall also be mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA.



     Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. Except as set forth above as to the



66









 






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



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



     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:




	 	(i)	 	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
	 
	 	(ii)	 	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 (other than an Officers’ Certificate
provided pursuant to Section 6.03) shall include:




	 	(i)	 	a statement that the person making such
certificate or opinion has read such covenant or condition;
	 
	 	(ii)	 	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;
	 
	 	(iii)	 	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
	 
	 	(iv)	 	a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied
with;




provided 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 Securityholders. The Company may set a record date for purposes of determining the identity of Holders
entitled to vote or consent to



67









 






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 10.04, 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 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 are not required to be open. 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 an Interest Payment Record Date or other
record date is a Legal Holiday, the record date shall not be affected.



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



     EACH OF THE COMPANY AND THE TRUSTEE HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.



     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. No recourse for the payment of the principal of, or accrued and unpaid interest on, any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any past, present or future
incorporator, stockholder, employee, agent, officer or director or Subsidiary of the Company as
such or of any successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Securities.



68









 





     Section 12.11 Successors. All agreements of the Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its successor.



     Section 12.12 Multiple Counterparts. The parties may sign multiple counterparts of this Indenture. Each signed counterpart
shall be deemed an original, but all of them together shall represent the same agreement.



     Section 12.13 Separability. In case 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 12.14 Calculations in Respect of the Securities. The Company or its agents shall make all calculations under this Indenture and the
Securities in good faith. In the absence of manifest error, such calculations shall be final and
binding on all Holders. The Company or its agents shall provide a copy of such calculations to the
Trustee as required hereunder, and the Trustee shall be entitled to rely on the accuracy of any
such calculation without independent verification.



     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.



[SIGNATURE PAGE FOLLOWS]




69









 





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



	 	 	 	 	 
	 	BLACKBOARD INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, not in its

individual capacity, but solely as Trustee,

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 




(Signature page to Indenture)




 









 







EXHIBIT A




[FORM OF FACE OF SECURITY]





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



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





 









 





			
	CUSIP NO.	 	 
	$
	 	ISIN NO.






[•]% Convertible Senior Note due 2027




     Blackboard Inc., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns,
the principal sum of            Dollars on July 1, 2027.



     Interest Payment Dates: January 1 and July 1 (commencing January 1, 2008)



     Record Dates: June 15 and December 15



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



Dated:                                        




	 	 	 	 	 
	 	BLACKBOARD INC.,

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TRUSTEE’S CERTIFICATE OF

AUTHENTICATION




	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

    AS TRUSTEE, CERTIFIES THAT

    THIS IS ONE OF THE SECURITIES

    REFERRED TO IN THE INDENTURE.	 	 
	 
	 	 	 	 
	By:

	 	 
	 	 
	 	 	 	 	 
	 

	 	Authorized Signatory	 	 








 




			
	1	 	Or such later date as is appropriate in the case of Additional Securities.





3









 





[REVERSE SIDE OF SECURITY]


[•]% Convertible Senior Note due 2027





	1.	 	Interest.





     Blackboard Inc., a Delaware corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay
interest on the principal amount of this Security at the rate per annum shown above. Interest on
the Securities will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from [•], 2007. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. This Security will bear interest from the
issue date until maturity at the rate of ___%
per annum on the principal amount. The Company will pay interest semiannually on January 1 and July 1 of each year,
commencing January 1, 2008.



     All references in this Security to interest shall include any
applicable Additional Interest unless otherwise stated.




	2.	 	Method of Payment.





     The Company will pay interest on the Securities (except defaulted interest) to the Persons who
are registered Holders of Securities at the Close of Business on the June 15 or December 15 next
preceding the interest payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. 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. Payments in
respect of the Securities represented by a Global Security (including principal,



4









 






premium and interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all payments in respect
of a certificated Security (including principal, premium, if any, and interest) by mailing a check
to the registered address of each Holder thereof; provided, however, that payments on a
certificated Security will be made by wire transfer to a U.S. dollar account maintained by the
payee with a bank in the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such other date as the
Trustee may accept in its discretion).




