RUDOLPH TECHNOLOGIES INC (Form: 8-K, Received: 07/25/2011 16:48:03)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) July 25, 2011 (July 19, 2011)

Rudolph Technologies, Inc.

(Exact Name of Registrant as Specified in Charter)

Delaware	000-27965	22-3531208
(State or other jurisdiction	(Commission	(I.R.S. Employer
of incorporation)	File Number)	Identification No.)

One Rudolph Road, P.O. Box 1000, Flanders, NJ 07836

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (973) 691-1300

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement.

Purchase Agreement

On July 19, 2011, Rudolph Technologies, Inc. (the “Company”) entered into a Purchase Agreement (the “Purchase Agreement”) with Credit Suisse Securities (USA) LLC, as the initial purchaser (the “Initial Purchaser”), relating to the Company’s sale of $50 million aggregate principal amount of its 3.75% Convertible Senior Notes due 2016 (the “Notes”) to the Initial Purchaser. The Company also granted the Initial Purchaser an option to purchase up to an additional $10 million aggregate principal amount of the Notes (the “Option”). The Initial Purchaser exercised the Option in full, and on July 25, 2011, the Company issued $60 million aggregate principal amount of the Notes.

The Purchase Agreement includes customary representations, warranties and covenants. Under the terms of the Purchase Agreement, the Company has agreed to indemnify the Initial Purchaser against certain liabilities.

The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Purchase Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Indenture and Notes

The Notes were issued pursuant to an indenture, dated as of July 25, 2011 (the “Indenture”), between the Company and Bank of New York Mellon Trust Company, N.A., as Trustee, which includes a form of Note. The Notes will pay interest semi-annually in arrears on January 15 and July 15 of each year, beginning January 15, 2012, at an annual rate of 3.75% and will mature on July 15, 2016, unless earlier converted or repurchased.

Subject to fulfillment of certain conditions and during the periods described below, the Notes may be converted at the applicable conversion rate. The initial conversion rate will be 77.2410 shares of Common Stock (subject to adjustment in certain circumstances) per $1,000 principal amount of Notes (equivalent to an initial conversion price of approximately $12.95 per share of Common Stock), representing a conversion premium of approximately 35% above the closing price of the Common Stock of $9.59 per share on July 19, 2011. Upon conversion, the Company will pay cash up to the aggregate principal amount of the Notes to be converted and deliver shares of its Common Stock in respect of the remainder, if any, of the conversion obligation in excess of the aggregate principal amount of the Notes being converted.

Prior to the close of business on the business day immediately preceding April 15, 2016, the Notes will be convertible only upon satisfaction of one or more of the following conditions:

· during any calendar quarter commencing after September 30, 2011 (and only during such calendar quarter), if the last reported sale price of the Common Stock for at least 20 trading days (whether or not consecutive) during the period of 30 consecutive trading days ending on the last trading day of the preceding calendar

quarter exceeds 130% of the applicable conversion price on each applicable trading day;

· during the five business day period after any five consecutive trading-day period in which the trading price (as defined in the Indenture) per $1,000 principal amount of the Notes for each trading day of that five consecutive trading-day period was less than 98% of the product of the last reported sale price of Common Stock and the applicable conversion rate on such trading day; or

· upon the occurrence of specified corporate events.

On or after April 15, 2016, holders may convert their notes at the applicable conversion rate at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date, regardless of whether any of the foregoing conditions have been met.

If the Company undergoes a “fundamental change” (as defined in the Indenture), subject to certain conditions, holders of the Notes will have the option to require the Company to repurchase all or any portion of its Notes for cash at a price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid interest to, but excluding, the applicable repurchase date. In addition, if a fundamental change occurs and a holder elects to convert its Notes in connection with such “make-whole fundamental change” (as defined in the Indenture), the Company will, under certain circumstances, increase the conversion rate for the Notes surrendered for conversion.

The Indenture provides for customary events of default. In the case of an event of default arising from specified events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. If any other event of default under the Indenture occurs or is continuing, the Trustee or holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all of the Notes to be due and payable immediately. In certain circumstances if the Company fails to timely file certain documents or reports required under the Securities Exchange Act of 1934, as amended, additional interest will accrue on the Notes during the period in which its failure to file has occurred and is continuing. In addition, if, and for so long as, the restrictive legend on the notes has not been removed or the notes are not otherwise freely tradable by holders other than the Company’s affiliates as of the 365th day after the last date of original issuance of the Notes, the Company will pay additional interest on the Notes until such restrictive legend is removed and the Notes are freely tradable.

The foregoing description of the Indenture and the Notes does not purport to be complete and is qualified in its entirety by reference to the Indenture (which includes the form of Note), which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Convertible Note Hedge Transaction and Warrant Transaction

In connection with the offering of the Notes, on July 19, 2011, the Company entered into a convertible note hedge and a warrant transaction with an affiliate of the Initial Purchaser (the “Option Counterparty”), and on July 22, 2011, following the exercise by the Initial Purchaser of the Option, the Company and the Option Counterparty amended the confirmations relating to the convertible note hedge and warrant transactions to increase the size of the transactions. The convertible note hedge transaction is intended to reduce potential dilution to the Common Stock upon conversion of the Notes. However, the warrant transaction will have a dilutive effect on the Company’s earnings per share to the extent that the price of the Common Stock exceeds the strike price of the warrant. The strike price of the warrant will initially be approximately $17.00 per share, which is approximately 177% of the closing sale price of the Common Stock on July 19, 2011. The Company paid an aggregate of approximately $14.5 million to the Option Counterparty for the convertible note hedge transaction, as amended, and received an aggregate of approximately $7.0 million from the Option Counterparty for the warrant transaction, as amended.

The Company will not be required to make any cash payments to the Option Counterparty or its affiliates upon the exercise of the options that are a part of the convertible note hedge transaction, but will be entitled to receive from the Option Counterparty a number of shares of Common Stock generally based on the amount by which the market price per share of the Common Stock, as measured under the terms of the convertible note hedge transaction, is greater than the strike price of the convertible note hedge transaction during the relevant valuation period under the convertible note hedge transaction. Additionally, if the market price per share of the Common Stock, as measured under the terms of the warrant transaction, exceeds the strike price of the warrants during the valuation period at the maturity of the warrants, the Company will owe the Option Counterparty a number of shares of Common Stock in an amount based on the excess of such market price per share of the Common Stock over the strike price of the warrants.

The foregoing description of the convertible note hedge transaction, as amended, and warrant transaction, as amended, is qualified in its entirety by reference to the confirmation and amendment thereto relating to the convertible note hedge transaction and the confirmation and amendment thereto relating to the warrant transaction, which are filed, respectively, as Exhibits 10.2 through 10.5 to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Items 1.01 and 3.02 of this Current Report on Form 8-K is incorporated herein by reference.

Item 3.02. Unregistered Sales of Equity Securities.

As described in Item 1.01 of this report, which is incorporated herein by reference, on July 25, 2011, the Company issued $60 million aggregate principal amount of Notes to the Initial Purchaser (including the Notes issued upon the exercise of the Option by the Initial Purchaser) in a private placement pursuant to exemptions from the registration requirements of the Securities Act. The Company offered and sold the Notes in reliance on the exemption from registration provided by Section 4(2) of the Securities Act. The Initial Purchaser is initially offering the Notes to “qualified institutional buyers” pursuant to the exemption from registration provided by Rule 144A under the Securities Act. The Notes and Common Stock issuable upon conversion of the Notes have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. The Notes are convertible into cash and shares of Common Stock, if any, as described in this report.

Also as described in Item 1.01 of this report, (i) on July 19, 2011, entered into a warrant confirmation transaction with the Option Counterparty and (ii) on July 22, 2011, the Company and the Option Counterparty amended the confirmations relating to the convertible note hedge and warrant transactions. Pursuant to the warrant confirmation transaction, as amended, up to a maximum of 8,668,920 shares of Common Stock (subject to adjustment from time to time as provided in the warrant confirmation as a result of actions of the Company or events within the Company’s control) may be issuable upon the conversion of warrants. The strike price of the warrant transaction will initially be approximately $17.00 per share. The Company offered and sold the warrants in reliance on the exemption from registration provided by Section 4(2) of the Securities Act. Neither the warrants nor the underlying shares of Common Stock issuable upon the conversion of the warrants have been registered under the Securities Act and neither may be offered or sold in the United States absent registration or an applicable exemption from registration requirements.

The Company estimates that the net proceeds from this offering will be approximately $50.4 million after deducting the Initial Purchaser’s discount and estimated offering expenses and the aggregate cost of the convertible note hedge, as amended (taking into account the proceeds received by the Company from the sale of the warrant transaction), of approximately $7.5 million.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

4.1		Indenture, dated as of July 25, 2011, by and between The Bank of New York Mellon Trust Company, N.A., as Trustee, and Rudolph Technologies, Inc.

10.1		Purchase Agreement, dated July 19, 2011, among Rudolph Technologies, Inc. and Credit Suisse Securities (USA) LLC

10.2		Confirmation of Convertible Note Hedge Transaction dated July 19, 2011, by and between Rudolph Technologies, Inc. and Credit Suisse International

10.3		Amendment dated July 22, 2011 to Confirmation of Convertible Note Hedge Transaction

		dated July 19, 2011, by and between Rudolph Technologies, Inc. and Credit Suisse International

10.4		Confirmation of Issuer Warrant Transaction dated July 19, 2011, by and between Rudolph Technologies, Inc. and Credit Suisse International

10.5		Amendment dated July 22, 2011 to Confirmation of Issuer Warrant Transaction dated July 19, 2011, by and between Rudolph Technologies, Inc. and Credit Suisse International

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	Rudolph Technologies, Inc.


Dated: July 25, 2011	By:	/s/ Paul F. McLaughlin
		Name:	Paul F. McLaughlin
		Title:	Chairman and
			Chief Executive Officer

Exhibit 4.1

RUDOLPH TECHNOLOGIES, INC.

3.75% CONVERTIBLE SENIOR NOTES DUE 2016

INDENTURE

Dated as of July 25, 2011

THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A.,

Trustee

TABLE OF CONTENTS

		Page

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE		1
Section 1.01	Definitions	1
Section 1.02	Other Definitions	9
Section 1.03	Incorporation by Reference of Trust Indenture Act	10
Section 1.04	Rules of Construction	10
Section 1.05	Acts of Holders	11

ARTICLE II THE NOTES		12
Section 2.01	Designation, Amount and Issuance of Notes	12
Section 2.02	Form of Notes	12
Section 2.03	Denomination of Notes	14
Section 2.04	Execution and Authentication	14
Section 2.05	Registrar, Paying Agent and Conversion Agent	15
Section 2.06	Money Held in Trust	15
Section 2.07	Noteholder Lists	16
Section 2.08	Transfer and Exchange	16
Section 2.09	Transfer Restrictions	19
Section 2.10	Expiration of Restrictions	21
Section 2.11	Replacement Notes	23
Section 2.12	Outstanding Notes	24
Section 2.13	Temporary Notes	25
Section 2.14	Cancellation	25
Section 2.15	Persons Deemed Owners	25
Section 2.16	Additional Notes; Repurchases	25
Section 2.17	CUSIPs	26
Section 2.18	Ranking	26

ARTICLE III REPURCHASES		26
Section 3.01	No Company Right to Redeem	26
Section 3.02	Repurchase of Notes at Option of the Holder Upon Fundamental Change	26
Section 3.03	Fundamental Change Notice	26
Section 3.04	Effect of Fundamental Change Repurchase Notice	29
Section 3.05	Covenant Not to Repurchase Notes in Certain Circumstances	30
Section 3.06	Deposit of Fundamental Change Repurchase Price	30
Section 3.07	Notes Repurchased in Part	30
Section 3.08	Covenant to Comply With Securities Laws Upon Repurchase of Notes	31
Section 3.09	Repayment to the Company	31

ARTICLE IV COVENANTS		31
Section 4.01	Payment of Notes	31

Section 4.02	SEC and Other Reports; 144A Information	32
Section 4.03	Compliance Certificate	33
Section 4.04	Maintenance of Office or Agency	34
Section 4.05	Restriction on Repurchases	34
Section 4.06	Corporate Existence	34
Section 4.07	Par Value Limitation	34
Section 4.08	Stay, Extension and Usury Laws	34

ARTICLE V SUCCESSOR CORPORATION		35
Section 5.01	When Company May Merge or Transfer Assets	35

ARTICLE VI DEFAULTS AND REMEDIES		36
Section 6.01	Events of Default	36
Section 6.02	Acceleration	38
Section 6.03	Other Remedies	38
Section 6.04	Sole Remedy for Failure to Report	38
Section 6.05	Waiver of Past Defaults	39
Section 6.06	Control by Majority	39
Section 6.07	Limitation on Suits	40
Section 6.08	Rights of Holders to Receive Payment	40
Section 6.09	Collection Suit by Trustee	40
Section 6.10	Trustee May File Proofs of Claim	41
Section 6.11	Priorities	41
Section 6.12	Undertaking for Costs	42
Section 6.13	Waiver of Stay, Extension or Usury Laws	42

ARTICLE VII TRUSTEE		42
Section 7.01	Duties of Trustee	42
Section 7.02	Rights of Trustee	43
Section 7.03	Individual Rights of Trustee	45
Section 7.04	Trustee’s Disclaimer	45
Section 7.05	Notice of Defaults	45
Section 7.06	Reports by Trustee to Holders	45
Section 7.07	Compensation and Indemnity	45
Section 7.08	Replacement of Trustee	46
Section 7.09	Successor Trustee by Merger	47
Section 7.10	Eligibility; Disqualification	47
Section 7.11	Preferential Collection of Claims Against Company	48
Section 7.12	Trustee’s Application for Instructions from the Company	48

ARTICLE VIII SATISFACTION AND DISCHARGE		48
Section 8.01	Discharge of Liability on Notes	48
Section 8.02	Repayment to the Company	48

ARTICLE IX AMENDMENTS		49
Section 9.01	Without Consent of Holders	49
Section 9.02	With Consent of Holders	49

Section 9.03	Compliance with Trust Indenture Act	50
Section 9.04	Revocation and Effect of Consents, Waivers and Actions	50
Section 9.05	Notation on or Exchange of Notes	50
Section 9.06	Trustee to Sign Supplemental Indentures	50
Section 9.07	Effect of Supplemental Indentures	51
Section 9.08	Notices of Supplemental Indentures	51

ARTICLE X CONVERSIONS		51
Section 10.01	Conversion Privilege and Consideration	51
Section 10.02	Conversion Procedures	54
Section 10.03	Settlement Upon Conversion	56
Section 10.04	Stock Issued Upon Conversion	57
Section 10.05	Adjustment of Conversion Rate	58
Section 10.06	Discretionary Adjustments	67
Section 10.07	Adjustments to Conversion Rate Upon Fundamental Change Transactions	67
Section 10.08	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	69
Section 10.09	Responsibility of Trustee	71

ARTICLE XI PAYMENT OF INTEREST		72
Section 11.01	Interest Payments	72
Section 11.02	Defaulted Interest	72
Section 11.03	Interest Rights Preserved	73

ARTICLE XII MISCELLANEOUS		73
Section 12.01	Trust Indenture Act Controls	73
Section 12.02	Notices; Address of Agency	73
Section 12.03	Communication by Holders with Other Holders	74
Section 12.04	Certificate and Opinion as to Conditions Precedent	74
Section 12.05	Statements Required in Certificate or Opinion	74
Section 12.06	Separability Clause	75
Section 12.07	Rules by Trustee, Paying Agent, Conversion Agent and Registrar	75
Section 12.08	Calculations	75
Section 12.09	Legal Holidays	75
Section 12.10	Governing Law and Waiver of Jury Trial	76
Section 12.11	No Recourse Against Others	76
Section 12.12	Successors	76
Section 12.13	Multiple Originals	76
Section 12.14	Table of Contents; Headings	76
Section 12.15	Force Majeure	76
Section 12.16	Submission to Jurisdiction	76
Section 12.17	No Security Interest Created	77
Section 12.18	Benefits of Indenture	77
Section 12.19	U.S.A. Patriot Act	77

iii

Exhibit A. Form of Note	A-1
Exhibit B. Form of Restricted Stock Legend	B-1
Exhibit C. Form of Transfer Certificate	C-1
Exhibit D. Form of Free Transferability Certificate	D-1
Exhibit E. Form of Transfer Agent Notice	E-1

INDENTURE dated as of July 25, 2011, between Rudolph Technologies, Inc., a Delaware corporation (“ Company ”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, organized and existing under the laws of the United States of America, as trustee (“ Trustee ”).

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s 3.75% Convertible Senior Notes due 2016:

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions .

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

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transfer or transaction and as in effect from time to time.

“ Bankruptcy Law ” means Title 11, United States Code, or any similar U.S. federal or state law for the relief of debtors.

“ Bid Solicitation Agent ” means the Trustee or such other person as may be appointed from time to time by the Company, without prior notice to the Holders, to solicit market bid quotations for the Notes in accordance with Section 10.01(b) hereof.

“ Bloomberg ” means Bloomberg LLP and any successor person serving a similar function.

“ Board of Directors ” means the board of directors of the Company.

“ Business Day ” means any day that is not a Saturday, a Sunday, or a day on which banking institutions in The City of New York, New York are authorized or obligated by law or executive order to close or be closed.

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

“ Cash Settlement Averaging Period ” means, with respect to any Note surrendered for conversion, (i) if the relevant Conversion Date for such Note occurs prior to the 45th Scheduled Trading Day immediately preceding the Maturity Date, the 40 consecutive Trading Day period beginning on, and including, the third Trading Day immediately following such Conversion Date, and (ii) if the Conversion Date for such Note occurs during the period beginning on, and including, the 45th Scheduled Trading Day prior to the Maturity Date, and ending at 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately prior to the Maturity Date, the 40 consecutive Trading Day period beginning on and including the 42nd Scheduled Trading Day prior to the Maturity Date.

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

“ Common Stock ” means the shares of common stock, $0.001 par value, of the Company as it exists on the date of this Indenture or any other shares of Capital Stock of the Company into which the Common Stock shall be reclassified or changed.

“ Company ” means the party named as the “Company” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors.

“ Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company by an Officer.

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

“ Conversion Price ” means, at any time, $1,000 divided by the Conversion Rate in effect at such time.

“ Corporate Trust Office ” means the designated office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 525 William Penn Place, 38 th Floor, Pittsburgh, Pennsylvania 15259, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).

“ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

“ Daily Conversion Value ” means, for each of the 40 consecutive Trading Days during the applicable Cash Settlement Averaging Period, one-fortieth (1/40th) of the product of (i) the applicable Conversion Rate in effect on such Trading Day and (ii) the Daily VWAP on such Trading Day.

“ Daily Settlement Amount ” for each of the 40 consecutive Trading Days during the Cash Settlement Averaging Period, shall consist of:

(a) cash equal to the lesser of (i) $25 and (ii) the Daily Conversion Value (the “ Daily Cash Amount ”); and

(b) if the Daily Conversion Value exceeds $25, a number of shares equal to (i) the difference between the Daily Conversion Value and $25, divided by (ii) the Daily VWAP for such Trading Day.

“ Daily Share Amount ” means, for any Trading Day during the Cash Settlement Averaging Period applicable to any Note, a number of shares of the Common Stock equal to (i) the excess of the Daily Conversion Value for such Trading Day over the Principal Portion for such Trading Day, divided by (ii) the Daily VWAP for the Common Stock on such Trading Day.

“ Daily VWAP ” means, for each of the 40 consecutive Trading Days during the applicable Cash Settlement Averaging Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “RTEC.UQ <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “Daily VWAP” will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

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

“ Definitive Notes ” means Notes that are in registered definitive form.

“ Depositary ” means DTC, or any successor thereto.

“ DTC ” means The Depository Trust Company.

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

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

“ Free Trade Date ” means the date that is one year after the last date of original issuance of the Notes.

“ Freely Tradable ” means, with respect to any Notes, that such Notes (i) are eligible to be sold by a person who is not an affiliate of the Company (within the meaning of Rule 144) and has not been an affiliate of the Company (within the meaning of Rule 144) during the immediately preceding three months without any volume or manner of sale restrictions under the Securities Act, (ii) do not bear a Restricted Notes Legend and (iii) with respect to Global Notes only, are identified by an unrestricted CUSIP number in the facilities of the applicable depositary; provided that clauses (ii) and (iii) will apply only after the Free Trade Date.

“ Free Transferability Certificate ” means a certificate substantially in the form of Exhibit D .

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

(a) a person or group, other than the Company, its Subsidiaries or any employee benefit plans of the Company or its Subsidiaries, has become the direct or indirect ultimate beneficial owner of Common Stock representing more than 50% of the voting power of Common Stock then outstanding; or

(b) consummation of (A) any recapitalization, reclassification or change of Common Stock (other than changes resulting from a subdivision or combination) as a result of which Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets or (B) any share exchange, consolidation or merger involving the Company pursuant to which Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company or Subsidiaries, taken as a whole, to any person other than one of the Subsidiaries; provided , however , that a transaction where the holders of all classes of Common Stock immediately prior to such transaction that is a share exchange, consolidation or merger (each such holder, a “ Pre-transaction Holder ”) own, directly or indirectly, more than 50% of all classes of common equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such event shall not be a Fundamental Change, so long as the proportion of the respective ownership of each Pre-transaction Holder remains substantially the same relative to all other Pre-transaction Holders;

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

(e) Common Stock (or other common stock underlying the Notes) ceases to be listed on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors).

For purposes of defining a “Fundamental Change”:

(i) the term “person” and the term “group” have the meanings given by Section 13(d) of the Exchange Act or any successor provisions;

(ii) 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; and

(iii) the term “beneficial owner” is determined in accordance with Rules 13d-3 and 13d-5 under the Exchange Act or any successor provisions.

A Fundamental Change as a result of clause (b) above will not be deemed to have occurred, however, if at least 90% of the consideration received or to be received by the holders of Common Stock, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors) or will be so listed when issued or exchanged in connection with such transaction or transactions, and as a result of this transaction or transactions a unit of such consideration received by a holder of one share of Common Stock in the relevant transaction will be used to calculate the Daily VWAP.

“ Global Note ” means a permanent global Note that is in the form of the Note attached hereto as Exhibit A and that is deposited with and registered in the name of the Depositary or the nominee of the Depositary.

“ Global Notes Legend ” means the legend set forth as such in Exhibit A hereto.

“ Holder ” means a person or persons in whose name a Note is registered in the Register.

“ Indebtedness ” means with respect to the Company at any date, without duplication, obligations (other than nonrecourse obligations) for borrowed money or evidenced by bonds, debentures, notes or similar instruments.

“ Indenture ” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof.

“ Interest Payment Date ” means each date specified as such in paragraph 1 of the Notes.

“ Issue Date ” means July 25, 2011.

“ Last Reported Sale Price ” means, for the Common Stock or any other Capital Stock on any day, means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which Common Stock (or such other Capital Stock) is traded. If Common Stock (or such other Capital Stock) is not listed for trading on a U.S.

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

“ Maturity Date ” means July 15, 2016.

“ Notes ” means any of the Company’s 3.75% Convertible Senior Notes due 2016 issued under this Indenture.

“ Offering Circular ” means the offering circular for the offering and sale of the Notes dated July 19, 2011.

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

“ Officers’ Certificate ” means a written certificate containing the information specified in Sections 12.04 and 12.05, signed in the name of the Company by any two Officers, and delivered to the Trustee. One of the Officers executing the Officers’ Certificate pursuant to Section 4.03 shall be the principal executive officer, financial officer or accounting officer of the Company.

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

“ Opinion of Counsel ” means a written opinion containing the information specified in Sections 12.04 and 12.05, from legal counsel who is acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Company.

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

“ Preliminary Offering Circular ” means the Preliminary Offering Circular for the offering and sale of the Notes dated July 18, 2011, as supplemented by the related pricing term sheet.

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

“ Principal Portion ” means, for any Trading Day, an amount of cash equal to the lesser of (i) one-fortieth (1/40 th ) of $1,000 and (ii) the Daily Conversion Value for such Trading Day.

“ Regular Record Date ” means, with respect to any Interest Payment Date, the January 1 or the July 1 immediately preceding such Interest Payment Date.

“ Resale Restriction Termination Date ” means the date that is the later of (i) the date that is one year after the last date of original issuance of the Notes, or such other period of time as permitted by Rule 144 or any successor provision thereto, and (ii) such later date, if any, as may be required by applicable laws.

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

“ Restricted Notes CUSIP ” means CUSIP number 781268 AA5.

“ Restricted Stock CUSIP ” means CUSIP number 781268 107.

“ Restricted Notes Legend ” means a legend in the form set forth in Exhibit A hereto, or any other substantially similar legend indicating the restricted status of the Notes under Rule 144.

“ Restricted Stock Legend ” means a legend in the form set forth in Exhibit B hereto, or any other substantially similar legend indicating the restricted status of the Common Stock under Rule 144.

“ Rule 144 ” means Rule 144 under the Securities Act or any successor to such Rule, as it may be amended from time to time.

“ Rule 144A ” means Rule 144A under the Securities Act or any successor to such Rule, as it may be amended from time to time.

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

“ SEC ” means the Securities and Exchange Commission.

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

“ Significant Subsidiary ” means a Subsidiary that is a “significant subsidiary,” as such term is defined in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act.

“ Stated Maturity ,” when used with respect to any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on which an amount equal to the Principal Amount of such Note or such installment of interest is due and payable.

“ Stock Price ” means, for any Fundamental Change, (i) if the consideration for such Fundamental Change is comprised entirely of cash and such Fundamental Change is described in clause (b) of the definition of Fundamental Change, the amount of cash paid per share of the Common Stock in such Fundamental Change, and (ii) otherwise, the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Fundamental Change Effective Date for such Fundamental Change.

“ Subsidiary ” means (i) a corporation, a majority of whose Voting Stock is, at the date of determination, directly or indirectly owned by the Company, by one or more Subsidiaries of the Company, or by the Company and one or more Subsidiaries of the Company, (ii) a partnership in which the Company, a Subsidiary of the Company or the Company and one or more Subsidiaries of the Company, holds a majority interest in the equity capital or profits of such partnership, or (iii) any other person (other than a corporation or a partnership) in which the Company, a Subsidiary of the Company, or the Company and one or more Subsidiaries of the Company, directly or indirectly, at the date of determination, has (a) at least a majority ownership interest or (b) the power to elect or direct the election of a majority of the directors or trustees, as the case may be, or other governing body of such person.

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

“ Trading Day ” means, except as otherwise provided in Section 10.03, a day on which (i) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange, if any, on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market, if any, on which the Common Stock is then admitted for trading, and (ii) a Last Reported Sale Price for the Common Stock is available on such securities exchange or market. If the Common Stock (or other security for which a Last Reported Sale Price must be determined) is not so listed or traded, “Trading Day” means a “Business Day.”

“ Trading Price ” means, per $1,000 Principal Amount of the Notes, for any day, the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5.0 million Principal Amount of the Notes at approximately 3:30 p.m., New York City time, on such day from three independent nationally recognized securities dealers that the Company selects; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. Any such determination will be conclusive absent manifest error. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5.0 million Principal Amount of Notes from a nationally recognized securities dealer, then the Trading Price per $1,000 Principal Amount of Notes for such day will be deemed to be less than 98% of the Trading Price Product for such day. If, on any day, the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 Principal Amount of Notes for such day will be deemed to be less than 98% of the Trading Price Product for such day.

“ Transfer Agent Notice ” means a notice substantially in the form of Exhibit E hereto.

“ Trustee ” means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent successor or successors.

“ Uniform Commercial Code ” means the New York Uniform Commercial Code, as in effect from time to time.

“ Unrestricted Notes CUSIP ” means CUSIP number 781268 AB3.

“ Unrestricted Stock CUSIP ” means CUSIP number 781270 103.

“ Voting Stock ” means, with respect to any corporation, association, company or business trust, stock or other securities of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation, association, company or business trust, provided that, for the purposes hereof, stock or other securities which carry only the right to vote conditionally on the happening of an event shall not be considered Voting Stock whether or not such event shall have happened.

Section 1.02 Other Definitions .

Term		Defined in
“Act”		1.05
“Additional Interest”		4.02(c)
“Agent Members”		2.02(b)
“Aggregate Share Amount”		10.03(a)
“Conversion Agent”		2.05(a)
“Conversion Date”		10.02(a)
“Conversion Notice”		10.02(a)(iv)
“Conversion Rate”		10.01
“Conversion Value”		10.03(a)
“Corporate Event”		10.01(d)
“Daily Cash Amount”		1.01
“Defaulted Interest”		11.02
“Event of Default”		6.01(a)
“Expiration Date”		10.05(e)
“Extension Fee”		6.04(a)
“Fundamental Change Effective Date”		10.07(a)
“Fundamental Change Notice”		3.03(a)
“Fundamental Change Notice Date”		3.03(a)
“Fundamental Change Repurchase Date”		3.02
“Fundamental Change Repurchase Notice”		3.03(c)
“Fundamental Change Repurchase Price”		3.02
“Legal Holiday”		12.09

Term		Defined in
“Make-Whole Fundamental Change”		10.07(a)
“Make-Whole Shares”		10.07(a)
“Mandatory Exchange Date”		2.10(c)(ii)
“Market Disruption Event”		10.03(f)(ii)
“Measurement Period”		10.01(b)
“Merger Event”		10.08(a)(iv)
“Merger Successor Corporation”		10.08(a)(iv)
“Notice of Default”		6.01(a)(x)
“Paying Agent”		2.05(a)
“Pre-transaction Holder”		1.01
“Protected Purchaser”		2.11
“Reference Property”		10.08(a)
“Register”		2.07(a)
“Registrar”		2.05(a)
“Reporting Event of Default”		6.04(a)
“Restricted Global Note”		2.10(c)(i)
“Restricted Note”		2.09(a)(i)
“Restricted Stock”		2.09(b)(i)
“Special Interest”		4.02(b)
“Spin-Off”		10.05(c)(ii)
“Temporary Notes”		2.13
“Trading Day”		10.03(f)(i)
“Trading Price Product”		10.01(b)
“transfer”		2.09(c)
“Unit of Reference Property”		10.08(a)
“Valuation Period”		10.05(c)(ii)

Section 1.03 Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

“ indenture securities ” means the Notes.

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

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

Section 1.04 Rules of Construction . Unless the context otherwise requires: (1) a term has the meaning assigned to it;

(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles as in effect from time to time;

(3) “ or ” is not exclusive;

(4) “ including ” means including, without limitation;

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

(6) all references to $, dollars, cash payments or money refer to United States currency; and

(7) unless the context requires otherwise, all references to payments of interest on the Notes shall include Additional Interest, Special Interest and the Extension Fee if any, payable in accordance with the terms of Sections 4.02(b), 4.02(c) or 6.04 hereof, as applicable.

Section 1.05 Acts of Holders . Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments (which may take the form of an electronic writing or messaging or otherwise be in accordance with customary procedures of the Depositary or the Trustee) of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing (which may be in electronic form); and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent (either of which may be in electronic form) shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.05.

(a) The fact and date of the execution by any person of any such instrument or writing may be proved by the affidavit of a witness of such execution (or electronic delivery) or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing or delivering such instrument or writing acknowledged to such officer the execution thereof (or electronic delivery). Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing (electronic or otherwise), or the authority of the person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

(b) The ownership of Notes shall be proved by the Register.

(c) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the holder of

every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Note.

(d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a resolution of the Board of Directors, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the Close of Business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

ARTICLE II

THE NOTES

Section 2.01 Designation, Amount and Issuance of Notes . (a) The Notes shall be designated as “3.75% Convertible Senior Notes due 2016.” The aggregate Principal Amount of Initial Notes that may be authenticated and delivered under this Indenture is limited to $60,000,000. The Company may also issue an unlimited aggregate Principal Amount of additional Notes in accordance with Section 2.01(b). Furthermore, from time to time, the Company may issue and execute, and the Trustee may authenticate, Notes delivered upon registration of transfer of, or in exchange for, or in lieu of other Notes pursuant to Sections 2.08, 2.11, 2.13, 3.07, 10.02 and 10.07 hereof.

(b) The Company may, without the consent of the Holders, and notwithstanding Sections 2.01(a), increase the aggregate Principal Amount of the Notes issued under this Indenture by reopening this Indenture and issuing additional Notes with the same terms and the same CUSIP number as the Notes initially issued under this Indenture, which Notes shall be considered to be part of the same series of Notes as those initially issued hereunder; provided that the Company may not issue such additional Notes unless, for U.S. federal income tax and securities law purposes, such additional Notes shall be fungible with the Notes initially issued hereunder. Prior to issuing any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, which Officers’ Certificate and Opinion of Counsel shall address (i) any matters required to be addressed under Section 12.04 hereof and (ii) any matters that the Trustee reasonably requests.

