8-K

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): November 17, 2015

SolarCity Corporation

(Exact name of registrant as specified in its charter)

Delaware	001-35758	02-0781046
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

3055 Clearview Way

San Mateo, California 94402

(Address of principal executive offices, including zip code)

(650) 638-1028

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report.)

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):

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

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

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

oPre-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.

Issuance and Sale of Zero Coupon Convertible Senior Notes due 2020

On November 17, 2015, SolarCity Corporation (the “Company” or “SolarCity”) entered into an investment agreement (the “Investment Agreement”) with Silver Lake Kraftwerk Fund, L.P. (“Silver Lake Kraftwerk”), the Elon Musk Revocable Trust dated July 22, 2003 and Lyndon Rive (collectively, the “Purchasers”), relating to the issuance and sale to the Purchasers of $113 million in aggregate principal amount of the Company’s Zero Coupon Convertible Senior Notes due 2020 (the “Notes”). The transactions contemplated by the Investment Agreement (the “Transaction”) are expected to close on or about December 7, 2015 (the “Closing”) subject to customary closing conditions. Silver Lake Kraftwerk has agreed to purchase $100 million in principal amount of the Notes, Elon Musk, Chairman of the Company’s Board of Directors, through his trust has agreed to purchase $10 million in principal amount of the Notes, and Lyndon Rive, the Company’s Co-Founder and Chief Executive Officer, has agreed to purchase $3 million in principal amount of the Notes. Messrs. Musk and Rive will purchase the Notes on substantially the same terms and conditions as offered to Silver Lake Kraftwerk.

Issuance of Convertible Notes

The Notes are expected to be governed by an indenture (the “Indenture”) between the Company and a trustee to be selected by the Company prior to the Closing (the “Trustee”).  The Notes will not bear ordinary interest and the principal amount of the notes will not accrete. It is expected that the Notes will mature in December 2020, subject to earlier conversion, redemption or repurchase.

The Notes are convertible at the option of the holder at any time until the second scheduled trading day prior to the maturity date, including in connection with a redemption by the Company. The Notes will be convertible into shares of the Company’s common stock (the “Common Stock”), based on an initial conversion rate of 30.3030 per $1,000 principal amount of the Notes (which is equal to an initial conversion price of $33.00 per share), in each case subject to customary anti-dilution and other adjustments, including in connection with any make-whole adjustment (as described in the Indenture) as a result of certain extraordinary transactions.

On or after June 30, 2017, the Notes will be redeemable by the Company in the event that the closing sale price of the Common Stock exceeds 200% of the conversion price for 45 consecutive trading days ending within three trading days of such redemption notice at a redemption price of par plus accrued and unpaid interest to, but excluding, the redemption date.

With certain exceptions, upon a change of control of the Company or the failure of the Common Stock to be listed on certain stock exchanges (a “Fundamental Change”), the holders of the Notes may require that the Company repurchase all or part of the principal amount of the Notes at purchase price of par plus accrued and unpaid interest to, but excluding, the Fundamental Change repurchase date.

The Indenture will include customary “events of default,” which may result in the acceleration of the maturity of the Notes under the Indenture. The Indenture will also include customary covenants for convertible notes of this type.

Standstill Obligations

Pursuant to the Investment Agreement, Silver Lake Kraftwerk has agreed, subject to certain exceptions, that until the earliest of (A) June 30, 2017, (B) the effective date of a change of control of the Company and (C) 90 days after Silver Lake Kraftwerk does not beneficially own any Notes or shares of Common Stock (the “Standstill Period”), Silver Lake Kraftwerk will not, among other things: (i) make, or in any way participate in any “proxy contest” or other solicitation of proxies, (ii) form, join, influence or in any way participate in a voting trust or similar arrangement, (iii) acquire any securities of the Company if, immediately after such acquisition, Silver Lake Kraftwerk would collectively own in the aggregate more than 15% of the then outstanding voting securities of the Company, (iv) sell, transfer or otherwise dispose of any voting securities of the Company to any person who is (or will become upon consummation of such sale, transfer or other disposition) a beneficial owner of 15% or more of the outstanding voting securities of the Company, (v) propose or seek to effect any tender or exchange offer, merger or other business combination involving the Company, or make any public statement with respect to such transaction, (vi) call or seek to call any meeting of stockholders or other referendum or consent solicitation, or (vii) take action to control or influence the Board of Directors or management of the Company.

Transfer and Conversion Restrictions; Registration Rights; Participation Rights

The Investment Agreement restricts the Purchasers’ ability to transfer, convert or hedge the Notes to Common Stock, subject to certain exceptions specified in the Investment Agreement and summarized below.

Except as described below, prior to the earlier of (i) the first anniversary of the Closing or (ii) the effective date of a change of control of the Company, the Purchasers will be restricted from transferring or entering into an agreement that transfers the economic consequences of ownership of the Notes or converting the Notes. Exceptions include, among others: (A) transfers to

affiliates, (B) transfers to the Company or any of its subsidiaries, (C) transfers to a third party where the  net proceeds of such sale are solely used to satisfy a margin call or repay a permitted loan or (D) transfers in connection with certain merger and acquisition events.

Subject to certain limitations, the Investment Agreement provides Purchasers and any lender of a permitted loan to certain of the Purchasers with certain registration rights for the Notes and the shares of Common Stock issuable upon conversion of the Notes.

In addition, until the six-month anniversary of the Closing Date, if the Company agrees to issue to any Purchaser or any of their respective affiliates, certain debt, equity or other investment opportunities, the Company will simultaneously and on the same terms offer such investment opportunity to Silver Lake Kraftwerk.

The foregoing descriptions of the Indenture, the Notes and the Investment Agreement are qualified in their entirety by reference to the Investment Agreement and form of Indenture, which are attached hereto as Exhibits 10.1 and 4.1, respectively, and incorporated herein by reference.

On November 18, 2015, the Company issued a press release announcing the Transaction. The press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall the full text of Exhibit 99.1 be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

Amendment to Revolving Credit Facility

On November 18, 2015, the Company, Bank of America, N.A., as administrative agent (the “Administrative Agent”), and the lenders from time to time party thereto (the “Lenders”) entered into an eighth amendment (“Amendment No. 8”) to that certain Amended and Restated Credit Agreement, dated November 1, 2013, among the Company, the Administrative Agent and the Lenders, and as previously amended (the “Credit Facility”). Amendment No. 8 amends the Company’s secured revolving credit facility to,among other things, permit the Company to incur the indebtedness related to the issuance of the Notes and related transactions.

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

The information related to the issuance of the Notes contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 3.02      Unregistered Sale of Securities

On November 17, 2015, the Company entered into the Investment Agreement, pursuant to which it agreed to sell $113 million in aggregate principal amount of the Notes to the Purchasers in a private placement pursuant to the exemption from the registration requirements of the Securities Act. The Company will offer and sell the Notes to the Purchasers in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act. The Company will rely on this exemption from registration based in part on representations made by the Purchasers in the Investment Agreement.

The information related to the issuance of the Notes contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Forward-Looking Statements

This communication contains “forward-looking statements” that involve risks and uncertainties, including statements regarding, among other things, the investment by the Purchasers and the issuance of the Notes. Forward-looking statements should not be read as a guarantee of future performance or results, and will not necessarily be accurate indications of the times at, or by, which such performance or results will be achieved, if at all. Forward-looking statements are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. These statements involve risks and uncertainties that could cause actual results to differ materially, including, but not limited to, prevailing market conditions and the impact of general economic, and industry or political conditions in the United States or internationally. The Company cautions the reader to refer to the section entitled “Risk Factors” in its most recent Quarterly Report on Form 10-Q and subsequent Current Reports on Form 8-K, which have been filed with the Securities and Exchange Commission, which identify certain of these and additional risks and uncertainties. The Company does not undertake any obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future developments or otherwise, except as otherwise required by law.

Item 9.01      Financial Statements and Exhibits

(d) Exhibits:

Exhibit No.	Description
4.1	Form of Indenture related to Zero Coupon Convertible Senior Notes Due 2020.
10.1	Investment Agreement, by and among the Company, Silver Lake Kraftwerk Fund, L.P., the Elon Musk Revocable Trust dated July 22, 2003 and Lyndon Rive, dated as of November 17, 2015.
99.1	Press Release announcing the Transaction, dated November 18, 2015.

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.

	SolarCity Corporation
	By:	/s/ Brad W. Buss
		Brad W. Buss
Date: November 18, 2015		Chief Financial Officer

EXHIBIT INDEX

Exhibit No.	Description
4.1	Form of Indenture related to Zero Coupon Convertible Senior Notes Due 2020.
10.1	Investment Agreement, by and among the Company, Silver Lake Kraftwerk Fund, L.P., the Elon Musk Revocable Trust dated July 22, 2003 and Lyndon Rive, dated as of November 17, 2015.
99.1	Press Release announcing the Transaction, dated November 18, 2015.