	3.	 	Registrar, Paying Agent and Conversion Agent.





     Initially, U.S. Bank National Association (the “Trustee”), will act as Registrar, Paying Agent
and Conversion Agent. The Company may appoint and change any Registrar, Paying Agent and
Conversion Agent or co-registrar without notice. The Company or any of its domestically
incorporated wholly owned Subsidiaries may act as Registrar, Paying Agent and Conversion Agent or
co-registrar.




	4.	 	Indenture.





     The Company issued the Securities under an Indenture dated as of June [•], 2007 (“Indenture”),
among the Company and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “Act”). Terms
defined in the Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Holders are referred to the Indenture
and the Act for a statement of those terms.



     The Company shall be entitled to issue Additional Securities pursuant to Section 2.02(d) of
the Indenture. The Securities issued on the Issue Date and any Additional Securities will be
treated as a single class for all purposes under the Indenture.




	5.	 	Optional Redemption.





     No sinking fund is provided for the Securities. Beginning on July 1, 2011, and during the
periods thereafter to maturity, the Securities are redeemable, in whole at any time, or in part
from time to time, for cash at a price equal to 100% of the principal amount of the Securities plus
accrued and unpaid interest up to but not including the date of redemption; provided that if the
redemption date is between the Close of Business on a record date and the Opening of Business on
the related interest payment date, interest will be payable to the Holders in whose names the
Securities are registered at the Close of Business on the relevant record date. Any redemption
pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.07 through 3.13
of the Indenture.




5









 





	6.	 	Repurchase of Securities on Specified Dates; Repurchase of Securities upon a Fundamental Change.





     (a) Subject to the terms and conditions of the Indenture, the Company shall become obligated
to repurchase, at the option of the Holder, on July 1, 2011, July 1, 2017 and July 1, 2022, all or
a portion of the Securities held by such Holder, in any integral multiple of $1,000, for cash at a
price per Security equal to 100% of the aggregate principal amount of the Security, together with
accrued but unpaid interest thereon, up to but not including the Repurchase Date; provided
that accrued but unpaid interest will be payable to the Holders in whose names the Securities are
registered at the Close of Business on the relevant record date. Any repurchase pursuant to this
paragraph (a) shall be made pursuant to the provisions of Section 3.14 of the Indenture.



     (b) At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase the Securities held by such Holder after the
occurrence of a Fundamental Change for cash at a price equal to 100% of the principal amount
thereof plus accrued but unpaid interest thereon, up to but not including the Fundamental Change
Repurchase Date; provided that if the Fundamental Change Repurchase Date is between the
Close of Business on a record date and the Opening of Business on the related interest payment
date, accrued but unpaid interest will be payable to the Holders in whose names the Securities are
registered at the Close of Business on the relevant record date. Holders have the right to
withdraw any Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, by
delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of
the Indenture. Any repurchase pursuant to this paragraph (b) shall be made pursuant to the
provisions of Section 3.01 through Section 3.03 of the Indenture.



     (c) If cash sufficient to pay the Repurchase Price or Fundamental Change Repurchase Price, as
the case may be, and accrued but unpaid interest on all Securities or portions thereof to be
repurchased as of the Repurchase Date or the Fundamental Change Repurchase Date, as the case may
be, is held by the Paying Agent by 11:00 a.m., New York time, on the Business Day immediately
following the Repurchase Date or the Fundamental Change Repurchase Date, interest shall cease to
accrue on such Securities (or portions thereof) as of such Repurchase Date or Fundamental Change
Repurchase Date, and the Holder thereof shall have no other rights as such, other than the right to
receive the Repurchase Price or Fundamental Change Repurchase Price, as the case may be, and
interest upon surrender of such Security.