Section 2.02 Form of Notes . General . The Notes shall be substantially in the form of Exhibit A hereto, but may have any notations, legends or endorsements required by any applicable law (or regulation promulgated thereunder), stock exchange rule or usage, or any insertions, omissions or other variations otherwise permitted or required by this Indenture. Whenever any such notation, legend or endorsement, or any such insertion, omission or other

variation is applicable to a Note, the Company shall provide such notation, legend or endorsement, or such insertion, omission or other variation to the Trustee in writing.

Each Note shall bear a Trustee’s certificate of authentication substantially in the form set forth in Exhibit A hereto.

Notes that are Global Notes shall bear the Global Notes Legend set forth in Exhibit A hereto and the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

Notes that are Restricted Notes shall bear the Restricted Notes Legend set forth in Exhibit A hereto.

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent that any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

(a) Initial and Subsequent Notes. The Notes initially shall be issued in global form, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee, at its Corporate Trust Office, as custodian for the Depositary. Except to the extent provided in Section 2.08(c) hereof, all Notes shall be represented by one or more Global Notes.

(b) Global Notes. Each Global Note shall represent the aggregate Principal Amount of then outstanding Notes endorsed thereon and provide that it represents such aggregate Principal Amount of then outstanding Notes, which aggregate Principal Amount may, from time to time, be reduced or increased to reflect transfers, exchanges, conversions or repurchases by the Company.

Only the Trustee, or the custodian holding such Global Note for the Depositary, at the direction of the Trustee, may endorse a Global Note to reflect the amount of any increase or decrease in the aggregate Principal Amount of then outstanding Notes represented thereby, and whenever the Holder of a Global Note delivers written instructions to the Trustee to increase or decrease the aggregate Principal Amount of then outstanding Notes represented by a Global Note in accordance with Section 2.08 hereof, the Trustee, or the custodian holding such Global Note for the Depositary, at the direction of the Trustee, shall endorse such Global Note to reflect such increase or decrease in the aggregate Principal Amount of then outstanding Notes represented thereby. None of the Trustee, the Company or any agent of the Trustee or the Company shall have any responsibility or bear any liability for any aspect of the records relating to or payments made on account of the ownership of any beneficial interest in a Global Note or with respect to maintaining, supervising or reviewing any records relating to such beneficial interest.

Neither any members of, or participants in, the Depositary (collectively, the “ Agent Members ”) nor any other persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Note or under such Global Note, and the

Company, the Trustee and any agent of the Company or the Trustee, may, for all purposes, treat the Depositary, or its nominee, if any, as the absolute owner and holder of such Global Note.

The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action that Holders are entitled to take under this Indenture or the Notes, and, notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such persons governing the exercise of the rights of a holder of any interest in any Note.

Section 2.03 Denomination of Notes . The Notes shall be issuable in registered form without coupons in denominations of $1,000 Principal Amount and integral multiples of $1,000 in excess thereof.

Section 2.04 Execution and Authentication .

(a) A Note shall be valid only if executed by the Company and authenticated by the Trustee.

(b) Execution . The Notes shall be executed on behalf of the Company by any Officer. The signature of the Officer on the Notes may be manual or facsimile.

Notes bearing the manual or facsimile signatures of an individual who was at the time of the execution of the Notes the proper Officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of authentication of such Notes.

(c) Authentication. A Note shall be deemed authenticated when a Responsible Officer of the Trustee manually signs the certificate of authentication on such Note. A Responsible Officer of the Trustee shall manually sign the certificate of authentication on a Note only if (i) the Company delivers such Note to the Trustee, (ii) such Note is validly executed by the Company in accordance with Section 2.04(b) hereof, and (iii) the Company delivers, before or with such Note, a Company Order setting forth (A) a request that the Trustee authenticate such Note; (B) the Principal Amount of such Note; (C) the name of the registered holder of such Note; (D) the date on which such Note is to be authenticated; and (E) any insertions, omissions or other variations, or notations, legends or endorsements permitted under Section 2.02 hereof and applicable to such Note. If the Company Order also specifies that the Trustee must deliver such Note to the registered Holder or the Depositary, the Trustee shall promptly deliver such Note in accordance with such Company Order. Each Note shall be dated the date of its authentication

The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section 2.04 if the Trustee, being advised by counsel, determines that such action may not be lawfully taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability.

The Trustee may appoint an authenticating agent. If the Trustee appoints an authenticating agent and such authenticating agent is reasonably acceptable to the Company, such authenticating agent may authenticate a Note whenever the Trustee may authenticate such Note; provided , however , that such authenticating agent may not authenticate any Notes pursuant to Section 2.13 hereof. For purposes of this provision, each reference in this Indenture to authentication by the Trustee shall be deemed to include authentication by an authenticating agent, and an authenticating agent shall have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication agent was validly appointed to undertake.

Section 2.05 Registrar, Paying Agent and Conversion Agent .

(a) The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange for other Notes (“ Registrar ”), an office or agency where Notes may be presented for repurchase or payment (“ Paying Agent ”), an office or agency where Notes may be presented for conversion (“ Conversion Agent ”) and an office or agency where any notices and demands to or upon the Company with respect to the Notes and this Indenture may be served. The Company may have one or more registrars, one or more additional paying agents and one or more additional conversion agents. The Company may change the Paying Agent or the Registrar without prior notice to the Holders. The term Paying Agent includes any additional paying agent, including any named pursuant to Section 4.04. The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 4.04. The term Registrar includes any additional Registrars, including any named pursuant to Section 4.04.

(b) The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or Conversion Agent (other than the Trustee). The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company may act as Paying Agent, Registrar, or co-registrar.

(c) The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in connection with the Notes and its agency at the Corporate Trust Office of the Trustee, as a place where Definitive Notes may be presented for payment of principal or interest, for conversion or for registration of transfer or exchange.

(d) The Company shall pay principal of and interest on Global Notes registered in the name of or held by DTC or its nominee in immediately available funds to The DTC or its nominee, as the case may be, as the registered holder of such Global Note.

Section 2.06 Money Held in Trust . Except as otherwise provided herein, by no later than 1:00 p.m., New York City time, on or prior to each due date of payments in respect of any Note, the Company shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) sufficient to make such payments when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all

money held by the Paying Agent for the making of payments in respect of the Notes and shall notify the Trustee of any default by the Company in making any such payment. At any time during the continuance of any such default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money so held in trust. If the Company or a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money.

Section 2.07 Noteholder Lists .

(a) The Registrar shall keep a register for the recordation of, and will record, the names and addresses of Holders, the Notes held by each Holder and the transfer, exchange, repurchase and conversion of Notes (the “ Register ”). The entries in the Register will be conclusive, and the parties may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Indenture. The Register will be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.

(b) The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on May 1 and November 1 a listing of Holders dated within 15 days of the date on which the list is furnished and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.

Section 2.08 Transfer and Exchange .

(a) Provisions Applicable to All Transfers and Exchanges .

(i) Subject to the restrictions set forth in this Section 2.08, Definitive Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time as desired. Each such transfer or exchange of Definitive Notes will be noted by the Registrar in the Register. Each such transfer or exchange of beneficial interests in Global Notes is subject to provisions of Section 2.08(b) below.

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

(iii) No service charge will be imposed on any Holder of a Definitive Note or any owner of a beneficial interest in a Global Note for any exchange or registration of transfer, but each of the Company, the Trustee or the Registrar may require such Holder or owner of a beneficial interest to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or other similar governmental charge imposed in connection with such transfer or exchange.

(iv) Unless the Company specifies otherwise, none of the Company, the Trustee, the Registrar or any co-registrar will be required to exchange or register a transfer of any Note (i) surrendered for conversion, except to the extent that any portion of such Note has not been surrendered for conversion or (ii) subject to a Fundamental Change Repurchase Notice validly delivered pursuant to Section 3.03 hereof, except to the extent any portion of such Note is not subject to a Fundamental Change Repurchase Notice.

(v) The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(b) In General; Transfer and Exchange of Beneficial Interests in Global Notes. So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, except to the extent required by Section 2.08(c) hereof:

(i) all Notes will be represented by one or more Global Notes;

(ii) every transfer and exchange of a beneficial interest in a Global Note will be effected through the Depositary in accordance with the Applicable Procedures and the provisions of this Indenture (including the restrictions on transfer set forth in Section 2.09 hereof); and

(iii) each Global Note may be transferred only as a whole and only (A) by the Depositary to a nominee of the Depositary, (B) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or (C) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(i) Notwithstanding any other provision of this Indenture, each Global Note will be exchanged for Definitive Notes if the Depositary delivers notice to the Company that:

(A) the Depositary is unwilling or unable to continue to act as Depositary; or

(B) the Depositary is no longer registered as a clearing agency under the Exchange Act;

and, in each case, the Company promptly delivers a copy of such notice to the Trustee and the Company fails to appoint a successor Depositary within 60 days after receiving notice from the Depositary.

In each such case, each Global Note will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause each Global Note to be cancelled in accordance with the Applicable Procedures, and the Company, in accordance with Section 2.04 hereof, will promptly execute, and, upon receipt of a Company Order, the Trustee, in accordance with Section 2.04 hereof, will promptly authenticate and deliver, for each beneficial interest in each Global Note so exchanged, an aggregate Principal Amount of Definitive Notes equal to the aggregate Principal Amount of such beneficial interest, registered in such names and in such authorized denominations as the Depositary specifies, and bearing any legends that such Definitive Notes are required to bear under Section 2.09 hereof.

(ii) In addition, if an Event of Default has occurred and is continuing, any owner of a beneficial interest in a Global Note may exchange such beneficial interest for Definitive Notes by delivering a written request to the Registrar.

(iii) In addition, beneficial interests in a Global Note may be exchanged for a Definitive Note upon request of a Depositary participant by written notice given to the Trustee by or on behalf of the Depositary in accordance with the Applicable Procedures.

In such case, (A) the Registrar will deliver notice of such request to the Company and the Trustee, which notice will identify the owner of the beneficial interest to be exchanged, the aggregate Principal Amount of such beneficial interest and the CUSIP of the relevant Global Note; (B) the Company shall, in accordance with Section 2.04 hereof, promptly execute, and, upon receipt of a Company Order, the Trustee, in accordance with Section 2.04 hereof, will promptly authenticate and deliver, to such owner, for the beneficial interest so exchanged by such owner, Definitive Notes registered in such owner’s name having an aggregate Principal Amount equal to the aggregate Principal Amount of such beneficial interest and bearing any legends that such Definitive Notes are required to bear under Section 2.09 hereof; and (C) the Registrar, in accordance with the Applicable Procedures, will cause the Principal Amount of such Global Note to be decreased by the aggregate Principal Amount of the beneficial interest so exchanged. If all of the beneficial interests in a Global Note are so exchanged, such Global Note will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global Note to be cancelled in accordance with its customary procedures and the Applicable Procedures.

(d) Transfer and Exchange of Definitive Notes . If Definitive Notes are issued, a Holder may:

(i) transfer a Definitive Note by: (A) surrendering such Definitive Note for registration of transfer to the Registrar, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar; (B) if such Definitive Note is a Restricted Note, delivering the transfer certificate attached hereto as Exhibit C and any other documentation that the Company, the Trustee or the Registrar reasonably require to ensure that such transfer complies with Section 2.09 hereof and any applicable securities laws; and (C) satisfying all other requirements for such transfer set forth in this Section 2.08 and Section 2.09 hereof. Upon the satisfaction of conditions (A), (B) and (C), the Company, in accordance with Section 2.04 hereof, will promptly execute and deliver

to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 2.04 hereof, promptly authenticate and deliver, in the name of the designated transferee or transferees, one or more new Definitive Notes, of any authorized denominations, having like aggregate Principal Amount and bearing any restrictive legends required by Section 2.09 hereof.

(ii) exchange a Definitive Note for other Definitive Notes of any authorized denominations and aggregate Principal Amount equal to the aggregate Principal Amount of the Notes to be exchanged by surrendering such Notes, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 4.04 hereof. Whenever a Holder surrenders Notes for exchange, the Company, in accordance with Section 2.04 hereof, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 2.04 hereof, promptly authenticate and deliver the Notes that such Holder is entitled to receive, bearing registration numbers not contemporaneously outstanding and any restrictive legends that such Definitive Notes are to bear under Section 2.09 hereof.

(iii) transfer or exchange a Definitive Note for a beneficial interest in a Global Note by (A) surrendering such Definitive Note for registration of transfer or exchange, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 4.04 hereof; (B) if such Definitive Note is a Restricted Note, delivering any documentation the Company, the Trustee or the Registrar reasonably require to ensure that such transfer complies with Section 2.09 hereof and any applicable securities laws; (C) satisfying all other requirements for such transfer set forth in this Section 2.08 and Section 2.09 hereof; and (D) providing written instructions to the Trustee to make, or to direct the Registrar to make, an adjustment in its books and records with respect to the applicable Global Note to reflect an increase in the aggregate Principal Amount of the Notes represented by such Global Note, which instructions will contain information regarding the Depositary account to be credited with such increase. Upon the satisfaction of conditions (A), (B), (C) and (D), the Trustee will cancel such Definitive Note and cause, or direct the Registrar to cause, in accordance with the Applicable Procedures, the aggregate Principal Amount of Notes represented by such Global Note to be increased by the aggregate Principal Amount of such Definitive Note, and will credit or cause to be credited the account of the person specified in the instructions provided by the exchanging Holder in an amount equal to the aggregate Principal Amount of such Definitive Note. If no Global Notes are then outstanding, the Company, in accordance with Section 2.04 hereof, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 2.04 hereof, authenticate, a new Global Note in the appropriate aggregate Principal Amount.

Section 2.09 Transfer Restrictions .

(a) Restricted Notes .

(i) Every Note (and all securities issued in exchange therefor or substitution thereof, except any shares of the Common Stock issued upon conversion thereof)

that bears, or that is required under this Section 2.09 to bear, the Restricted Notes Legend will be deemed to be a “ Restricted Note .” Each Restricted Note will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Notes Legend) and will bear the Restricted Notes CUSIP unless such restrictions on transfer are eliminated or otherwise waived by written consent of the Company, and each Holder of a Restricted Note, by such Holder’s acceptance of such Restricted Note, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Note.

(ii) Until the Resale Restriction Termination Date, any Note (or any security issued in exchange therefor or substitution thereof, except any shares of Common Stock issued upon the conversion thereof) will bear the Restricted Notes Legend unless:

(A) such Note, since last held by the Company or an affiliate of the Company (within the meaning of Rule 144), if ever, was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144) and (2) pursuant to a registration statement that was effective under the Securities Act at the time of such transfer;

(B) such Note was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144), and (2) pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act; or

(C) the Company delivers written notice to the Trustee and the Registrar stating that the Restricted Notes Legend may be removed from such Note.

(iii) In addition, until the Resale Restriction Termination Date:

(A) no transfer of any Note will be registered by the Registrar prior to the Resale Restriction Termination Date unless the transferring Holder delivers the form of assignment set forth on the Note, with the appropriate box checked, to the Trustee; and

(B) the Registrar will not register any transfer of any Note that is a Restricted Note to a person that has been an affiliate of the Company (within the meaning of Rule 144) within the three months immediately preceding the date of such proposed transfer.

(iv) On and after the Resale Restriction Termination Date, any Note (or any security issued in exchange therefor or substitution thereof, except any shares of Common Stock issued upon the conversion thereof) will bear the Restricted Notes Legend at any time the Company reasonably determinates that, to comply with law, such Note (or such securities issued in exchange for or substitution of a Note) must bear the Restricted Notes Legend.

(b) Restricted Stock .

(i) Every share of Common Stock that bears, or that is required under this Section 2.09 to bear, the Restricted Stock Legend will be deemed to be

“ Restricted Stock .” Each share of Restricted Stock will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Stock Legend) and will bear the Restricted Stock CUSIP, unless such restrictions on transfer are eliminated or otherwise waived by written consent of the Company, and each Holder of Restricted Stock, by such Holder’s acceptance of Restricted Stock, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Stock.

(ii) Until the Resale Restriction Termination Date, any share of Common Stock issued upon the conversion of a Note will be issued in definitive form and will bear the Restricted Stock Legend unless:

(A) such share of Common Stock was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144) and (2) pursuant to a registration statement that was effective under the Securities Act at the time of such conversion;

(B) such share of Common Stock was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144), and (2) pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act;

(C) such Note, regardless of whether bearing the Restricted Notes Legend, was not, at the time of its conversion, required to bear the Restricted Notes Legend pursuant to Section 2.09(a) hereof and such Common Stock was issued to a person other than (1) the Company or (2) an affiliate of the Company; or

(D) the Company delivers written notice to the Trustee, the Registrar and the transfer agent for the Common Stock stating that such share of Common Stock need not bear the Restricted Stock Legend.

(iii) On and after the Resale Restriction Termination Date, any share of the Common Stock will be issued in definitive form and will bear the Restricted Stock Legend at any time the Company reasonably determinates that, to comply with law, such share of Common Stock must bear the Restricted Stock Legend.

(c) As used in this Section 2.09, the term “ transfer ” means any sale, pledge, transfer, loan, hypothecation or other disposition whatsoever of any Restricted Note, any interest therein or any Restricted Stock.

Section 2.10 Expiration of Restrictions .

(a) Definitive Notes . Any Definitive Note (or any Note issued in exchange or substitution therefor) that bears the Restricted Notes Legend and that has been transferred, replaced or exchanged on or after the Resale Restriction Termination Date or that has been transferred pursuant to a registration statement that has been declared effective under the Securities Act may be exchanged for a new Note or Notes of like tenor and aggregate Principal Amount that do not bear the Restricted Notes Legend unless the Company reasonably determines that, to comply with law, such Note must

bear the Restricted Notes Legend. To exercise such right of exchange, the Holder of such Note must surrender such Note in accordance with the provisions of Section 2.08 hereof and deliver to the Registrar any additional documentation reasonably required by the Company, the Trustee or the Registrar in connection with such exchange.

(b) Common Stock. Any certificate representing shares of Common Stock that bears the Restricted Stock Legend and that has been transferred, replaced or exchanged on or after the Resale Restriction Termination Date or that has been transferred pursuant to a registration statement that has been declared effective under the Securities Act may be exchanged for a new certificate or certificates representing such shares of Common Stock that do not bear the Restricted Stock Legend unless the Company reasonably determines that, to comply with law, such shares of Common Stock must bear the Restricted Stock Legend. To exercise such right of exchange, the Holder of such Common Stock must surrender such shares of Common Stock in accordance with the procedures of the transfer agent for the Common Stock at such time and deliver to such transfer agent any additional documentation reasonably required by the Company or the transfer agent for Common Stock in connection with such exchange.

(i) If, on the Resale Restriction Termination Date, or the next succeeding Business Day if the Resale Restriction Termination Date is not a Business Day, any Notes are represented by a Global Note that is a Restricted Note (any such Global Note, a “ Restricted Global Note ”), as promptly as practicable, the Company will automatically exchange every beneficial interest in each Restricted Global Note for beneficial interests in Global Notes that are not subject to the restrictions set forth in the Restricted Notes Legend and in Section 2.09 hereof.

(ii) To effect such automatic exchange, the Company will (A) deliver to DTC an instruction letter for DTC’s mandatory exchange process at least 15 days immediately prior to the Resale Restriction Termination Date and (B) deliver (1) to each of the Trustee and the Registrar a duly completed Free Transferability Certificate and (2) to the transfer agent for the Common Stock, the Transfer Agent Notice, in each case, as promptly as practicable after the Resale Restriction Termination Date. The first date on which both the Trustee and the Registrar have received the Free Transferability Certificate and the transfer agent for the Common Stock has received the Transfer Agent Notice will be known as the “ Mandatory Exchange Date .”

(A) Immediately upon receipt of the Free Transferability Certificate by each of the Trustee and the Registrar and receipt of the Transfer Agent Notice by the transfer agent for the Common Stock:

(1) the Restricted Notes Legend will be deemed removed from each of the Global Notes specified in such Free Transferability Certificate and the Restricted Notes CUSIP will be deemed removed from each of such Global Notes and deemed replaced with the Unrestricted Notes CUSIP;

(2) the Restricted Stock Legend will be deemed removed from any shares of Common Stock previously issued upon conversion of the Notes and the Restricted Stock CUSIP will be deemed removed from each such share of Common Stock and deemed replaced with the Unrestricted Stock CUSIP; and

(3) thereafter, any shares of Common Stock issued upon conversion of the Notes will be assigned the Unrestricted Stock CUSIP and will not bear the Restricted Stock Legend (except as provided in Section 2.09(b) hereof).

(B) Promptly after the Mandatory Exchange Date, the Company will provide Bloomberg with a copy of the Free Transferability Certificate and will use reasonable efforts to cause Bloomberg to adjust its screen page for the Notes to indicate that the Notes are no longer Restricted Notes and are now identified by the Unrestricted Notes CUSIP.

(iii) Prior to the Company’s delivery of the Free Transferability Certificate and afterwards, the Company and the Trustee will comply with the Applicable Procedures, and the Trustee will cooperate with the Company in its efforts to cause each Global Note to be identified by the Unrestricted Notes CUSIP in the facilities of the Depositary on the date the Free Transferability Certificate is delivered to the Trustee and the Registrar or as promptly as possible thereafter.

(iv) Notwithstanding anything to the contrary in Sections 2.10(c)(i), (ii) or (iii) hereof, the Company will not be required to deliver the Free Transferability Certificate or the Transfer Agent Notice if it reasonably believes that removal of the Restricted Notes Legend or the Restricted Stock Legend or the changes to the CUSIP numbers for the Notes or the Common Stock issuable upon the conversion of the Notes could result in or facilitate transfers of the Notes or the Common Stock issuable upon the conversion of the Notes in violation of applicable law.

Section 2.11 Replacement Notes . If (i) any mutilated Note is surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and there is delivered to the Company and the Trustee such security and/or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Note has been acquired by a protected purchaser within the meaning of Article 8 of the Uniform Commercial Code as in effect from time to time in the State of New York (a “ Protected Purchaser ”), the Company shall execute and upon a Company Request the Trustee shall authenticate and deliver, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and Principal Amount, bearing a number not contemporaneously outstanding.

(a) In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, or is about to be repurchased by the Company pursuant to Article 3 hereof, the Company in its discretion may, instead of issuing a new Note, pay or repurchase such Note, as the case may be.

(b) Upon the issuance of any new Notes under this Section 2.11, the Company or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

(c) Every new Note issued pursuant to this Section 2.11 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

(d) The provisions of this Section are 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 Notes.

Section 2.12 Outstanding Notes .

(a) Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those paid pursuant to Section 2.11 and delivered to it for cancellation and those described in this Section 2.12 as not outstanding. A Note does not cease to be outstanding because the Company or an Affiliate thereof holds the Note; provided , however , that in determining whether the Holders of the requisite Principal Amount of Notes have given or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations pursuant to Articles 6 and 9).

(b) If a Note is replaced pursuant to Section 2.11, the replaced Note ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to each of them that the replaced Note is held by a Protected Purchaser.

(c) If the Paying Agent holds, in accordance with this Indenture, on a Fundamental Change Repurchase Date or on Stated Maturity, money sufficient to pay all Notes payable on that date, then immediately after such Fundamental Change Repurchase Date or Stated Maturity, as the case may be, such Notes shall cease to be outstanding, and interest on such Notes shall cease to accrue whether or not the Note is delivered to the Paying Agent.

(d) If a Note is converted in accordance with Article 10 hereof, then from and after the time of conversion on the Conversion Date, such Note shall cease to be outstanding and interest shall cease to accrue on such Note.

(e) In addition, if the Company, any other obligor or an Affiliate of the Company or an Affiliate of such other obligor holds a Note, such Note will be disregarded and deemed

not to be outstanding for purposes of determining whether the Holders of the requisite aggregate Principal Amount of Notes have given or concurred in any request, demand, authorization, direction, notice, consent, waiver or other action hereunder. Subject to the foregoing, only Notes outstanding at the time of any such determination will be considered in such determination (including, determinations pursuant to Articles 6 and 9 hereof).

Section 2.13 Temporary Notes . Pending the preparation of Definitive Notes, the Company may execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, temporary Notes (“ Temporary Notes ”) which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Temporary Notes may determine, as conclusively evidenced by their execution of such Temporary Notes.

If Temporary Notes are issued, the Company shall cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the Temporary Notes shall be exchangeable for Definitive Notes upon surrender of the Temporary Notes at the office or agency of the Company designated for such purpose pursuant to Section 4.04, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute and the Trustee upon receipt of a Company Order shall authenticate and deliver in exchange therefor a like Principal Amount of Definitive Notes of authorized denominations. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.

Section 2.14 Cancellation . All Notes surrendered for payment, repurchased by the Company pursuant to Article 3, conversion or registration of transfer or exchange shall, if surrendered to any person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it at the written direction of the Company. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 10. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with the Trustee’s customary procedure.

Section 2.15 Persons Deemed Owners . Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Note is registered in the Register as the owner of such Note for the purpose of receiving payment of the Principal Amount, Fundamental Change Repurchase Price, and interest, on such Note, for the purpose of conversion and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

Section 2.16 Additional Notes; Repurchases . The Company may also from time to time repurchase Notes in open market purchases or in negotiated transactions without delivering

prior notice to Holders. Any Notes repurchased by the Company shall be retired and no longer be outstanding under the Indenture.

Section 2.17 CUSIPs . Until the Restricted Notes Legend is removed from a Note pursuant to Section 2.10 hereof, the Company shall use the Restricted Notes CUSIP and ISIN numbers (if then generally in use) for such Note. After the Restricted Notes Legend is removed from a Note pursuant to Section 2.10 hereof, the Company shall use the Unrestricted Notes CUSIP number for such Note. The Trustee may use CUSIP and ISIN numbers in notices as a convenience to Holders; provided , however , that neither the Company nor the Trustee will have any responsibility for any defect in the CUSIP or ISIN number that appears on any Note, check, advice of payment or notice, and any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any action taken in connection with such a notice shall not be affected by any defect in, or omission of, such numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.

Section 2.18 Ranking . The obligations of the Company arising under or in connection with this Indenture and every outstanding Note issued under this Indenture from time to time constitute and shall constitute a general unsecured obligation of the Company, ranking equal in right of payment to all other existing and future senior unsecured and unsubordinated indebtedness of the Company and ranking senior in right of payment to any future indebtedness of the Company that is expressly made subordinate to the Notes by the terms of such indebtedness.

ARTICLE III

REPURCHASES

Section 3.01 No Company Right to Redeem . The Company will not have any right to redeem the Notes before the Maturity Date.

Section 3.02 Repurchase of Notes at Option of the Holder Upon Fundamental Change . If prior to the Stated Maturity, there shall have occurred a Fundamental Change, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all or any portion of such Holder’s Note such that the Principal Amount of such Note equals $1,000 or an integral multiple of $1,000 in excess thereof at a repurchase price specified in paragraph 5 of the Notes (the “ Fundamental Change Repurchase Price ”), as of the date specified by the Company in the Fundamental Change Notice for such Fundamental Change that is no earlier than 20 calendar days, and no later than 35 calendar days, after the Fundamental Change Notice Date (the “ Fundamental Change Repurchase Date ”), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.03.

Section 3.03 Fundamental Change Notice .

(a) On or before the 20th calendar day immediately following the effective date of a Fundamental Change, the Company shall deliver a written notice of the occurrence of the

Fundamental Change and of the resulting repurchase right (the “ Fundamental Change Notice ,” and the date of such mailing, the “ Fundamental Change Notice Date ”) to the Trustee, the Paying Agent and to each Holder at their addresses shown in the register of the Registrar (and to beneficial owners of a Global Note, as required by applicable law). The Fundamental Change Notice shall include a form of Fundamental Change Repurchase Notice to be completed by the Holder and shall state:

(i) briefly, the events causing a Fundamental Change;

(ii) the effective date of such Fundamental Change;

(iii) the last date by which the Fundamental Change Repurchase Notice pursuant to this Article 3 must be given;

(iv) the Fundamental Change Repurchase Price;

(v) the Fundamental Change Repurchase Date;

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

(vii) if applicable, the applicable Conversion Rate and any adjustments thereto;

(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted pursuant to Article 10 hereof only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;

(ix) the procedures a Holder must follow to exercise rights under this Article 3;

(x) that Notes must be surrendered to the Paying Agent to collect payment of the Fundamental Change Repurchase Price;

(xi) that the Fundamental Change Repurchase Price for any Note as to which a Fundamental Change Repurchase Notice has been duly given and not withdrawn, together with any accrued interest payable with respect thereto, will be paid on or prior to the third Business Day following the later of the Fundamental Change Repurchase Date and the time of surrender of such Note;

(xii) briefly, the conversion rights of the Notes;

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

(xiv) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price and interest due, if any, interest on Notes

surrendered for repurchase will cease to accrue on and after the Fundamental Change Repurchase Date; and

(xv) the CUSIP and ISIN numbers of the Notes.

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

(b) Failure or Defect . Notwithstanding anything provided elsewhere in this Indenture, neither the failure of the Company to deliver a Fundamental Change Notice nor a defect in a Fundamental Change Notice delivered by the Company will limit the repurchase rights of any Holder under this Article 3 or impair or otherwise affect the validity of any proceedings relating to the repurchase of any Note pursuant to this Article 3.

(c) To exercise its rights specified in Section 3.02, a Holder must deliver the Notes to be repurchased, duly endorsed for transfer, together with a written notice of repurchase (a “ Fundamental Change Repurchase Notice ”) and the form entitled “Form of Fundamental Change Repurchase Notice” on the reverse side of the Notes duly completed, to the Paying Agent at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date. If the Notes are not in certificated form, the Holder must comply with DTC’s procedures for surrendering interests in Global Notes. The Fundamental Change Repurchase Notice must state:

(i) if Definitive Notes have been issued, the certificate number of the Notes (or, if the Holder’s Notes are not certificated, the Holder’s notice must comply with the Applicable Procedures);

(ii) the portion of the Principal Amount of the Note which the Holder will deliver to be repurchased, which portion must have a Principal Amount equal to $1,000 or an integral multiple of $1,000 in excess thereof; and

(iii) that such Note shall be repurchased pursuant to the terms and conditions specified in this Section 3.03 and Section 3.02 of this Indenture and the applicable provisions of the Notes.

The delivery of such Note to the Paying Agent prior to, on or after the Fundamental Change Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided , however , that such Fundamental Change Repurchase Price shall be so paid pursuant to this Article 3 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Fundamental Change Repurchase Notice.

The Company shall repurchase from the Holder thereof, pursuant to this Section 3.03, a portion of a Note if the Principal Amount repurchased equals $1,000 or an integral multiple of

$1,000 in excess thereof. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.03 shall have the right to withdraw such Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.04(b).

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

(e) The Company shall not be required to comply with this Section 3.03 if a third party mails a written notice of Fundamental Change in the manner, at the times and otherwise in compliance with this Section 3.03 and repurchases all Notes for which a Fundamental Change Repurchase Notice shall be delivered and not withdrawn.

Section 3.04 Effect of Fundamental Change Repurchase Notice .

(a) Upon receipt by the Paying Agent of the Fundamental Change Repurchase Notice specified in Section 3.03, the Holder of the Note in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in the following clause 3.04(b) below) thereafter be entitled to receive solely the Fundamental Change Repurchase Price upon delivery or transfer of the Note. Holders shall receive payment of such Fundamental Change Repurchase Price on the later of (i) the Fundamental Change Repurchase Date and (ii) the time of book-entry transfer or delivery of the Note to the Paying Agent in accordance with Section 3.03. If the Paying Agent holds funds on the Fundamental Change Repurchase Date sufficient to pay the Fundamental Change Repurchase Price of the Note for which the Holder has surrendered and not withdrawn its Fundamental Change Repurchase Notice, then:

(i) the Note shall cease to be outstanding and interest thereon shall cease to accrue (whether or not book-entry transfer of the Note is made or whether or not the Note is delivered to the Paying Agent); and

(ii) All other rights of the Holder shall terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Note).

Notes in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 10 hereof on or after the date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn as specified in the following two paragraphs.