EX-4.1

EXHIBIT 4.1

SOLARCITY CORPORATION

ZERO COUPON CONVERTIBLE SENIOR NOTES DUE 2020

INDENTURE

DATED AS OF DECEMBER [●], 2015

[●]

AS TRUSTEE

	TABLE OF CONTENTS	Page
Article 1	DEFINITIONS AND INCORPORATION BY REFERENCE	1
Section 1.01	Definitions	1
Section 1.02	Other Definitions	6
Section 1.03	Certain Provisions of the Trust Indenture Act	8
Section 1.04	Rules of Construction	8
Section 1.05	Acts of Holders	8
Article 2	THE SECURITIES	9
Section 2.01	Form and Dating	9
Section 2.02	Execution and Authentication	11
Section 2.03	Registrar, Paying Agent and Conversion Agent	12
Section 2.04	Paying Agent to Hold Money and Securities in Trust	12
Section 2.05	Holder Lists	13
Section 2.06	[Reserved.]	13
Section 2.07	Replacement Securities	13
Section 2.08	Outstanding Securities	13
Section 2.09	Temporary Securities	14
Section 2.10	Cancellation	14
Section 2.11	Persons Deemed Owners	14
Section 2.12	Transfer and Exchange	15
Section 2.13	CUSIP and ISIN Numbers	18
Section 2.14	No Further Issues	19
Section 2.15	Transfer Restrictions	19
Section 2.16	Expiration of Restrictions	21
Article 3	REPURCHASES	22
Section 3.01	Right of Repurchase	22
Section 3.02	No Sinking Fund	22
Section 3.03	[Reserved]	22
Section 3.04	Repurchase of Securities at Option of the Holder Upon a Fundamental Change	22
Section 3.05	Effect of Fundamental Change Repurchase Notice	22
Section 3.06	Deposit of Fundamental Change Repurchase Price	26
Section 3.07	Securities Repurchased in Part	27
Section 3.08	Repurchases Following Acceleration of the Securities	27
Section 3.09	Covenant to Comply with Securities Laws Upon Repurchase of Securities	27
Section 3.10	Repayment to the Company	27
Article 4	COVENANTS	28
Section 4.01	Payment of Securities	28
Section 4.02	SEC and Other Reports	28

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	TABLE OF CONTENTS	Page
Section 4.03	Compliance Certificate	28
Section 4.04	Further Instruments and Acts	29
Section 4.05	Maintenance of Office or Agency	29
Section 4.06	Restricted Securities Legend; Additional Interest	30
Section 4.07	Additional Interest; Notice	30
Article 5	SUCCESSOR CORPORATION	31
Section 5.01	When Company May Merge or Transfer Assets	31
Article 6	DEFAULTS AND REMEDIES	31
Section 6.01	Events of Default	31
Section 6.02	Acceleration	34
Section 6.03	Other Remedies	35
Section 6.04	Waiver of Past Defaults	35
Section 6.05	Control by Majority	35
Section 6.06	Limitation on Suits	36
Section 6.07	Rights of Holders to Receive Payment	36
Section 6.08	Collection Suit by Trustee	36
Section 6.09	Trustee May File Proofs of Claim	36
Section 6.10	Priorities	36
Section 6.11	Undertaking for Costs	37
Section 6.12	Waiver of Stay, Extension or Usury Laws	37
Article 7	TRUSTEE	37
Section 7.01	Duties of Trustee	37
Section 7.02	Rights of Trustee	39
Section 7.03	Individual Rights of Trustee	40
Section 7.04	Trustee’s Disclaimer	40
Section 7.05	Notice of Defaults	40
Section 7.06	Reports by Trustee to Holders	40
Section 7.07	Compensation and Indemnity	41
Section 7.08	Replacement of Trustee	42
Section 7.09	Successor Trustee by Merger	42
Section 7.10	Eligibility; Disqualification	43
Section 7.11	Preferential Collection of Claims Against Company	43
Section 7.12	Trustee’s Application for Instructions from the Company	43
Article 8	DISCHARGE OF INDENTURE	43
Section 8.01	Discharge of Liability on Securities	43
Section 8.02	Trust Money; Repayment to the Company	44
Article 9	AMENDMENTS	44
Section 9.01	Without Consent of Holders	44
Section 9.02	With Consent of Holders	45
Section 9.03	Compliance with Trust Indenture Act	46
Section 9.04	Revocation and Effect of Consents, Waivers and Actions	46
Section 9.05	Notation on or Exchange of Securities	47

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	TABLE OF CONTENTS	Page
Section 9.06	Trustee to Sign Supplemental Indentures	47
Section 9.07	Effect of Supplemental Indentures	47
Article 10	CONVERSIONS	47
Section 10.01	Conversion Privilege and Consideration	47
Section 10.02	Conversion Procedure	48
Section 10.03	Fractional Shares	49
Section 10.04	Taxes on Conversion	49
Section 10.05	Company to Provide Stock	49
Section 10.06	Adjustment for Change in Capital Stock	50
Section 10.07	Adjustment for Rights Issue	51
Section 10.08	Adjustment for Other Distributions	52
Section 10.09	Adjustment for Cash Distributions	55
Section 10.10	Adjustment for Company Tender Offer	56
Section 10.11	When No Adjustment Required	57
Section 10.12	Notice of Adjustment	58
Section 10.13	Voluntary Increase	58
Section 10.14	Notice of Certain Transactions	59
Section 10.15	Effect of Reclassification, Consolidation, Merger or Sale	59
Section 10.16	Company Determination Final	61
Section 10.17	Trustee’s Adjustment Disclaimer	61
Section 10.18	Simultaneous Adjustments	61
Section 10.19	Successive Adjustments	61
Section 10.20	Limitation on Adjustments	62
Section 10.21	Adjustment to Conversion Rate Upon Certain Transactions	62
Section 10.22	Exchange-Related Limitations	64
Section 10.23	Exchange in Lieu of Conversion	64
Article 11	REDEMPTION	65
Section 11.01	Right to Redeem; Notices to Trustee	65
Section 11.02	Selection of Securities to be Redeemed	65
Section 11.03	Notice of Redemption	66
Section 11.04	Effect of Notice of Redemption	66
Section 11.05	Deposit of Redemption Price	67
Section 11.06	Securities Redeemed in Part	67
Article 12	PAYMENT OF INTEREST	67
Section 12.01	Payment of Interest	67
Section 12.02	Defaulted Interest	68
Section 12.03	Interest Rights Preserved	69
Section 12.04	Overdue Principal and Interest	69
		69
Article 13	MISCELLANEOUS	69
Section 13.01	Trust Indenture Act Controls	69
Section 13.02	Notices	71

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	TABLE OF CONTENTS	Page
Section 13.03	Communication by Holders with Other Holders	71
Section 13.04	Certificate and Opinion as to Conditions Precedent	71
Section 13.05	Statements Required in Certificate or Opinion	71
Section 13.06	Separability Clause	71
Section 13.07	Rules by Trustee, Paying Agent, Conversion Agent, and Registrar	72
Section 13.08	Legal Holidays	72
Section 13.09	Governing Law	72
Section 13.10	No Recourse Against Others	72
Section 13.11	Successors	72
Section 13.12	Multiple Originals	72
Section 13.13	Table of Contents; Headings	72
Section 13.14	USA PATRIOT Act	72
Section 13.15	Force Majeure	73
Section 13.16	Submission to Jurisdiction	73
Section 13.17	Waiver of Jury Trial	73

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INDENTURE dated as of December [●], 2015 between SOLARCITY CORPORATION, a Delaware corporation (“Company”), [●], as trustee (together with its successors, the “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 Zero Coupon Convertible Senior Notes due 2020:

Article 1
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.

“Affiliate Securities” means any Securities held by any Company Affiliate.

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

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

“Board of Directors” or “Board” means the board of directors of the Company or a committee of such board duly authorized to act for it.

“Board Resolution” means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or such committee of the Board of Directors or officers of the Company to which authority to act on behalf of the Board of Directors has been delegated, and to be in full force and effect on the date of such certification, and delivered to the Trustee.

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

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

“Certificated Securities” means Securities that are in registered definitive form.

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

“Closing Sale Price” of the Common Stock on any date means the closing per-share sale price (or if no closing per-share sale price is reported, the average of the last bid and ask prices or, if more than one in either case, the average of the average last bid and the average last ask prices) on that date as reported on the NASDAQ or, if the Common Stock is not listed on the NASDAQ, then as reported by the NYSE or the principal other national or regional securities exchange on which the shares of the Common Stock are then traded or, if the Common Stock is not listed or approved for trading on the NYSE or another national or regional securities exchange, on the principal market on which shares of the Common Stock are then traded.  If the Common Stock is not so traded, the “Closing Sale Price” of the Common Stock will be the average of the midpoint of the last bid and ask prices for shares of the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose as most accurately reflecting the per share price that a fully informed buyer, acting on his accord in an arms-length transaction, for one share of Common Stock. The Closing Sale Price shall be determined without regard to after-hours or extended market trading.