	7.	 	Conversion.





     Subject to the occurrence of certain events as set forth in the Indenture and in compliance
with the terms and conditions of the Indenture, prior to the Maturity Date, the Holder has the
right, at its option, to convert each $1,000 principal amount, or any integral multiple thereof, of
the Securities into cash and, if applicable, shares of Common Stock as described in the Indenture.
The Base Conversion Price shall as of the date of the Indenture initially be $[•] per share of
Common Stock, the Base Conversion Rate shall, as of the date of the Indenture, initially be
approximately [•] shares of Common Stock per $1,000 principal amount of Securities, and the
Incremental Share Factor shall initially be [•] per $1,000 principal amount of Securities, subject
to adjustment from time to time as provided in the Indenture. To convert a Security, the Holder
must deliver this Security (if certificated) with the form entitled “Form of Conversion Notice” on
the reverse hereof duly completed and manually signed, to the Company at the office or agency of
the Conversion Agent, together with any funds required pursuant to the Indenture, and, unless



6









 






any shares that may be issuable on conversion are to be issued in the same name as this
Security, duly endorsed by, or accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the Holder or by its duly authorized attorney. The Company will notify
the Holder of any event triggering the right to convert the Securities as specified above in
accordance with the Indenture. If the Securities are not in certificated form, Holders must
provide notice of their election in accordance with the Applicable Procedures of the Depository.



     If the Company reclassifies its outstanding shares of Common Stock, is a party to a
consolidation or merger, or sells or disposes to another Person all or substantially all of the
assets of the Company, the right to convert a Security into cash and shares of Common Stock will be
changed into a right to convert it into cash and the kind or amount of cash, securities or other
property receivable upon such event, in each case in accordance with and subject to the terms and
conditions of the Indenture.



     In addition, following certain transactions described in the Indenture (subject to the
requirements of Section 5.07 of the Indenture) that occur on or prior to [•], that constitute a
Make-Whole Fundamental Change, a Holder who elects to convert its Securities in connection with
such transaction will be entitled to receive Additional Shares upon conversion.



     If the Securities are converted after the Close of Business on a Record Date and prior to the
Opening of Business on the next Interest Payment Date, including the Maturity Date, Holders of such
Securities at the Close of Business on such regular Record Date shall receive the accrued but
unpaid interest payable on such Securities on the corresponding Interest Payment Date
notwithstanding the conversion. In such event, such Security, when surrendered for conversion,
must be accompanied by delivery of payment to the Conversion Agent in an amount equal to the
accrued but unpaid interest payable on such Interest Payment Date on the portion so converted. If
such payment does not accompany such Security, the Security shall not be converted; provided that
no such payment shall be required if (1) any overdue interest exists at the time of conversion with
respect to the notes being converted but only to the extent of such overdue interest, (2) the
Holder surrenders its Securities for conversion after the Close of Business on the Record Date
relating to the Interest Payment Date on July 1, 2011 and the Interest Payment Date at the Maturity
Date, or (3) such Security has been called for redemption on a Redemption Date within the period
between the Close of Business on such Record Date and the Opening of Business on such Interest
Payment Date. If the Company defaults in the payment of interest payable on the Interest Payment
Date, the Conversion Agent shall promptly repay such funds to the Holder.



     No fractional shares will be issued upon any conversion, but an adjustment and payment in cash
will be made, as provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Security or Securities for conversion.



     A Security in respect of which a Holder is exercising its right to require repurchase upon a
Fundamental Change or repurchase on a Repurchase Date may be converted only if such Holder
withdraws its election to exercise such right in accordance with the terms of the Indenture.



7









 






	8.	 	Restrictive Covenants.





     The Indenture imposes certain limitations on, among other things, the ability of the Company
to merge or consolidate with any other Person, all subject to certain limitations described in the
Indenture.




	9.	 	Ranking and Guarantees.





     The Securities are general senior unsecured obligations of the Company.