(b) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with the Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Fundamental Change Repurchase Date specifying:

(i) the certificate numbers of the Notes being withdrawn (or, if the Holder’s Notes are not Definitive Notes, the Holder’s notice must comply with the Applicable Procedures),

(ii) the Principal Amount of the Note with respect to which such notice of withdrawal is being submitted, and

(iii) the Principal Amount, if any, of such Note which remains subject to the original Fundamental Change Repurchase Notice, which must be $1,000 or an integral multiple thereof and which has been or will be delivered for repurchase by the Company.

(c) Upon receipt of a validly delivered withdrawal notice, the Paying Agent will promptly (i) if such notice pertains to a Definitive Note or a portion of a Definitive Note, return such Note or portion of a Note to such Holder, and (ii) if such notice pertains to a beneficial interest in a Global Note, in compliance with the Applicable Procedures, deem to be cancelled any instructions for book-entry transfer of such beneficial interest.

(d) If any Holder validly delivers to the Paying Agent a notice of withdrawal with respect to a Note or any portion of a Note, the Paying Agent will promptly deliver to the Company a copy of such notice of withdrawal.

Section 3.05 Covenant Not to Repurchase Notes in Certain Circumstances . There shall be no repurchase of any Notes pursuant to this Article 3 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Notes (x) with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an acceleration (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes) in which case, upon such return, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

Section 3.06 Deposit of Fundamental Change Repurchase Price . Prior to 1:00 p.m., New York City time, on or prior to the third Business Day following the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.06 hereof) an amount of money (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Notes or portions thereof which are to be repurchased as of the Fundamental Change Repurchase Date.

Section 3.07 Notes Repurchased in Part . Any Definitive Note which is to be repurchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in

form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute, and the Trustee shall authenticate and deliver, to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination or denominations requested by such Holder in aggregate Principal Amount equal to, and in exchange for, the portion of the Principal Amount of the Note so surrendered which is not repurchased. If any Global Note is repurchased in part, the Company shall instruct the Registrar to decrease the Principal Amount of such Global Note by the Principal Amount repurchased. Any Notes that are repurchased or owned by the Company whether or not in connection with a Fundamental Change shall be submitted to the Trustee for cancellation in accordance with Section 2.14 and will be duly retired by the Company.

Section 3.08 Covenant to Comply With Securities Laws Upon Repurchase of Notes . In connection with any offer to repurchase or repurchase of Notes under Section 3.02 hereof, the Company shall, to the extent applicable, (i) comply with Rule 13e-4 (or any successor provision) and Rule 14e-1 (or any successor provision) under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, and (iii) otherwise comply with any applicable U.S. federal and state securities laws so as to permit the rights and obligations under Section 3.02 to be exercised hereof in the time and in the manner specified in Sections 3.02 and 3.03 hereof.

Section 3.09 Repayment to the Company . The Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed as provided in paragraph 10 of the Notes, together with interest thereon (subject to the provisions of Section 7.01(e)), held by them for the payment of the Fundamental Change Repurchase Price; provided , however , that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.06 exceeds the aggregate Fundamental Change Repurchase Price, with respect to, the Notes or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date, whether as a result of withdrawal or otherwise, then promptly after the Business Day following the Fundamental Change Repurchase Date, the Trustee shall return any such excess to the Company together with interest thereon, if any (subject to the provisions of Section 7.01(e)).

ARTICLE IV

COVENANTS

Section 4.01 Payment of Notes . The Company shall promptly make all payments of the principal of, Fundamental Change Repurchase Price for, interest on, and the Conversion Value in respect of, the Notes on the dates and in the manner provided in the Notes or pursuant to this Indenture. Any amounts to be given to the Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent by 1:00 p.m., New York City time, by the Company. Principal Amount, Fundamental Change Repurchase Price and interest, as well as the cash portion of the Conversion Value, shall be considered paid on the applicable date due if on such date the Trustee or the Paying Agent holds, in accordance with this Indenture, money sufficient to pay all such amounts when due. The portion of the Conversion Value that consists of Common Stock (or other securities) shall be considered paid on the applicable date due if on such date the transfer agent for the Common Stock holds, in accordance with this Indenture, a number of shares of Common Stock (or other securities) sufficient to pay all such amounts then due. All references

in this indenture to “interest” shall include Additional Interest, Special Interest and the Extension Fee, if any.

The Company shall, to the extent permitted by law, pay interest on overdue amounts at the rate per annum set forth in paragraph 1 of the Notes, compounded semiannually, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for.

Section 4.02 SEC and Other Reports; 144A Information .

(a) The Company shall deliver to the Trustee copies of all quarterly and annual reports that the Company is required to deliver to the SEC on Forms 10-Q and 10-K, and any other documents, information or other reports that the Company is required to file with the SEC under Sections 13 or 15(d) of the Exchange Act (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) within 15 days after the date on which the Company is required to file the same with the SEC (after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act). In the event the Company is at any time no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall, if any Note or any shares of Common Stock issuable upon the conversion of a Note constitutes a “restricted security” within the meaning of Rule 144, upon the request of the Holder, beneficial owner or prospective purchaser of such Note or Common Stock, promptly furnish or cause to be furnished to such Holder, beneficial owner or any prospective purchaser designated by such Holder or beneficial owner, all of the information that such prospective purchaser is required to receive under Rule 144A(d)(4) of the Securities Act for such Note or Common Stock to be resold to such prospective purchaser under the exemption from registration provided by Rule 144A. The Company will take such further action as any Holder or beneficial owner of such Note or Common Stock may reasonably request from time to time to enable such Holder or beneficial owner to sell such Note or Common Stock in accordance with Rule 144A.

Documents (other than Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q) filed by the Company with the SEC via the EDGAR system will be deemed to be delivered to the Trustee at the time such document is filed via the EDGAR system; provided , however , that the Trustee will have no responsibility whatsoever to determine whether the Company has made any filing via the EDGAR system.

The Company also shall comply with the other provisions of TIA Section 314(a).

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of the same 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).

(b) If, at any time during the period beginning on, and including, the date that is six months after the last date of original issuance of the Notes and ending on, but not including, the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a Business Day), the Company fails to timely file (after giving effect to any grace period provided by Rule 12b-25) any

document or report that it is required to file with the SEC pursuant to Sections 13 or 15(d) of the Exchange Act, as applicable (other than current reports on Form 8-K), or the Notes are not otherwise Freely Tradable (as a result of restrictions pursuant to U.S. securities law, the terms of this Indenture or the terms of the Notes), the Company shall pay additional interest (the “ Special Interest ”) on the Notes. The Special Interest will accrue at a rate equal to 0.50% per annum on the Principal Amount of then outstanding Notes on each day during such period for which the failure of the Company to file has occurred and is continuing or the Notes are not Freely Tradable. Any Special Interest payable on a Note will be payable at the same time, in the same manner and to the same Holder as the stated interest on such Note.

(c) In addition, if the Notes are not Freely Tradable (without restrictions pursuant to U.S. securities law, the terms of this Indenture or the terms of the Notes) at all times on and after the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a Business Day), the Company shall pay additional interest (the “ Additional Interest ”) on the Notes. The Additional Interest will accrue on each day on and after the Free Trade Date on which the Notes are not so Freely Tradable. Each time the Additional Interest accrues, it will accrue at a rate of 0.50% per annum on the Principal Amount of then outstanding Notes. Any Additional Interest payable on a Note will be payable at the same time, in the same manner and to the same Holder as the stated interest on such Note.

(d) Notwithstanding anything to the contrary in the foregoing Sections 4.02(b) and (c), if, on any day, (i) the Company has filed a shelf registration statement for the resale of the Notes and any Common Stock issued upon conversion of the Notes, (ii) such shelf registration statement is effective and usable by Holders for the resale of the Notes and any Common Stock issued upon conversion of the Notes, and (iii) the Holders may register the resale of their Notes under such shelf registration statement on terms customary for the resale of convertible securities offered in reliance on Rule 144A, then neither Special Interest nor Additional Interest will accrue on such day.

(e) If the Company is required to pay Special Interest or Additional Interest on any Note, no later than three Business Days prior to the date on which such Special Interest or Additional Interest is scheduled to be paid, the Company shall provide to the Trustee (and if the Trustee is not the Paying Agent, to the Paying Agent) an Officers’ Certificate, which Officers’ Certificate will state (i) that the Company is obligated to pay Special Interest and Additional Interest, as applicable, pursuant to this Section 4.02, (ii) the amount of such Special Interest and Additional Interest, as applicable, that the Company is required to pay under this Section 4.02, (iii) the amount of such Special Interest and Additional Interest, as applicable, that the Company will pay, (iv) the scheduled date on which such Special Interest and Additional Interest, as applicable, will be paid to Holders and (v) a direction that the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) pay such Special Interest and Additional Interest, as applicable, to the extent it receives funds from the Company to do so, on the scheduled payment date for such Special Interest and Additional Interest, as applicable. The Trustee will not have any duty or responsibility to any Holder to determine whether any Special Interest and Additional Interest is payable, or, if any Special Interest or Additional Interest is payable, the amount of such Special Interest or Additional Interest that is payable.

Section 4.03 Compliance Certificate . The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2011) an Officers’ Certificate, stating whether or not to the knowledge

of the signers thereof the Company is, or was during the previous fiscal year, in default in the performance and observance of any of the terms, provisions and conditions of 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 they may have knowledge.

Section 4.04 Maintenance of Office or Agency . The Company shall maintain an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer, exchange for other Notes, repurchase or conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Trustee’s office specified in Section 12.02 shall initially be such office or agency for all of the aforesaid purposes. The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of any such office or agency (other than a change in the location of the office of the Trustee). If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 12.02.

The Company may also from time to time and in accordance with Section 2.05 hereof, designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.

Section 4.05 Restriction on Repurchases . The Company agrees not to repurchase or otherwise acquire any Notes without canceling such Notes. In addition, the Company agrees that it will not permit any affiliates of the Company (within the meaning of Rule 144) or persons that are not affiliates of the Company (within the meaning of Rule 144) but were affiliates of the Company (within the meaning of Rule 144) within the three immediately preceding months to resell any Notes that have been reacquired by any of them, except in transactions registered under the Securities Act.

Section 4.06 Corporate Existence . Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company.

Section 4.07 Par Value Limitation . The Company shall not take any action that, after giving effect to any adjustment pursuant to Sections 10.05 or 10.06 hereof, would result in the Conversion Price becoming less than the par value of one share of Common Stock.

Section 4.08 Stay, Extension and Usury Laws . The Company covenants that, to the extent that it may lawfully do so, it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company, to the extent that it may lawfully do so, hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but

will instead suffer and permit the execution of every such power as though no such law has been enacted.

ARTICLE V

SUCCESSOR CORPORATION

Section 5.01 When Company May Merge or Transfer Assets . The Company shall not consolidate with or merge with or into any other person or sell, convey, transfer or lease all or substantially all its properties and assets to another person, unless:

(a) either (i) the Company shall be the continuing corporation or (ii) the person (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, transfer or lease all or substantially all the properties and assets of the Company (A) shall be organized and validly existing under the laws of the United States, any State thereof or the District of Columbia and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Notes and this Indenture;

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

(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, 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 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied.

For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

The successor person (if other than the Company) formed by such consolidation or into which the Company is merged or the successor person 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 had been named as the Company herein; and thereafter, except in the case of a lease and obligations the Company may have under a supplemental indenture pursuant to Section 10.08, the Company shall be discharged from all obligations and covenants under this Indenture and the Notes. Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and such discharge and release of the Company.

ARTICLE VI

DEFAULTS AND REMEDIES

Section 6.01 Events of Default .

(a) Each of the following is an “ Event of Default ”:

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

(ii) Default in the payment of the Principal Amount of any Note when due and payable at its Stated Maturity, upon required repurchase in connection with a Fundamental Change, upon declaration of acceleration or otherwise;

(iii) the Company fails to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s conversion right;

(iv) the Company fails to comply with its obligation under Article 5;

(v) the Company fails to comply in all material respects with its notice obligations under Section 3.03 or under Sections 10.01(c) or (d), in each case when due; (for the avoidance of doubt, if the Company fails to timely deliver any notice described under Section 3.03 or Sections 10.01(c) or (d) on the date when due, such failure will constitute a failure to comply in all material respects with the Company’s notice obligations under Section 3.03 or under Section 10.01(c) or (d), as the case may be);

(vi) the Company fails to comply with any of its agreements in the Notes or this Indenture (other than those referred to in clauses (i) through (v) above) and such failure continues for 60 days after receipt by the Company of a Notice of Default;

(vii) Default by the Company or any of its Significant Subsidiaries with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any Indebtedness in excess of $10 million in the aggregate of the Company and/or any such Significant Subsidiary, whether such Indebtedness now exists or shall hereafter be created (1) resulting in such Indebtedness becoming or being declared due and payable or (2) constituting a failure to pay the principal of, or interest on, any such Indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration or otherwise, in each of clauses (1) and (2), where such Indebtedness is not discharged, or such acceleration is not rescinded or annulled, within a period of 30 days;

(viii) a final judgment for the payment of $10 million or more rendered against the Company or any of its Subsidiaries if such amount is not covered by insurance or an indemnity and is not discharged or stayed within 30 days after (1) the date on

which the right to appeal thereof has expired if no such appeal has commenced, or (2) the date on which all rights to appeal have been extinguished; or

(ix) the Company or any Significant Subsidiary, pursuant to or under or within the meaning of any Bankruptcy Law:

(A) commences a voluntary case or proceeding;

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

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

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

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

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

(A) is for relief against the Company or any Significant Subsidiary in an involuntary case or proceeding, or adjudicates the Company or any Significant Subsidiary insolvent or bankrupt; or

(B) appoints a Custodian of the Company or any Significant Subsidiary or for any substantial part of its property; or

(D) the order or decree remains unstayed and in effect for 60 days.

A Default under clause (vi) 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 Notes at the time outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in clause (vi) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default .”

(b) The Company shall deliver to the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice of any event which with the giving of notice or the lapse of time, or both, would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto

Section 6.02 Acceleration .

(a) If an Event of Default (other than an Event of Default specified in Section 6.01(a)(ix) or (x) in respect of the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate Principal Amount of the Notes at the time outstanding by notice to the Company and the Trustee, may declare the Principal Amount through the date of declaration, and any accrued and unpaid interest through the date of such declaration, on all the Notes to be immediately due and payable. Upon such a declaration, such Principal Amount, and such accrued and unpaid interest if any, shall be due and payable immediately. If an Event of Default specified in Section 6.01(ix) or (x) in respect of the Company occurs and is continuing, the Principal Amount plus accrued and unpaid interest, if any, on all the Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding, by notice to the Trustee (and without notice to any other Holder) may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived other than the nonpayment of the Principal Amount and interest that have become due solely as a result of acceleration and if all amounts due to the Trustee under Section 7.07 have been paid. No such rescission shall affect any subsequent Default or impair any right consequent thereto.

Section 6.03 Other Remedies . If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of the Principal Amount plus any accrued and unpaid interest, if any, on, or the Conversion Value with respect to, the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if the Trustee does not possess any of the Notes or does not produce any of the Notes in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of, or acquiescence, in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.

Section 6.04 Sole Remedy for Failure to Report .

(a) General . Notwithstanding anything to the contrary in the Notes or in this Indenture, the Company may elect that the sole remedy for any Event of Default specified in Section 6.01(a)(vi) hereof relating to the Company’s failure to file reports with the Trustee as required under Section 4.02 hereof (a “ Reporting Event of Default ”) will, for the period beginning on the date on which such Reporting Event of Default first occurred and ending on the earlier of (A) the date on which such Reporting Event of Default is cured or validly waived in accordance with Section 6.05 hereof and (B) the 180 th day immediately following the date on which such Reporting Event of Default first occurred, consist exclusively of the right to receive additional interest (the “ Extension Fee ”) on the Notes. Such Extension Fee will accrue at a rate equal to 0.25% per annum on the Principal Amount of the Notes outstanding for each day during the period beginning on, and including, the date on which the Reporting Event of Default first occurred and ending on the earlier of (i) the date on which the Reporting Event of Default is cured or validly waived or (ii) the 90 th day immediately following, and including, the date on which the Reporting Event of Default first occurred; and, if such Reporting Event of Default has not been cured or validly waived prior to the 91 st day immediately following, and including, the date on which such Reporting Event of Default first occurred, 0.50% per

annum of the Principal Amount of the Notes then outstanding for each day during the period beginning on, and including, the 91 st day immediately following and including the date on which such Reporting Event of Default first occurred and ending on the earlier of (i) the date on which such Reporting Event of Default is cured or validly waived or (ii) the 180 th day immediately following, and including, the date on which such Reporting Event of Default first occurred.

(b) If (i) a Reporting Event of Default occurs and the Company elects that the sole remedy with respect to such Reporting Event of Default will be the Extension Fee and (ii) on the 181 st day immediately following, and including, the date on which such Reporting Event of Default first occurred, such Reporting Event of Default has not been cured or validly waived in accordance with Section 6.05 hereof, the Notes will immediately become subject to acceleration under Section 6.02(a) hereof on account of such Reporting Event of Default.

(c) To elect to pay the Extension Fee as the sole remedy for a Reporting Event of Default, the Company must deliver written notice of such election to the Holders, the Paying Agent and the Trustee prior to the date on which such Reporting Event of Default first occurs. Any such notice must include a brief description of the report that the Company failed, or will fail, to file, a statement that the Company is electing to pay the Extension Fee and the date on which such Reporting Event of Default will occur.

If a Reporting Event of Default occurs and the Company fails to timely deliver such notice for such Reporting Event of Default, the Notes will immediately be subject to acceleration under Section 6.02(a) hereof on account of such Reporting Event of Default.

(d) Notwithstanding anything to the contrary herein, if the Company elects to pay the Extension Fee with respect to any Reporting Event of Default, the Company’s election will not affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.

(e) The Extension Fee shall accrue in addition to any Special Interest payable pursuant to Section 4.02(b) or any Additional Interest payable pursuant to Section 4.02(c).

Section 6.05 Waiver of Past Defaults . Subject to Section 6.02, the Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding, by notice to the Trustee (and without notice to any other Holder), may rescind any acceleration of the Notes and waive an existing or past Default and its consequences except (a) an uncured Event of Default described in Section 6.01(a)(i), (ii) or (iii), or (b) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected. When a 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 6.05 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 6.06 Control by Majority . The Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that

conflicts with law or this Indenture or that the Trustee determines in good faith is unduly prejudicial to the rights of other Holders or could, in reasonable likelihood, impose personal liability upon the Trustee unless the Trustee is offered indemnity and/or security satisfactory to it. In addition, prior to taking any action hereunder, the Trustee will be entitled to indemnification and/or security reasonably satisfactory to it against all losses and expenses caused by taking or not taking such action. This Section 6.06 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 6.07 Limitation on Suits . Except to enforce the right to receive payment of Principal Amount or interest on the Notes when due, or the right to receive payment or delivery of the amount of cash and number of shares of Common Stock, if any, due upon conversion of a Note, a Holder may not pursue any remedy with respect to this Indenture or the Notes unless:

(a) the Holder gives to the Trustee written notice stating that an Event of Default is continuing;

(b) the Holders of at least 25% in aggregate Principal Amount of the Notes at the time outstanding 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 such written notice, request and offer of security or indemnity; and

(e) the Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding do not give the Trustee a written direction that, in the opinion of the trustee, is inconsistent with such request during such 60-day period.

A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over any other Holder.

Section 6.08 Rights of Holders to Receive Payment . Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the Principal Amount, Fundamental Change Repurchase Price, and interest in respect of the Notes held by such Holder on or after the respective due dates expressed in the Notes, and to convert the Notes in accordance with Article 10, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, shall not be impaired or affected adversely without the consent of such Holder and will not be subject to the requirements of Section 6.07 hereof.

Section 6.09 Collection Suit by Trustee . If an Event of Default described in Section 6.01(a)(i), 6.01(a)(ii) or 6.01(a)(iii) hereof occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount owing with respect to the Notes and the amounts provided for in Section 7.07 hereof and, to the extent lawful, default interest as described in paragraph 7 of the Notes thereon.

Section 6.10 Trustee May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the Principal Amount, Fundamental Change Repurchase Price, and interest in respect of, the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the Principal Amount, Fundamental Change Repurchase Price, or interest and to file such 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 or any other amounts due the Trustee under Section 7.07) and of the Holders allowed in such judicial proceeding, and

(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any 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 the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.

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

Section 6.11 Priorities . If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

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

SECOND: to Holders, for amounts due and unpaid on the Notes for the Principal Amount, Fundamental Change Repurchase Price, interest, and the Conversion Value, ratably, without preference or priority of any kind, according to such amounts due and payable on the Notes; and

THIRD: the balance, if any, to the Company or to such other party as a court of competent jurisdiction directs.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.11. 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 6.12 Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit (other than the Trustee) of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit (other than the Trustee), having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.08 or a suit by Holders of more than 10% in aggregate Principal Amount of the Notes at the time outstanding. This Section 6.12 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA.

Section 6.13 Waiver of Stay, Extension or Usury Laws . The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Company from paying all or any portion of the Principal Amount, Fundamental Change Repurchase Price, interest and the Conversion Value in respect of, Notes, or any interest on such amounts, as contemplated herein, or which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE VII

TRUSTEE

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

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

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

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

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

(i) this paragraph (b) does not limit the effect of paragraph (a) of this Section 7.01;

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

(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.06; and

(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(c) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (d) and (e) of this Section 7.01.

(d) The Trustee may refuse to perform any duty or exercise any right or power or extend or risk its own funds or otherwise incur any financial liability unless it receives indemnity and/or security satisfactory to it against any loss, liability or expense.

(e) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be under no liability for interest on any money received by it hereunder unless otherwise agreed in writing with the Company.

Section 7.02 Rights of Trustee . Subject to its duties and responsibilities under the provisions of Section 7.01, and subject also to its duties and responsibilities under the TIA:

(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate;

(c) 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;

(d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith which it believes to be authorized or within its rights or powers conferred under this Indenture;

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

(f) 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 Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby;

(g) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a resolution of the Board of Directors;

(h) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, including, without limitation, any Company Request, Company Order or Officers’ Certificate, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation or lack thereof;

(i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee received written notice of an event which is in fact such a Default or Event of Default, and such notice references the Notes and this Indenture, describes the event with specificity, and alleges that the occurrence of this event is a Default or an Event of Default under this Indenture;

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

(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) the permissive rights of the Trustee enumerated herein shall not be construed as duties; and

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

Section 7.03 Individual Rights of Trustee . The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee must comply with Section 7.10.

Section 7.04 Trustee’s Disclaimer . The Trustee makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use or application of the proceeds from the Notes, it shall not be responsible for any statement in the registration statement for the Notes under the Securities Act or in this Indenture or the Notes (other than its certificate of authentication), or the determination as to which beneficial owners are entitled to receive any notices hereunder.

Section 7.05 Notice of Defaults . If a Default occurs and if it is known to the Trustee, the Trustee shall give to each Holder notice of the Default within 90 days after the Trustee gains knowledge of the Default unless such Default shall have been cured or waived before the giving of such notice. Except in the case of a Default described in Section 6.01(a)(i), (ii) or (iii), the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of the Notes. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer of the Trustee has received written notice of such Default in the manner described in Section 7.02(i).

Section 7.06 Reports by Trustee to Holders . Within 60 days after each May 15 beginning with May 15, 2012, the Trustee shall transmit to each Holder such reports as may be required under Section 313 of the TIA.

Section 7.07 Compensation and Indemnity . The Company agrees:

(a) to pay to the Trustee from time to time such reasonable compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited (to the extent permitted by law) by any provision of law in regard to the compensation of a trustee of an express trust);

(b) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses, advances and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any loss, damage, claim, liability, cost or expense (including reasonable attorney’s fees and expenses and taxes (other than taxes based upon, measured by or determined by the income of the Trustee)) reasonably incurred without negligence or bad faith on its part, 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 (whether asserted by the Company or any Holder or any other person) or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section 7.07.

To secure the Company’s payment obligations in this Section 7.07, Holders shall have been deemed to have granted to the Trustee a lien prior to the Notes on all money, Common Stock or property held or collected by the Trustee, except that held in trust to pay the Principal Amount, Fundamental Change Repurchase Price, interest or Conversion Value, as the case may be, on particular Notes.

The Company’s payment obligations pursuant to this Section 7.07 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.01(a)(ix) or (x), its expenses including the reasonable charges and expenses of its counsel, are intended to constitute expenses of administration under any Bankruptcy Law.

Section 7.08 Replacement of Trustee . The Trustee may resign by so notifying the Company; provided , however , no such resignation shall be effective until a successor Trustee has accepted its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding may remove the Trustee by so notifying the Trustee and the Company. The Company shall remove the Trustee if:

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

(b) the Trustee is adjudged bankrupt or insolvent;

(d) the Trustee otherwise becomes incapable of acting.

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

(e) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the Company. Thereupon and upon payment of the outstanding fees and expenses (including, but not limited to, attorneys’ fees and expenses) of the resigning or removed Trustee, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.

(f) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee.

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

(h) The resignation or removal of a Trustee shall not diminish, impair or terminate its rights to indemnification pursuant to Section 7.07 as they relate to periods prior to such resignation or removal.

Section 7.09 Successor Trustee by Merger . If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

(a) In case at the time such successor or successors by merger, conversion or consolidation to the Trustee succeeds to the trusts created by this Indenture, any of the Notes have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and

(b) in case at that time any of the Notes have not been authenticated, any such successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee.

Section 7.10 Eligibility; Disqualification . There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee and shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then, for the purposes of this Section 7.10, 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. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 7.

Section 7.11 Preferential Collection of Claims Against Company . The Trustee will comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed will be subject to TIA Section 311(a) to the extent indicated therein.

Section 7.12 Trustee’s Application for Instructions from the Company . Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action will be taken or such omission will be effective. The Trustee will not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date will not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer has consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of any omission), the Trustee has received written instructions in response to such application specifying the action to be taken or omitted.

ARTICLE VIII

SATISFACTION AND DISCHARGE

Section 8.01 Discharge of Liability on Notes . When (a) the Company delivers to the Trustee all outstanding Notes (other than Notes replaced pursuant to Section 2.11) for cancellation or (b) all outstanding Notes have become due and payable and the Company deposits with the Trustee, the Paying Agent (if the Paying Agent is not the Company or any Subsidiary or any Affiliate of either of them) or the Conversion Agent cash or, if expressly permitted by the terms of the Notes and this Indenture, deposits with the stock transfer agent of the Company Common Stock (solely to satisfy the rights of Holders granted in Article 10), to pay all amounts due and owing on all outstanding Notes (other than Notes replaced pursuant to Section 2.11), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 7.07, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate stating that the consideration being given is expressly permitted by the terms of the Notes and that all conditions precedent to the discharge of this Indenture have been complied with by the Company and an Opinion of Counsel that all conditions precedent to the discharge of the Indenture have been complied with and that such satisfaction and discharge does not violate the terms of this Indenture or the Notes, and at the cost and expense of the Company. The Trustee shall be allowed to conclusively rely on such Officers’ Certificate and Opinion of Counsel.

Section 8.02 Repayment to the Company . The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Notes that remains unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and the Trustee and the Paying

Agent shall have no further liability to the Holders with respect to such money or securities for that period commencing after the return thereof.

ARTICLE IX

AMENDMENTS

Section 9.01 Without Consent of Holders . The Company and the Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder:

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

(b) to comply with Article 5 or Section 10.08;

(d) to secure the Company’s obligations under the Notes and this Indenture;

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

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

(g) to conform the provisions of this Indenture to the “Description of Notes” section in the Preliminary Offering Circular; or

(h) to evidence the acceptance or appointment of a successor Trustee.

No amendment made solely to conform this Indenture to the “Description of Notes” section contained in the Preliminary Offering Circular pursuant to which the Notes have been initially offered shall be deemed to adversely affect the interests of the Holders.

Section 9.02 With Consent of Holders . With the written consent of the Holders of at least a majority in aggregate Principal Amount of the Notes at the time outstanding (including consents obtained in connection with a repurchase of, or tender offer or exchange offer for, the Notes), by Act of such Holders delivered to the Company and the Trustee, the Company, when authorized by a resolution of the Board of Directors delivered to the Trustee, may amend or supplement this Indenture or the Notes; provided , however , that, without the consent of each Holder affected, an amendment or supplement to this Indenture or the Notes may not:

(a) reduce the percentage in aggregate Principal Amount of Notes whose Holders must consent to an amendment of this Indenture or to waive any past default;

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

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

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

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

(g) change the ranking of the Notes;

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

(i) make any change in Section 6.05, Section 6.08 or this Section 9.02.

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

Section 9.03 Compliance with Trust Indenture Act . Every supplemental indenture executed pursuant to this Article shall comply with the TIA.

Section 9.04 Revocation and Effect of Consents, Waivers and Actions . Until an amendment, waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Note hereunder is a continuing consent by the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same obligation as the consenting Holder’s Note, even if notation of the consent, waiver or action is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind every Holder.

Section 9.05 Notation on or Exchange of Notes . Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 9 may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for outstanding Notes.

Section 9.06 Trustee to Sign Supplemental Indentures . The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. In signing any supplemental indenture the Trustee shall receive, and (subject to the provisions of Section 7.01) shall be fully

protected in relying upon, in addition to the documents required by Section 12.04, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture.

Section 9.07 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 theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

Section 9.08 Notices of Supplemental Indentures . After an amendment or supplement to this Indenture or the Notes pursuant to Sections 9.01 or 9.02 hereof becomes effective, the Company shall mail to each Holder a notice briefly describing such amendment or supplement to this Indenture. The failure to deliver such notice, or any defect in such notice, will not impair or affect the validity of such amendment or supplement to this Indenture.

ARTICLE X

CONVERSIONS

Section 10.01 Conversion Privilege and Consideration . Subject to and upon compliance with the provisions of this Indenture, a Holder will have the right, at such Holder’s option, to convert its Notes, or any portion of such Notes such that the Principal Amount of each Note not converted equals $1,000 or an integral multiple of $1,000 in excess thereof, at a conversion rate initially equal to 77.2410 shares of the Common Stock (subject to adjustment as provided in Sections 10.05, 10.06 and 10.07, the “ Conversion Rate ”) per $1,000 Principal Amount of Notes, into an amount of cash and a number of shares of the Common Stock, if any, in accordance with Section 10.03, only under the following circumstances:

(a) Stock Price Condition . Prior to the Close of Business on the Business Day immediately preceding April 15, 2016, a Holder may surrender all or a portion of its Notes for conversion during any calendar quarter (and only during such calendar quarter) commencing after September 30, 2011, if, for at least 20 Trading Days (whether or not consecutive) during the 30 consecutive Trading Day period ending on the last Trading Day of the immediately preceding calendar quarter, the Last Reported Sale Price of the Common Stock is greater than 130% of the applicable Conversion Price on such Trading Day.

(i) On the first Business Day of each calendar quarter commencing after September 30, 2011, through and including June 30, 2016, the Company will determine whether the Notes are convertible pursuant to this Section 10.01(a) and, by the close of business on such Business Day, notify the Trustee whether the Notes are so convertible.

(ii) If the Company determines that the Notes have become convertible in accordance with this Section 10.01(a), as promptly as practicable, the Company shall notify the Holders that the condition to conversion described in this Section 10.01(a) has been satisfied.

(b) Trading Price Condition . Prior to the Close of Business on the Business Day immediately preceding April 15, 2016, a Holder may surrender all or a portion of its Notes for conversion during the five consecutive Business Day period immediately following any five consecutive Trading Day period (the “ Measurement Period ”) in which, for each Trading Day of such Measurement Period, the Trading Price per $1,000 Principal Amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth in the immediately following paragraph, was less than 98% of the product of (x) the Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such Trading Day (for any Trading Day, the “ Trading Price Product ”).

Unless the Company requests that the Bid Solicitation Agent determine the Trading Price of the Notes, the Bid Solicitation Agent will have no obligation to determine the Trading Price of the Notes, and unless a Holder (x) provides the Company with reasonable evidence that the Trading Price per $1,000 Principal Amount of Notes on the applicable day will be less than 98% of the Trading Price Product for such day and (y) requests that the Company require the Bid Solicitation Agent to begin determining the Trading Price of the Notes as provided in the immediately following paragraph of this Section 10.01(b), the Company will have no obligation to request that the Bid Solicitation Agent begin to determine the Trading Price of the Notes as provided in the immediately following paragraph of this Section 10.01(b). The Bid Solicitation Agent shall have no liability for the bids it receives or for its non-negligent failure to obtain bids.