“Common Stock” means the shares of common stock, par value $0.0001 per share, of the Company as they exist 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 or, in the event of a merger, consolidation or other similar transaction involving the Company that is otherwise permitted hereunder in which the Company is not the surviving corporation, the common stock, common equity interests, ordinary shares or depositary shares or other certificates representing common equity interests of such surviving corporation or its direct or indirect parent corporation.

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

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

“Company Affiliate” means any Person who is, or within the preceding three months has been, an Affiliate of the Company, which for the avoidance of doubt excludes Silver Lake Group (as defined in the Investment Agreement).

“Company Order” means a written request or order signed in the name of the Company by any two Officers.

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

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“Corporate Trust Office” means the corporate trust office of the Trustee at which at any time the trust created by this Indenture shall be administered, which office at the date hereof is located at 333 S.  Grand Avenue, 5th Floor, Suite 5A, Los Angeles, CA 90071, Attention: Corporate Trust Services, and with respect to Agent services such office shall also mean the office or agency of the Trustee located at 608 Second Avenue South, N9303-121, Minneapolis, MN 55479, Attn: Corporate Trust Operations or such other address as the Trustee may designate from time to time by written notice to the Holders and the Company, or the corporate trust office of any successor Trustee at which this Indenture shall be administered (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).

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

“DTC Custodian” means the Trustee as custodian with respect to the Global Securities or any successor entity thereto.

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

“Ex-Dividend Date” means the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question.

“Free Trade Date” means the date that is one year after the Issue Date.

“Free Transferability Certificate” means a certificate substantially in the form attached hereto as Exhibit B.

“Freely Tradable” means, with respect to any Securities, that such Securities 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.

“GAAP” means generally accepted accounting principles in the United States of America as in effect and, to the extent optional, adopted by the Company, on the date of this Indenture, consistently applied.

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

“Holder” or “Holders” means a Person or Persons in whose name a Security is registered in the Register.

“Indebtedness” has the meaning set forth in Section 6.01(f) hereof.

3

“Indenture” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.

“Investment Agreement” means the Investment Agreement, dated November 17, 2015, by and among the Company, Silver Lake Kraftwerk Fund, the Elon Musk Revocable Trust Dated July 22, 2003 and the Rive Family Trust Dated February 8, 2011.

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

“Market Disruption Event” means, with respect to the Common Stock or any other security, (i) the failure by the relevant stock exchange to open for trading during its regular trading session or (ii) the occurrence or existence on any Scheduled Trading Day of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or such other security or in any U.S. options contracts or U.S. futures contracts relating to the Common Stock or such other security, and such suspension or limitation occurs or exists for more than 30 minutes in the aggregate on any Scheduled Trading Day or at any time within the 30 minutes prior to the closing time of the relevant exchange on such Scheduled Trading Day.

“Maturity Date,” when used with respect to any Security, means December 1, 2020.

“NASDAQ” means the NASDAQ Global Select Market.

“NYSE” means The New York Stock Exchange.

“Officer” means the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, 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 (i) containing the information specified in Sections 13.04 and 13.05, signed in the name of the Company by any two Officers, and delivered to the Trustee; and (ii) given pursuant to Section 4.03, signed by the principal financial or accounting Officer of the Company, which certificate need not contain the information specified in Sections 13.04 and 13.05.

“Open of Business” means 8:00 a.m.  (New York City time).

“Opinion of Counsel” means a written opinion containing the information specified in Sections 13.04 and 13.05, from legal counsel, which may contain customary assumptions, qualifications and exceptions.  The counsel may be an employee of, or counsel to, the Company, or other counsel who is reasonably acceptable to the Trustee.

“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.

4

“Redemption Date” means the date specified for redemption of the Securities in accordance with the terms of the Securities and Article 11.

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

“Silver Lake Kraftwerk Fund” means Silver Lake Kraftwerk Fund, L.P.

“SL Entities” means the Silver Lake Group (as defined in the Investment Agreement).

“SL Securities” means any Securities held by an SL Entity.

“Scheduled Trading Day” means any day that is scheduled by the applicable U.S.  exchange to be a Trading Day.

“SEC” means the Securities and Exchange Commission.

“Securities” means any of the Company’s Zero Coupon Convertible Senior Notes due 2020, as amended or supplemented from time to time, issued under this Indenture.  

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

“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02(w) of Regulation S-X promulgated by the SEC, provided that in the case of a Subsidiary that meets the criteria of clause (3) thereof but not clause (1) or (2) thereof, such Subsidiary shall not be a “Significant Subsidiary” unless such Subsidiary’s income from continuing operations before income taxes, extra items and cumulative effect of changes in accounting principles exclusive of amounts attributable to any non-controlling interests for the last completed fiscal year prior to the date of such determination exceeds $5 million.

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“Subsidiary” means a Person more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries of the Company, or by the Company and one or more other Subsidiaries of the Company.

“Termination of Trading” means the Common Stock (or other common stock or other common equity interest or related depository receipts into which the Securities are then convertible) is not listed for trading on the NASDAQ, the NASDAQ Global Market or the NYSE (or any of their respective successors).

“Trust Indenture Act” or “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.

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“Trading Day” means a day on which (i) there is no Market Disruption Event,  (ii) trading in the Company’s securities generally occurs on the NASDAQ, or if shares of Common Stock are not listed on the NASDAQ, then as reported by the NYSE or the principal other national or regional securities exchange on which the shares of Common Stock are then traded, or if the Common Stock is not listed or approved for trading on the NYSE or another national or regional securities exchange, on the principal market on which shares of the Common Stock are then traded, and (iii) a Closing Sale Price for the Common Stock (or other security for which a Closing Sale Price must be determined) is available; provided that if the Common Stock is not so listed or traded, then a “Trading Day” shall have the same meaning as Business Day.

“Trust Officer” means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter hereunder, any other officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

“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 such subsequent successor or successors.

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

“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

“Wholly Owned Subsidiary” means, at any time, a Subsidiary all the Voting Stock of which (except directors’ qualifying shares which shall be deemed to include investments by foreign nationals mandated by applicable law) is at such time owned, directly or indirectly, by the Company and its other Wholly Owned Subsidiaries.

Section 1.02     Other Definitions

. 

Term Section:	Defined in:
“10.06 Distribution”	10.18(a)
“10.07 Distribution”	10.18(a)
“10.08 Distribution”	10.18(a)
“Act”	1.05
“Additional Interest”	6.01
“Additional Shares”	10.21
“Agent Members”	2.12(a)(vi)
“Bankruptcy Law”	6.01
“Beneficial Owner”	3.04(a)
“Company’s Filing Obligations”	6.01

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Term Section:	Defined in:
“Conversion Agent”	2.03
“Conversion Consideration”	10.23
“Conversion Date”	10.02
“Conversion Rate”	10.01(a)
“Custodian”	6.01
“Defaulted Amounts”	12.04
“Defaulted Interest”	12.02
“Depositary”	2.01(a)
“Distributed Property”	10.08
“DTC”	2.01(a)
“Event of Default”	6.01
“Expiration Date”	10.10
“Expiration Time”	10.10
“Fundamental Change”	3.04(a)
“Fundamental Change Notice”	3.04(b)
“Fundamental Change Notice Date”	3.04(b)
“Fundamental Change Repurchase Date”	3.04(a)
“Fundamental Change Repurchase Notice”	3.04(c)
“Fundamental Change Repurchase Price”	3.04(a)
“Global Securities Legend”	Exhibit A
“Legal Holiday”	13.08
“Make Whole Adjustment Event”	10.21
“Make Whole Adjustment Event Effective Date”	10.21
“Merger Event”	10.15
“Non-Affiliate Legend”	Exhibit A
“Notice of Default”	6.01
“Paying Agent”	2.03
“Payment Default”	6.01(f)(i)
“Redemption Notice”	11.03
“Redemption Price”	11.01(b)
“Reference Property”	10.15(a)
“Register”	2.03
“Registrar”	2.03
“Resale Restriction Termination Date”	2.16(b)(ii)
“Restricted Security”	2.15(a)(i)
“Restricted Securities Legend”	Exhibit A
“Restricted Stock”	2.15(b)(i)
“Restricted Stock Legend”	Exhibit C
“SEC Reports”	4.02
“Share Price”	10.21
“Special Interest”	1.04(7)
“Special Interest Payment Date”	12.01(a)
“Special Interest Record Date”	12.01(a)
“Special Record Date”	12.02(a)
“Spin-off”	10.08

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Term Section:	Defined in:
“Stockholder Rights Plan”	10.11(a)
“Trigger Event”	10.08
“Trustee”	Preamble
“Valuation Period”	10.08
“Weighted Average Consideration”	10.15(c)(B)

Section 1.03     Certain Provisions of the Trust Indenture Act

.  The TIA and any references in this Indenture to TIA provisions shall not apply and neither the Company nor the Trustee shall be required to comply with the TIA or such referenced TIA provisions, except in relation to Sections 7.10 and 7.11 (it being the intention of the parties hereto that the sections of the TIA referred to in such Sections shall apply notwithstanding the fact that this Indenture is not qualified under the TIA).

Section 1.04     Rules of Construction

. 