	10.	 	Denominations; Transfer; Exchange.





     The Securities are in registered form without coupons in denominations of $1,000 principal
amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange of any Securities
selected for redemption (except, in the case of a Security to be redeemed in part, the portion of
the Security not to be redeemed) or any Securities for a period of 15 Business Days before the
mailing of a notice of an offer to repurchase or redeem Securities or 15 Business Days before an
Interest Payment Date.




	11.	 	Persons Deemed Owners.





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




	12.	 	Unclaimed Money.





     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.




	13.	 	Amendment, Supplement, 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 of the outstanding principal amount of the
Securities, and any past default or noncompliance with any provision may be waived with the consent
of the Holders of a majority in principal amount of the Securities. Without the consent of any
Holder, the Company may amend or supplement the Indenture or the Securities to, among other things,
cure any ambiguity, defect or inconsistency or to make any change that does not adversely affect
the rights of any Holder in any material respect.




	14.	 	Successor Corporation.





     When a successor corporation assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor corporation will be released from those obligations.



8









 






	15.	 	Defaults and Remedies.





     Subject to certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy, insolvency or
reorganization, all outstanding Securities shall become due and payable immediately without further
action or notice. 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 principal
amount of the Securities may direct the Trustee in its exercise of any trust or power. The Company
must furnish an annual compliance certificate to the Trustee.




	16.	 	Trustee Dealings with Company.





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




	17.	 	No Recourse Against Others.





     No recourse under or upon any obligations, covenant or agreement of the Company contained in
the Indenture, or in this Security, or because of any indebtedness evidenced thereby or hereby,
shall be had against any incorporator, as such, or against any past, present or future employee,
stockholder, officer or director, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the Holders
and as part of the consideration for the issuance of the Securities.




	18.	 	Authentication.





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




	19.	 	Abbreviations.





     Customary abbreviations may be used in the name of a 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 U/G/M/A (=Uniform Gifts to
Minors Act).




	20.	 	CUSIP Numbers.





     Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company will cause CUSIP numbers to be printed on the



9









 






Securities as a convenience to Holders of the Securities. No representation is made as to the
accuracy of such numbers as printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.




	21.	 	Governing Law.





     THIS SECURITY 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 to the Holder a
copy of the Indenture. Requests may be made to:



Blackboard Inc.

1899 L Street NW, 11th Floor

Washington, DC 20036
 

Attention:
Treasurer




10









 





SCHEDULE OF EXCHANGES OF SECURITIES2




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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	PRINCIPAL	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	AMOUNT OF	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	THIS GLOBAL	 
	 	 	 	 	 	 	 	 	 	 	DECREASE IN	 	 	INCREASE IN	 	 	SECURITY	 
	 	 	 	 	 	 	 	 	 	 	PRINCIPAL	 	 	PRINCIPAL	 	 	FOLLOWING	 
	 	 	DATE OF	 	 	AUTHORIZED	 	 	AMOUNT OF	 	 	AMOUNT OF	 	 	SUCH	 
	 	 	DECREASE OR	 	 	SIGNATORY OF	 	 	THIS GLOBAL	 	 	THIS GLOBAL	 	 	DECREASE OR	 
	 	 	INCREASE	 	 	SECURITIES	 	 	SECURITY	 	 	SECURITY	 	 	INCREASE	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	2	 	This schedule to be included if the Security is a Global Security.





11









 





ASSIGNMENT FORM3



To assign this Security, fill in the form below:



I or we assign and transfer this Security to



 



 



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




 



 



(Insert assignee’s Social Security or tax I.D. No.)



and irrevocably appoint                      agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.



 




	 	 	 	 	 	 	 
	Dated:

	 	 
	 	Your Signature:	 	 
	 

	 	 
	 	 	 	 





 



Sign exactly as your name appears on the other side of this Security.