Upon receipt from a Holder of such evidence and such a request, the Company shall promptly (but in no event later than one Business Day after receipt of such evidence) instruct the Bid Solicitation Agent in writing to determine (or, if the Company is then acting as Bid Solicitation Agent, the Company will determine) the Trading Price of the Notes beginning on the immediately following Trading Day after receipt of such evidence and request and on each successive Trading Day until a Trading Day occurs in which the Trading Price per $1,000 Principal Amount of Notes for such Trading Day is greater than or equal to 98% of the Trading Price Product for such Trading Day.

As promptly as practicable after the condition to conversion described in this Section 10.01(b) has been met, the Company shall notify the Holders and the Trustee in writing of the Trading Price during the Measurement Period that caused such condition to be met and of the Holders’ right to convert their Notes in accordance with this Section 10.01(b). On the first Trading Day thereafter on which the Trading Price per $1,000 Principal Amount of Notes for such Trading Day is greater than or equal to 98% of the Trading Price Product for such Trading Day, as promptly as practicable, the Company shall notify the Holders and the Trustee in writing of such Trading Price and that the condition to conversion described in this Section 10.01(b) is no longer satisfied.

(c) Prior to the Close of Business on the Business Day immediately preceding April 15, 2016, if the Company elects to distribute to all or substantially all holders of the Common Stock:

(i) rights, options or warrants entitling such holders, for a period of not more than 45 calendar days after the announcement date for such issuance, to subscribe for or purchase shares of the Common Stock at a price per share less than the average

of the Last Reported Sale Prices of the Common Stock for the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or

(ii) assets of the Company, debt securities (or other evidence of indebtedness) or rights to purchase Company’s securities, which distribution has a value per share of Common Stock, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Prices of the Common Stock on the Trading Day immediately preceding the date of announcement for such distribution;

then, in either case, at least 50 Scheduled Trading Days immediately prior to the Ex-Dividend Date for such issuance or distribution, the Company shall notify Holders of their rights to convert their Notes in accordance with this Section 10.01(c), the Conversion Rate in effect on the date the Company delivers such notice, any adjustments to the Conversion Rate that it must make as a result of such issuance or distribution, and the effective date for any such adjustments. Once the Company has given such notice, a Holder may surrender all or a portion of its Notes for conversion at any time until the earlier of (x) the Close of Business on the Business Day immediately preceding the Ex-Dividend Date for the issuance or distribution and (y) the Company’s announcement that such issuance or distribution will not take place, even if the Notes are not otherwise convertible at such time; provided , however , that the Holders will not be entitled to convert their Notes under this Section 10.01(c) if such Holders will participate (as a result of holding the Notes, and at the same time and on the same terms as Holders of Common Stock participate) in any of the transactions described above in Sections 10.01(c)(i) and (ii) as if such Holders of Notes held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount of Notes held by such Holders divided by $1,000, without having to convert their Notes.

(d) Certain Corporate Events . Prior to the Close of Business on the Business Day immediately preceding April 15, 2016, if (x) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs (regardless of whether Holders have the right to require the Company to repurchase the Notes pursuant to Article III), or (y) the Company is a party to a consolidation, merger, binding share exchange, sale, conveyance, transfer or lease of all or substantially all of the Company’s assets, pursuant to which the Common Stock would be converted into cash, securities or other assets (in either case (x) or case (y), a “ Corporate Event ”), then a Holder may surrender all or a portion of its Notes for conversion at any time from or after the later of (A) the 50 th Scheduled Trading Day immediately preceding the anticipated effective date of such Corporate Event and (B) the Business Day after the Company delivers notice to the Holders of such Corporate Event until (I) if such Corporate Event constitutes a Fundamental Change, the Fundamental Change Repurchase Date for such Fundamental Change, or (II) if such Corporate Event does not constitute a Fundamental Change, 50 Trading Days immediately following the effective date of such Corporate Event. The Company shall deliver notice of a Corporate Event to the Trustee and the Holders in writing as promptly as practicable following the date on which it publicly announces such Corporate Event, but in no event later than 50 Scheduled Trading Days prior to the anticipated effective date of such Corporate Event; provided , however , that if the Company does not have knowledge of a Corporate Event at least 50 Scheduled Trading Days prior to the anticipated effective date of such Corporate Event, the Company shall deliver notice of such Corporate Event to the Trustee and the

Holders in writing within one Business Day following the date on which the Company obtains notice of or otherwise becomes aware of such Corporate Event but in no event later than the actual effective date of such Corporate Event. Any such notice of a Corporate Event will include a brief description of such Corporate Event and the conversion right provided by this Section 10.01(d) and state the anticipated effective date of such Corporate Event. If the Company delivers to the Trustee and the Holders notice of a Corporate Event before such Corporate Event becomes effective, and such Corporate Event fails to become effective, the Company shall deliver to the Trustee and the Holders a second notice, which notice will state that such Corporate Event failed to become effective and whether the Holders may still convert their Notes pursuant to any other provision of this Indenture.

(e) Conversion on or After April 1, 2016 . On or after April 1, 2016, a Holder may surrender all or a portion of its Notes for conversion at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity Date regardless of whether any of the conditions in paragraphs (a), (b), (c) or (d) of this Section 10.01 have been met, and the Company shall so notify the Holders on or before April 1, 2016.

Section 10.02 Conversion Procedures .

(a) To convert all or a portion of a Note, the Holder of such Note must:

(i) pay any funds required under Section 10.02(c)(i);

(ii) pay any taxes or duties required under Section 10.02(c)(ii); and

(iii) if such Note is a Global Note, (A) complete any instruction form required by the Depositary to effect the conversion of a beneficial interest under the Applicable Procedures; (B) deliver such Note by book-entry transfer to the Conversion Agent; and (C) otherwise comply with the Applicable Procedures of the Depositary in effect on the date such Holder seeks to convert such beneficial interest; or

(iv) if such Note is a Definitive Note, (A) complete and manually sign the conversion notice provided on the back of such Note (the “ Conversion Notice ”) or a facsimile of the Conversion Notice; (B) deliver such Note and the Conversion Notice (which is irrevocable) for such Note to the Conversion Agent; and (C) furnish any endorsements and transfer documents reasonably required by the Company, the Trustee or Conversion Agent.

The first Business Day on which a Holder satisfies the requirements set forth in clauses (i) through (iv) above with respect to a Note and on which such conversion is not otherwise prohibited pursuant to this Indenture, will be the conversion date (the “ Conversion Date ”) for such Note. If, at any time, the last date on which any Note may be converted is not a Business Day, such Note may be converted on the immediately following Business Day.

(b) Conversions in Whole and in Part .

(i) If a Holder surrenders the entire Principal Amount of a Note for conversion, as of the Conversion Date for such Note, such person will no longer be the Holder of such Note.

(ii) If a Holder surrenders only a portion of a Definitive Note for conversion, promptly after the Conversion Date for such portion, the Company shall, in accordance with Section 2.04 hereof, execute, and the Trustee will, in accordance with Section 2.04 hereof, authenticate and deliver to such Holder a new Definitive Note or new Definitive Notes in an authorized denomination or authorized denominations equal to the aggregate Principal Amount of the unconverted portion of such Definitive Note. Upon the conversion of any beneficial interest in a Global Note, the Conversion Agent will promptly make a notation on the “Schedule of Increases and Decreases of Global Note” of such Global Note to reduce the Principal Amount represented by such Global Note by the Principal Amount of the converted beneficial interest. If the Trustee is not the Conversion Agent at the time of any conversion, the Company shall promptly notify the Trustee in writing of such conversion.

(iii) If any shares of Common Stock are issuable upon the conversion of a Note, the person in whose name the certificate or certificates for such shares of Common Stock will be registered will become the holder of record of such shares at the Close of Business on the last Trading Day of the Cash Settlement Averaging Period corresponding to the Conversion Date for such Note.

(i) If a Holder surrenders a Note for conversion after the Close of Business on any Regular Record Date and prior to the Open of Business on the Interest Payment Date corresponding to such Regular Record Date, such Holder must accompany such Note with an amount of cash equal to the amount of interest if any, that will be payable on such Note on such Interest Payment Date; provided , however , that a Holder need not make such payment (A) if the Company has specified a Fundamental Change Repurchase Date that is after the Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, (B) to the extent of any overdue interest on the Note, if any overdue interest exists at the time of conversion, or (C) if the Holder surrenders the Note after the Close of Business on the last Regular Record Date immediately preceding the Maturity Date and before the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity Date.

(ii) If a Holder surrenders a Note for conversion, the Company shall pay all documentary, stamp or similar issue or transfer tax due and all other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon the conversion. However, if any tax is due because the Holder requests that any shares of Common Stock issued upon conversion be issued in a name other than that of the Holder, the Holder will pay such tax and the Conversion Agent, until having received a sum sufficient to pay such tax, may refuse to deliver any certificates representing shares of Common Stock being issued in a name other than that of the converting Holder.

Section 10.03 Settlement Upon Conversion .

(a) Except as set forth in Sections 10.07(f) and 10.08 hereof, if a Holder surrenders a Note for conversion, the Company shall satisfy its obligation to convert such Note by delivering, on the third Business Day immediately following the last Trading Day of the Cash Settlement Averaging Period corresponding to the Conversion Date for such Note, an amount of cash and a number of shares of Common Stock (such number of shares of Common Stock, the “ Aggregate Share Amount ”), if any, that is equal to the sum of the Daily Settlement Amounts for each of the 40 Trading Days in such Cash Settlement Averaging Period (the “Conversion Value”).

(b) Notwithstanding the provisions of Section 10.03(a), if, and only if, delivery of the Aggregate Share Amount upon settlement of a conversion would not be permissible under the listing standards of the NASDAQ Global Select Market without the Company first having obtained stockholder approval in accordance with such listing standards, and the Company has not theretofore obtained such stockholder approval, then, with respect to such conversion, the Company may, on any one or more Trading Days during such Cash Settlement Averaging Period, reduce the Daily Share Amount applicable to such Trading Day(s) to the extent, and only to the extent, necessary so that the Aggregate Share Amount required to be delivered upon settlement of such conversion pursuant to this Section 10.03 does not exceed the maximum amount permitted to be delivered pursuant to such listing standards; provided that, for each one (1) share (or fraction thereof) of Common Stock the Company deducts from the Daily Share Amount of a Trading Day pursuant to this Section 10.03(b), the Company shall increase the Daily Cash Amount for such Trading Day by an amount equal to the Daily VWAP on such Trading Day of the relevant Cash Settlement Averaging Period (or, in the case a fraction of a share was so deducted, an amount equal to the product of such fraction and the Daily VWAP on such Trading Day of the relevant Cash Settlement Averaging Period).

(c) Notwithstanding the foregoing, the Company will not issue fractional shares of Common Stock as part of the Conversion Value applicable to any Conversion Date. Instead, if the Conversion Value applicable to any Conversion Date includes a fraction of a share of the Common Stock, the Company will, in lieu of delivering such fraction of a share of Common Stock, pay an amount of cash equal to the product of (1) such fraction of a share and (2) the Daily VWAP for the Common Stock on the last Trading Day of the Cash Settlement Averaging Period applicable to such Conversion Date.

(d) If a Holder surrenders more than one Note for conversion on a single day, the amount of cash and the number of shares of Common Stock, if any, that the Company will deliver upon conversion shall be determined based on the total Principal Amount of Notes converted by such Holder.

(e) If a Holder converts a Note, the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on the Note. In addition, the Company will pay accrued and unpaid interest on a converted Note to a converting Holder only (1) if the Conversion Date for such Note occurred (A) after the Regular Record Date immediately preceding the Maturity Date or (B) after a Regular Record Date and on or prior to a Fundamental Change Repurchase Date that is on or prior to the Interest Payment Date corresponding to such Regular Record Date, or (2) to the extent that interest is payable on such Note pursuant to paragraph 7 of the Notes, and the Company’s delivery to such Holder of the amount of cash and number of shares of Common Stock, if

any, into which such Holder’s Note is convertible will be deemed to satisfy and discharge in full the Company’s obligation to pay to such Holder (A) the Principal Amount of such converted Note and (B) any accrued and unpaid interest on such converted Note to, but not including, the Conversion Date. If the Conversion Value includes both cash and shares of the Common Stock, such accrued and unpaid interest will be deemed paid first out of the cash paid upon such conversion. As a result, except as provided in this Section 10.03(e), any accrued and unpaid interest to, but not including, the Conversion Date with respect to a converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited.

(f) Definitions .

(i) Only for the purposes of determining the amounts due upon conversion, “ Trading Day ” means any day on which (1) there is no Market Disruption Event (as defined in Section 10.03(f)(ii)) and (2) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange, if any, on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market, if any, on which the Common Stock is then listed or admitted for trading. If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or admitted for trading, “Trading Day” means “Business Day.”

(ii) Only for the purposes of determining the amounts due upon conversion, “ Market Disruption Event ” means (1) a failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (2) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant securities exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock.

Section 10.04 Stock Issued Upon Conversion .

(a) The Company shall, prior to issuance of any shares of Common Stock under this Article 10, and from time to time as may be necessary, reserve out of its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock to permit the conversion of the Notes.

(b) Any shares of Common Stock delivered upon conversion of the Notes shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable, and shall be free from preemptive rights and shall be free of any lien or adverse claim (except any lien or adverse claim created by the action or inaction of the Holder to whom such shares are delivered). The Company will endeavor to comply promptly with all federal and state securities laws regulating the offer and delivery of any Common Stock deliverable upon conversion of the Notes; provided , that the Company shall not be obligated to register the offer and sale of the Common Stock under the Securities Act or any other applicable securities laws. In addition, the Company will cause

any such shares of Common Stock to be listed on any stock exchange on which the Common Stock is then listed and will comply with any stock exchange rules applicable to the Notes and/or the Common Stock (or Reference Property) issuable upon conversion of the Notes.

If any shares of the Common Stock issued upon conversion are required to bear a Restricted Stock Legend, such shares of Common Stock will be issued in physical certificated form, will not be held in book-entry form through the facilities of the Depositary and shall be treated as “restricted securities” (as defined under Rule 144), and the Company will affix, or will direct its transfer agent to affix upon such shares of Common Stock the Restricted Stock Legend that is set forth in Exhibit B .

Section 10.05 Adjustment of Conversion Rate . The Company shall adjust the Conversion Rate from time to time as described in this Section 10.05.

(a) Stock Dividends and Share Splits . If the Company exclusively issues shares of the Common Stock as a dividend or distribution on shares of the outstanding Common Stock, or if the Company effects a share split of the Common Stock or a share combination of the Common Stock, the Conversion Rate shall be adjusted based on the following formula:

where

CR 0	=	the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date of such share split or share combination, as applicable;

CR 1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or such effective date;

OS 0	=	the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such effective date; and

OS 1	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

Any adjustment made under this Section 10.05(a) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately after the Open of Business on the effective date for such share split or share combination, as the case may be. If any dividend or distribution of the type described in this Section 10.05(a) is declared but not so paid or made or any share split or combination of the type described in this Section 10.05(a) is announced but the outstanding shares of Common Stock are not split or

combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or not to split or combine the outstanding shares of our common stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared or announced.

(b) Rights and Warrants . If the Company issues to all or substantially all holders of its outstanding Common Stock rights, options or warrants entitling such holders for a period of not more than 45 calendar days after the announcement date of such issuance to subscribe for or purchase shares of the Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the first date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:

where

CR 0	=	the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance;

CR 1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

OS 0	=	the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date;

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

Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise or convert such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of the first public announcement of the issuance of such rights, options or warrants.

Any increase made under this Section 10.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance of rights, options or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis

of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such issuance had not occurred.

For purposes of this Section 10.05(b), in determining whether any rights, option or warrants entitle holders of the Common Stock to subscribe for or purchase shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of the first public 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, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

(c) Spin-Offs and Other Distributed Property.

(i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of the Common Stock, other than:

(A) dividends, distributions, rights, options or warrants for which an adjustment is made pursuant to Section 10.05(a) hereof or Section 10.05(b) hereof, as applicable;

(B) dividends or distributions paid exclusively in cash; and

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

where

CR 0	=	the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution;

CR 1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

SP 0	=	the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

FMV

the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution.

Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP 0 ” (as defined above), then, in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 Principal Amount of Notes, at the same time and upon the same terms as the holders of Common Stock, the amount and kind of Capital Stock, evidences of indebtedness, other assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities that such Holder would have received if such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for such distribution.

Any increase in the Conversion Rate made under this Section 10.05(c)(i) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 10.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.

(ii) With respect to an adjustment pursuant to this Section 10.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed (or will be listed upon the consummation of the spin-off) on a U.S. national or regional securities exchange (a “ Spin-Off ”), the Conversion Rate shall be increased based on the following formula:

where

CR 0	=	the Conversion Rate in effect immediately prior to the end of the Valuation Period (as defined below);

CR 1	=	the Conversion Rate in effect immediately after the end of the

		Valuation Period;

FMV 0	=	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (determined for purposes of the Last Reported Sale Price as if such Capital Stock or similar equity interest were Common Stock) over the first 10 consecutive Trading Day period beginning on, and including, the Ex-Dividend Date of the Spin-Off (the “ Valuation Period ”); and

MP 0	=	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

The increase to the Conversion Rate as a result of a Spin-Off shall be determined on the last Trading Day of the Valuation Period but shall be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; provided that in respect of any conversion during the Valuation Period, references in the portion of this Section 10.05(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the Conversion Date in determining the applicable Conversion Rate. If the Ex-Dividend date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Cash Settlement Averaging Period in respect of any conversion, references in the portion of this Section 10.05(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced, for purposes of calculating the affected daily Conversion Rates in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Cash Settlement Averaging Period.

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

where

CR 0	=	the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution;

CR 1	=	the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution;

SP 0	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and

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

Such increase shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP 0 ” (as defined above), then, in lieu of the foregoing increase, each Holder shall receive for each $1,000 Principal Amount of Notes, at the same time and upon the same terms as holders of shares of Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of the Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for such cash dividend or distribution.

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

where

CR 0	=	the Conversion Rate in effect immediately prior to the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;

CR 1	=	the Conversion Rate in effect immediately after the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;

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

OS 0	=	the number of shares of Common Stock outstanding immediately prior to the Expiration Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender offer or exchange offer);

OS 1	=	the number of shares of Common Stock outstanding immediately after the Expiration Date (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and

SP 1	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading-Day period immediately following, and including, the Trading Day next succeeding the Expiration Date.

The adjustment to the Conversion Rate under the preceding paragraph shall be determined at the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date but shall be given effect immediately after the Open of Business on the Trading Day next succeeding the Expiration Date; provided that in respect of any conversion within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the Expiration Date, references in this Section 10.05(e) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, and including, the Conversion Date in determining the applicable Conversion Rate. If the Trading Day immediately following the Expiration Date is less than 10 Trading Days prior to, and including, the end of the Cash Settlement Averaging Period in respect of any conversion, references in this Section 10.05(e) to 10 Trading Days shall be deemed replaced, for purposes of calculating the affected daily Conversion Rates in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day immediately following the Expiration Date to, and including, the last Trading Day of such Cash Settlement Averaging Period.

(f) After an adjustment to the Conversion Rate under this Article 10, any subsequent event requiring an adjustment under this Article 10 shall cause an adjustment to the Conversion Rate as so adjusted, without duplication. Except as set forth in this Article 10, the Conversion Rate shall not be adjusted for the issuance of the Common Stock or any securities convertible into or exchangeable for the Common Stock or carrying the right to purchase the Common Stock or any such security or for any other event.

(g) Notwithstanding anything else in this Section 10.05, if any adjustment to the Conversion Rate described in clauses 10.05(a) through 10.05(e) hereof becomes effective and a Holder that has converted its Notes (i) receives shares of Common Stock based on an adjusted Conversion Rate and (ii) is a holder of record of such shares of Common Stock on the record date for the dividend, distribution or other event giving rise to the adjustment or otherwise participates in such dividend, distribution or other event giving rise to the adjustment as a result of holding such shares of Common Stock, then, in lieu of receiving shares of Common Stock at such an adjusted Conversion Rate, the Company may adjust the number of shares of Common Stock that it delivers to such Holder as it determines is appropriate to reflect such Holder’s participation in the related dividend, distribution or other event giving rise to the adjustment.

(h) To the extent that the Company has a stockholder rights plan in effect upon conversion of the Notes into Common Stock, the converting Holder will receive, in addition to shares of Common Stock received in connection with such conversion, if any, the rights under the rights plan, unless, prior to any conversion, the rights have separated from the Common Stock, in which case, and only in such case, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all holders of the Common Stock, shares of the Capital Stock, evidences of indebtedness, assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities as described in Section 10.05(c) above, subject to readjustment in the event of the expiration, termination or redemption of such rights.

(i) If a Holder converts a Note and, on any Trading Day during the Cash Settlement Averaging Period applicable to such Note, any event that requires an adjustment to the Conversion Rate pursuant to Sections 10.05(a) through 10.05(e) hereof has occurred, but does not result in an adjustment for such Trading Day for such Holder, the Company shall adjust the Daily Settlement Amount it delivers to such Holder for such Trading Day in a manner that appropriately reflects the relevant distribution or transaction requiring adjustment.

(j) Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Value, the Daily Settlement Amount or any functions thereof over a span of multiple days (including, without limitation, during a Cash Settlement Averaging Period and during the ten Trading Day period used to determine the “Stock Price” for purposes of determining the number of Make-Whole Shares associated with a Make-Whole Fundamental Change), the Board of Directors will make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period in which the Last Reported Sale Prices, Daily VWAPs, the Daily Conversion Value, Daily Settlement Amount or such functions thereof is to be calculated.

(k) No adjustment to the Conversion Rate pursuant to Sections 10.05(a) through 10.05(e) hereof (other than in the case of a share split or share combination) will be made if each Holder participates in the relevant transaction, without having to convert its Notes, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, as if it held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the Principal Amount of Notes held by such Holder, divided by $1,000. In addition, if immediately prior to the effective time for such adjustment, the application of any the adjustments set forth in Sections 10.05(a) through 10.05(e) hereof, other than as a result of a reverse share split, share combination or readjustment, would result in a decrease in the Conversion Rate, the Company will not adjust the Conversion Rate.

(l) Deferral of Adjustments . Notwithstanding anything to the contrary in this Section 10.05, the Company will not be required to adjust the Conversion Rate unless the adjustment would result in a change of at least 1% of the Conversion Rate; provided , however , that, if the Company defers any adjustments pursuant to this Section 10.05(l), the Company shall make such deferred adjustments, regardless of whether the aggregate adjustment is less than 1% (i) upon any

conversion of Notes and (ii) on each of the 42 Scheduled Trading Days immediately preceding the Maturity Date.

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

(i) upon the issuance of:

(A) any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;

(B) any shares of Common Stock or options or rights to purchase Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee agreement or arrangement of, or assumed by, the Company or any of its Subsidiaries; or

(C) any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (B) above and outstanding as of the date the Notes were first issued;

(ii) for any change in the par value of the Common Stock; or

(iii) for accrued and unpaid interest, if any, on the Notes.

(n) Notices . Upon the public announcement of any event that will require the Company to make an adjustment to the Conversion Rate pursuant to this Section 10.05, the Company shall deliver to each Holder, the Trustee and the Conversion Agent a written notice, which notice shall include (i) a brief description of such event, (ii) the date on which the Company anticipates that such event will occur, (iii) the date on which the Company anticipates that the adjustment to the Conversion Rate will become effective, and (iv) if any record date, Expiration Date, Ex-Dividend Date or effective date is applicable to such event, the anticipated record date, Expiration Date, Ex-Dividend Date or effective date. Neither the failure to give such notice, nor any defect therein, will affect the legality or validity of such action by the Company.

Whenever the Company adjusts the Conversion Rate pursuant to this Section 10.05, the Company shall promptly deliver to each Holder a written notice, which notice will include (i) a brief description of the event requiring adjustment to the Conversion Rate pursuant to this Section 10.05, (ii) the effective date of such adjustment, (iii) the Conversion Rate in effect after such adjustment is made and (iv) a schedule explaining, in reasonable detail, how the Company calculated such adjustment. On the same day the Company delivers such notice to each Holder, the Company shall deliver to the Trustee, the Paying Agent and the Conversion Agent, an Officers’ Certificate that includes all of the information contained in such notice, which Officers’ Certificate each of the Trustee, the Paying Agent and the Conversion Agent may treat as conclusive evidence that the adjustment specified in such Officers’

Certificate is correct and will be in effect as of the effective date specified in such Officers’ Certificate. The failure to deliver such notice will not affect the legality or validity of any such adjustment.

(o) Certain Definitions. For purposes of this Section 10.05, (i) the number of shares outstanding at any time will include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock, but (ii) so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, will not include shares of Common Stock held in the treasury of the Company,

For purposes of this Section 10.05, (a) the term “ effective date ” will mean the first date on which the Common Stock trades on the applicable exchange or in the applicable market, regular way, reflecting the transaction; and (b) the term “ record date ” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other security) have the right to receive any cash, securities or other property or in which 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 securityholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).

Section 10.06 Discretionary Adjustments . The Company may, from time to time, to the extent permitted by law and the rules of the NASDAQ Global Select Market and other securities exchange on which Company’s securities are then listed:

(a) increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is in the best interest of the Company, which determination shall be conclusive, and (ii) such increase is in effect for a period of at least 20 Business Days; and

(b) increase the Conversion Rate if the Board of Directors determines, which determination shall be conclusive, that such increase is advisable to avoid or diminish any income tax imposed on holders of the Common Stock or rights to purchase the Common Stock in connection with any dividend or distribution of shares (or rights to acquire shares) or similar event.

Whenever the Board of Directors determines that the Company will increase the Conversion Rate pursuant to this Section 10.06, the Company shall deliver to each Holder notice of such increase at least 20 Business Days before such increase will take effect, which notice shall state the increase to be made and the period during which such increase will be in effect.

Section 10.07 Adjustments to Conversion Rate Upon Fundamental Change Transactions .

(a) If a Fundamental Change occurs (determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of such definition, a “ Make-Whole Fundamental Change ”) and a Holder elects to convert its Notes “in connection” with such Make-Whole Fundamental Change, the Company shall, in the circumstances described in this Section 10.07, increase the Conversion Rate for such Notes surrendered for conversion by the number of additional shares of Common Stock (the “ Make-Whole Shares ”) described in this Section 10.07. For purposes of this Section 10.07, a conversion of Notes will be

deemed to be “in connection with” a Make-Whole Fundamental Change if the notice of conversion for such Notes is received by the Conversion Agent during the period beginning on, and including, the effective date of such Make-Whole Fundamental Change (the “ Fundamental Change Effective Date ”) and ending on, and including, the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date for such Make-Whole Fundamental Change (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the effective date of such Make-Whole Fundamental Change). The Company shall notify Holders of the effective date of any Make-Whole Fundamental Change and issue a press release announcing such effective date no later than five Business Days after such effective date.

(b) The number of Make-Whole Shares by which the Conversion Rate will be increased if a Holder converts a Note in connection with a Make-Whole Fundamental Change will be determined by reference to the table below and will be based on the Fundamental Change Effective Date and the Stock Price (paid or deemed paid) for such Make-Whole Fundamental Change. If the Holders of Common Stock receive only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share of Common Stock. Otherwise, the Stock Price shall be the average of the Last Reported Sale Price of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the effective date of the Make-Whole Fundamental Change.

(c) The Stock Prices set forth in the first row (i.e., the column headers) of the table set forth below will be adjusted as of each date on which the Conversion Rate is adjusted pursuant to Section 10.05. The adjusted Stock Prices will equal the Stock Prices in effect immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate in effect immediately prior to the adjustment giving rise to the share price adjustment, and the denominator of which is the Conversion Rate in effect immediately after the adjustment. The numbers of Make-Whole Shares set forth in the table below will be adjusted in the same manner and at the same time as the Conversion Rate is adjusted pursuant to Section 10.05.

(d) The following table sets forth hypothetical Fundamental Change Effective Dates, Stock Prices and the number of Make-Whole Shares by which the Conversion Rate will be increased for a Holder that converts a Note in connection with a Make-Whole Fundamental Change having such Fundamental Change Effective Date and Stock Price.

Effective	Stock Price
Date	$9.59	$10.00	$12.00	$12.95	$14.00	$16.00	$18.00	$20.00	$25.00	$30.00	$40.00	$50.00	$75.00
July 25, 2011	27.0343	27.0343	20.5376	17.7365	15.2609	11.8038	9.4286	7.7295	5.1110	3.6565	2.1152	1.3153	0.4089
July 15, 2012	27.0343	27.0343	19.6037	16.6896	14.1477	10.6709	8.3508	6.7376	4.3509	3.0857	1.7848	1.1140	0.3431
July 15, 2013	27.0343	27.0343	18.1501	15.1198	12.5254	9.0834	6.8861	5.4243	3.3942	2.3908	1.3944	0.8777	0.2662
July 15, 2014	27.0343	26.2318	15.9181	12.7805	10.1738	6.8887	4.9478	3.7551	2.2698	1.6090	0.9640	0.6153	0.1820
July 15, 2015	27.0343	23.9408	12.4793	9.2106	6.6659	3.8236	2.4421	1.7497	1.0688	0.7948	0.4958	0.3196	0.0888
July 15, 2016	27.0343	22.7590	6.0923	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000

(e) If the Stock Price and/or Fundamental Change Effective Date for a Make-Whole Fundamental Change are not set forth in the table above, then:

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

(ii) if the Stock Price is greater than $75.00 per share, subject to adjustment in the same manner as the Stock Prices listed in the table, the Conversion Rate will not be adjusted; and

(iii) if the Stock Price is less than $9.59 per share, subject to adjustment in the same manner as the Stock Prices listed in the table, the Conversion Rate will not be adjusted.

Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 104.2753 shares of Common Stock per $1,000 Principal Amount of Notes, subject to adjustment in the same manner as the Conversion Rate as set forth in Section 10.05 hereof.

(f) If a Holder converts a Note in connection with a Make-Whole Fundamental Change, the Company shall settle the conversion of such Note in accordance with Section 10.03 hereof; provided , however , that notwithstanding anything to the contrary in Section 10.03 hereof, if a Holder converts a Note in connection with a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change in Section 1.01 hereof in which the holders of the Common Stock receive only cash in consideration for their shares of Common Stock, the Company shall settle such conversion by delivering to such Holder, on the third Business Day immediately following the Conversion Date for such Note, an amount of cash, for each $1,000 Principal Amount of such Note converted, equal to the product of (i) the Conversion Rate on the Conversion Date for such Note (including any Make-Whole Shares added to such Conversion Rate pursuant to this Section 10.07) and (ii) the Stock Price for such Make-Whole Fundamental Change.

Section 10.08 Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale .

(a) If any of the following events occur:

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

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

(iii) any sale, lease or other transfer to a third party of all or substantially all of the property and assets of the Company; or

(iv) any statutory share exchange;

and, in each case, as a result of which the Common Stock would be converted into, exchanged for, reclassified or changed into, stock, other securities, or other property or assets (including cash or any combination thereof) (each such event, a “ Merger Event ,” and, for any Merger Event, such stock, other securities, or other property or assets, the “ Reference Property ” for such Merger Event), then, on or before the effective date of such Merger Event, the Company and the resulting, surviving or transferee person (if other than the Company) of such Merger Event (the “ Merger Successor Corporation ”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 9.03 hereof, which supplemental indenture will (A) comply with the TIA as in force on the date such supplemental indenture is executed (if such supplemental indenture is required by law to so comply), (B) provide that the Notes will remain convertible into cash or cash and shares of Common Stock, if any, as set forth in this Indenture; provided that the amount otherwise payable in cash upon conversion of the Notes as set forth in Section 10.03 will continue to be payable in cash, and (C) if the Reference Property for a Merger Event includes shares of stock or other securities or assets of a person other than the Merger Successor Corporation for such Merger Event, then such other company will also execute such supplemental indenture and such supplemental indenture will contain whatever additional provisions the Board of Directors considers to be reasonably necessary to protect the Holders, except that, on and after the effective date of such Merger Event:

(i) the Daily VWAP for any Trading Day will be determined based on the amount and kind of Reference Property for such Merger Event that a holder of one share of the Common Stock immediately prior to such Merger Event would have owned or been entitled to receive upon the occurrence of such Merger Event, or, if holders of the Common Stock were entitled to elect to receive more than one type and amount of Reference Property, the weighted average of the types and amounts of Reference Property received by the holders of the Common Stock that affirmatively made such election (a “ Unit of Reference Property ” for such Merger Event);

(ii) each reference to the “Last Reported Sale Price of the Common Stock” will be deemed to be replaced by a reference to the “Last Reported Sale Price of a Unit of Reference Property”; and

(iii) if a Unit of Reference Property does not consist solely of one type of common stock that is listed on a U.S. national or regional securities exchange, the adjustments to the Conversion Rate provided in Section 10.05 hereof will be modified by the Board of Directors to provide the Holders with adjustments that have an economic effect on the Holders as nearly equivalent as practicable to the economic effect the adjustments provided by Section 10.05 hereof had on the Holders before such Merger Event.