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

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

(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) all references to payments of interest on the Securities shall include (i) interest, if any, payable in accordance with the terms of Section 4.06 and 6.01, and (ii) the interest portions of Defaulted Amounts and Defaulted Interest, if any, payable in accordance with Sections 12.04 and 12.02, as applicable (together, “Special Interest”).

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 of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and 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 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.

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(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 by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof.  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, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient. 

(b)The ownership of Securities shall be proved by the register for the Securities.

(c)Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the holder of every Security 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, the Company or the Conversion Agent in reliance thereon, whether or not notation of such action is made upon such Security.

(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 Board Resolution, 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 Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Securities 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 2
THE SECURITIES

Section 2.01     Form and Dating

.  The Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A.  The terms and provisions contained in the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Security conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.  The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage (provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company).  The

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Company shall provide any such notations, legends or endorsements to the Trustee in writing.  Each Security shall be dated the date of its authentication.  Except as otherwise expressly permitted in this Indenture, all Securities shall be identical in all respects.  Notwithstanding any differences among them, all Securities issued under this Indenture shall vote and consent together on all matters as one class.

So long as the Securities (excluding Affiliate Securities (except as permitted under Section 2.12 and Section 2.15)), or portion thereof, are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to Section 2.12, such Securities may be represented by one or more Securities in global form registered in the name of the Depositary or the nominee of the Depositary (“Global Securities”).  The transfer and exchange of beneficial interests in any such Global Securities shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.12, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive Certificated Securities and such beneficial owners will not be considered Holders of such Global Security.

(a)Initial Securities.  The Securities (excluding the Affiliate Securities) shall be issued initially in the form of a Global Security, which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the name of The Depository Trust Company (“DTC”) or the nominee thereof (DTC, or any successor thereto, and any such nominee being hereinafter referred to as the “Depositary”), duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.  All Affiliate Securities shall be issued in the form of Certificated Securities and, if applicable, bearing any legends required by Section 2.15.  Certificated Securities may be issued in exchange for interests in a Global Security solely pursuant to Section 2.12.

(b)Global Securities in General.  Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Securities from time to time endorsed thereon and that the aggregate principal amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, repurchases, redemptions and conversions.  The Company initially appoints the Trustee to act as DTC Custodian with respect to the Global Securities.  The Company has entered into a letter of representations with DTC in the form provided by DTC and the Trustee and each Agent are hereby authorized to act in accordance with such letter and Applicable Procedures.

(c)Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 hereof and shall be made on the records of the Trustee and the Depositary.  Payment of the principal, accrued and unpaid interest (including Additional Interest), if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium on the Global Security shall be made to the Holder of such Security on the date

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of payment, unless a Special Interest Record Date or other means of determining Holders eligible to receive payment is provided for herein. 

(d)Book-Entry Provisions.  This Section 2.01(d) shall apply only to Global Securities deposited with or on behalf of the Depositary.

The Company shall execute and the Trustee shall, in accordance with this Section 2.01(d), authenticate and deliver initially one or more Global Securities that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear the legends substantially to the effect of those required by Section 2.01(e).

(e)Legends.  Each Global Security shall bear the Global Securities Legend set forth in Exhibit A.

Section 2.02     Execution and Authentication

.  The Securities shall be executed on behalf of the Company by any Officer.  The signature of the Officer on the Securities may be manual or facsimile.

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

At any time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a written order of the Company in the form of an Officers’ Certificate for the authentication and delivery of such Securities, and an Opinion of Counsel as to such matters as the Trustee may reasonably request, and the Trustee, in accordance with such written order of the Company, shall authenticate and deliver such Securities.

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

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

The Trustee shall authenticate and deliver Securities for issuance in an aggregate principal amount of $113,000,000, upon receipt of one or more Company Orders.  For the avoidance of doubt, the aggregate principal amount of the Securities that may be authenticated and delivered under this Indenture shall be limited to $113,000,000.

The Trustee may appoint authenticating agents.  The Trustee may at any time after the execution of this Indenture appoint an authenticating agent acceptable to the Company to authenticate Securities.  An authenticating agent may authenticate Securities whenever the Trustee may do so, except any Securities issued pursuant to Section 2.07 hereof.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An

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authenticating agent shall have the same right to deal with the Company as the Trustee with respect to such matters for which it has been appointed.

Section 2.03     Registrar, Paying Agent and Conversion Agent

.  The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“Registrar”), an office or agency where Securities may be presented for payment (“Paying Agent”), an office or agency where Securities may be presented for conversion (“Conversion Agent”) and an office or agency where notices to or upon the Company in respect of the Securities and this Indenture may be served.  The Registrar shall keep a register for the recordation of, and shall record, the names and addresses of Holders of the Securities, the Securities held by each Holder and the transfer, exchange and conversion of Securities (the “Register”).  The entries in the Register shall 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 Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents.  The term Paying Agent includes any additional paying agent, including any named pursuant to Section 4.05.  The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 4.05.

The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this Indenture.  The agreement shall implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the name and address of any such agent.  If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee may agree to act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07.  The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar, Conversion Agent or co-registrar.

The Company initially appoints the Trustee as the Paying Agent, the Conversion Agent, and the Registrar, in connection with the Securities, and the office of [●], at its Corporate Trust Office to be such office or agency of the Company for the aforesaid purposes.  The Company may at any time rescind the designation of the Paying Agent, Conversion Agent or the Registrar or approve a change in the location through which any of them acts.

Section 2.04     Paying Agent to Hold Money and Securities in Trust

.  Except as otherwise provided herein, on or prior to each due date of payment in respect of any Security, the Company shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) or Common Stock or, as permitted by this Indenture, a combination thereof, sufficient to make such payments when so becoming due.  The Paying Agent shall (or, if the Paying Agent is not a party hereto, the Company shall require each Paying Agent to agree in writing that such Paying Agent shall) hold in trust for the benefit of Holders or the Trustee all money and Common Stock held by the Paying Agent for the making of payments in respect of the Securities 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 (if not the Trustee) shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and Common Stock so held in trust.  If the Company or a Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money and Common Stock held by it as Paying Agent and

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hold it as a separate trust fund.  The Company at any time may require a Paying Agent to pay all money and Common Stock held by it to the Trustee and to account for any funds and Common Stock disbursed by the Paying Agent.  Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.

Section 2.05     Holder Lists

.  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders.  If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least five Business Days before each Special Interest Payment Date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.

Section 2.06     [Reserved.]

Section 2.07     Replacement Securities

.  If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims that such Security has been lost, destroyed or stolen and the Holder provides evidence of the loss, theft or destruction satisfactory to the Company and the Trustee, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8–405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee.  If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss that any of them may suffer if a Security is replaced.  The Company and the Trustee may charge the Holder for their expenses in replacing a Security.

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

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

Section 2.08     Outstanding Securities

.  Securities outstanding at any time are all Securities authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding.  A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security; provided, however, that in determining whether the Holders of the requisite principal amount of Securities have given or concurred in any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, Securities owned by the Company or any obligor upon the Securities 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, waiver or

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other action, only Securities which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded.  Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations pursuant to Articles 6 and 9).  Notwithstanding anything herein to the contrary, no SL Securities shall be deemed to be owned by the Company or any of its Subsidiaries or Affiliates for purposes of this Indenture.

If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.

If the Paying Agent holds, in accordance with this Indenture, on a Fundamental Change Repurchase Date or on the Maturity Date by 10:00 a.m. New York City time, money sufficient to pay Securities payable on that date, then immediately after such Fundamental Change Repurchase Date, Redemption Date or Maturity Date, as the case may be, such Securities shall cease to be outstanding and Special Interest, if any, on such Securities shall cease to accrue and such Securities shall cease to be convertible.

If a Security is converted in accordance with Article 10, then from and after the time of conversion on the Conversion Date, such Security shall cease to be outstanding and Special Interest, if any, shall cease to accrue on such Security.

Section 2.09     Temporary Securities

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

Section 2.10     Cancellation

.  The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and shall dispose of such cancelled Securities in its customary manner.  The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 10.

Section 2.11     Persons Deemed Owners

.  Prior to due presentment of a Security 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 Security is registered in the Register as the owner of such Security for the purpose of receiving payment of principal, Special Interest, if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

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Section 2.12Transfer and Exchange

. 

(a)    Provisions Applicable to All Transfers and Exchanges.

(i)Subject to the restrictions set forth in this Section 2.12, Certificated Securities and beneficial interests in Global Securities may be transferred or exchanged from time to time as desired, and each such transfer or exchange will be noted by the Registrar in the Register.

(ii)All Securities 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 Securities surrendered upon such registration of transfer or exchange.

(iii)No service charge will be imposed on any Holder of a Certificated Security or any owner of a beneficial interest in a Global Security 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 transfer tax, assessment or other governmental charge imposed in connection with such registration of 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 Security (i) that has been surrendered for conversion, (ii) that has been surrendered for redemption, or (iii) as to which a Fundamental Change Repurchase Notice has been delivered and not withdrawn, except to the extent any portion of such Security is not subject to the foregoing.