	 	 	 	 	 
	 	                    

Signature

 	 



	 	 	 	 	 
	 	Signature Guarantee:

 	 



	 	 	 	 	 
	 	                    

Signature

 	 




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





 




			
	3	 	This Form and the following Forms to be included only if the Security is a Certificated Security.





12









 





FORM OF REPURCHASE NOTICE



To: Blackboard Inc.




     The undersigned registered holder of this Security requests and instructs Blackboard Inc. (the
“Company”) to repurchase this Security, or the portion hereof (which is $1,000 principal amount or
a multiple thereof) designated below, on the date specified below under “Date of Requested
Repurchase”, in accordance with the terms and conditions specified in paragraph 7 of this Security
and the Indenture referred to in this Security and directs that the check in payment for this
Security or the portion thereof and any Securities representing the portion of principal amount
hereof not to be so repurchased, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If any portion of this Security not repurchased is to be
issued in the name of a Person other than the undersigned, the undersigned shall pay all transfer
taxes payable with respect thereto.


Dated:




	 	 	 
	 

	 	 
	 

	 	 
	 

	 	Signature(s)






Fill in for registration of Securities not

repurchased if to be issued other than to

and in the name of the registered holder:



 




(Name)



 




(Street Address)



 




(City, state and zip code)



Please print name and address




	 	 	 
	Principal amount to be repurchased (if less than all):      $

	 	 
	 

	 	 






Date of Requested Repurchase: July 1, 20    
      (specify
either July 1, 2011, July 1, 2017 and July 1, 2022)




	 	 	 
	Certificate number (if applicable):

	 	 
	 

	 	 






 









 





FORM OF CONVERSION NOTICE




     To convert the entire principal amount represented by this Security into shares of Common
Stock and Cash in lieu of any fractional shares, and as provided in the Indenture check the box o



     To convert only part of this Security, state the principal amount to be converted (which must
be $1,000 or a 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 ID no.)



 



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




     The undersigned (the “Applicant”) hereby makes application for the issuance of record to the
name of the Applicant of shares of Common Stock.




	Dated:	 	                                        





	 	 	 	 	 
	 

	 	Your Signature:
	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name
appears on the other side of
the Security)






Signature Guaranteed

Participant in a Recognized Signature




Guarantee Medallion Program




	 	 	 	 	 
	By:

	 	 
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






 









 





FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Attention: Corporate Trust Services

Fax: (617) 603-6667





Re: Blackboard Inc. (the “Company”)

[•]% Convertible Senior Notes due

July 1, 2027


This is a Fundamental Change Purchase Notice as defined in Section 3.01(c) of the Indenture, dated
as of [•], 2007 (the “Indenture”), between the Company and [U.S. Bank National Association], as
Trustee. Terms used but not defined herein shall have the meanings ascribed to them in the
Indenture.




     Certificate No(s). of Securities:                                                              
;                                                           



     $                                                            



     I intend to deliver the following aggregate principal amount of Securities for purchase by the
Company pursuant to Section 3.01(a) of the Indenture (in multiples of $1,000):



     $                                                            



     I hereby agree that the Securities shall be purchased on the Fundamental Change Purchase Date
pursuant to the terms and conditions specified in paragraph 5 of the Securities and in Article 3 of
the Indenture.



     Print Name of Holder:                                                             




			
	Signature:	 	                                                                                


(Sign exactly as your name appears on the other side of this Security)





 









 





EXHIBIT B




     The following table sets forth the increase in the Applicable Conversion Rate, expressed as a
number of additional shares of Common Stock to be received per $1,000 principal amount of
Securities, upon a conversion in connection with a Make-Whole Fundamental Change that occurs in the
corresponding period.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Effective Date	 
	 	 	          ,	 	 	          ,	 	 	          ,	 	 	          ,	 	 	          ,	 
	Stock Price	 	2007	 	 	2008	 	 	2009	 	 	2010	 	 	2011	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$