(b) As soon as practicable upon learning the anticipated or actual effective date of any Merger Event, the Company shall deliver written notice of such Merger Event to each Holder. Such Notice will include:

(i) a brief description of such Merger Event;

(ii) the Conversion Rate in effect on the date the Company delivers such notice;

(iii) the anticipated (or actual) effective date for the Merger Event;

(iv) that, on and after the effective date for the Merger Event, the Notes will be convertible into cash and shares of Common Stock, if any, based on the value of a Unit of Reference Property in lieu of the value of the shares of Common Stock; and

(v) the anticipated (or actual) composition of a Unit of Reference Property for such Merger Event.

(c) As promptly as practicable after executing a supplemental indenture in accordance with Section 10.08(a) hereof, the Company shall:

(i) file with the Trustee an Officers’ Certificate briefly describing the reasons therefor, the composition of a Unit of Reference Property for such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent under this Indenture to such Merger Event have been complied with; and

(ii) cause to be mailed to each Holder, at the address of such Holder as it appears in the register of the Notes maintained by the Registrar, a notice of the execution of such supplemental indenture and the composition of a Unit of Reference Property for such Merger Event; provided that the failure to deliver such notice to any Holder will not affect the validity or legality of such supplemental indenture.

(d) The provisions of this Section 10.08 will apply successively to successive Merger Events.

(e) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 10.08.

Section 10.09 Responsibility of Trustee . The Trustee and any other Conversion Agent will not have any duty or responsibility to any Holder to determine whether any facts exist that require an adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same. Neither the Trustee nor any Conversion Agent will be responsible for any failure of the Company to deliver the cash or Common Stock, if any, due upon the surrender of any Notes for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 10. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent will be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 10.08 hereof relating to the amount of cash or the number of Units of Reference Property, if any, receivable by Holders upon the conversion of their Notes after any

Merger Event or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01 hereof, the Trustee may accept as conclusive evidence of the correctness of any such provisions, and will be protected in relying upon, the Officers’ Certificate (which the Company shall file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. The Trustee will have no responsibility to determine if a supplemental indenture must be entered into pursuant to Section 10.08.

ARTICLE XI

PAYMENT OF INTEREST

Section 11.01 Interest Payments . Interest on any Note that is payable, and is punctually paid or duly provided for, on any applicable Interest Payment Date shall be paid to the person in whose name that Note is registered at the Close of Business on the Regular Record Date or accrual date, as the case may be, for such interest at the office or agency of the Company maintained for such purpose. Each installment of interest payable in cash on any Definitive Note shall be payable (1) to Holders holding Definitive Notes having an aggregate principal amount of $1,000,000 or less, by check mailed to the Holders of such Notes and (2) to Holders holding Definitive Notes having an aggregate principal amount of more than $1,000,000, either by check mailed to each Holder or, upon written application by a Holder to the Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder notifies, in writing, the Registrar to the contrary. In the case of a permanent Global Note, interest payable on any applicable payment date will be paid to the Depositary, with respect to that portion of such permanent Global Note held for its account by Cede & Co. for the purpose of permitting such party to credit the interest received by it in respect of such permanent Global Note to the accounts of the beneficial owners thereof.

Section 11.02 Defaulted Interest . Except as otherwise specified with respect to the Notes, any interest on any Note that is payable, but is not punctually paid or duly provided for, within 30 days following any applicable payment date (herein called “ Defaulted Interest ”, which term shall include any accrued and unpaid interest that has accrued on such defaulted amount in accordance with paragraph 1 of the Notes), shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date or accrual date, as the case may be, by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below. All such Defaulted Interest shall be payable on the next Interest Payment Date.

(a) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Notes are registered at the Close of Business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the persons

entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be delivered to each Holder at such Holder’s address as it appears in the Register not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the persons in whose names the Notes are registered at the Close of Business on such special record date and shall no longer be payable pursuant to the following clause (b).

(b) The Company may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Section 11.03 Interest Rights Preserved . Subject to the foregoing provisions of this Article 11 and Sections 2.08 and 2.09, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.

ARTICLE XII

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, the required provision shall control.

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

if to the Company:

One Rudolph Road,
P.O. Box 1000,
Flanders, NJ 07836
Telephone No.: (973) 691-1300

Facsimile No.: (973) 691-1435
Attention: Robert A. Koch, Vice President & General Counsel

if to the Trustee, Registrar, Paying Agent or Conversion Agent:

The Bank of New York Mellon Trust Company, N.A.
525 William Penn Place, 38 th Floor

Pittsburgh, Pennsylvania 15259

Attn: Corporate Trust Administration

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

Unless otherwise provided in this Indenture or in the Notes, (a) any notice or communication given to a Holder of a Definitive Note shall be mailed to the Holder, by first-class mail, postage prepaid, at the Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed, and (b) any notice or communication given to a beneficial owner of a Global Note shall be given in accordance with the Applicable Procedures; provided , however , that the Company may, at its option, in lieu of delivering notice in such manner and/or form, satisfy any obligation under Sections 10.01(a)-(e) to deliver notice to a Holder by issuing a press release containing the relevant information and by using commercially reasonable efforts to disseminate such information on the Company’s website or any other public medium reasonably likely to be viewed by such Holder.

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

If the Company delivers a notice or communication to the Holders, it shall, on the same day, deliver a copy to the Trustee and each Registrar, Paying Agent and Conversion Agent.

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

Section 12.04 Certificate and Opinion as to Conditions Precedent . Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:

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

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

Section 12.05 Statements Required in Certificate or Opinion . Unless the Trustee agrees, in its sole discretion, to accept a different form or format, each Officers’ Certificate or

Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture (except for such Officers’ Certificate required to be delivered pursuant to Section 4.03 hereof) shall include:

(a) a statement that each person making such Officers’ Certificate or Opinion of Counsel has read such covenant or condition;

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Officers’ Certificate or Opinion of Counsel are based;

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

(d) a statement that, in the opinion of such person, such covenant or condition has been complied with.

Section 12.06 Separability Clause . In case any provision in this Indenture or in the Notes 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 12.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar . The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar, Conversion Agent and the Paying Agent may make reasonable rules for their functions.

Section 12.08 Calculations . The calculation of the Conversion Value, Conversion Date, Daily VWAP, Cash Settlement Averaging Period, Fundamental Change Repurchase Price, Conversion Rate, Last Reported Sale Price of the Common Stock, the number of shares of Common Stock, if any, to be issued upon conversion and, except as otherwise provided in this Indenture, each other calculation to be made hereunder shall be the obligation of the Company only and not the Trustee or Conversion Agent. All calculations made by the Company as contemplated pursuant to this Section 12.08 shall be in good faith and final and binding on the Company and the Holders absent manifest error. The Company shall provide a schedule of the calculations to the Trustee and the Conversion Agent and the Trustee and the Conversion Agent are entitled to rely upon the accuracy of the calculations without independent verification. The Trustee will forward the calculations of the Company to any Holder upon the request of that Holder.

All calculations will be made to the nearest cent or to the nearest 1/10,000th of a share, as the case may be.

Section 12.09 Legal Holidays . A “ Legal Holiday ” is any day other than a Business Day. If any specified date (including a date for giving notice) is a Legal Holiday, the action shall be taken on the next succeeding day that is not a Legal Holiday, and interest shall not accrue for the intervening period.

Section 12.10 Governing Law and Waiver of Jury Trial . THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE NOTES, BUT WITHOUT GIVING EFFECT TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

Section 12.11 No Recourse Against Others . A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes.

Section 12.12 Successors . All agreements of the Company in this Indenture and the Notes shall bind its successor. All agreements of the Trustee, the Registrar, the Paying Agent and the Conversion Agent in this Indenture and the Notes shall bind their respective successors.

Section 12.13 Multiple Originals . The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 12.14 Table of Contents; Headings . The table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.

Section 12.15 Force Majeure . In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 12.16 Submission to Jurisdiction . The Company: (a) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes, as the case may be, may be instituted in any U.S. federal court with applicable subject matter jurisdiction sitting in The City of New York; (b) waives, to the fullest extent permitted by applicable law,

any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum; and (c) submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding.

Section 12.17 No Security Interest Created . Except as provided in Section 7.07 hereof, nothing in this Indenture or in the Notes, expressed or implied, will be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.

Section 12.18 Benefits of Indenture . Nothing in this Indenture or in the Notes, expressed or implied, will give to any person, other than the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Registrar and their successors hereunder or the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 12.19 U.S.A. Patriot Act . The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

(Signature Pages Follow)

IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on behalf of the respective parties hereto as of the date first above written.

RUDOLPH TECHNOLOGIES, INC.


By:	/s/ Paul F. McLaughlin
	Name:	Paul F. McLaughlin
	Title:	Chairman and Chief Executive Officer

IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on behalf of the respective parties hereto as of the date first above written.

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


	By:	/s/ Leslie Lockhart
		Name: Leslie Lockhart
		Title: Senior Associate

EXHIBIT A

[FORM OF FACE OF NOTE]

NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF RUDOLPH TECHNOLOGIES, INC. (THE “ COMPANY ”) OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE OR A BENEFICIAL INTEREST HEREIN.

[ Include the following legend for Global Notes only (the “ Global Notes Legend ”) : ]

THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.

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

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[ Include the following legend on all Notes that are Restricted Notes (the “ Restricted Notes Legend ”) : ]

THE NOTES AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED

A-1

OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, AND NOT SUBJECT TO, REGISTRATION. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES; OR

(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT; OR

(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

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RUDOLPH TECHNOLOGIES, INC.

3.75% Convertible Senior Notes due 2016

No.		CUSIP: 781268 AA5
Issue Date:		ISIN: US781268AA59

Principal Amount:

[ as revised by the Schedule of Increases
and Decreases in the Global Note attached hereto ] (1)

RUDOLPH TECHNOLOGIES, INC., a Delaware corporation, promises to pay to [ ] [ include “ Cede & Co. ” for Global Note ] or registered assigns, the Principal Amount of $ [ ] on July 15, 2016 (the “ Maturity Date ”). This Note shall bear cash interest at the rate of 3.75% per annum. This Note is convertible as specified on the other side of this Note.

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

* At such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this CUSIP number will be deemed removed and replaced with the CUSIP number 781268 AB3.

(1) Include for Global Notes only.

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	RUDOLPH TECHNOLOGIES, INC.


	By:
		Name:
		Title:
		Dated:

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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION

The Bank of New York Mellon Trust Company, N.A.,
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture.

By:
	Authorized Signatory

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[FORM OF REVERSE SIDE OF NOTE]

3.75% Convertible Senior Notes due 2016

1. Interest.

This Note shall bear cash interest at the rate of 3.75% per annum. Interest on this Note shall accrue from the most recent date to which interest has been paid or provided for, or if no interest has been paid or provided for, the Issue Date. Interest shall be payable semiannually in arrears on January 15 and July 15 of each year, beginning on January 15, 2012, to the holders of record of Notes at the Close of Business on the January 1 or July 1 (whether or not a business day), as the case may be, immediately preceding the relevant Interest Payment Date. Subject to certain exceptions described in the Indenture, each payment of cash interest on this Note shall include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the Issue Date) through the day before the applicable Interest Payment Date or purchase date. Any payment required to be made on any day that is not a Business Day shall be made on the next succeeding Business Day. Interest shall be calculated using a 360-day year composed of twelve 30-day months. Interest shall cease to accrue on this Note upon its Stated Maturity, conversion or purchase by the Company at the option of the Holder upon a Fundamental Change in accordance with paragraph 5 hereof.

If the Principal Amount hereof or any portion of such Principal Amount is not paid when due (whether upon acceleration pursuant to Section 6.02 of the Indenture, upon the date set for payment of the Fundamental Change Repurchase Price pursuant to paragraph 5 hereof or upon the Stated Maturity of this Note) or if interest due hereon or any portion of such interest is not paid when due in accordance with paragraph 7 hereof, then in each such case the overdue amount shall, to the extent permitted by law, bear interest at the then-applicable interest rate plus 1.00% per annum, compounded semiannually, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable on the next Interest Payment Date.

Pursuant to Section 4.02 of the Indenture, in certain circumstances, the Company will pay Additional Interest or Special Interest on this Note.

Pursuant to Section 6.04 of the Indenture, in certain circumstances, the Company will pay an Extension Fee on this Note.

Pursuant to Section 11.02 of the Indenture and paragraph 7 hereof, in certain circumstances, the Company will pay Defaulted Interest on this Note.

Unless the context requires otherwise, all references to “interest” in this Note will be deemed to include any Additional Interest, Special Interest and the Extension Fee.

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2. Method of Payment.

Subject to the terms and conditions of the Indenture, the Company will make payments in respect of Fundamental Change Repurchase Prices and at Stated Maturity to Holders who surrender Notes to a Paying Agent to collect such payments in respect of the Notes. Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. The Company will pay any cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money.

3. Paying Agent, Conversion Agent and Registrar.

Initially, The Bank of New York Mellon Trust Company, N.A., a national banking association, organized and existing under the laws of the United States of America (the “ Trustee ”), will act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent or Registrar without notice, other than notice to the Trustee; provided , however , that the Company will maintain at least one Paying Agent in the United States of America, which will initially be an office or agency of the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent or Registrar. The Company may maintain deposit accounts and conduct other banking transactions with the Trustee in the normal course of business.

4. Indenture

The Company issued the Notes under an Indenture dated as of July 25, 2011 (the “ Indenture ”), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as in effect from time to time (the “ TIA ”). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms.

The Notes are senior unsecured obligations of the Company limited to $60,000,000 aggregate Principal Amount (subject to Section 2.01 of the Indenture). The Indenture does not limit other indebtedness of the Company, secured or unsecured.

5. Repurchase by the Company at the Option of the Holder upon a Fundamental Change.

At the option of the Holder and subject to the terms and conditions of the Indenture, the Company shall become obligated to repurchase the Notes held by such Holder on a date no earlier than 20 calendar days, and no later than 35 calendar days, after the Fundamental Change Notice Date for a Fundamental Change for a Fundamental Change Repurchase Price equal to the Principal Amount of the Notes to be repurchased, plus accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date, unless the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, in which case interest accrued to the Interest Payment Date will be paid to

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Holders of the Notes as of the preceding Regular Record Date, which Fundamental Change Repurchase Price shall be paid in cash.

Holders have the right to withdraw any Fundamental Change Repurchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture.

If cash sufficient to pay the Fundamental Change Repurchase Price, of, together with any accrued and unpaid interest with respect to, all Notes or portions thereof to be repurchased as of the Fundamental Change Repurchase Date is deposited with the Paying Agent on or prior to the third Business Day following the Fundamental Change Repurchase Date, interest shall cease to accrue on such Notes (or portions thereof) immediately after such Fundamental Change Repurchase Date whether or not the Note is delivered to the Paying Agent, and the Holder thereof shall have no other rights as such (other than the right to receive the Fundamental Change Repurchase Price and accrued and unpaid interest upon surrender of such Note).

6. Conversion.

Subject to and upon compliance with the provisions set forth in the Indenture (including, the conditions to conversion set forth in Section 10.01 of the Indenture), a Holder of this Note has the right, at such Holder’s option, to convert the Principal Amount hereof or any portion thereof such that the Principal Amount that is not so converted equals $1,000 or an integral multiple of $1,000 in excess thereof into an amount of cash and a number of shares of Common Stock, if any, based on the Conversion Rate in effect on the Conversion Date for this Note. The Conversion Rate will initially equal 77.2410 shares of Common Stock per $1,000 Principal Amount of the Notes and is subject to adjustment as described in the Indenture.

7. Defaulted Interest.

Except as otherwise specified with respect to the Notes, any Defaulted Interest on any Note shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date or accrual date, as the case may be, by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company as provided for in Section 11.02 of the Indenture.

8. Denominations; Transfer; Exchange.

The Notes are in fully registered form, without coupons, in denominations of $1,000 of Principal Amount and integral multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer or exchange of any Notes in respect of which a Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the case of a Note to be repurchased in part, the portion of the Note not to be repurchased) or in respect of which a Conversion Notice has been given (except, in the case of a Note to be converted in part, the portion of the Note not to be converted).

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9. Persons Deemed Owners.

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

10. Unclaimed Money or Securities.

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

11. Amendment; Waiver.

(a) Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in aggregate Principal Amount of the Notes at the time outstanding and (ii) certain Defaults may be waived with the written consent of the Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes (i) to cure any ambiguity, omission, defect or inconsistency in the Indenture in a manner that does not individually or in the aggregate adversely affect the rights of any holder of notes in any material respect; (ii) to comply with Article 5 or Section 10.08 of the Indenture; (iii) to add guarantees with respect to the Notes; (iv) to secure the Company’s obligations under the Notes and the Indenture; (v) to add to the Company’s covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company; (vi) to make any change that does not adversely affect the rights of any Holder; (vii) to conform the provisions of the Indenture to the “Description of Notes” section in the Preliminary Offering Circular; or (viii) to evidence the acceptance or appointment of a successor Trustee.

12. Defaults and Remedies.

Under the Indenture, Events of Default include: (i) the Company defaults in any payment of interest on any Note when due and payable, and such default continues for a period of 30 days; (ii) the Company defaults in the payment of the Principal Amount when due and payable at its Stated Maturity, upon required repurchase in connection with a Fundamental Change, upon declaration of acceleration or otherwise; (iii) the Company fails to comply with its obligation to convert the Notes in accordance with the Indenture upon exercise of a Holder’s conversion right; (iv) the Company fails to comply with its obligation under Article 5 of the Indenture; (v) the Company fails to comply in all material respects with its notice obligations under Section 3.03 of the Indenture or under Sections 10.01(c) or (d) of the Indenture, in each case when due (for the avoidance of doubt, if the Company fails to timely deliver any notice described under Section 3.03 of the Indenture or Sections 10.01(c) or (d) of the Indenture on the date when due, such failure will constitute a failure to comply in all material respects with the Company’s notice obligations under Section 3.03 of the Indenture or under Sections 10.01(c) or (d) of the Indenture as the case may be); (vi) the Company fails to comply with any of its agreements in the Notes or the Indenture (other than those referred to in clauses (i) through (v) above) and such failure continues for 60 days after receipt by the Company of a Notice of Default; (vii) the Company or any of its Significant Subsidiaries with respect to any mortgage, agreement or other instrument

A-9

under which there may be outstanding, or by which there may be secured or evidenced, any Indebtedness in excess of $10 million in the aggregate of the Company and/or any such Significant Subsidiary, whether such Indebtedness now exists or shall hereafter be created (1) resulting in such Indebtedness becoming or being declared due and payable or (2) constituting a failure to pay the principal of, or interest on, any such Indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration or otherwise, in each case of clauses (1) and (2), where such Indebtedness is not discharged, or such acceleration is not rescinded or annulled, within a period of 30 days; (viii) a final judgment for the payment of $10 million or more rendered against the Company or any of its Subsidiaries if such amount is not covered by insurance or an indemnity and is not discharged or stayed within 30 days after (1) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (2) the date on which all rights to appeal have been extinguished; and (ix) certain events of bankruptcy or insolvency.

If an Event of Default occurs and is continuing (other than certain events of bankruptcy or insolvency with respect to the Company), the Trustee, or the Holders of at least 25% in aggregate Principal Amount of the Notes at the time outstanding, may declare the Principal Amount through the date of such declaration, and any accrued and unpaid interest through the date of such declaration, on all the Notes to be due and payable immediately. Certain events of bankruptcy or insolvency with respect to the Company, however, are Events of Default which will result in the Principal Amount on the Notes, and any accrued and unpaid interest through the occurrence of such event, becoming due and payable immediately upon the occurrence of such Events of Default.

Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity and/or security reasonably satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default (except a Default in payment of amounts specified in clauses (i), (ii) and (iii) above) if it determines that withholding notice is in their interests.

13. Trustee Dealings with the 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 Notes 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 Trustee.

14. No Recourse Against Others.

A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.

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15. Authentication.

This Note shall not be valid until an authorized signatory of the Trustee manually signs the Trustee’s Certificate of Authentication on the other side of this Note.

16. 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 Gift to Minors Act).

17. GOVERNING LAW.

THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE NOTES, BUT WITHOUT GIVING EFFECT TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:

One Rudolph Road,

P.O. Box 1000,

Flanders, NJ 07836

Telephone No.: (973) 691-1300

Facsimile No.: (973) 691-1435

Attention: Robert A. Koch, Vice President & General Counsel

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ASSIGNMENT FORM

RUDOLPH TECHNOLOGIES, INC.

3.75% CONVERTIBLE SENIOR NOTES DUE 2016

To assign this Note, fill in the form below:

I or we assign and transfer this Note to:

(Insert assignee’s Soc. Sec. or Tax ID no.)

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

and irrevocably appoint

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

Signature Guaranteed


Participant in a Recognized Signature
Guarantee Medallion Program

By:
	Authorized Signatory

A-12

CONVERSION NOTICE

RUDOLPH TECHNOLOGIES, INC.

3.75% CONVERTIBLE SENIOR NOTES DUE 2016

To convert this Note into cash and Common Stock of the Company, if any, check the box: o

To convert only part of this Note, state the Principal Amount to be converted (which must be such that the Principal Amount of this Note that is not converted equals $1,000 or an integral multiple of $1,000 in excess thereof):

If you want any stock certificate issuable upon conversion of this Note made out in another person’s name, fill in the form below:

(Insert other person’s Soc. Sec. or Tax ID no.)

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

Signature Guaranteed


Participant in a Recognized Signature
Guarantee Medallion Program

By:
	Authorized Signatory

A-13

FUNDAMENTAL CHANGE REPURCHASE NOTICE

RUDOLPH TECHNOLOGIES, INC.

3.75% CONVERTIBLE SENIOR NOTES DUE 2016

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

525 William Penn Place, 38 th Floor

Pittsburgh, Pennsylvania 15259

Attn: Corporate Trust Administration

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Rudolph Technologies, Inc. (the “ Company ”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with the applicable provisions of the Indenture referred to in this Note (1) the entire Principal Amount of this Note, or the portion thereof (that is such that the Principal Amount of this Note that is repurchased will equal $1,000 Principal Amount or an integral multiple of $1,000 in excess thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not occur during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date.

Certificate Number:

Dated:


			Signature(s)


			Social Note or Other Taxpayer Identification Number


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


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

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[Include for Global Note]

SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE

Initial Principal Amount of Global Note:

Date	Amount of Increase in Principal Amount of Global Note	Amount of Decrease in Principal Amount of Global Note	Principal Amount of Global Note After Increase or Decrease	Notation by Registrar or Note Custodian

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EXHIBIT B

RESTRICTED STOCK LEGEND

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, AND NOT SUBJECT TO, REGISTRATION. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE COMPANY’S 3.75% CONVERTIBLE SENIOR NOTES DUE 2016 OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO

B-1

DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

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EXHIBIT C

FORM OF TRANSFER CERTIFICATE

RUDOLPH TECHNOLOGIES, INC.

3.75% CONVERTIBLE SENIOR NOTES DUE 2016

Transfer Certificate

In connection with any transfer of any of Notes that bear the Restricted Notes Legend or that are required to bear the Restricted Notes Legend under the Indenture, the undersigned registered owner of this Note hereby certifies with respect to $ Principal Amount of the above-captioned Notes presented or surrendered on the date hereof (the “ Surrendered Notes ”) for registration of transfer, or for exchange or conversion where the securities issuable upon such exchange or conversion are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “ transfer ”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:

o The transfer of the Surrendered Notes is to the Company or any of its Subsidiaries; or

o The transfer of the Surrendered Notes is pursuant to an effective registration statement under the Securities Act; or

o The transfer of the Surrendered Notes is to a Qualified Institutional Buyer in compliance with Rule 144A under the Securities Act; or

o The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirement of the Securities Act.

Date:

By:

(If the registered owner is a corporation, partnership or fiduciary, the title of the person signing on behalf of such registered owner must be stated.)

Signature Guaranteed


Participant in a Recognized Signature

C-1

Guarantee Medallion Program

By:
	Authorized Signatory

C-2

EXHIBIT D

FORM OF FREE TRANSFERABILITY CERTIFICATE

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

525 William Penn Place, 38 th Floor

Pittsburgh, Pennsylvania 15259

Attn: Corporate Trust Administration

Dear Sir/Madam:

Whereas the 3.75% Convertible Senior Notes due 2016 of Rudolph Technologies, Inc. (the “ Notes ”) have become freely tradable without restriction by non-affiliates of Rudolph Technologies, Inc. (the “ Company ”) pursuant to Rule 144(b)(1) under the Securities Act of 1933, as amended, in accordance with Section 2.10 of the Indenture, dated as of July 25, 2011 (the “ Indenture ”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the Notes were issued, the Company hereby instructs you that, unless otherwise later directed in writing by the Company:

(i) the restrictive legends described in Section 2.09 of the Indenture and set forth on the Notes will be deemed removed from the Global Notes representing such securities, in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of holders; and

(ii) the Restricted Notes CUSIP will be deemed removed from the global Notes and replaced with the Unrestricted Notes CUSIP set forth therein, in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of holders.

Capitalized terms used but not defined herein have the meanings set forth in the Indenture.

	Very truly yours,

	Rudolph Technologies, Inc.


	By:
		Name:
		Title:

D-1

EXHIBIT E

FORM OF TRANSFER AGENT NOTICE

AMERICAN STOCK TRANSFER & TRUST COMPANY

59 Maiden Lane

New York, New York 10038

Phone: 212 936 5100

Dear Sir/Madam:

Whereas the 3.75% Convertible Senior Notes due 2016 of Rudolph Technologies, Inc. (the “ Notes ”) have become freely tradable without restriction by non-affiliates of Rudolph Technologies, Inc. (the “Company”) pursuant to Rule 144(b)(1) under the Securities Act of 1933, as amended, in accordance with Section 2.10 of the Indenture, dated as of July 25, 2011 (the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the Notes were issued, the Company hereby instructs you that, unless otherwise later instructed in writing by the Company:

(i) any shares of Common Stock issued upon conversion of the Notes (A) shall be issued without the Restricted Stock Legend and (B) will be assigned the Unrestricted Stock CUSIP; and

(ii) (A) the Restricted Stock Legend will be deemed removed from any shares of Common Stock previously issued upon conversion of the Notes and (B) the Restricted Stock CUISIP will be deemed removed from such shares of Common Stock and replaced with the Unrestricted Stock CUSIP.

Capitalized terms used but not defined herein have the meanings set forth in the Indenture.

Very truly yours,

Rudolph Technologies, Inc.


By:
Name:
Title:

E-1

Exhibit 10.1

$50,000,000

RUDOLPH TECHNOLOGIES, INC.

3.75% Convertible Senior Notes Due 2016

PURCHASE AGREEMENT

July 19, 2011

CREDIT SUISSE SECURITIES (USA) LLC (“ Credit Suisse ”),
As Representative of the Several Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629

Dear Sirs:

1. Introductory . Rudolph Technologies, Inc., a Delaware corporation (the “ Company ”), agrees with the several initial purchasers named in Schedule A hereto (the “ Purchasers ”), for whom Credit Suisse is acting as representative, subject to the terms and conditions stated herein, to issue and sell to the several Purchasers U.S.$50,000,000 principal amount of its 3.75% Convertible Senior Notes due 2016 (the “ Firm Securities ”) and also proposes to grant to the Purchasers an option, exercisable from time to time by Credit Suisse Securities (USA) LLC to purchase an aggregate of up to an additional $10,000,000 principal amount (“ Optional Securities ”) of its 3.75% Convertible Senior Notes due 2016, each to be issued under an indenture, dated as of the First Closing Date (the “ Indenture ”), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee. The Firm Securities and the Optional Securities which the Purchasers may elect to purchase pursuant to Section 3 hereof are herein collectively called the “ Offered Securities ”. The Offered Securities are convertible into shares of Common Stock, par value $0.001 per share (the “ Common Stock ”), of the Company, subject to certain conditions described in the Indenture.

Concurrently with this Agreement, the Company is entering into a convertible note hedge transaction and a warrant transaction, each with an affiliate of Credit Suisse, and each pursuant to a confirmation letter dated the date hereof (collectively, the “ Hedge Transaction Agreements ”).

The Company hereby agrees with the Purchasers as follows:

2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Purchasers that:

(a) Offering Circulars; Certain Defined Terms . The Company has prepared or will prepare a Preliminary Offering Circular and a Final Offering Circular.

For purposes of this Agreement:

“ Applicable Time ” means 5:30 pm (New York City time) on the date of this Agreement.

“ Closing Date ” has the meaning set forth in Section 3 hereof.

“ Commission ” means the Securities and Exchange Commission.

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

“ Final Offering Circular ” means the final offering circular relating to the Offered Securities to be offered by the Purchasers that discloses the offering price and other final terms of the Offered Securities and is dated as of the date of this Agreement (even if finalized and issued subsequent to the date of this Agreement).

“ Free Writing Communication ” means a written communication (as such term is defined in Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities and is made by means other than the Preliminary Offering Circular or the Final Offering Circular.

“ General Disclosure Package ” means the Preliminary Offering Circular together with any Issuer Free Writing Communication existing at the Applicable Time and the information in which is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule B hereto.

“ Issuer Free Writing Communication ” means a Free Writing Communication prepared by or on behalf of the Company, used or referred to by the Company or containing a description of the final terms of the Offered Securities or of their offering, in the form retained in the Company’s records.

“ Preliminary Offering Circular ” means the preliminary offering circular, dated July 19, 2011, relating to the Offered Securities to be offered by the Purchasers.

“ Rules and Regulations ” means the rules and regulations of the Commission.

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

“ Securities Laws ” means, collectively, the Sarbanes-Oxley Act of 2002 (“ Sarbanes-Oxley ”), the Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of the NASDAQ Stock Market (“ Exchange Rules ”).

“ Supplemental Marketing Material ” means any Issuer Free Writing Communication other than any Issuer Free Writing Communication specified in Schedule B hereto. Supplemental Marketing Materials include, but are not limited to, any Issuer Free Writing Communication listed on Schedule C hereto.

“ Underlying Shares ” shall mean shares of the Common Stock into which the Offered Securities are convertible.

Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Securities Act.

(b) Disclosure . As of the date of this Agreement, the Preliminary Offering Circular does not, and as of each Closing Date, the Final Offering Circular will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Applicable Time neither (i) the General Disclosure Package, nor (ii) any individual Supplemental Marketing Material, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or omissions from the Preliminary or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material based upon written information furnished to the Company by Credit Suisse specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof. Except as disclosed in the General Disclosure Package, on the date of this Agreement, the Company’s Annual Report on Form 10-K most recently filed with the Commission (and any amendments thereof) and all subsequent reports (and any amendments thereof) (collectively, the “ Exchange Act Reports ”) which have been filed (but not furnished) by the Company with the Commission or sent to stockholders pursuant to the Exchange Act do not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the Rules and Regulations. The preceding sentence does not apply to statements in or omissions from the Preliminary or Final Offering Circular based upon written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.

(c) Good Standing of the Company . The Company has been duly incorporated and is existing and in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, , except where the failure to so qualify would not, individually or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (“ Material Adverse Effect ”).

(d) Subsidiaries . Each subsidiary of the Company has been duly incorporated and is existing and in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and each subsidiary of the

Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not, individually or in the aggregate, result in a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects; as of and for the end of the Company’s most recently completed fiscal year, (i) the Company’s and its other subsidiaries’ investments in and advances to the Non-Significant Subsidiaries (as defined below), individually or in the aggregate, did not exceed 10 percent of the total assets of the Company and its subsidiaries on a consolidated basis, (ii) the Company’s and its other subsidiaries’ proportionate share of the total assets (after intercompany eliminations) of the Non-Significant Subsidiaries, individually or in the aggregate, did not exceed 10 percent of the total assets of the Company and its on a subsidiaries consolidated basis, and (iii) the Company’s and its other subsidiaries’ equity in the income from continuing operations before income taxes of the Non-Significant Subsidiaries, individually or in the aggregate, exclusive of amounts attributable to any noncontrolling interests, did not exceed 10 percent of such income of the Company and its subsidiaries on a consolidated basis. As used herein, “Non-Significant Subsidiaries” means subsidiaries of the Company other than Significant Subsidiaries (as defined below).