(v)Neither the Trustee nor any Paying Agent, Registrar, Conversion Agent or any other agent appointed pursuant to this Indenture will have any 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 Security (including any transfers between or among Depositary participants or Beneficial Owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(vi)Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf any Agent Member may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee, the Paying Agent, Registrar, Conversion Agent and any of their respective agents as the absolute owner and Holder of such Global Security for all purposes whatsoever.  Neither the Trustee nor any Paying Agent, Registrar, Conversion

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Agent or any other agent appointed pursuant to this Indenture shall have any liability, responsibility or obligation to any Agent Members or any other Person on whose behalf Agent Members may act with respect to (i) any ownership interests in the Global Security, (ii) the accuracy of the records of the Depositary or its nominee, (iii) any notice required hereunder, (iv) any payments under or with respect to the Global Security or (v) actions taken or not taken by any Agent Members. 

(vii)Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Trustee, any Paying Agent, Registrar, Conversion Agent or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or (B) impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Security.  The registered Holder of a Global Security 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 a Holder is entitled to take under this Indenture or the Securities.

(b)    In General; Transfer and Exchange of Beneficial Interests in Global Securities.  So long as the Securities are eligible for book-entry settlement with the Depositary, unless otherwise required by law or by Section 2.12(c):

(viii)all Securities will be represented by one or more Global Securities;

(ix)every transfer and exchange of a beneficial interest in a Global Security 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 2.15); and

(x)each Global Security 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.

(c)    Transfer and Exchange of Global Securities for Certificated Securities.

(xi)Notwithstanding any other provision of this Indenture, each Global Security will be exchanged for Certificated Securities 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 or is otherwise no longer permitted under applicable law to continue as Depositary for such Global Security;

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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 90 days after receiving notice from the Depositary.

In each such case, the Company will, in accordance with Section 2.02, promptly execute, and, upon receipt of a Company Order, the Trustee will, in accordance with Section 2.02, promptly authenticate and deliver, for each beneficial interest in each Global Security so exchanged, an aggregate principal amount of Certificated Securities 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 Certificated Securities are required to bear under Section 2.15.

(xii)In addition, if an Event of Default has occurred with regard to the Securities represented by the relevant Global Security and such Event of Default has not been cured or waived, any owner of a beneficial interest in a Global Security may deliver a written request through the Depositary to exchange such beneficial interest for Certificated Securities.

In such case, (A) the Registrar will deliver notice of such request to the Company and the Trustee, which notice will identify the aggregate principal amount of such beneficial interest and the CUSIP of the relevant Global Security; (B) the Company will, in accordance with Section 2.02, promptly execute, and, upon receipt of a Company Order, the Trustee, in accordance with Section 2.02, will promptly authenticate and deliver, to such owner, for the beneficial interest so exchanged by such owner, Certificated Securities registered in such owner’s name having an aggregate principal amount equal to the aggregate principal amount of such beneficial interest as the Depositary specifies, and bearing any legends that such Certificated Securities are required to bear under Section 2.15; and (C) the Trustee, in accordance with the Applicable Procedures, will cause the principal amount of such Global Security to be decreased by the aggregate principal amount of the beneficial interest so exchanged.  If all of the beneficial interests in a Global Security are so exchanged, such Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global Security to be cancelled in accordance with the Trustee’s customary procedures and the Applicable Procedures.

(d)    Transfer and Exchange of Certificated Securities.

(xiii)A Holder may transfer a Certificated Security by: (A) surrendering such Certificated Security 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 Certificated Security is a Restricted Security, delivering any documentation required by Section 2.15; and (C) satisfying all other requirements for such transfer set forth in this Section 2.12 and Section 2.15.   Upon the satisfaction of conditions (A), (B) and (C) of the immediately preceding sentence, the Company, in accordance with Section 2.02, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 2.02, promptly authenticate and deliver, in the name of the designated transferee or transferees,

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one or more new Certificated Securities, of any authorized denomination, having like aggregate principal amount and bearing any restrictive legends that such Certificated Securities are required to bear under Section 2.15. 

(xiv)A Holder may exchange a Certificated Security for other Certificated Securities of any authorized denominations and aggregate principal amount equal to the aggregate principal amount of the Securities to be exchanged by surrendering such Securities, 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 4.05.  Whenever a Holder surrenders Securities for exchange, the Company, in accordance with Section 2.02, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order and in accordance with Section 2.02, will promptly authenticate and deliver the Securities that such Holder is entitled to receive, bearing registration numbers not contemporaneously outstanding and any legends that such Certificated Securities are required to bear under Section 2.15.

(xv)A Holder may transfer or exchange a Certificated Security (other than an Affiliate Security) for a beneficial interest in a Global Security by (A) surrendering such Certificated Security 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 4.05; (B) if such Certificated Security is a Restricted Security, delivering any documentation required by Section 2.15; (C) satisfying all other requirements for such transfer set forth in this Section 2.12 and Section 2.15; 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 Security to reflect an increase in the aggregate principal amount of the Securities represented by such Global Security, 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 Certificated Security and cause, in accordance with the Applicable Procedures, the aggregate principal amount of Securities represented by such Global Security to be increased by the aggregate principal amount of such Certificated Security, 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 Certificated Security.  If no Global Securities are then outstanding, the Company, in accordance with Section 2.02, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order and in accordance with Section 2.02, will authenticate, a new Global Security in the appropriate aggregate principal amount.

(xvi)Neither the Trustee nor any agent of the Trustee shall have any responsibility for any action taken or not taken by the Depositary.

Section 2.13     CUSIP and ISIN Numbers

.  The Company, in issuing the Securities, may use CUSIP and ISIN numbers for such Securities (if then generally in use), and, if so, the Trustee shall use CUSIP and ISIN numbers in notices as a convenience to Holders; provided, however,

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that neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP or ISIN number that appears on any Security, 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 Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice shall not be affected by any defect in or omission of such numbers.  The Company shall promptly notify the Trustee in the event of any change in the CUSIP or ISIN numbers.

Section 2.14     No Further Issues

.  The Company shall not issue any Securities under this Indenture except as described in Section 2.02; provided, the consent of the Holders shall not be required for Securities authenticated and delivered upon registration of transfer or exchange for or in lieu of other Securities pursuant to Sections 2.07, 2.09, 2.12, 3.07, 10.02 and 11.06.

Section 2.15     Transfer Restrictions

. 

(a)    Restricted Securities.

(i)       Every Security (and any security issued in exchange therefor or substitution thereof) that bears, or that is required under this Section 2.15 to bear, the Restricted Securities Legend and every Affiliate Security will be deemed to be a “Restricted Security.” Each Restricted Security will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Securities Legend) and will bear the restricted CUSIP number for the Securities unless the Company notifies the Trustee in writing that such restrictions on transfer are eliminated or otherwise waived by written consent of the Company (including, without limitation, by the Company’s delivery of the Free Transferability Certificate as provided herein), and each Holder of a Restricted Security, by such Holder’s acceptance of such Restricted Security, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Security.

(ii)     Until the Resale Restriction Termination Date (in the case of all Securities other than Affiliate Securities), or such later date as required by applicable law (in the case of Affiliate Securities), each Security will bear the Restricted Securities Legend unless:

(A)(1)such Security, since last held by the Company or an Affiliate of the Company (within the meaning of Rule 144), if ever, was transferred (I) to a Person other than (x) the Company, (y) an Affiliate of the Company (within the meaning of Rule 144) or (z) a Person that was an Affiliate of the Company (within the meaning of Rule 144) within the three months immediately preceding such transfer and (II) pursuant to a registration statement that was effective under the Securities Act at the time of such transfer; or

(2)such Security was transferred (I) to a Person other than (x) the Company or (y) an Affiliate of the Company (within the meaning of Rule 144) or (z) a Person that was an Affiliate of the Company (within the meaning of Rule 144) within the three months immediately preceding such transfer and (II) pursuant to the exemption from registration provided

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by Rule 144 or any similar provision then in force under the Securities Act; and 

(B)the Company delivers written notice to the Trustee and the Registrar (including, without limitation, by the Company’s delivery of the Free Transferability Certificate as provided herein) stating that the Restricted Securities Legend may be removed from such Security and all Applicable Procedures have been complied with.

(iii)      In addition, until the Resale Restriction Termination Date, no transfer of any Restricted Security will be registered by the Registrar unless the transferring Holder delivers to the Trustee a completed notice substantially in the form of Assignment Form, included in the Form of Security attached as Exhibit A hereto.

(iv)     On and after the Resale Restriction Termination Date, any Security will bear the Restricted Securities Legend if at any time the Company determines that, to comply with law, such Security must bear the Restricted Securities Legend and the Company notifies the Trustee in writing.

(b)    Restricted Stock.