(e) Indenture . The Indenture has been duly authorized; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to this Agreement on each Closing Date, the Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered, will conform in all material respects to the information in the General Disclosure Package and will conform in all material respects to the description of such Offered Securities contained in the Final Offering Circular and the Indenture, and such Offered Securities will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and entitled to the benefits and security provided by the Indenture.

(f) Hedge Transaction Agreements . Each of the Hedge Transaction Agreements has been duly authorized and, assuming due authorization, execution and delivery thereof by the counterparty thereto, when executed and delivered by the Company, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and entitled to the benefits and security provided by the Hedge Transaction Agreements.

(g) Offered Securities . When the Offered Securities are delivered and paid for pursuant to this Agreement on each Closing Date, such Offered Securities will be convertible into the Underlying Shares of the Company in accordance with the terms of

the Indenture; the Underlying Shares initially issuable upon conversion of such Offered Securities have been duly authorized and reserved for issuance upon such conversion, will conform in all material respects to the information in the General Disclosure Package and will conform in all material respects to the description of such Offered Securities contained in the Final Offering Circular; the authorized equity capitalization of the Company is as set forth in the General Disclosure Package; all outstanding shares of capital stock of the Company are, and when issued upon conversion the Underlying Shares will be validly issued, fully paid and nonassessable; the stockholders of the Company have no preemptive rights with respect to the Offered Securities or the Underlying Shares, and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive or similar rights of any security holder.

(h) No Finder’s Fee . Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Purchaser for a brokerage commission, finder’s fee or other like payment related to the issuance and sale of the Offered Securities.

(i) Absence of Further Requirements . No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement, the Indenture and the Hedge Transaction Agreements in connection with the offering, issuance and sale of the Offered Securities and Underlying Shares by the Company.

(j) Title to Property . Except as disclosed in the General Disclosure Package, the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the General Disclosure Package, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by them.

(k) Absence of Defaults and Conflicts Resulting from Transaction . The execution, delivery and performance of the Indenture and this Agreement, and the issuance and sale of the Offered Securities and Underlying Shares and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries, any statute, (ii) any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except, in the case of

clauses (ii) and (iii) above, for any such breach, violation or default that would not, individually or in the aggregate, result in a Material Adverse Effect; a “ Debt Repayment Triggering Event ” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.

(l) Absence of Existing Defaults and Conflicts . Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect.

(m) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.

(n) Possession of Licenses and Permits . The Company and its subsidiaries possess, and are in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and permits (“ Licenses ”) necessary or material to the conduct of the business now conducted or proposed in the General Disclosure Package to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.

(o) Absence of Labor Dispute . No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that could have a Material Adverse Effect on the Company.

(p) Possession of Intellectual Property . The Company and its subsidiaries own, possess or can acquire on reasonable terms sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets, inventions, technology, know-how and other intellectual property and similar rights, including registrations and applications for registration thereof (collectively, “ Intellectual Property Rights ”) necessary or material to the conduct of the business now conducted or proposed in the General Disclosure Package to be conducted by them, and the expected expiration of any such Intellectual Property Rights would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in the General Disclosure Package (i) there are no rights of third parties to any of the Intellectual Property Rights owned by the Company or its subsidiaries; (ii) there is no material infringement, misappropriation breach, default or other violation, or the occurrence of any event that with notice or the passage of time would constitute any of the foregoing, by the Company, its subsidiaries or to the Company’s knowledge, third parties of any of the Intellectual Property Rights of the Company or its subsidiaries; (iii) there is no pending or threatened

action, suit, proceeding or claim by others challenging the Company’s or any subsidiary’s rights in or to, or the violation of any of the terms of, any of their Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (iv) there is no pending or threatened action, suit, proceeding or claim by others challenging the validity, enforceability or scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (v) there is no pending or threatened action, suit, proceeding or claim by others that the Company or any subsidiary infringes, misappropriates or otherwise violates or conflicts with any Intellectual Property Rights or other proprietary rights of others and the Company is unaware of any other fact which would form a reasonable basis for any such claim; and (vi) none of the Intellectual Property Rights used by the Company or its subsidiaries in their businesses has been obtained or is being used by the Company or its subsidiaries in violation of any contractual obligation binding on the Company, any of its subsidiaries in violation of the rights of any persons, except in each case covered by clauses (i) — (vi) such as would not, if determined adversely to the Company or any of its subsidiaries, individually or in the aggregate, have a Material Adverse Effect.

(q) Environmental Laws . Except as disclosed in the General Disclosure Package, (a)(i) neither the Company nor any of its subsidiaries is in violation of, or has any liability under, any federal, state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other requirement or rule of law (including common law), or decision or order of any domestic or foreign governmental agency, governmental body or court, relating to pollution, to the use, handling, transportation, treatment, storage, discharge, disposal or release of Hazardous Substances, to the protection or restoration of the environment or natural resources (including biota), to health and safety including as such relates to exposure to Hazardous Substances, and to natural resource damages (collectively, “ Environmental Laws ”), (ii) neither the Company nor any of its subsidiaries owns, occupies, operates or uses any real property contaminated with Hazardous Substances, (iii) neither the Company nor any of its subsidiaries is conducting or funding any investigation, remediation, remedial action or monitoring of actual or suspected Hazardous Substances in the environment, (iv) neither the Company nor any of its subsidiaries is liable or allegedly liable for any release or threatened release of Hazardous Substances, including at any off-site treatment, storage or disposal site, (v) neither the Company nor any of its subsidiaries is subject to any claim by any governmental agency or governmental body or person relating to Environmental Laws or Hazardous Substances, and (vi) the Company and its subsidiaries have received and are in compliance with all, and have no liability under any, permits, licenses, authorizations, identification numbers or other approvals required under applicable Environmental Laws to conduct their respective businesses, except in each case covered by clauses (i) — (vi) such as would not individually or in the aggregate have a Material Adverse Effect; (b) to the knowledge of the Company there are no facts or circumstances that would reasonably be expected to result in a violation of, liability under, or claim pursuant to any Environmental Law that would have a Material Adverse Effect; and (c) to the knowledge of the Company there are no requirements proposed for adoption or implementation under any Environmental Law that would reasonably be expected to have a Material Adverse Effect. For purposes of this subsection “ Hazardous Substances ” means (A)

petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and mold, and (B) any other chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant, contaminant or waste under Environmental Laws.

(r) Accurate Disclosure . The statements in the General Disclosure Package and the Final Offering Circular under the headings “Certain United States Federal Income Tax Considerations,” “Description of Notes,” “Description of Convertible Note Hedge and Warrant Transactions,” “Description of Capital Stock,” “Plan of Distribution” and “Risk Factors” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.

(s) Tax Disclosure . Subject to the qualifications and assumptions set forth therein, although the discussion set forth in the Preliminary Offering Circular and Final Offering Circular under the heading “Certain Material United States Federal Income Tax Considerations” does not purport to discuss all possible United States federal income tax consequences of the purchase, ownership, conversion and disposition of the Offered Securities to U.S. and non-U.S. holders of the Offered Securities, such discussion constitutes, in all material respects, a fair and accurate summary of the material U.S. federal income tax consequences of the purchase, ownership, conversion and disposition of the Offered Securities under current U.S. federal income tax law to U.S. and non-U.S. holders of the Offered Securities.

(t) Absence of Manipulation. Neither the Company nor any of its affiliates has, either alone or with one or more other persons, bid for or purchased for any account in which it or any of its affiliates had a beneficial interest any Offered Securities or attempted to induce any person to purchase any Offered Securities.

(u) Statistical and Market-Related Data . Any third-party statistical and market-related data included in the Preliminary Offering Circular, the Final Offering Circular, or any Issuer Free Writing Communication are based on or derived from sources that the Company believes to be reliable and accurate.

(v) Internal Controls and Compliance with the Sarbanes-Oxley Act . Except as set forth in the General Disclosure Package, the Company, its subsidiaries and the Company’s Board of Directors (the “ Board ”) are in compliance with Sarbanes-Oxley and all applicable Exchange Act Rules. The Company maintains a system of internal controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting, an internal audit function, and legal and regulatory compliance controls (collectively, “ Internal Controls ”), that comply in all material respects with the Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded

accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls are, or, upon consummation of the offering of the Offered Securities will be, overseen by the Audit Committee (the “ Audit Committee ”) of the Board in accordance with Exchange Rules. The Company has not publicly disclosed or reported to the Audit Committee or the Board, and within the next 90 days the Company does not reasonably expect to publicly disclose or report to the Audit Committee or the Board, a significant deficiency (except any that has been remediated), material weakness, change in Internal Controls or fraud involving management or other employees who have a significant role in Internal Controls (each, an “ Internal Control Event ”), any violation of, or failure to comply with, the Securities Laws, or any matter which, if determined adversely, would have a Material Adverse Effect.

(w) Litigation . Except as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under the Indenture or this Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or, to the Company’s knowledge, contemplated.

(x) Financial Statements . The financial statements included in the General Disclosure Package present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis.

(y) No Material Adverse Change in Business . Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest audited financial statements included in the General Disclosure Package (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, that is material and adverse; (ii) except as disclosed in or contemplated by the General Disclosure Package, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (iii) except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its subsidiaries.

(z) Investment Company Act . The Company is not an open-end investment company, unit investment trust or face-amount certificate company that is or is required

to be registered under Section 8 of the United States Investment Company Act of 1940 (the “ Investment Company Act ”); and the Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” as defined in the Investment Company Act.

(aa) Ratings . No “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering any of the actions described in Section 7(b)(ii) hereof.

(bb) Class of Securities Not Listed . No securities of the same class (within the meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.

(cc) No Registration . The offer and sale of the Offered Securities and the Underlying Shares in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof; and it is not necessary to qualify an indenture in respect of the Offered Securities under the United States Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”).

(dd) No General Solicitation; No Directed Selling Efforts . Neither the Company, nor any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Securities Act (each, an “ Affiliate ”), nor any person acting on its or their behalf, other than the Purchasers and their Affiliates, as to whom the Company makes no representation, has engaged or will engage, in connection with the offering of the Offered Securities, in any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.

(ee) No Integration. Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf, other than the Purchasers and their Affiliates, as to whom the Company makes no representation, has, directly or indirectly, solicited any offer to buy, sold or offered to sell or otherwise negotiated in respect of, or will solicit any offer to buy or offer to sell or otherwise negotiate in respect of, any security (as defined in the Securities Act (that is or would be integrated with the sale of the Offered Securities in a manner that would require the Offered Securities to be registered under the Securities Act or would require shareholder approval under applicable stock exchange rules (unless such approval has been obtained in advance of such integrated transaction).

(ff) Reporting Status . The Company is currently subject to Section 13 or 15(d) of the Exchange Act.

(gg) Tax. The Company and its subsidiaries have filed all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect); and, except as set forth in the General Disclosure Package, the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith or as would not, individually or in the aggregate, have a Material Adverse Effect.

(hh) Insurance. The Company and its subsidiaries are insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance in all material respects with the terms of such policies and instruments; and there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package.

(ii) No Restrictions on Subsidiaries . No “significant subsidiary” (as such term is defined in Regulation S-X) (each, a “Significant Subsidiary,” collectively, the “Significant Subsidiaries”) of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company, except as set forth in the General Disclosure Package and except as would not result in a Material Adverse Effect.

(jj) No Violation of Laws . Neither the Company, nor its subsidiaries, affiliates or any of their respective officers, directors, supervisors, managers, agents, or employees, has violated, or will violate as a result of the Company’s participation in the offering, and the company has instituted and maintains policies and procedures designed to ensure continued compliance with, each of the following laws: (i) anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or regulation of similar purpose and scope, (ii) anti-money laundering laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including,

without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principals or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder and (iii) laws and regulations imposing U.S. economic sanctions measures, and any executive order, directive, or regulation pursuant to the authority of any of the foregoing, including the regulations of the United States Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders or licenses issued thereunder.

(kk) Compliance with ERISA . (i) Each employee benefit plan, within the meaning of Section 3(3) ofthe Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), for which the Company or any member of its “Controlled Group” (defined as any trade or business which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “ Code ”)) would have any liability (each, a “ Plan ”) has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption and excluding transactions that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code, whether or not waived, has occurred or is reasonably expected to occur; (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan) except to the extent that any such accumulated funding deficiency could not reasonably be expected to result in a Material Adverse Effect (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect; and (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any material liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA).

3. Purchase, Sale and Delivery of Offered Securities . On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to the Purchasers, and each of the Purchasers agrees, severally and not jointly, to purchase from the Company, at a purchase price of 97% of the principal amount thereof plus accrued interest from July 25, 2011 to the First Closing Date (as hereinafter defined), the respective principal amounts of Firm Securities set forth opposite the names of the several Purchasers in Schedule A hereto.

The Company will deliver against payment of the purchase price the Firm Offered Securities to be purchased by each Purchaser hereunder and to be offered and sold by each Purchaser in the form of one or more permanent global notes in definitive form without interest coupons (the “ Firm Restricted Global Securities ”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Restricted Global Securities shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering Circular. Interests in any Firm Restricted Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Final Offering Circular.

Payment for the Firm Securities shall be made by the Purchasers in federal (same day) funds by wire transfer to an account at a bank acceptable to Credit Suisse drawn to the order of the Company at the office of Skadden, Arps, Slate, Meagher & Flom LLP at 10:00 A.M., (New York time), on July 25, 2011, or at such other time not later than seven full business days thereafter as Credit Suisse and the Company determine, such time being herein referred to as the “ First Closing Date ”, against delivery to the Trustee as custodian for DTC of the Firm Restricted Global Securities representing all of the Firm Securities. The Firm Restricted Global Securities will be made available for checking at the above office of Skadden, Arps, Slate, Meagher & Flom LLP at least 24 hours prior to the First Closing Date.

In addition, upon written notice from Credit Suisse given to the Company from time to time not more than 30 days subsequent to the date of this Agreement, the Purchasers may purchase all or less than all of the Optional Securities at the purchase price per principal amount of Offered Securities (including any accrued interest thereon to the related Optional Closing Date) to be paid for the Firm Securities. The Company agrees to sell to the Purchasers the principal amount of Optional Securities specified in such notice and the Purchasers agree, severally and not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased from the Company for the account of each Purchaser in the same proportion as the principal amount of Firm Securities set forth opposite such Purchaser’s name in Schedule A hereto bears to the total principal amount of Firm Securities (subject to adjustment by Credit Suisse to eliminate fractions). No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by Credit Suisse to the Company.

Each time for the delivery of and payment for the Optional Securities, being herein referred to as the “ Optional Closing Date ”, which may be the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a “ Closing Date ”), shall be determined by Credit Suisse on behalf of the several Purchasers but shall not be later than seven full business days after written notice of election to purchase Optional Securities is given. Payment for the Optional Securities being purchased on each Optional Closing Date and to be offered and sold by each Purchaser shall be made by each Purchaser in federal (same day) funds by wire transfer to an account at a bank acceptable to Credit Suisse drawn to the order of the Company at the office of Skadden, Arps, Slate, Meagher & Flom LLP, against delivery to the Trustee in the form of one or more permanent global notes in definitive form without interest

coupons (the “ Optional Restricted Global Securities ”) representing all of the Optional Securities being purchased on such Optional Closing Date.

4. Representations by Purchasers; Resale by Purchasers . (a) Each Purchaser severally represents and warrants to the Company that it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “ QIB ”);

(b) Each Purchaser severally acknowledges that the Offered Securities have not been registered under the Securities Act. Each Purchaser severally represents and agrees that it has offered and sold the Offered Securities, and will offer and sell the Offered Securities (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the latest Closing Date, only in accordance with Rule 144A under the Securities Act. Accordingly, neither such Purchaser nor its Affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Offered Securities.

(c) Each Purchaser severally agrees that it and each of its Affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for any such arrangements with the other Purchasers or Affiliates of the other Purchasers or with the prior written consent of the Company.

(d) Each Purchaser severally agrees that it and each of its Affiliates will not offer or sell the Offered Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.

5. Certain Agreements of the Company . The Company agrees with the Purchasers that:

(a) Amendments and Supplements to Offering Circulars . The Company will promptly advise the Representatives of any proposal to amend or supplement the Preliminary or Final Offering Circular and will not effect such amendment or supplementation without the Representatives’ consent. If, at any time prior to the completion of the resale of the Offered Securities by the Purchasers, there occurs an event or development as a result of which any document included in the Preliminary or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company promptly will

notify Credit Suisse of such event and promptly will prepare and furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at the request of the Representatives, an amendment or supplement which will correct such statement or omission. Neither Credit Suisse’s consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7.

(b) Furnishing of Offering Circulars . The Company will furnish to the Representatives copies of the Preliminary Offering Circular, each other document comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representatives request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representatives and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A under the Securities Act in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.

(c) Blue Sky Qualifications . The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Purchasers, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.

(d) Reporting Requirements . For so long as the Offered Securities remain outstanding, the Company will furnish to the Credit Suisse and, upon request, to each of the other Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Credit Suisse and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Credit Suisse may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“ EDGAR ”), it is not required to furnish such reports or statements to the Purchasers.

(e) Transfer Restrictions . During the period of one year after the later of the First Closing Date and the last Optional Closing Date, the Company will, upon request, furnish

to Credit Suisse and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.

(f) No Resales by Affiliates . During the period of one year after the later of the First Closing Date and the last Optional Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.

(g) Investment Company . During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.

(h) Payment of Expenses . The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture, including but not limited to (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any expenses (including fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives designate and the preparation and printing of memoranda relating thereto (v) any fees charged by investment rating agencies for the rating of the Securities, and (vi) expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for costs and expenses of the Purchasers and the Company’s officers and employees and any other expenses of the Purchasers and the Company relating to investor presentations on any “road show” in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes, it being understood that the Purchasers will pay all of their own costs and expenses, including fees and disbursements by their counsel, except as otherwise provided herein.

(i) Use of Proceeds . The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package and, except as disclosed in the Final Offering Circular, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Purchaser.

(j) Absence of Manipulation . In connection with the offering, until Credit Suisse shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.

(k) Restriction on Sale of Securities . For a period of ninety (90) days after the date hereof, the Company will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible into or exchangeable or exercisable for any of its Securities or Underlying Shares (“ Lock-Up Securities ”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, other than those contemplated by the Hedge Transaction Agreements, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action, without the prior written consent of Credit Suisse, except issuances of Lock-Up Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, issuances of Lock-Up Securities pursuant to the exercise of such options or issuances of Lock-Up Securities pursuant to the Company’s dividend reinvestment plan. The Company will not at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.

(l) Clear Market. For a period of ninety (90) days after the date hereof, the Company will not, without the prior written consent of Credit Suisse, directly or indirectly, (i) issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or lend or otherwise dispose of or transfer any shares of Common Stock or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of Common Stock or any securities convertible into

or exchangeable for or repayable with Common Stock, whether any swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, other than (A) the Offered Securities to be sold hereunder, or the shares of Common Stock issuable upon conversion of the Offered Securities, (B) any transactions in the securities of the Company taken pursuant to the convertible note hedge and the warrant transactions described in the Final Offering Circular, (C) the issuance of shares of Common Stock issued by the Company upon the exercise or conversion of any security of the Company, in each case outstanding on the date hereof, (D) the issuance of shares of Common Stock or options to purchase shares of Common Stock granted pursuant to employee benefit plans or director compensation plans of the Company, in any case whether now existing or hereafter assumed, adopted or authorized, (E) the issuance of shares of Series A Junior Participating Preferred Stock of the Company, or of the shares of Common Stock issuable upon conversion thereof, in each case pursuant to the Company’s Rights Agreement, dated as of June 27, 2005, (F) grants and issuances by the Company of equity securities and/or options or other rights in respect thereof pursuant to stock-based compensation or incentive plans of the Company, and (G) sales or issuances of equity securities of the Company in connection with any employee stock purchase plan. Notwithstanding the foregoing, if (1) during the last seventeen (17) days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.

6. Free Writing Communications . (a) Issuer Free Writing Communications . The Company represents and agrees that, unless it obtains the prior consent of Credit Suisse, and each Purchaser represents and agrees that, unless it obtains the prior consent of the Company and Credit Suisse, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Communication.

(b) Term Sheets . The Company consents to the use by any Purchaser of a Free Writing Communication that (i) contains only (A) information describing the preliminary terms of the Offered Securities or their offering or (B) information that describes the final terms of the Offered Securities or their offering and that is included in or is subsequently included in the Final Offering Circular or (ii) does not contain any material information about the Company or its securities that was provided by or on behalf of the Company, it being understood and agreed that the Company shall not be responsible to any Purchaser for liability arising from any inaccuracy in such Free Writing Communications referred to in clause (i) or (ii) as compared with the information in the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package or the Final Offering Circular.

7. Conditions of the Obligations of the Purchasers . The obligations of the Purchasers to purchase and pay for the Firm Securities on the First Closing Date and for the Optional Securities on each Optional Closing Date will be subject to the accuracy of the representations

and warranties of the Company herein (as though made on the Closing Date), to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:

(a) Accountants’ Comfort Letter . The Purchasers shall have received letters, dated, respectively, the date hereof and the First Closing Date, of Ernst & Young LLP confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form of Schedule D hereto (except that, in any letter dated a Closing Date, the specified date referred to in Schedule D hereto shall be a date no more than three days prior to such Closing Date).

(b) No Material Adverse Change . Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of Credit Suisse, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in either U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of Credit Suisse, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any suspension or material limitation of trading in securities generally on the NASDAQ Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of Credit Suisse, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it in the judgment of Credit Suisse impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.

(c) Opinions of Counsel for Company and Company General Counsel . The Purchasers shall have received (1) an opinion, dated such Closing Date, of Day Pitney LLP, counsel for the Company, that:

(i) Good Standing of the Company . The Company has been duly incorporated and is existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the General Disclosure Package and the Company’s Annual Report on Form 10-K/A for the year ended December 31, 2010, filed with the Commission on June 24, 2011; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not, individually or in the aggregate, result in a Material Adverse Effect;

(ii) Indenture . The Indenture has been duly authorized, executed and delivered; the Offered Securities delivered on such Closing Date have been duly authorized, executed, authenticated, issued and delivered, conform in all material respects to the information in the General Disclosure Package and conform in all material respects to the description thereof contained in the Final Offering Circular; and the Indenture and the Offered Securities delivered on such Closing Date constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and entitled to the benefits and security provided by the Indenture;

(iii) Underlying Shares . The Offered Securities delivered on such Closing Date are convertible into Common Stock of the Company in accordance with their terms; the shares of such Common Stock initially issuable upon conversion of the Offered Securities delivered on such Closing Date have been duly authorized and reserved for issuance upon such conversion, conform in all material respects to the information in the General Disclosure Package and conform in all material respects to the description of such Common Stock contained in the Final Offering Circular; the stockholders of the Company have no preemptive rights with respect to the Offered Securities or the Common Stock; and all outstanding shares of capital stock of the Company are, and when issued upon conversion the Offered Securities will be, validly issued, fully paid and nonassessable;

(iv) Investment Company . The Company is not and, upon giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” as defined in the Investment Company Act;

(v) Absence of Further Requirements . No consent, approval, authorization or order of, or filing with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement and the Indenture in connection with the offering, issuance and sale of the Offered Securities and Underlying Shares by the Company, except such as may be required under state securities laws;

(vi) Absence of Defaults and Conflicts Resulting from Transaction . The execution, delivery and performance of the Indenture and this Agreement by the Company, and its issuance and sale of the Offered Securities and compliance with the terms and provisions thereof, do not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon the properties or assets of the Company pursuant to, (v) the charter or by-laws of the Company, (w) any order of any governmental agency or body or any court having jurisdiction over the Company or any of its properties, which order is known by such Company counsel to be applicable to the Company or any such properties, (x) the federal laws of the United States of America (excluding antifraud rules or regulations), (y) the laws of the State of New York or the Delaware General Corporation Law (the “DGCL”) (excluding, in each case, antifraud rules or regulations), or (z) the agreements or instruments set forth on Exhibit A hereto, except, in the case of clause (x) above, any such breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, result in a material breach, violation, default, lien, charge or encumbrance;

(vii) Disclosure . Such counsel have no reason to believe that the Final Offering Circular, or any amendment or supplement thereto, or any Exchange Act Report, as of the date hereof and as of such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; such counsel have no reason to believe that the Preliminary Offering Circular and the Final Term Sheet (as defined in Schedule B hereto), as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Preliminary Offering Circular, the Final Term Sheet, the Final Offering Circular and the Exchange Act Reports;

(viii) Authorization of Agreement . This Agreement has been duly authorized, executed and delivered by the Company; and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement;

(ix) No Registration . It is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the Purchasers pursuant to this Agreement or (ii) the resale of the Offered Securities by the Purchasers in the manner contemplated by this Agreement, to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;

(x) Accurate Disclosure . The statements in the Preliminary Offering Circular and the Final Offering Circular under the headings “Description of

Notes,” “Description of Convertible Note Hedge and Warrant Transactions” and “Description of Capital Stock,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;

(xi) Tax Disclosure . Subject to the qualifications and assumptions set forth therein, although the discussion set forth in the Preliminary Offering Circular and Final Offering Circular under the heading “Certain Material United States Federal Income Tax Considerations” does not purport to discuss all possible United States federal income tax consequences of the purchase, ownership, conversion and disposition of the Offered Securities to U.S. and non-U.S. holders of the Offered Securities, such discussion constitutes, in all material respects, a fair and accurate summary of the material U.S. federal income tax consequences of the purchase, ownership, conversion and disposition of the Offered Securities under current U.S. federal income tax law to U.S. and non-U.S. holders of the Offered Securities; and

(2) an opinion, dated such Closing Date, of General Counsel of the Company, that:

(i) Subsidiaries . Each Significant Subsidiary of the Company has been duly incorporated and is existing and in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package and Exchange Act Reports; and each Significant Subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not, individually or in the aggregate, result in a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects;

(ii) Litigation . To such counsel’s knowledge, there are no pending or threatened actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or to materially and adversely affect the ability of the Company to perform its obligations under the Indenture or this Agreement, or, except as described in the General Disclosure Package, which otherwise would be required to be presented in a registration statement under the Securities Act pursuant to the requirements of Item 103 of Regulation S-K.

(iii) Absence of Defaults and Conflicts Resulting from Transaction . The execution, delivery and performance of the Indenture and this Agreement by

the Company, and its issuance and sale of the Offered Securities and compliance with the terms and provisions thereof, do not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon the properties or assets of the Company or any of its Significant Subsidiaries pursuant to (w) the charter or by-laws of any of the Significant Subsidiaries, (x) any order of any governmental agency or body or any court having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties, which order is known by such counsel after due inquiry to be applicable to the Company or any of its Significant Subsidiaries or any such properties, (y) any statute, rule or regulation, or (z) any agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the properties of the Company or any of its Significant Subsidiaries is subject, except, in the case of clauses (x), (y) and (z) above, for any breach, violation or default that would not, individually or in the aggregate, result in a Material Adverse Effect, and in the case of clause (y) above, such counsel assumes that the laws of the State of Minnesota and any other relevant jurisdiction (other than the federal laws of the United States of America) are identical to the laws of the State of New York with respect to all matters applicable to such counsel’s opinion;

(iv) Title to Property . Except as disclosed in the General Disclosure Package, to such counsel’s knowledge, the Company and its Significant Subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them and, except as disclosed in the General Disclosure Package, to such counsel’s knowledge, the Company and its Significant Subsidiaries hold any leased real or personal property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by them;

(v) Absence of Existing Defaults and Conflicts . Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or by-laws and, to such counsel’s knowledge, no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Preliminary Offering Circular, the Final Offering Circular or the Exchange Act Reports; and

(vi) Accurate Disclosure . The statements in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2011, filed with the Commission on May 4, 2011, under the heading “Legal Proceedings,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.

(d) Opinion of Counsel for Purchasers . The Purchasers shall have received from Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Purchasers, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representatives may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(e) Officers’ Certificate . The Purchasers shall have received a certificate, dated such Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date, and that, subsequent to the date of the most recent financial statements in the Final Offering Circular, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the Final Offering Circular or as described in such certificate.

(f) CFO Certificate. The Purchasers shall have received certificates, dated, respectively, the date hereof and the First Closing Date, of the Chief Financial Officer of the Company in a form reasonably satisfactory to the Purchasers.

(g) Lockup Letters . On or prior to the date hereof, the Purchasers shall have received lockup letters from each of the executive officers and directors of the Company.

The Company will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. Credit Suisse may in its sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers hereunder, whether in respect of an Optional Closing Date or otherwise.

8. Indemnification and Contribution . (a) Indemnification of Purchasers . The Company will indemnify and hold harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “ Indemnified Party ”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication, or the Exchange Act Reports, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage,

liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) below.

(b) Indemnification of Company . Each Purchaser will severally and not jointly indemnify and hold harmless the Company, each of its directors and each of its officers and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “ Purchaser Indemnified Party ”), against any losses, claims, damages or liabilities to which such Purchaser Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication or arise out of or are based upon the omission or the alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Purchaser through Credit Suisse specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Purchaser Indemnified Party in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party is a party thereto) whether threatened or commenced based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Purchaser consists of the following information in the Preliminary and Final Offering Circular furnished on behalf of each Purchaser: under the caption “Plan of Distribution,” (1) the list of Initial Purchasers and their respective participation in the sale of the Offered Securities in the first paragraph, (2) the third paragraph, and (3) the tenth paragraph related to stabilizing transactions and covering transactions; provided, however, that the Purchasers shall not be liable for any losses, claims, damages or liabilities arising out of or based upon the Company’s failure to perform its obligations under Section 5(a) of this Agreement.

(c) Actions against Parties; Notification . Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not

relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes (i) an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.

(d) Contribution . If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Purchasers on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Purchasers from the Company under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim

which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities purchased by it were resold exceeds the amount of any damages which such Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The Purchasers’ obligations in this subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint. The Company and the Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d).

9. Default of Purchasers . If any Purchaser or Purchasers default in their obligations to purchase Offered Securities hereunder on either the First Closing Date or any Optional Closing Date and the aggregate principal amount of Offered Securities that such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities that the Purchasers are obligated to purchase on such Closing Date, Credit Suisse may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Purchasers, but if no such arrangements are made by such Closing Date, the non-defaulting Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Purchasers agreed but failed to purchase on such Closing Date. If any Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of Offered Securities that the Purchasers are obligated to purchase on such Closing Date and arrangements satisfactory to Credit Suisse and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Purchaser or the Company, except as provided in Section 10 (provided that if such default occurs with respect to Optional Securities after the First Closing Date, this Agreement shall not terminate as to the Firm Securities or any Optional Securities purchased prior to such termination). As used in this Agreement, the term “Purchaser” includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default.

10. Survival of Certain Representations and Obligations . The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Purchaser, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase of the Offered Securities by the Purchasers is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5 and the respective obligations of the Company and the Purchasers pursuant to Section 8 shall remain in effect, and if any Offered Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect. Notwithstanding anything provided herein to the contrary, if the purchase of the Offered Securities by the

Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 or the occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(b), the Company will reimburse the Purchasers for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities.

11. Notices . All communications hereunder will be in writing and, if sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to the Purchasers, c/o Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at Rudolph Technologies, Inc., One Rudolph Road, Flanders, New Jersey 07836, Attention: Robert Koch; provided, however, that any notice to a Purchaser pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Purchaser.

12. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder, except that holders of Offered Securities shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.

13. Representation of Purchasers . Credit Suisse will act for the several Purchasers in connection with this purchase, and any action under this Agreement taken by Credit Suisse will be binding upon all the Purchasers.

14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:

(a) No Other Relationship . Credit Suisse has been retained solely to act as initial purchasers in connection with the initial purchase, offering and resale of the Offered Securities and that no fiduciary, advisory or agency relationship between the Company and Credit Suisse has been created in respect of any of the transactions contemplated by this Agreement or the Preliminary or Final Offering Circular, irrespective of whether Credit Suisse advised or is advising the Company on other matters;

(b) Arm’s-Length Negotiations . The purchase price of the Offered Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with Credit Suisse and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;

(c) Absence of Obligation to Disclose . The Company has been advised that the Credit Suisse and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that Credit Suisse has no

obligation to disclose such interests and transactions to Company by virtue of any fiduciary, advisory or agency relationship; and

(d) Waiver . The Company waives, to the fullest extent permitted by law, any claims it may have against Credit Suisse for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that Credit Suisse shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.

16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.

If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the Purchasers in accordance with its terms.

Very truly yours,

RUDOLPH TECHNOLOGIES, INC.


By:	/s/ Paul F. McLaughlin
Name:		Paul F. McLaughlin
Title:		CEO & Chairman

The foregoing Purchase Agreement

is hereby confirmed and accepted

as of the date first above written.

CREDIT SUISSE SECURITIES (USA) LLC

By:	/s/ Shar Aghili
	Name:	Shar Aghili
	Title:	Director

Acting on behalf of itself

and as the Representative

of the several Purchasers

Exhibit 10.2

EXECUTION COPY

Opening Transaction

	Rudolph Technologies, Inc.
To:	One Rudolph Road P.O. Box 1000 Flanders, New Jersey 07836

A/C:

From:	Credit Suisse International One Cabot Square London E14 4QJ England

Re:	Convertible Note Hedge Transaction

Ref. No:

Date:	July 19, 2011

Dear Sir(s):

The purpose of this communication (this “ Confirmation ”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “ Transaction ”) between Credit Suisse International (“ Dealer ”), represented by Credit Suisse Securities (USA) LLC (“ Agent ”) as its agent, and Rudolph Technologies, Inc. (“ Counterparty ”). This communication constitutes a “Confirmation” as referred to in the Agreement specified below.

1. This Confirmation is subject to, and incorporates, the definitions and provisions of the 2000 ISDA Definitions (including the Annex thereto) (the “ 2000 Definitions ”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “ Equity Definitions ”, and together with the 2000 Definitions, the “ Definitions ”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ ISDA ”). In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. Certain defined terms used herein have the meanings assigned to them in the Indenture to be dated as of July 25, 2011 between Counterparty and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Indenture ”) relating to the USD 50,000,000 principal amount of 3.75% convertible senior notes due 2016 (the “ Convertible Notes ”). In the event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern. References herein to sections of the Indenture are based on the draft of the Indenture most recently reviewed by the parties at the time of execution of this Confirmation. If any relevant sections of the Indenture are changed, added or renumbered between the execution of this Confirmation and the execution of the Indenture, the parties will amend this Confirmation in good faith to preserve the economic intent of the parties based on the draft of the Indenture so reviewed. The parties further acknowledge that references to the Indenture herein are references to the Indenture as in effect on the date of its execution and if the Indenture is amended following its execution, any such amendment will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing. The Transaction is subject to early unwind if the closing of the Convertible Notes is not consummated for any reason, as set forth below in Section 8(j).

Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the “ Agreement ”) in the form of the 1992 ISDA Master Agreement (Multicurrency — Cross Border), as published by ISDA, as if Dealer and Counterparty had executed an agreement in such form on the date hereof (but without any Schedule except for (i) the election of Loss and Second Method and US Dollars (“ USD ”) as the Termination Currency, (ii) the replacement of the word “third” in the last line of Section 5(a)(i) with the word “first”, and (iii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Counterparty with a “Threshold Amount” of USD 10 million). The Transaction shall be the only Transaction under the Agreement.

All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.

2. The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

Trade Date:		July 20, 2011

Effective Date:		July 25, 2011

Option Style:		Modified American, as described under “Procedures for Exercise” below.

Option Type:		Call

Seller:		Dealer

Buyer:		Counterparty

Shares:		The Common Stock of Counterparty, par value USD 0.001 per share (Ticker Symbol: “RTEC”).

Number of Options:		The number of Convertible Notes in denominations of USD 1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible Notes.

Option Entitlement:		As of any date, a number of Shares per Option equal to the “Applicable Conversion Rate” (as defined in the Indenture, but without regard to any adjustments to the Applicable Conversion Rate pursuant to Section 10.06 or 10.07 of the Indenture) as of such date.

Strike Price:		As of any date, an amount in USD, rounded to the nearest cent (with 0.5 cents being rounded upwards), equal to USD 1,000 divided by the Option Entitlement as of such date.

Number of Shares:		The product of the Number of Options and the Option Entitlement.

Premium:		USD 12,089,346 (Premium per Option approximately

		USD 241.79)

Premium Payment Date:		The Effective Date

Exchange:		NASDAQ Global Select Market

Related Exchange:		All Exchanges

Procedures for Exercise:

Exercise Date:		Each Conversion Date.

Conversion Date:		Each “Conversion Date” (as defined in the Indenture) occurring during the Exercise Period for Convertible Notes (such Convertible Notes, each in denominations of USD 1,000 principal amount, the “ Relevant Convertible Notes ” for such Conversion Date).

Exercise Period:		The period from and excluding the Trade Date to and including the Expiration Date.

Expiration Date:		The earlier of (i) the last day on which any Convertible Notes remain outstanding and (ii) the second “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the “Maturity Date” (as defined in the Indenture).

Automatic Exercise on Conversion Dates:		On each Conversion Date, a number of Options equal to the number of Relevant Convertible Notes for such Conversion Date in denominations of USD1,000 principal amount shall be automatically exercised, subject to “Notice of Exercise” below.

Notice Deadline:		In respect of any exercise of Options hereunder, the scheduled Trading Day immediately preceding the first scheduled Trading Day of the relevant “Cash Settlement Averaging Period” (as defined in the Indenture), subject to “Notice of Exercise” below; provided that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Notes for any Conversion Date occurring during the period starting on the 45th scheduled Trading Day immediately preceding the Maturity Date (the “ Final Conversion Period ”), the Notice Deadline shall be the Business Day immediate following such Exercise Date.

Notice of Exercise:		Notwithstanding anything to the contrary in the Equity Definitions, Dealer shall have no obligation to make any payment or delivery in respect of any exercise of Options hereunder unless Counterparty notifies Dealer in writing prior to 5:00 PM, New York City time, on the Notice Deadline in respect of such exercise of (i) the number of Options being exercised on such Exercise Date, (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Notes for the related Conversion Date, and (iii) the first Scheduled Trading Day of the Cash

	Settlement Averaging Period for such Relevant Convertible Notes; provided that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Notes for any Conversion Date occurring during the Final Conversion Period, the content of such notice shall be as set forth in clause (i) above. For the avoidance of doubt, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any payment or delivery in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure.

Dealer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice:	To:	Credit Suisse Securities (USA) LLC Eleven Madison Avenue New York, NY 10010-3629
	Telephone:		(212) 325 8676 / (212) 538 5306
	Facsimile:		(212) 325 8173

Settlement Terms:

Settlement Date:	For any Exercise Date, the settlement date for cash and shares, if any, to be delivered in respect of the Relevant Convertible Notes for the Conversion Date occurring on such Exercise Date under the terms of the Indenture; provided that the Settlement Date shall not be prior to the latest of (i) the date one Settlement Cycle following the final day of the relevant Cash Settlement Averaging Period, (ii) the Exchange Business Day immediately following the date on which Counterparty gives notice to Dealer of such Settlement Date prior to 5:00 PM, New York City time, and (iii) the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 5:00 PM, New York City time.

Delivery Obligation:	In lieu of the obligations set forth in Sections 8.1 and 9.1 of the Equity Definitions, and subject to “Notice of Exercise” above, in respect of any Exercise Date, Dealer will deliver to Counterparty on the related Settlement Date a number of Shares equal to the aggregate number of Shares, if any, that Counterparty is obligated to deliver to the holder(s) of the Relevant Convertible Notes for such Conversion Date pursuant to Section 10.03 of the Indenture (except that such aggregate number of Shares shall be determined without taking into consideration any rounding pursuant to Section 12.08 of the Indenture and shall be rounded down to the nearest whole number) and cash in lieu of fractional shares, if any, resulting from

		such rounding (such Shares, collectively, the “ Convertible Obligation ”); provided that the Convertible Obligation shall be determined excluding any Shares that Counterparty is obligated to deliver to holder(s) of the Relevant Convertible Notes as a direct or indirect result of any adjustments to the Applicable Conversion Rate pursuant to Sections 10.06 or 10.07 of the Indenture and any interest payment that the Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant Convertible Notes for such Conversion Date; and provided further that if such exercise relates to the conversion of Relevant Convertible Notes in connection with which holders thereof are entitled to receive additional Shares and/or cash pursuant to the adjustments to the Applicable Conversion Rate set forth in Section 10.07 of the Indenture, then, notwithstanding the foregoing, the Delivery Obligation shall include such additional Shares, except that the Delivery Obligation shall be capped so that the value of the Delivery Obligation per Option (with the value of any Shares included in the Delivery Obligation determined by the Calculation Agent using the “Daily VWAP” (as defined in the Indenture) on the last day of the relevant Cash Settlement Averaging Period) does not exceed the amount as determined by the Calculation Agent that would be payable by Dealer pursuant to Section 6 of the Agreement if such Conversion Date were an Early Termination Date resulting from an Additional Termination Event with respect to which the Transaction (except that, for purposes of determining such amount, (x) the Number of Options shall be deemed to be equal to the number of Options exercised on such Exercise Date and (y) such amount payable will be determined as if Section 10.07 of the Indenture were deleted) was the sole Affected Transaction and Counterparty was the sole Affected Party (determined without regard to Section 8(a) of this Confirmation). For the avoidance of doubt, if the “Daily Conversion Value” (as defined in the Indenture) for each of the Trading Days (as defined in the Indenture) occurring in the relevant Cash Settlement Averaging Period is less than or equal to USD 25.00, Dealer will have no delivery obligation hereunder in respect of the related Exercise Date.

Notice of Delivery Obligation:		No later than the Exchange Business Day immediately following the last day of the relevant Cash Settlement Averaging Period), Counterparty shall give Dealer notice of the final number of Shares comprising the relevant Convertible Obligation; provided that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer with a single notice of the aggregate number of Shares comprising the

		Convertible Obligations for all Exercise Dates occurring during such period (it being understood, for the avoidance of doubt, that the requirement of Counterparty to deliver such notice shall not limit Counterparty’s obligations with respect to Notice of Exercise or Dealer’s obligations with respect to Delivery Obligation, each as set forth above, in any way).

Other Applicable Provisions:		The provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable to any Shares that Dealer is obligated to deliver hereunder as if “Physical Settlement” applied to the Transaction; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Buyer is the issuer of the Shares.

Restricted Certificated Shares:		Notwithstanding anything to the contrary in the Equity Definitions, Dealer may, in whole or in part, deliver Shares in certificated form representing the Number of Shares to be Delivered to Counterparty in lieu of delivery through the Clearance System.

Adjustments:

Method of Adjustment:		Notwithstanding Section 11.2 of the Equity Definitions, upon the occurrence of any event or condition set forth in Section 10.05 of the Indenture (an “ Adjustment Event ”), the Calculation Agent shall make the corresponding adjustment in respect of any one or more of the Number of Options, the Option Entitlement and any other variable relevant to the exercise, settlement or payment of the Transaction, to the extent an analogous adjustment is made under the Indenture. Immediately upon the occurrence of any Adjustment Event, Counterparty shall notify the Calculation Agent of such Adjustment Event; and once the adjustments to be made to the terms of the Indenture and the Relevant Convertible Notes in respect of such Adjustment Event have been determined, Counterparty shall immediately notify the Calculation Agent in writing of the details of such adjustments.

Extraordinary Events:

Merger Events:		Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 10.08 of the Indenture.

Consequences of Merger Events:		Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment in respect of any adjustment under the

		Indenture to any one or more of the nature of the Shares, the Number of Options, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, to the extent an analogous adjustment is made under the Indenture in respect of such Merger Event; provided that such adjustment shall be made without regard to any adjustment to the Applicable Conversion Rate for the issuance of additional Shares as set forth in Section 10.06 or 10.07 of the Indenture; and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and provided further that if, with respect to a merger event, the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person not organized under the laws of the United States, any State thereof or the District of Columbia, Cancellation and Payment (Calculation Agent Determination) shall apply.

Notice of Merger Consideration:		Upon the occurrence of a Merger Event that causes the Shares 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), Counterparty shall reasonably promptly (but in any event prior to the effective time of the relevant merger ) notify the Calculation Agent of (i) the weighted average of the types and amounts of consideration received by the holders of Shares entitled to receive cash, securities or other property or assets with respect to or in exchange for such Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustment made under the Indenture in respect of such Merger Event.

Nationalization, Insolvency or Delisting:		Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.

Additional Disruption Events:

(a) Change in Law:		Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing

		the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by Dealer on the Trade Date”; provided further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.

(b) Failure to Deliver:		Applicable

(c) Insolvency Filing:		Applicable

(d) Hedging Disruption:		Applicable

(e) Increased Cost of Hedging:		Applicable

Hedging Party:		Dealer

Determining Party:		Dealer

Non-Reliance:		Applicable

Agreements and Acknowledgments Regarding Hedging Activities:		Applicable

Additional Acknowledgments:		Applicable

3. Calculation Agent :		Dealer

4. Account Details :

Dealer Payment Instructions:

SWIFT: XXXXXXXXXX
Bank Routing: XXXXXXXXX
Account Name: Credit Suisse International
Account No.: XXXXXXXXXX

Counterparty Payment Instructions:

To be provided by Counterparty.

5. Offices :

The Office of Dealer for the Transaction is:

Credit Suisse International

One Cabot Square

London E14 4QJ

England

The Office of Counterparty for the Transaction is:

Inapplicable, Counterparty is not a Multibranch Party.

6. Notices : For purposes of this Confirmation:

(a) Address for notices or communications to Counterparty:

To:	Rudolph Technologies, Inc.
	One Rudolph Road
	P.O. Box 1000
	Flanders, New Jersey 07836
Attn:	Robert A. Koch
Telephone:	(973) 448-4487
Facsimile:	(973) 691-1435
Email:	robert.koch@rudolphtech.com

(b) Address for notices or communications to Dealer:

To:	Credit Suisse Securities (USA) LLC
	Eleven Madison Avenue
	New York, NY 10010-3629
Attn:	Steve Paek
Telephone:	(212) 325-3081
Facsimile:	(917) 326-8603
Email:	steve.paek@credit-suisse.com

7. Representations, Warranties and Agreements :

(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with, Dealer as follows:

(i) On the Trade Date, (A) none of Counterparty and its officers and directors is aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

(ii) On the Trade Date, neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 of the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument other than the Transaction) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent

interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.

(iii) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

(iv) Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.

(v) Prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request.

(vi) Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or to otherwise violate the Exchange Act.

(vii) Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

(viii) On each of the Trade Date and the Premium Payment Date, Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “ Bankruptcy Code ”)) and Counterparty would be able to purchase the Shares hereunder in compliance with the laws of the jurisdiction of Counterparty’s incorporation..

(ix) The representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section 2 of the Purchase Agreement between Issuer and Credit Suisse Securities (USA) LLC , as representative of the initial purchasers party thereto, are true and correct as of the Trade Date and the Effective Date and are hereby deemed to be repeated to Dealer as if set forth herein.

(b) Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended.

(c) Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “ Securities Act ”), by virtue of Section 4(2) thereof. Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.

(d) Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22),

101(53C) and 101(22A) of Title 11 of the United States Code (the “ Bankruptcy Code ”). The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “settlement payment,” as such term is defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code.

(e) Each party acknowledges and agrees to be bound by the Conduct Rules of the National Association of Securities Dealers, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.

(f) Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement.

8. Other Provisions :

(a) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events . If Dealer shall owe Counterparty any amount pursuant to “Consequences of Merger Events” above or Sections 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “ Payment Obligation ”), Counterparty shall have the right, in its sole discretion, to require Dealer to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, between the hours of 9:00 A.M. and 4:00 P.M. New York City time on the relevant merger date , announcement date, Early Termination Date or date of cancellation or termination in respect of an Additional Disruption Event (“ Notice of Share Termination ”); provided that if Counterparty does not elect to require Dealer to satisfy its Payment Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole discretion, to elect to satisfy its Payment Obligation by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election to the contrary; and provided further that Counterparty shall not have the right to so elect (but, for the avoidance of doubt, Dealer shall have the right to so elect) in the event of (i) an Insolvency, a Nationalization or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash or (ii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party, which Event of Default or Termination Event resulted from an event or events within Counterparty’s control. Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the relevant merger date, announcement date, Early Termination Date or date of cancellation or termination in respect of an Additional Disruption Event, as applicable:

Share Termination Alternative:		Applicable and means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to “Consequences of Merger Events” above, Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable (the “ Share Termination Payment Date ”), in satisfaction of the Payment Obligation.

Share Termination Delivery Property:		A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.

Share Termination Unit Price:		The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.

Share Termination Delivery Unit:		In the case of a Termination Event, Event of Default , Delisting or Additional Disruption Event , one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.

Other applicable provisions:		If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Buyer is the issuer of any Share Termination Delivery Units (or any part thereof).

(b) Disposition of Hedge Shares . Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, the Shares (the “ Hedge Shares ”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the U.S. public market by Dealer without registration under the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered offering, (B) provide accountant’s “comfort” letters in customary form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities; provided, however , that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 8(b) shall apply at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, to enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Dealer, including customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such other documentation as is customary for private placements agreements, all reasonably acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement); or (iii) purchase the Hedge Shares from Dealer at the VWAP Price on such Exchange Business Days, and in the amounts, requested by Dealer. “ VWAP Price ” means, on any Exchange Business Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page RTEC <equity> VAP (or

any successor thereto) in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using a volume-weighted method).

(c) Repurchase Notices . Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “ Repurchase Notice ”) on such day if, following such repurchase, the Notice Percentage as determined on such day is (i) greater than 5% and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater than the Notice Percentage as of the date hereof). The “ Notice Percentage ” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares and the denominator of which is the number of Shares outstanding on such day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner specified in this Section 8(c) then Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “ Indemnified Party ”) from and against any and all losses, claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party may become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act, relating to or arising out of such failure. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. This indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted assignee of Dealer.

(d) Additional Termination Events . The occurrence of (i) an event of default with respect to Counterparty under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, (ii) an Amendment Event or (iii) a Repurchase Event shall be an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the sole party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.

“ Amendment Event ” means that Counterparty amends, modifies, supplements or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion price, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend, in each case without the prior consent of Dealer.

“ Repurchase Event ” means that (i) any Convertible Notes are repurchased for any reason by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (whether following acceleration of the Convertible Notes or otherwise), or (iv) any Convertible Notes are exchanged by or for the benefit of the holders thereof for any other securities of Counterparty or any of its affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repurchase Event.

(e) Right to Extend . Dealer may postpone any Settlement Date or any other date of valuation or delivery by Dealer, with respect to some or all of the relevant Options (in which event the Calculation

Agent shall make appropriate adjustments to the Delivery Obligation), if Dealer determines, in its reasonable discretion, that such extension is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market or the stock borrow market or other relevant market or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer.

(f) Staggered Settlement . Dealer may, by notice to Counterparty prior to any Settlement Date (a “ Nominal Settlement Date ”), elect to deliver the Shares on one or more dates (each, a “ Staggered Settlement Date ”) or at two or more times on the Nominal Settlement Date as follows:

(i) in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to the date that follows such Nominal Settlement Date by 20 Trading Days (as defined in the Indenture), but not prior to the relevant Conversion Date) or delivery times and how it will allocate the Shares it is required to deliver under “Delivery Obligation” (above) among the Staggered Settlement Dates or delivery times; and

(ii) the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date.

(g) Transfer and Assignment . E ither party may transfer any of its rights or obligations under the Transaction with the prior written consent of the non-transferring party , such consent not to be unreasonably withheld ; provided that Dealer may transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part, to (i) any of its affiliates or (ii) any person of credit quality equivalent to Dealer; provided further that at any time at which (1) the Equity Percentage exceeds 5 %, (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “ Dealer Person ”) under Section 203 of the Delaware General Corporation Law (the “ D GCL Takeover Statute ”) or any state or federal bank holding company or banking laws, or other federal, state or local regulations or regulatory orders applicable to ownership of Shares (“ Applicable Laws ”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws (including, without limitation, “interested stockholder” or “acquiring person” status under the DGCL Takeover Statute) and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 2% of the number of Shares outstanding on the date of determination (either such condition described in clause ( 1 ) or ( 2 ), an “ Excess Ownership Position ”), or (3) a Hedging Disruption has occurred and is continuing, if Dealer, in its discretion, is unable to effect a transfer or assignment to a third party in accordance with the requirements set forth above after using its commercially reasonable efforts on pricing terms reasonably acceptable to Dealer such that an Excess Ownership Position or a Hedging Disruption, as the case may be, no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “ Terminated Portion ”) of the Transaction, such that such Excess Ownership Position or Hedging Disruption, as the case may be, no longer exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(a) of this Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such portion of the Transaction shall be the only Terminated Transaction. The “ Equity Percentage ” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (collectively, “ Dealer Group ”) “beneficially own” (within the meaning of Section 13 of the Exchange Act) without duplication on such day and (B) the denominator of which is the number of Shares outstanding on such day.

(h) Equity Rights . Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.

(i) Netting and Set-off.

(i) If on any date cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Counterparty to Dealer and cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Dealer to Counterparty and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation of the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

(ii) In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, Dealer shall have the right to terminate, liquidate and otherwise close out the Transaction and to set off any obligation or right that Dealer or any affiliate of Dealer may have to or against Counterparty hereunder or under the Agreement against any right or obligation Dealer or any of its affiliates may have against or to Counterparty, including without limitation any right to receive a payment or delivery pursuant to any provision of the Agreement or hereunder. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off in kind. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares or any right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of the Shares at such time, as determined by the Calculation Agent. If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

(iii) Notwithstanding any provision of the Agreement (including without limitation Section 6(f) thereof) and this Confirmation (including without limitation this Section 8(i)) or any other agreement between the parties to the contrary, (A) Counterparty shall not net or set off its obligations under the Transaction, if any, against its rights against Dealer under any other transaction or instrument, (B) Dealer may net and set off any rights of Dealer against Counterparty arising under the Transaction only against obligations of Dealer to Counterparty arising under any transaction or instrument if such transaction or instrument does not convey rights to Dealer senior to the claims of common stockholders in the event of Counterparty’s bankruptcy and (C) in the event of bankruptcy or liquidation of Counterparty or Dealer, neither party shall have the right to set off any obligation that it may have to the other party under the Transaction against any obligation such other party may have to it under the Agreement, this Confirmation or any other agreement between the parties hereto, by operation of law or otherwise. Dealer will give notice to Counterparty of any netting or set off effected under this provision.

(j) Early Unwind . In the event the sale by Counterparty of the Convertible Notes is not consummated with the initial purchasers for any reason by the close of business in New York on July 25, 2011 (or such later date as agreed upon by the parties, which in no event shall be later than August 1, 2011) (July 25, 2011 or such later date being the “ Early Unwind Date ”), the Transaction shall automatically terminate (the “ Early Unwind ”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty thereunder shall be cancelled and terminated and (ii) Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of Dealer’s hedging activities in respect of the Transaction (including market losses incurred in reselling any Shares purchased by Dealer or its affiliates in connection with such hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares). Following such termination, cancellation and payment, each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date.

(k) Amendment to the Equity Definitions . Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.

(l) Designation by Dealer . Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may perform such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.

(m) Disclosure . Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.

(n) Tax Representations and Forms. Counterparty (x) represents that for the purpose of Section 3(f) of the Agreement, it is a “U.S. Person” (as that term is used in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), and (y) for purposes of Sections 4(a)(i) and 4(a)(iii) of the Agreement, agrees to deliver U.S. Internal Revenue Service Form W-9 (A) prior to execution of the Agreement, promptly upon reasonable demand by Dealer and promptly upon learning that any form or other document previously provided by Counterparty has become obsolete or incorrect.

(o) Counterparts . This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

(p) Waiver of Trial by Jury . EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF COUNTERPARTY OF ITS AFFILIATES OR DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF .

(q) Submission to Jurisdiction and Governing Law . Each party hereby irrevocably and unconditionally submits for itself and its property in any legal action or proceeding by the other party against it relating to the Transaction to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New York County, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof. THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE).

(r) Illegality. The parties agree that for the avoidance of doubt, for purposes of Section

5(b)(i) of the Agreement, “any applicable law” shall include the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, any rules and regulations promulgated thereunder and any similar law or regulation, without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after any Trade Date, and the consequences specified in the Agreement, including without limitation, the consequences specified in Section 6 of the Agreement, shall apply to any Illegality arising from any such act, rule or regulation.

(s) Role of Agent. Credit Suisse Securities (USA) LLC, in its capacity as Agent will be responsible for (A) effecting this Transaction, (B) issuing all required confirmations and statements to Dealer and Counterparty, (C) maintaining books and records relating to this Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with this Transaction, in accordance with its standard practices and procedures and in accordance with applicable law.

(i) Agent is acting in connection with this Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. Agent shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including, without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of this Transaction. Agent shall otherwise have no liability in respect of this Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.

(ii) Any and all notices, demands, or communications of any kind relating to this Transaction between Dealer and Counterparty shall be transmitted exclusively through Agent at the following address:

Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629

For payments and deliveries:
Facsimile No.: (212) 325 8175
Telephone No.: (212) 325 8678 / (212) 325 3213

For all other communications:
Facsimile No.: (212) 325 8173
Telephone No.: (212) 325 8676 / (212) 538 5306 / (212) 538 1193 / (212) 538 6886

(iii) The date and time of the Transaction evidenced hereby will be furnished by the Agent to Dealer and Counterparty upon written request.

(iv) The Agent will furnish to Counterparty upon written request a statement as to the source and amount of any remuneration received or to be received by the Agent in connection with the Transaction evidenced hereby.

(v) Dealer and Counterparty each represents and agrees (A) that this Transaction is not unsuitable for it in the light of such party’s financial situation, investment objectives and needs and (B) that it is entering into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deems necessary and not upon any view expressed by the other or the Agent.

(vi) Dealer is regulated by The Securities and Futures Authority and has entered into this Transaction as principal. The time at which this Transaction was executed will be notified to Counterparty (through the Agent) on request.

Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, NY 10010-3629, Facsimile No. (212) 325-8173.

		Yours faithfully,

		CREDIT SUISSE INTERNATIONAL


		By:	/s/ Shui Wong
			Name: Shui Wong
			Title: Authorized Signatory

		By:	/s/ Joyce Lim
			Name: Joyce Lim
			Title: Authorized Signatory


		CREDIT SUISSE SECURITIES (USA) LLC AS AGENT FOR CREDIT SUISSE INTERNATIONAL


		By:	/s/ Shui Wong
			Name: Shui Wong
			Title: Vice President


Agreed and Accepted By:

RUDOLPH TECHNOLOGIES, INC.


By:	/s/ Paul F. McLaughlin
	Name: Paul F. McLaughlin
	Title: CEO & Chairman

Exhibit 10.3

	Rudolph Technologies, Inc.
To:	One Rudolph Road P.O. Box 1000 Flanders, New Jersey 07836

A/C:

From:	Credit Suisse International One Cabot Square London E14 4QJ England

Re:	Convertible Note Hedge Transaction Ref. No.

Date:	July 22, 2011

Dear Sir(s):

The purpose of this communication (this “ Amendment ”) is to amend the terms and conditions of the Convertible Note Hedge Transaction (the “ Transaction ”) evidenced by the letter agreement between Credit Suisse International (“ Dealer ”), represented by Credit Suisse Securities (USA) LLC (“ Agent ”) as its agent, and Rudolph Technologies, Inc. (“ Counterparty ”) dated July 19, 2011 (the “ Confirmation ”).

1. Definitions . Capitalized terms used herein without definition shall have the meanings assigned to them in the Confirmation.

2. Representations and Warranties of Counterparty . Each of the representations and warranties made by the Counterparty pursuant to the Agreement and the Confirmation on the Trade Date are true and correct and are hereby deemed to be repeated to the Dealer on the date hereof as if set forth herein.

3. Amendments to the Confirmation . The Confirmation is hereby amended as follows:

(a) The “Number of Options” under the Confirmation shall be increased by 10,000 to 60,000; and

(b) The “Premium” under the Confirmation shall be increased from USD 12,089,346 to USD 14,507,215. For the avoidance of doubt, the Premium per Option set forth in the Confirmation shall remain unchanged.

4. Effectiveness . This Amendment shall become effective upon execution by the parties hereto. Upon the effectiveness of this Amendment, all references in the Confirmation to the “Transaction” will be deemed to be to the Transaction as amended hereby.

5. No Additional Amendments or Waivers . Except as amended hereby, all the terms of the Transaction and provisions in the Agreement and the Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.

6. Counterparts . This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.

7. Governing Law . The provisions of this Amendment shall be governed by the laws of the State of New York (without reference to choice of law doctrine).

Counterparty hereby agrees (a) to check this Amendment carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the Amendment, by manually signing this Amendment or this page hereof as evidence of agreement to such terms and immediately returning an executed copy to Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, NY 10010-3629, Facsimile No. (212) 325-8173.

		Yours faithfully,

		CREDIT SUISSE INTERNATIONAL


		By:	/s/ Joyce Lim
			Name: Joyce Lim
			Title: Authorized Signatory

		By:	/s/ Shui Wong
			Name: Shui Wong
			Title: Authorized Signatory


		CREDIT SUISSE SECURITIES (USA) LLC AS AGENT FOR CREDIT SUISSE INTERNATIONAL


		By:	/s/ Joyce Lim
			Name: Joyce Lim
			Title: Vice President

Agreed and Accepted By:

RUDOLPH TECHNOLOGIES, INC.


By:	Robert A. Koch
	Name: Robert A. Koch
	Title: Vice President & General Counsel

Exhibit 10.4

EXECUTION COPY

Opening Transaction

		Rudolph Technologies, Inc.
To:		One Rudolph Road
		P.O. Box 1000
		Flanders, New Jersey 07836

A/C:

From:		Credit Suisse International
		One Cabot Square
		London E14 4QJ
		England

Re:		Issuer Warrant Transaction

Ref. No:

Date:		July 19, 2011

Dear Sir(s):

The purpose of this communication (this “ Confirmation ”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “ Transaction ”) between Credit Suisse International (“ Dealer ”), represented by Credit Suisse Securities (USA) LLC (“ Agent ”) as its agent, and Rudolph Technologies, Inc (“ Issuer ”). This communication constitutes a “Confirmation” as referred to in the Agreement specified below.

This Confirmation evidences a complete and binding agreement between Dealer and Issuer as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the “ Agreement ”) in the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border), as published by ISDA, as if Dealer and Issuer had executed an agreement in such form on the date hereof (but without any Schedule except for (i) the election of Loss and Second Method and US Dollars (“ USD ”) as the Termination Currency, (ii) the replacement of the word “third” in the last line of Section 5(a)(i) with the word “first” and (iii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Issuer with a “Threshold Amount” of USD 10 million). The Transaction shall be the only Transaction under the Agreement.

2. The Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

Trade Date:		July 20, 2011

Effective Date:		July 25, 2011, or such other date as agreed between the parties, subject to Section 8(l) below

Components:		The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.

Warrant Style:		European

Warrant Type:		Call

Seller:		Issuer

Buyer:		Dealer

Shares:		The Common Stock of Issuer, par value USD 0.001 per share (Ticker Symbol: “RTEC”).

Number of Warrants:		For each Component, as provided in Annex A to this Confirmation.

Warrant Entitlement:		One Share per Warrant

Strike Price:		USD 17.00. Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, unless Issuer shall have obtained stockholder approval of the issuance of Shares under the Transaction in accordance with the applicable rules of the relevant Exchange, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 9.59, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Issuer’s capitalization.

Premium:		USD 5,839,346 (Premium per Warrant approximately USD 1.51)

Premium Payment Date:		The Effective Date

Exchange:		NASDAQ Global Select Market

Related Exchange:		All Exchanges

Procedures for Exercise:

In respect of any Component:

Expiration Time:		Valuation Time

Expiration Date:		As provided in Annex A to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component); provided that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and provided further that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent may elect in its discretion that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). “ Final Disruption Date ” means January 20, 2017. Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case (i) the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date and shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and (ii) the VWAP Price for such Disrupted Day shall be determined by the Calculation Agent based on transactions in the Shares on such Disrupted Day effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any day on which the Exchange is scheduled to close prior to its normal closing time shall be considered a Disrupted Day in whole. If a Market Disruption Event occurs on the Expiration Date for any Component, the Calculation Agent, in its good faith and commercially reasonable discretion, may determine the VWAP Price for such Expiration Date using its good faith estimate of the value of the Shares on such Expiration Date based on the volume, historical trading patterns and price of the Shares and such other factors as it deems appropriate. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.

Market Disruption Events:	The first sentence of Section 6.3(a) of the Equity Definitions is hereby amended (A) by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” in the third, fourth and fifth lines thereof, and (B) by replacing the words “or (iii) an Early Closure.” by “(iii) an Early Closure, or (iv) a Regulatory Disruption.”

	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.