(i)     Every share of Common Stock that bears, or that is required under this Section 2.15 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 set forth in Exhibit C) and will bear a restricted CUSIP number unless such restrictions on transfer are eliminated or otherwise waived by written consent (including, without limitation, by the Company’s delivery of the Free Transferability Certificate in connection with the Securities as provided herein) 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 shares of Common Stock issued upon the conversion of a Security, and any shares of Common Stock issued upon conversion of a Restricted Security, will be issued in book-entry form by or on behalf of the Company and will bear the Restricted Stock Legend unless the Company delivers written notice to the transfer agent for the Common Stock stating that such shares of Common Stock need not bear the Restricted Stock Legend.

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

(c)    [Reserved].

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(d)    All Securities (other than Affiliate Securities), whether Global Securities or Certificated Securities, are required to bear the Non-Affiliate Legend at all times, whether before or after the Resale Restriction Termination Date.

Section 2.16     Expiration of Restrictions

. 

(a)    Certificated Securities.  Any Certificated Security (or any security issued in exchange or substitution therefor) that does not constitute a Restricted Security may be exchanged for a new Security or Securities of like tenor and aggregate principal amount that do not bear the Restricted Securities Legend required by Section 2.15.  To exercise such right of exchange, the Holder of such Security must surrender such Security in accordance with the provisions of Section 2.12 and deliver any additional documentation required by this Indenture in connection with such exchange.

(b)    Global Securities; Resale Restriction Termination Date.

(i)      If, on the Free Trade Date, or the next succeeding Business Day if the Free Trade Date is not a Business Day, any Securities are represented by a Global Security that is a Restricted Security (any such Global Security, a “Restricted Global Security”), the Company will by the 375^th day after the Issue Date automatically exchange every beneficial interest in each Restricted Global Security for beneficial interests in Global Securities that do not bear the Restricted Securities Legend are not subject to the restrictions set forth in the Restricted Securities Legend and in Section 2.15.

(ii)       To effect such automatic exchange, the Company will (A) deliver to the Depositary an instruction letter for the Depositary’s mandatory exchange process prior to the Free Trade Date (with a copy to the Trustee) and (B) deliver to each of the Trustee and the Registrar a duly completed Free Transferability Certificate promptly after the Free Trade Date.  The date of the Free Transferability Certificate will be known as the “Resale Restriction Termination Date”.  The Trustee shall assume that the Free Trade Date has not occurred unless and until it receives a Free Transferability Certificate.

(iii)     Immediately upon receipt of the Free Transferability Certificate by each of the Trustee and the Registrar:

(A)     the Restricted Securities Legend will be deemed removed from each of the Global Securities specified in such Free Transferability Certificate and the restricted CUSIP number will be deemed removed from each of such Global Securities and deemed replaced with the unrestricted CUSIP number;

(B)     the Restricted Stock Legend will be deemed removed from any shares of Common Stock previously issued upon conversion of the Securities; and

(C)     thereafter, shares of Common Stock issued upon conversion of the Securities will be assigned an unrestricted CUSIP number and will not bear the Restricted Stock Legend (except as provided in Section 2.15(b)(iii)) or any similar legend.

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(iv)      Promptly after the Resale Restriction Termination Date, the Company will use commercially reasonable efforts to provide Bloomberg L.P.  with a copy of the Free Transferability Certificate.

(v)       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 Company shall otherwise use reasonable efforts to cause each Global Security that is not required to bear the Restricted Securities Legend to be identified by an unrestricted CUSIP number in the facilities of the Depositary by the date the Free Transferability Certificate is delivered to the Trustee and the Registrar or as promptly as possible thereafter.

(vi)     Notwithstanding anything to the contrary in Sections 2.16(b)(i), (ii) or (iii), the Company will not be required to deliver the Free Transferability Certificate if it reasonably believes that removal of the Restricted Securities Legend or the changes to the CUSIP numbers for the Securities could result in or facilitate transfers of the Securities in violation of applicable law.

Article 3
REPURCHASES

Section 3.01     Right of Repurchase

.  A repurchase of the Securities by the Company, as permitted by any provision of this Indenture, shall be made with respect to a repurchase at a Holder’s option in connection with the occurrence of a Fundamental Change, in accordance with paragraph 6 of the Securities and Section 3.04 hereof in accordance with the applicable provisions of this Article 3.

Section 3.02     No Sinking Fund

.  No sinking fund is provided for the Securities.

Section 3.03     [Reserved]

. 

Section 3.04     Repurchase of Securities at Option of the Holder Upon a Fundamental Change

. 

(a)If a Fundamental Change occurs, the Securities shall be repurchased by the Company, at the option of the Holder thereof, in cash, at 100% of the principal amount plus accrued and unpaid Special Interest, if any, to (but excluding) such Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), as of the date that is no fewer than 20 Business Days and no more than 45 Business Days (unless otherwise extended pursuant to Section 3.09) after the date of the Fundamental Change Notice delivered by the Company (the “Fundamental Change Repurchase Date”), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.04(c).  If the Fundamental Change Repurchase Date with respect to any Securities is after a Special Interest Record Date and on or prior to the immediately following Special Interest Payment Date, then (i) accrued and unpaid Special Interest on such Securities to, but excluding, such Special Interest Payment Date shall be paid, on such Special Interest Payment Date, to the Holder of record of such Securities at the

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Close of Business on such Special Interest Record Date and (ii) the Fundamental Change Repurchase Price for such Securities shall not include such accrued and unpaid Special Interest and the Fundamental Change Repurchase Price for such Securities, instead, shall be equal to 100% of the principal amount of such Securities. 

A “Fundamental Change” shall be deemed to have occurred at such time after the Securities are originally issued that any of the following events shall occur:

(i)a “person” or “group” other than the Company, its Wholly Owned Subsidiaries or its or their employee benefit plans, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person has become the direct or indirect Beneficial Owner of the Company’s common equity representing more than 50% of the voting power of the Company’s common equity;

(ii)the Company merges or consolidates with or into any other person (other than a Wholly Owned Subsidiary) (whether by means of a merger, exchange, liquidation, tender offer, consolidation, combination, reclassification, recapitalization, acquisition or otherwise), any merger of another person into the Company, or the sale, transfer, lease, conveyance or other disposition, in one or more series of related transactions, of all or substantially all of the consolidated property or assets of the Company and its Subsidiaries, taken as a whole, to another person (other than a Wholly Owned Subsidiary), other than any transaction: (A) pursuant to which the holders of the Company’s shares of Common Stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of Capital Stock entitled to vote generally in the election of directors of the continuing or surviving corporation or direct or indirect parent thereof immediately after the transaction, with such holders’ proportional voting power immediately after the transaction vis-à-vis each other with respect to the securities they receive in such transaction being in substantially the same proportions as their respective voting power vis-à-vis each other with respect to the Common Stock that they held immediately before such transaction, or (B) which is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;

(iii)the Company’s stockholders approve any plan or proposal for the Company’s liquidation or dissolution; or

(iv)a Termination of Trading.

Notwithstanding the foregoing provisions of this Section 3.04, for purposes of this Indenture a Fundamental Change shall not be deemed to have occurred if at least 90% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a merger or consolidation otherwise constituting a Fundamental Change under clause (i) and/or clause (ii) above consists of shares of common stock or depositary receipts in respect of the Company’s common stock or common equity interests traded, in each case, on the NASDAQ, the NASDAQ Global Market or the NYSE (or any of their respective successors), or will be so traded immediately following the merger or

23

consolidation, and as a result of the merger or consolidation the Securities become convertible into such consideration.

For purposes of this Section 3.04, (x) whether a Person is a “Beneficial Owner” shall be determined in accordance with Rule 13d–3 under the Exchange Act and (y) “person” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) or Section 14(d) of the Exchange Act.

At least three Business Days before the Fundamental Change Notice Date (as defined below), the Company shall deliver an Officers’ Certificate to the Trustee specifying:

(i)the information required by Section 3.04(b); and

(ii)whether the Company desires the Trustee to give the Fundamental Change Notice required by Section 3.04(b), and if so, the Fundamental Change Notice to be given shall be an exhibit thereto.

(b)No later than 10 calendar days after the Company knows or reasonably should know of the occurrence of a Fundamental Change, the Company shall mail or send pursuant to Applicable Procedures a written notice of the Fundamental Change (the “Fundamental Change Notice,” the date of such mailing or sending, the “Fundamental Change Notice Date”) by first-class mail to the Trustee and to each Holder (and to Beneficial Owners as required by applicable law).  The notice shall include a form of Fundamental Change Repurchase Notice to be completed by the Holder and shall state:

(i)briefly, the nature of the Fundamental Change and the date of such Fundamental Change;

(ii)the date by which the Fundamental Change Repurchase Notice pursuant to Section 3.04(c) must be given;

(iii)the Fundamental Change Repurchase Date;

(iv)the Fundamental Change Repurchase Price;

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

(vi)the Conversion Rate applicable on such Conversion Date and any adjustments thereto;

(vii)that the Securities as to which a Fundamental Change Repurchase Notice has been given may be converted if they are otherwise convertible pursuant to Article 10 hereof only if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture or if there is a Default in the payment of the Fundamental Change Repurchase Price and such Default is continuing;

(viii)that the Securities must be surrendered to the Paying Agent to collect payment;

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(ix)that the Fundamental Change Repurchase Price for any Security as to which a Fundamental Change Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Fundamental Change Repurchase Date and the time of surrender of such Security as described in clause (viii) above; 

(x)briefly, the procedures the Holder must follow to exercise rights under this Section 3.04;

(xi)briefly, the conversion rights, if any, of the Securities;

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

(xiii)that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price on the Securities surrendered for repurchase by the Company will cease to accrue on and after the Fundamental Change Repurchase Date; and

(xiv)the CUSIP and ISIN number(s) of the Securities, and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.