Regulatory Disruption:	Any event that Dealer, in its discretion, determines makes it appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and Regulation M), for Dealer to refrain from or decrease any market activity in connection with the Transaction. Dealer shall notify Issuer as soon as reasonably practicable that a Regulatory Disruption has occurred and the Expiration Dates affected by it.

Automatic Exercise:	Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Buyer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.

Issuer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice:	Rudolph Technologies, Inc.
	One Rudolph Road
	P.O. Box 1000
	Flanders, New Jersey 07836
	Attn:	Robert A. Koch
	Telephone:	(973) 448-4487
	Facsimile:	(973) 691-1435
	Email:	robert.koch@rudolphtech.com

Settlement Terms:

In respect of any Component:

Settlement Currency:	USD

Net Share Settlement:		On each Settlement Date, Issuer shall deliver to Dealer a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional Shares valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable judgment of Dealer, for any reason, the Shares deliverable upon Net Share Settlement would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “ Securities Act ”), then Dealer may elect to either (x) accept delivery of such Shares notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.

		The Number of Shares to be Delivered shall be delivered by Issuer to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.

Number of Shares to be Delivered:		In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the Number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring on such Exercise Date over the Strike Price (or, if no such excess, zero) divided by (B) such VWAP Price.

VWAP Price:		For any Valuation Date, the volume weighted average price per Share on the Exchange for the regular trading session (including any extensions thereof) of the Exchange on such Valuation Date (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 p.m. New York City time (or 15 minutes following the end of any extension of the regular trading session) on such Valuation Date, on Bloomberg page “RTEC.UQ <Equity> AQR” (or any successor thereto) (or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Valuation Date, as determined by the Calculation Agent using a volume weighted method).

Other Applicable Provisions:		The provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements arising under applicable securities laws as a result of the fact that Seller is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable, as if “Physical Settlement” applied to the Transaction.

Adjustments:

In respect of any Component:

Method of Adjustment:		Calculation Agent Adjustment; provided that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below.

Extraordinary Dividend:		Any cash dividend or distribution on the Shares with an ex dividend date occurring on or after the Trade Date and on or prior to the date on which Issuer satisfies all of its delivery obligations hereunder that exceeds the Ordinary Dividend Amount for such dividend or distribution.

Ordinary Dividend Amount:		USD 0.00.

Calculation Agent Adjustment for Extraordinary Dividend:		If an ex-dividend date for an Extraordinary Dividend occurs, then the Calculation Agent will make adjustments to the Strike Price, the Number of Warrants, the Warrant Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as it determines appropriate to account for the economic effect on the Transaction of such Extraordinary Dividend.

Extraordinary Events:

Consequences of Merger Events:

(a) Share-for-Share:		Modified Calculation Agent Adjustment

(b) Share-for-Other:		Cancellation and Payment (Calculation Agent Determination)

(c) Share-for-Combined:		Cancellation and Payment (Calculation Agent Determination), provided that the Calculation Agent may elect Component Adjustment

Tender Offer:		Applicable

Consequences of Tender Offers:

(a) Share-for-Share:		Modified Calculation Agent Adjustment

(b) Share-for-Other:		Modified Calculation Agent Adjustment

(c) Share-for-Combined:		Modified Calculation Agent Adjustment

New Shares:		In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors)”.

Modified Calculation Agent Adjustment:		With respect to any Merger Event to which Modified Calculation Agent Adjustment applies, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, the Issuer

		of the Affected Shares and the entity that will be the Issuer of the New Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.

Reference Markets:		For the avoidance of doubt, and without limiting the generality of the foregoing provisions, any adjustment effected by the Calculation Agent pursuant to Section 12.2(e) and/or Section 12.3(d) of the Equity Definitions may be determined by reference to the adjustment(s) made in respect of Merger Events or Tender Offers, as the case may be, in the convertible bond market.

Nationalization, Insolvency or Delisting:		Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.

Additional Disruption Events:

(a) Change in Law:		Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”.

(b) Insolvency Filing:		Applicable

(c) Hedging Disruption:		Applicable

(d) Increased Cost of Hedging:		Applicable

(e) Loss of Stock Borrow:		Applicable


Maximum Stock Loan Rate:		1.0 % per annum

(f) Increased Cost of Stock Borrow:		Applicable

Initial Stock Loan Rate:		0.25 % per annum

Hedging Party:		Buyer

Determining Party:		Buyer

Non-Reliance:		Applicable

Agreements and Acknowledgments Regarding Hedging Activities:		Applicable

Additional Acknowledgments:		Applicable

3. Calculation Agent :		Dealer.

4. Account Details :

Dealer Payment Instructions:

SWIFT: XXXXXXXXX
Bank Routing: XXXXXXXXX
Account Name: Credit Suisse International
Account No.: XXXXXXXXX

Issuer Payment Instructions:		To be provided by Issuer.

5. Offices :

The Office of Dealer for the Transaction is:

Credit Suisse International
One Cabot Square
London E14 4QJ
England

The Office of Issuer for the Transaction is:

Inapplicable, Issuer is not a Multibranch Party.

6. Notices : For purposes of this Confirmation:

(a) Address for notices or communications to Issuer:

To:		Rudolph Technologies, Inc.
		One Rudolph Road
		P.O. Box 1000
		Flanders, New Jersey 07836
Attn:		Robert A. Koch
Telephone:		(973) 448-4487
Facsimile:		(973) 691-1435
Email:		robert.koch@rudolphtech.com

(b) Address for notices or communications to Dealer:

To:		Credit Suisse Securities (USA) LLC
		Eleven Madison Avenue
		New York, NY 10010-3629
Attn:		Steve Paek
Telephone:		(212) 325-3081
Facsimile:		(917) 326-8603

Email:

steve.paek@credit-suisse.com

7. Representations, Warranties and Agreements :

(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Issuer represents and warrants to and for the benefit of, and agrees with, Dealer as follows:

(i) On the Trade Date, (A) none of Issuer and its officers and directors is aware of any material nonpublic information regarding Issuer or the Shares and (B) all reports and other documents filed by Issuer with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

(ii) Without limiting the generality of Section 13.1 of the Equity Definitions, Issuer acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

(iii) The Shares of Issuer initially issuable upon exercise of the Warrant (the “ Warrant Shares ”) have been reserved for issuance by all required corporate action of Issuer. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrant following the exercise of the Warrant in accordance with the terms and conditions of the Warrant, will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. Issuer represents, warrants and agrees that neither Dealer’s entry into this Confirmation nor Dealer’s right to acquire Shares hereunder shall result in or contribute to the implementation, exercise or triggering, howsoever described, of any third party rights under any stockholder rights or similar plan to which Issuer is now or may in the future become a party (any such agreement, an “Issuer Agreement”). Issuer further represents, warrants and agrees that Issuer and Issuer’ Board of Directors shall interpret all Issuer Agreements accordingly.

(iv) Issuer is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act.

(v) Issuer is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

(vi) On the Trade Date and the Premium Payment Date (A) the assets of Issuer at their fair valuation exceed the liabilities of Issuer, including contingent liabilities, (B) the capital of Issuer is adequate to conduct the business of Issuer and (C) Issuer has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature.

(vii) Issuer shall not take any action to decrease the number of Available Shares below the Capped Number (each as defined below).

(viii) The representations and warranties of Issuer set forth in Section 3 of the Agreement and Section 2 of the Purchase Agreement dated as of the Trade Date between Issuer and Credit Suisse Securities (USA) LLC , as representative of the initial purchasers party thereto

are true and correct as of the Trade Date and the Effective Date and are hereby deemed to be repeated to Dealer as if set forth herein.

(ix) Issuer understands no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Dealer or any governmental agency.

(x) (A) During the period starting on the first Expiration Date and ending on the last Expiration Date (the “ Settlement Period ”), the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act (“ Regulation M ”) and (B) Issuer shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Settlement Period.

(xi) During the Settlement Period, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 of the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer.

(b) Each of Dealer and Issuer agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended.

(c) Each of Dealer and Issuer acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “ Securities Act ”), by virtue of Section 4(2) thereof. Accordingly, Dealer represents and warrants to Issuer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, (v) its financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.

(d) Each of Dealer and Issuer agrees and acknowledges that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the United States Code (the “ Bankruptcy Code ”). The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “settlement payment,” as such term is defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code.

( e ) Each party acknowledges and agrees to be bound by the Conduct Rules of the National Association of Securities Dealers, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.

(f) Prior to the Trade Date, Issuer shall deliver to Dealer a resolution of Issuer’s board of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request.

( g ) Issuer shall deliver to Dealer an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement.

8. Other Provisions :

(a) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events . If Issuer shall owe Buyer any amount pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “ Payment Obligation ”), Issuer shall have the right, in its sole discretion, to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Buyer, confirmed in writing within one Scheduled Trading Day, between the hours of 9:00 A.M. and 4:00 P.M. New York City time on the Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Additional Disruption Event, as applicable (“ Notice of Share Termination ”); provided that if Issuer does not elect to satisfy its Payment Obligation by the Share Termination Alternative, Buyer shall have the right, in its sole discretion, to elect to require Issuer to satisfy its Payment Obligation by the Share Termination Alternative, notwithstanding Issuer’s failure to elect or election to the contrary; and provided further that Issuer shall not have the right to so elect (but, for the avoidance of doubt, Buyer shall have the right to so elect) in the event of (i) an Insolvency, a Nationalization, a Tender Offer or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash or (ii) an Event of Default in which Issuer is the Defaulting Party or a Termination Event in which Issuer is the Affected Party, which Event of Default or Termination Event resulted from an event or events within Issuer’s control. Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the Merger Date, the Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Additional Disruption Event, as applicable:

Share Termination Alternative: Applicable and means that Issuer shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable (the “ Share Termination Payment Date ”), in satisfaction of the Payment Obligation.

Share Termination Delivery

Property: A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.

Share Termination Unit Price: The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Issuer at the time of notification of the Payment Obligation.

Share Termination Delivery Unit: In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to

pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.

Failure to Deliver: Applicable

Other applicable provisions: If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Seller is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”. If, in the reasonable judgment of Dealer, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) accept delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.

(b) Registration/Private Placement Procedures . (i) With respect to the Transaction, the following provisions shall apply to the extent provided for above opposite the caption “Net Share Settlement” in Section 2 or in paragraph (a) of this Section 8. If so applicable, then, at the election of Issuer by notice to Buyer within one Exchange Business Day after the relevant delivery obligation arises, but in any event at least one Exchange Business Day prior to the date on which such delivery obligation is due, either (A) all Shares or Share Termination Delivery Units, as the case may be, delivered by Issuer to Buyer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Buyer (such registration statement and the corresponding prospectus (the “ Prospectus ”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Buyer) or (B) Issuer shall deliver additional Shares or Share Termination Delivery Units, as the case may be, so that the value of such Shares or Share Termination Delivery Units, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Shares or Share Termination Delivery Units that would otherwise be deliverable if such Shares or Share Termination Delivery Units were freely tradeable (without prospectus delivery) upon receipt by Buyer (such value, the “ Freely Tradeable Value ”); provided that, if requested by Dealer, Issuer shall make the election described in this clause (B) with respect to Shares delivered on all Settlement Dates no later than one Exchange Business Day prior to the first Expiration Date, and the applicable procedures described below shall apply to all Shares delivered on the Settlement Dates on an aggregate basis. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall require.)

(ii) If Issuer makes the election described in clause (b)(i)(A) above:

(A) Buyer (or an affiliate of Buyer designated by Buyer) shall be afforded a reasonable opportunity to conduct a due diligence investigation with respect to Issuer that is customary in scope for underwritten offerings of equity securities and that yields results that are commercially reasonably satisfactory to Buyer or such affiliate, as the case may be, in its discretion; and

(B) Buyer (or an affiliate of Buyer designated by Buyer) and Issuer shall enter into an agreement (a “ Registration Agreement ”) on commercially reasonable terms in connection with the public resale of such Shares or Share Termination Delivery Units, as the case may be, by Buyer or such affiliate substantially similar to underwriting agreements customary for

underwritten offerings of equity securities, in form and substance commercially reasonably satisfactory to Buyer or such affiliate and Issuer, which Registration Agreement shall include, without limitation, provisions substantially similar to those contained in such underwriting agreements relating to the indemnification of, and contribution in connection with the liability of, Buyer and its affiliates and Issuer, shall provide for the payment by Issuer of all expenses in connection with such resale, including all registration costs and all fees and expenses of counsel for Buyer, and shall provide for the delivery of accountants’ “comfort letters” to Buyer or such affiliate with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus.

(iii) If Issuer makes the election described in clause (b)(i)(B) above:

(A) Buyer (or an affiliate of Buyer designated by Buyer) and any potential institutional purchaser of any such Shares or Share Termination Delivery Units, as the case may be, from Buyer or such affiliate identified by Buyer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation in compliance with applicable law with respect to Issuer customary in scope for private placements of equity securities (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them), subject to execution by such recipients of customary confidentiality agreements reasonably acceptable to Issuer;

(B) Buyer (or an affiliate of Buyer designated by Buyer) and Issuer shall enter into an agreement (a “ Private Placement Agreement ”) on commercially reasonable terms in connection with the private placement of such Shares or Share Termination Delivery Units, as the case may be, by Issuer to Buyer or such affiliate and the private resale of such shares by Buyer or such affiliate, substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to Buyer and Issuer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, Buyer and its affiliates and Issuer, shall provide for the payment by Issuer of all expenses in connection with such resale, including all fees and expenses of counsel for Buyer, shall contain representations, warranties and agreements of Issuer reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales, and shall use best efforts to provide for the delivery of accountants’ “comfort letters” to Buyer or such affiliate with respect to the financial statements and certain financial information contained in or incorporated by reference into the offering memorandum prepared for the resale of such Shares; and

(C) Issuer agrees that any Shares or Share Termination Delivery Units so delivered to Dealer, (i) may be transferred by and among Dealer and its affiliates, and Issuer shall effect such transfer without any further action by Dealer and (ii) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed with respect to such Shares or any securities issued by Issuer comprising such Share Termination Delivery Units, Issuer shall promptly remove, or cause the transfer agent for such Shares or securities to remove, any legends referring to any such restrictions or requirements from such Shares or securities upon delivery by Dealer (or such affiliate of Dealer) to Issuer or such transfer agent of seller’s and broker’s representation letters customarily delivered by Dealer in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).

(D) Issuer shall not take, or cause to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Issuer to Dealer (or any affiliate designated by Dealer) of the Shares or Share Termination Delivery Units, as the case may be, or the exemption pursuant to Section 4(1) or Section 4(3) of

the Securities Act for resales of the Shares or Share Termination Delivery Units, as the case may be, by Dealer (or any such affiliate of Dealer).

(c) Make-whole Shares . If Issuer makes the election described in clause (i)(B) of paragraph (b) of this Section 8, then Dealer or its affiliate may sell (which sale shall be made in a commercially reasonable manner) such Shares or Share Termination Delivery Units, as the case may be, during a period (the “ Resale Period ”) commencing on the Exchange Business Day following delivery of such Shares or Share Termination Delivery Units, as the case may be, and ending on the Exchange Business Day on which Dealer completes the sale of all such Shares or Share Termination Delivery Units, as the case may be, or a sufficient number of Shares or Share Termination Delivery Units, as the case may be, so that the realized net proceeds of such sales exceed the Freely Tradeable Value. If any of such delivered Shares or Share Termination Delivery Units remain after such realized net proceeds exceed the Freely Tradeable Value, Dealer shall return such remaining Shares or Share Termination Delivery Units to Issuer. If the Freely Tradeable Value exceeds the realized net proceeds from such resale, Issuer shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately following the last day of the Resale Period the amount of such excess (the “ Additional Amount ”) in cash or in a number of additional Shares (“ Make-whole Shares ”) in an amount that, based on the Relevant Price on the last day of the Resale Period (as if such day was the “Valuation Date” for purposes of computing such Relevant Price), has a dollar value equal to the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares in the manner contemplated by this Section 8(c). This provision shall be applied successively until the Additional Amount is equal to zero, subject to Section 8(e).

(d) Beneficial Ownership . Notwithstanding anything to the contrary in the Agreement or this Confirmation, in no event shall Buyer be entitled to receive, or shall be deemed to receive, any Shares if, immediately upon giving effect to such receipt of such Shares, (i) the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Buyer or any affiliate of Buyer subject to aggregation with Buyer under such Section 13 and rules or any “group”, as such term is used in such Section 13 and rules, of which Buyer or any such affiliate of Buyer is a member or may be deemed to be a member (collectively, “ Buyer Group ”) would be equal to or greater than 8% or more of the outstanding Shares or (ii) Buyer, Buyer Group or any person whose ownership position would be aggregated with that of Buyer or Buyer Group (Buyer, Buyer Group or any such person, a “ Buyer Person ”) under Section 203 of the Delaware General Corporation Law (the “ D GCL Takeover Statute ”) or any state or federal bank holding company or banking laws, or other federal, state or local regulations or regulatory orders applicable to ownership of Shares (“ Applicable Laws ”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Buyer Person under Applicable Laws (including, without limitation, “interested stockholder” or “acquiring person” status under the DGCL Takeover Statute) and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 2% of the number of Shares outstanding on the date of determination (either such condition described in clause ( i ) or ( ii ), an “ Excess Ownership Position ”) . If any delivery owed to Buyer hereunder is not made, in whole or in part, as a result of this provision, Issuer’s obligation to make such delivery shall not be extinguished and Issuer shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Buyer gives notice to Issuer that such delivery would not result in the existence of an Excess Ownership Position .

(e) Limitations on Settlement by Issuer . Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Issuer be required to deliver Shares in connection with the Transaction in excess of 7,724,100 (subject to adjustment from time to time in accordance with the provisions hereof as a result of actions of Issuer or events within Issuer’s control) (the “ Capped Number ”). Issuer represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated on each day that the Transaction is outstanding) that the Capped Number is equal to or less than the number of authorized but unissued Shares of the Issuer that are not reserved for future issuance in connection with transactions in the Shares (other than the Transaction) on the date of the determination of the Capped Number (such Shares, the “ Available Shares ”). In the event Issuer shall not have delivered the full number of Shares otherwise deliverable as a result of this Section 8(e) (the resulting deficit, the

“ Deficit Shares ”), Issuer shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent, that (i) Shares are repurchased, acquired or otherwise received by Issuer or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (ii) authorized and unissued Shares reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved and (iii) Issuer additionally authorizes any unissued Shares that are not reserved for other transactions. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and promptly deliver such Shares thereafter.

(f) Amendments to Equity Definitions . The following amendments shall be made to the Equity Definitions:

(i) Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative” and replacing them with the words “an”; and adding the phrase “or Warrants” at the end of the sentence.

(ii) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has an effect on the theoretical value of the relevant Shares or options on the Shares and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and, the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”;

(iii) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or concentrative” and replacing them with “material”;

(iv) Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Issuer” in the first sentence of such section; and

(v) Section 12.9(b)(v) of the Equity Definitions is hereby amended by (A) adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and (B)(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C) and (3) replacing in the penultimate sentence the words “either party” with “the Hedging Party” and (4) deleting clause (X) in the final sentence.

(g) Additional Termination Events . The occurrence of any of the following shall constitute an Additional Termination Event with respect to which the Transaction shall be the sole Affected Transaction and Issuer shall be the sole Affected Party; provided that with respect to any Additional Termination Event, Dealer may choose to treat part of the Transaction as the sole Affected Transaction, and, upon the termination of the Affected Transaction, a Transaction with terms identical to those set forth herein except with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect:

(i) Buyer reasonably determines that it is advisable to terminate a portion of the Transaction so that Buyer’s related hedging activities will comply with applicable securities laws, rules or regulations or related policies and procedures of Buyer (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Buyer);

(ii) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than Issuer, Issuer’s subsidiaries and employee benefit plans of Issuer’s and Issuer’s

subsidiaries, has become the direct or indirect ultimate “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of Issuer’s common equity representing more than 50% of the voting power of Issuer’s common equity;

(iii) consummation of (A) any recapitalization, reclassification or change of Shares (other than changes resulting from a subdivision or combination) as a result of which Shares would be converted into, or exchanged for, stock, other securities, other property or assets or (B) any share exchange, consolidation or merger involving us pursuant to which Shares will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of Issuer’s and Issuer’s subsidiaries’ consolidated assets, taken as a whole, to any Person other than one of Issuer’s subsidiaries; other than a transaction where the holders of all classes of Issuer’s common equity immediately prior to such transaction that is a share exchange, consolidation or merger (each such holder, a “pre-transaction holder”) own, directly or indirectly, more than 50% of all classes of common equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such event, so long as the proportion of the respective ownership of each pre-transaction holder remains substantially the same relative to all other pre-transaction holders;

(iv) at any time Issuer’s Continuing Directors (as defined below) do not constitute a majority of Issuer’s board of directors (or, if applicable, a successor Person to Issuer);

(v) Issuer’s stockholders approve any plan or proposal for Issuer’s liquidation or dissolution; or

(vi) Shares cease to be listed on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors).

Notwithstanding the foregoing, a transaction set forth in clause (iii) above will not constitute an Additional Termination Event if at least 90% of the consideration paid for the Shares (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in connection with such transaction or transactions otherwise constituting an Additional Termination Event under clause (iii) above consists of shares of common stock listed on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors) (or will be so listed when issued or exchanged in connection with such transaction or transactions) (“ Listed Shares ”).

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

“ Continuing Directors ” means (i) a director who either was a member of Issuer’s board of directors on the date hereof or (ii) a director who becomes a member of Issuer’s board of directors subsequent to the date hereof and whose election, appointment or nomination for election by Issuer’s stockholders is duly approved by a majority of the Continuing Directors on Issuer’s board of directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by Issuer on behalf of Issuer’s entire board of directors in which such individual is named as nominee for director.

(h) Extension of Settlement . Dealer may divide any Component into additional Components and designate the Expiration Date and the Number of Warrants for each such Component if Dealer determines, in its reasonable discretion, that such further division is necessary or advisable to preserve Dealer’s hedging activity hereunder in light of existing liquidity conditions in the cash market or stock loan market or to enable Dealer to effect purchases of Shares in connection with its hedging activity hereunder in a manner that would, if Dealer were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal and regulatory requirements.

(i) Transfer and Assignment . Buyer may transfer or assign its rights and obligations hereunder and under the Agreement, in whole or in part, at any time without the consent of Issuer ; provided that at any time at which (i) an Excess Ownership Position exists or ( ii ) a Hedging Disruption has occurred and is continuing, if Buyer, in its discretion, is unable to effect a transfer or assignment to a third party after

using its commercially reasonable efforts on pricing terms reasonably acceptable to Buyer such that an Excess Ownership Position or a Hedging Disruption, as the case may be, no longer exists, Buyer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “ Terminated Portion ”) of the Transaction, such that such Excess Ownership Position or Hedging Disruption, as the case may be, no longer exists. In the event that Buyer so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(a) of this Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Issuer shall be the sole Affected Party with respect to such partial termination and (iii) such portion of the Transaction shall be the only Terminated Transaction.

(j) Equity Rights . Buyer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Issuer’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Issuer’s bankruptcy to any claim arising as a result of a breach by Issuer of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Issuer herein under or pursuant to any other agreement.

(k) Netting and Set-off.

(i) If on any date cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Issuer to Buyer and cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Buyer to Issuer and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation of the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

(ii) In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, Buyer shall have the right to terminate, liquidate and otherwise close out the Transaction and to set off any obligation or right that Buyer or any affiliate of Buyer may have to or against Issuer hereunder or under the Agreement against any right or obligation Buyer or any of its affiliates may have against or to Issuer, including without limitation any right to receive a payment or delivery pursuant to any provision of the Agreement or hereunder. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off in kind. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares or any right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of the Shares at such time, as determined by the Calculation Agent. If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

obligations under the Transaction against its rights against Buyer under any other transaction or instrument; (B) Buyer may net and set off any rights of Buyer against Issuer arising under the Transaction only against obligations of Buyer to Issuer arising under any transaction or instrument if such transaction or instrument does not convey rights to Buyer senior to the claims of common stockholders in the event of Issuer’s bankruptcy and (C) in the event of bankruptcy or liquidation of Issuer, neither party shall have the right to set off any obligation that it may have to the other party under the Transaction against any obligation such other party may have to it under the Agreement, this Confirmation or any other agreement between the parties hereto, by operation of law or otherwise. Buyer will give notice to Issuer of any netting or set off effected under this provision.

(l) Effectiveness . If, prior to the Effective Date, Buyer reasonably determines that it is advisable to cancel the Transaction because of concerns that Buyer’s related hedging activities could be viewed as not complying with applicable securities laws, rules or regulations, the Transaction shall be cancelled and shall not become effective, and neither party shall have any obligation to the other party in respect of the Transaction.

(m) Designation by Dealer . Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Issuer, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may perform such obligations. Dealer shall be discharged of its obligations to Issuer to the extent of any such performance.

(n) Disclosure . Effective from the date of commencement of discussions concerning the Transaction, Issuer and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Issuer relating to such tax treatment and tax structure.

(o) Counterparts . This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

(p) Waiver of Trial by Jury . EACH OF ISSUER AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES OR ISSUER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

(q) Submission to Jurisdiction . Each party hereby irrevocably and unconditionally submits for itself and its property in any legal action or proceeding by the other party against it relating to the Transaction to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New York County, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof.

(r) Governing Law . THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE).

(s) Role of Agent. Credit Suisse Securities (USA) LLC, in its capacity as Agent will be responsible for (A) effecting this Transaction, (B) issuing all required confirmations and statements to Dealer and Issuer , (C) maintaining books and records relating to this Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Issuer , receiving, delivering, and safeguarding Issuer ’s funds and any securities in connection with this Transaction, in accordance with its standard practices and procedures and in accordance with applicable law.

(i) Agent is acting in connection with this Transaction solely in its capacity as Agent for Dealer and Issuer pursuant to instructions from Dealer and Issuer . Agent shall have no responsibility or personal liability to Dealer or Issuer arising from any failure by Dealer or Issuer to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Issuer with any obligation hereunder, including, without limitation, any obligations to maintain collateral. Each of Dealer and Issuer agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of this Transaction. Agent shall otherwise have no liability in respect of this Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.

(ii) Any and all notices, demands, or communications of any kind relating to this Transaction between Dealer and Issuer shall be transmitted exclusively through Agent at the following address:

Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629

For payments and deliveries:
Facsimile No.: (212) 325 8175
Telephone No.: (212) 325 8678 / (212) 325 3213

For all other communications:
Facsimile No.: (212) 325 8173
Telephone No.: (212) 325 8676 / (212) 538 5306 / (212) 538 1193 / (212) 538 6886

(iii) The date and time of the Transaction evidenced hereby will be furnished by the Agent to Dealer and Issuer upon written request.

(iv) The Agent will furnish to Issuer upon written request a statement as to the source and amount of any remuneration received or to be received by the Agent in connection with the Transaction evidenced hereby.

(v) Dealer and Issuer each represents and agrees (A) that this Transaction is not unsuitable for it in the light of such party’s financial situation, investment objectives and needs and (B) that it is entering into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deems necessary and not upon any view expressed by the other or the Agent.

Issuer hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Issuer with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, NY 10010-3629, Facsimile No. (212) 325-8173.

	CREDIT SUISSE INTERNATIONAL


	By:	/s/ Shui Wong
		Name: Shui Wong
		Title: Authorized Signatory

	By:	/s/ Joyce Lim
		Name: Joyce Lim
		Title: Authorized Signatory


	CREDIT SUISSE SECURITIES (USA) LLC , AS AGENT FOR CREDIT SUISSE INTERNATIONAL


	By:	/s/ Shui Wong
		Name: Shui Wong
		Title: Vice President

Agreed and Accepted By:

RUDOLPH TECHNOLOGIES, INC.

By:	/s/ Paul F. McLaughlin
	Name: Paul F. McLaughlin
	Title: CEO & Chairman

Annex A

For each Component of the Transaction, the Number of Warrants and Expiration Date is set forth below.

Component Number	Number of Warrants	Expiration Date
1.	64,367	10/13/2016
2.	64,3679	10/14/2016
3.	64,367	10/17/2016
4.	64,367	10/18/2016
5.	64,367	10/19/2016
6.	64,367	10/20/2016
7.	64,367	10/21/2016
8.	64,367	10/24/2016
9.	64,367	10/25/2016
10.	64,367	10/26/2016
11.	64,367	10/27/2016
12.	64,367	10/28/2016
13.	64,367	10/31/2016
14.	64,367	11/1/2016
15.	64,367	11/2/2016
16.	64,367	11/3/2016
17.	64,367	11/4/2016
18.	64,367	11/7/2016
19.	64,367	11/8/2016
20.	64,367	11/9/2016
21.	64,367	11/10/2016
22.	64,367	11/11/2016
23.	64,367	11/14/2016
24.	64,367	11/15/2016
25.	64,367	11/16/2016
26.	64,367	11/17/2016
27.	64,367	11/18/2016
28.	64,367	11/21/2016
29.	64,367	11/22/2016
30.	64,367	11/23/2016
31.	64,367	11/25/2016
32.	64,367	11/28/2016
33.	64,367	11/29/2016
34.	64,367	11/30/2016
35.	64,367	12/1/2016
36.	64,367	12/2/2016
37.	64,367	12/5/2016
38.	64,367	12/6/2016
39.	64,367	12/7/2016
40.	64,367	12/8/2016
41.	64,367	12/9/2016
42.	64,367	12/12/2016
43.	64,367	12/13/2016
44.	64,367	12/14/2016
45.	64,367	12/15/2016
46.	64,367	12/16/2016
47.	64,367	12/19/2016
48.	64,367	12/20/2016
49.	64,367	12/21/2016
50.	64,367	12/22/2016
51.	64,367	12/23/2016

52.	64,367	12/27/2016
53.	64,367	12/28/2016
54.	64,367	12/29/2016
55.	64,367	12/30/2016
56.	64,367	1/3/2017
57.	64,367	1/4/2017
58.	64,367	1/5/2017
59.	64,367	1/6/2017
60.	64,397	1/9/2017

Exhibit 10.5

		Rudolph Technologies, Inc.
To:		One Rudolph Road
		P.O. Box 1000
		Flanders, New Jersey 07836

A/C:

From:		Credit Suisse International
		One Cabot Square
		London E14 4QJ
		England

Re:		Issuer Warrant Transaction Ref. No.

Date:		July 22, 2011

Dear Sir(s):

The purpose of this communication (this “ Amendment ”) is to amend the terms and conditions of the Issuer Warrant Transaction (the “ Transaction ”) evidenced by the letter agreement between Credit Suisse International (“ Dealer ”), represented by Credit Suisse Securities (USA) LLC (“ Agent ”) as its agent, and Rudolph Technologies, Inc (“ Issuer ”) dated July 19, 2011 (the “ Confirmation ”).

1. Definitions . Capitalized terms used herein without definition shall have the meanings assigned to them in the Confirmation.

2. Representations and Warranties of Issuer . Each of the representations and warranties made by the Issuer pursuant to the Agreement and the Confirmation on the Trade Date are true and correct and are hereby deemed to be repeated to the Dealer on the date hereof as if set forth herein.

3. Amendments to the Confirmation . The Confirmation is hereby amended as follows:

(a) The “Number of Warrant” under Annex A of the Confirmation shall be 77,241 for each of Components 1 through 60.

(b) The “Premium” under the Confirmation shall be increased from USD 5,839,346 to USD 7,007,215. For the avoidance of doubt, the Premium per Warrant set forth in the Confirmation shall remain unchanged.

7. Governing Law . The provisions of this Amendment shall be governed by the laws of the State of New York (without reference to choice of law doctrine).

Issuer hereby agrees (a) to check this Amendment carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Issuer with respect to the Amendment, by manually signing this Amendment or this page hereof as evidence of agreement to such terms and immediately returning an executed copy to Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, NY 10010-3629, Facsimile No. (212) 325-8173.

		Yours faithfully,

		CREDIT SUISSE INTERNATIONAL


		By:	/s/ Joyce Lim
			Name: Joyce Lim
			Title: Authorized Signatory

		By:	/s/ Shui Wong
			Name: Shui Wong
			Title: Authorized Signatory


		CREDIT SUISSE SECURITIES (USA) LLC , AS AGENT FOR CREDIT SUISSE INTERNATIONAL


		By:	/s/ Joyce Lim
			Name: Joyce Lim
			Title: Vice President


Agreed and Accepted By:

RUDOLPH TECHNOLOGIES, INC.


By:	Robert A. Koch
	Name: Robert A. Koch
	Title: Vice President & General Counsel