Simultaneously with the provision of the Fundamental Change Notice, the Company shall publish on the Company’s website or through another public medium the Company may use at that time a notice containing the information in above clauses (i) through (xiv).

(c)A Holder may exercise its rights specified in Section 3.04(a) upon delivery of a written notice of repurchase (a “Fundamental Change Repurchase Notice”) and any Securities to which the right is being exercised to the Trustee (for Global Securities, pursuant to the Applicable Procedures) at any time on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, stating:

(i)the portion of the principal amount of the Securities which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;

(ii)that such Securities shall be repurchased pursuant to the terms and conditions specified in Paragraph 6 of the Securities; and

(iii)the certificate numbers of the Securities which the Holder will deliver to be repurchased.

The delivery of such Security to the Trustee with the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the offices of the Trustee 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 Section 3.04 only if the Security so delivered to the Trustee, if any, shall conform in all material respects to the description thereof set forth in the related Fundamental Change Repurchase Notice.

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The Company shall repurchase from the Holder thereof, pursuant to this Section 3.04, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security.

Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.04 shall be consummated by the delivery of the consideration to be received by the Holder on the Fundamental Change Repurchase Date.

(d)Procedure upon Repurchase.  The Company shall deposit cash, at the time and in the manner as provided in Section 3.06, sufficient to pay the aggregate Fundamental Change Repurchase Price of all Securities to be repurchased pursuant to this Section 3.04.  

Section 3.05     Effect of Fundamental Change Repurchase Notice

.  Upon receipt by the Paying Agent of the Fundamental Change Repurchase Notice specified in Section 3.04(c), the Holder of the Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in the following paragraph) thereafter be entitled to receive solely the Fundamental Change Repurchase Price with respect to such Security.  Such Fundamental Change Repurchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (i) the Fundamental Change Repurchase Date with respect to such Security (provided the conditions in Section 3.04(c) have been satisfied) and (ii) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 3.04(c).  Securities 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.

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 (i) at any time prior to the Close of Business on the last day prior to the Fundamental Change Repurchase Date or (ii) if there shall be a Default in the payment of the Fundamental Change Repurchase Price, at any time during which such Default is continuing, in each case specifying:

(a)    the principal amount of the Security with respect to which such notice of withdrawal is being submitted, in multiples of $1,000;

(b)    the certificate number of the Security in respect of which such notice of withdrawal is being submitted; and

(c)    the principal amount, if any, of such Security which remains subject to the original Fundamental Change Repurchase Notice.

If the Securities are held in book entry form, the notices must also comply with the appropriate procedures of DTC.

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Section 3.06Deposit of Fundamental Change Repurchase Price

.  Prior to 10:00 a.m.  (New York City time) on the Fundamental Change Repurchase Date, as the case may be, 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 2.04) an amount of cash (in immediately available funds if deposited on such Business Day), sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Securities or portions thereof which are to be repurchased as of the Fundamental Change Repurchase Date.

Section 3.07     Securities Repurchased in Part

.  Any Certificated Security that 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 Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered which is not repurchased, or in the case of a Global Security, the Company shall instruct the Registrar to decrease such Global Security by the principal amount of the repurchased portion of the Security surrendered.

Section 3.08     Repurchases Following Acceleration of the Securities

.  Notwithstanding anything in this Indenture or the Securities to the contrary, there shall be no repurchase of any Securities pursuant to Section 3.04 hereof if the principal amount of the Securities has been accelerated pursuant to the applicable provisions of this Indenture and such acceleration shall not have been rescinded on or before 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 Securities).  The Paying Agent will promptly return to the respective Holders thereof any Securities tendered to it for repurchase pursuant to Section 3.04 hereof during the continuance of such 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 Securities) and shall cancel any instructions for a book-entry transfer of the Securities in compliance with the procedures of the Depositary, in which case, upon such return or cancellation, the Fundamental Change Repurchase Notice, as the case may be, with respect thereto shall be deemed to have been withdrawn.

Section 3.09     Covenant to Comply with Securities Laws Upon Repurchase of Securities

.  When complying with the provisions of Article 3 hereof (provided that such repurchase constitutes an “issuer tender offer” for purposes of Rule 13e–4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or repurchase), the Company shall, to the extent applicable, (a) comply with Rule 13e–4 and Rule 14e–1 (or any successor provision) under the Exchange Act, (b) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, and (c) otherwise comply with any applicable federal and state securities laws so as to permit the rights and obligations under Section 3.04 to be exercised in the time and in the manner specified in Section 3.06.

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Section 3.10Repayment 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 Securities, 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 of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Fundamental Change Repurchase Date, the Trustee shall return any such excess to the Company.

Article 4
COVENANTS

Section 4.01     Payment of Securities

.  The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture.  Any amounts of cash or shares of Common Stock to be given to the Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by 10:00 a.m.  (New York City time) by the Company on the required date.  The Company may, at its option, make payments in respect of the Securities by check mailed to a Holder’s registered address (or, if requested by a Holder of more than $1,000,000 principal amount of the Securities, by wire transfer to the account within the United States designated in writing by such Holder) or, with respect to Global Securities, by wire transfer.  The Company shall make any required Special Interest payments to the Person in whose name each Security is registered at the Close of Business on the Special Interest Record Date for such interest payment.  The principal, accrued and unpaid Special Interest, if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium shall be considered paid on the applicable date due if on such date prior to 10:00 a.m.  New York City time (or, in the case of a Fundamental Change Repurchase Price or Redemption Price, on the Business Day following the applicable Fundamental Change Repurchase Date or Redemption Date, respectively) the Trustee or the Paying Agent holds, in accordance with this Indenture, cash sufficient to pay all such amounts then due.  Payment of principal will be made upon presentation of the Securities.

Section 4.02     SEC and Other Reports

. 

(a)The Company shall, so long as any of the Securities are outstanding, file with the Trustee the Company’s annual and quarterly reports, information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) (the “SEC Reports”) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act within 15 days of the date on which it would be required to file the SEC Reports with the SEC (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act).  Documents filed by the Company with the SEC via the EDGAR system will be deemed to be filed with the Trustee as of the time such documents are filed via EDGAR.  The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR system.  The Company also shall comply with the other provisions of TIA Section 314(a).  Delivery of any reports, information and documents to the Trustee is for informational purposes only and the

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

(b)If at any time the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will, so long as any of the Securities will, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, furnish to Holders, Beneficial Owners and prospective purchasers of the Securities or any shares issuable upon conversion of the Securities, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) or Rule 144, as applicable, under the Securities Act to facilitate the resale of such Securities pursuant to Rule 144A or Rule 144, as applicable, under the Securities Act.  The Company will take such further action as any Holder or Beneficial Owner of such Securities may reasonably request to the extent from time to time required to enable such Holders or Beneficial Owners to sell such Securities in accordance with Rule 144A or Rule 144, as applicable, under the Securities Act, as such rule may be amended from time to time.

Section 4.03     Compliance Certificate

.  The Company shall deliver to the Trustee within 120 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2015) of the Company an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof, the Company is 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     Further Instruments and Acts

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

Section 4.05     Maintenance of Office or Agency

.  The Company will maintain an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer, exchange, repurchase, redemption or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Corporate Trust Office shall initially be such office or agency for all of the aforesaid purposes.  The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of any such office or agency (other than a change in the location of the Corporate Trust Office of the Trustee).  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 13.02.

The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.

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Section 4.06Restricted Securities Legend; Additional Interest

. 

(a)    If, at any time during the six-month period beginning on, and including, the date that is six months after the Issue Date, the Company fails to timely file any document or report that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), as applicable, or the Securities (other than the Affiliate Securities) are not otherwise Freely Tradable by Holders other than Affiliates of the Company (as a result of restrictions pursuant to U.S. securities law or the terms of this Indenture or the Securities), the Company will pay Additional Interest on the Securities at a rate equal to 0.50% per annum of the aggregate principal amount of the Securities then outstanding for each day during such six-month period for which the Company’s failure to file has occurred and is continuing.

(b)    Further, if, at any time on or after the 375th day after the Issue Date:

(i)the Restricted Securities Legend is included in the Securities (other than the Affiliate Securities),

(ii)the Securities (other than the Affiliate Securities) are assigned a restricted CUSIP number, or

(iii)the Securities (other than the Affiliate Securities) are not otherwise Freely Tradable pursuant to Rule 144 without restrictions by Holders other than Affiliates of the Company (as a result of restrictions pursuant to U.S.  securities law or this Indenture or the Securities) (each of clause (i), (ii) and (iii), a “Restricted Event”),

the Company will pay Additional Interest on the Securities (other than the Affiliate Securities) for each day on which such Restricted Event is continuing at an annual rate equal to 0.50% of the aggregate principal amount of the Securities.  Additional Interest payable as a result of the provisions described in this Section 4.06 will be payable in arrears on each Special Interest Payment Date following accrual in the same manner as regular interest on the Securities.

(c)    In no event shall Additional Interest payable pursuant to this Section 4.06, taken together with all Additional Interest described in Section 6.01, exceed 0.50% per annum.

Section 4.07     Additional Interest; Notice

.  In the event that the Company is required to pay any Additional Interest, the Company shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, to the Paying Agent) of the Company’s obligation to pay such Additional Interest no later than three Business Days prior to date on which any such Additional Interest is scheduled to be paid.  Such notice shall set forth the amount of such Additional Interest to be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, to the Paying Agent) to make payment to the extent it receives funds from the Company to do so.  The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of any Additional Interest owed, or with respect to the method employed in such calculation of any Additional Interest.

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Article 5SUCCESSOR CORPORATION

Section 5.01     When Company May Merge or Transfer Assets

.  The Company shall not consolidate with or merge into any other Person or sell, convey, lease or transfer all or substantially all of its and its Subsidiaries’ assets to any other Person in any one transaction or series of related transactions, or permit any Person to consolidate with or merge into the Company, unless:

(a)either (i) the Company shall be the surviving Person or, if the Company is not the surviving Person, (ii) either the surviving Person formed by such consolidation or into which the Company is merged or the Person to which the Company’s assets are so transferred shall be a corporation organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia; provided, however, that the surviving Person shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;

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

(c)if the Company is not the surviving Person, then either the surviving Person formed by such consolidation or into which the Company is merged or the Person to which the Company’s assets are so transferred shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition complies with the requirements of this Indenture, and an Opinion of Counsel stating that this Indenture as supplemented constitutes a legal, valid and binding obligation of the Company or surviving Person, as applicable, subject to customary exceptions.

The successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer, sale 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, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities.  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 6
DEFAULTS AND REMEDIES

Section 6.01     Events of Default

.  Each of the following events shall be an “Event of Default”:

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(a)the Company defaults in any payment of Special Interest due and payable on the Securities, and such default continues for a period of 30 days; 

(b)[Reserved]

(c)the Company defaults in the payment of all or any part of the principal on the Securities and accrued and unpaid Special Interest when the same becomes due and payable at its Maturity Date, upon required repurchase following a Fundamental Change or on a Redemption Date;

(d)the Company fails to (i) provide a Fundamental Change Notice or a notice of a Make Whole Adjustment Event or (ii) comply with its obligations under Article 5;

(e)the Company defaults in its obligation to deliver the shares of Common Stock required to be delivered upon conversion of the Securities, together with cash in lieu thereof in respect of any fractional shares, upon conversion of any Securities;

(f)the Company or any of its Significant Subsidiaries defaults under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed (other than (i) any non-recourse indebtedness for money borrowed or (ii) indebtedness for money borrowed of a Subsidiary of the Company if such Subsidiary is a special purpose entity that serves as a vehicle to obtain financing that is otherwise non-recourse to the Company and its other Subsidiaries) (“Indebtedness”) by the Company or any of its Significant Subsidiaries, whether such Indebtedness exists before the Company’s entrance into this Indenture or is created after such date, if the default:

(i)is caused by a failure to pay at Stated Maturity the principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”), or

(ii)results in the acceleration of such Indebtedness prior to its express maturity,

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $50.0 million or more unless such Payment Default is cured or waived or such acceleration is rescinded, stayed or annulled within 30 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Securities to the Company and the Trustee (provided, however that if any such failure or acceleration referred to in (i) or (ii) above shall cease to be cured, waived, rescinded or annulled, then the Event of Default by reason thereof shall be deemed not to have occurred);

(g)the Company defaults in its performance of any covenant or agreement in respect of the Securities or this Indenture for 60 days after receipt by the Company of a Notice of Default from the Trustee or after receipt by the Company and the Trustee of a Notice of Default from the Holders of at least 25% in aggregate principal amount of the Securities then outstanding;

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(h)[Reserved] 

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

(i)commences a voluntary case;

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

(iii)consents to the appointment of a Custodian of it or for any substantial part of its property; or

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

(v)takes any comparable action under any foreign laws relating to insolvency; or

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

(i)is for relief against the Company in an involuntary case;

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

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

(iv)grants any similar relief under any foreign laws;

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

The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

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

A Default under clause (g) is not an Event of Default until the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify the Company (and in the case of such notice by Holders, the Trustee) of the Default and the Company does not cure such Default within the time specified after receipt of such notice.  Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.

The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any Default and any event of which it becomes aware that with the giving of notice or the lapse of time would become an Event of

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Default, its status and what action the Company is taking or proposes to take with respect thereto.

Notwithstanding anything in this Indenture or in the Securities to the contrary (including Section 4.02), at the election of the Company, the sole remedy for an Event of Default relating to (i) the Company’s failure to file with the Trustee pursuant to Section 314(a)(1) of the Trust Indenture Act any documents or reports that it is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or (ii) the Company’s failure to comply with its reporting obligations as set forth in Section 4.02 (the obligations described in clauses (i) and (ii) above, the “Company’s Filing Obligations”) shall for the first 270 calendar days after the occurrence of such an Event of Default consist exclusively of the right to receive additional interest( “Additional Interest”) on the Securities at an annual rate equal to (x) 0.25% per annum of the principal amount of the Securities outstanding for the first 180 days beginning on, and including, the date on which such an Event of Default first occurs and (y) 0.50% per annum of the principal amount of the Securities outstanding for the last 90 days of such 270-day period as long as such Event of Default is continuing.  If the Company so elects to pay Additional Interest, any such Additional Interest shall be payable in the same manner and on the same dates as the interest payable on the Securities.  On the 271st calendar day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with the Company’s Filing Obligations is not cured or waived prior to such 271st calendar day), the Securities shall be subject to acceleration under Section 6.02.  This provision shall not affect the rights of Holders in the event of the occurrence of any other Event of Default.  In the event the Company does not elect to pay the Additional Interest following an Event of Default relating to the Company’s Filing Obligations in accordance with this provision or the Company elected to make such payment but does not pay the Additional Interest when due, the Securities shall be immediately subject to acceleration under Section 6.02.  In order to elect to pay the Additional Interest as the sole remedy during the first 270 days after the occurrence of an Event of Default relating to the failure by the Company to comply with the Company’s Filing Obligations in accordance with this provision, the Company must notify all Holders of the Securities, the Trustee and the Paying Agent of such election on or prior to the Close of Business on the date on which such Event of Default first occurs.  Upon the Company’s failure to timely give such notice, the Securities shall be immediately subject to acceleration under Section 6.02.  In addition, the Company shall deliver to the Trustee an Officers’ Certificate stating (i) that the Additional Interest is payable under this Section 6.01, and (ii) the date on which such Additional Interest is payable.  Unless and until a Trust Officer receives at the Corporate Trust Office such a notice, the Trustee may assume without inquiry that no Additional Interest is payable.  If the Additional Interest has been paid by the Company directly to the Persons entitled to them, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

In no event shall Additional Interest payable pursuant to this section exceed 0.50% per annum.

Section 6.02     Acceleration

.  If an Event of Default (other than an Event of Default specified in Sections 6.01(i) or 6.01(j)) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding by notice to the Company and the Trustee, may declare the principal amount of Securities outstanding plus accrued and unpaid Special Interest, if any, on all the Securities to be

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immediately due and payable.  Upon such a declaration, such accelerated amount shall be due and payable immediately.  If an Event of Default specified in Sections 6.01(i) or 6.01(j) occurs and is continuing, the principal amount of Securities outstanding plus accrued and unpaid Special Interest on all the Securities shall, automatically and without any action by the Trustee or any Holder, 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 Securities at the time outstanding by notice to the Trustee and the Company and without notice to any other Holder may rescind any declaration of acceleration if the rescission is before any judgment or decree has been obtained and if all existing Events of Default have been cured (other than the nonpayment of the principal of the Securities which has become due solely by reason of the declaration of acceleration) and all amounts owing to the Trustee have been paid, if any, that have become due solely as a result of acceleration.  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 principal, accrued and unpaid interest (including Additional Interest), if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium on the Securities or to enforce the performance of any provision of the Securities or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of the Securities 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     Waiver of Past Defaults

.  The Holders of a majority in aggregate principal amount of the Securities at the time outstanding by notice to the Trustee and without notice to any other Holder may waive an existing default and its consequences except (a) an Event of Default described in Section 6.01(a) and (c), (b) a default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder or (c) a default which constitutes a failure to convert any Security in accordance with the terms of Article 10.  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.

Section 6.05     Control by Majority

.  The Holders of a majority in aggregate principal amount of the Securities at the time outstanding shall have the right to 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, subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders) or would potentially involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.  Prior to taking any action hereunder, the Trustee shall be entitled to indemnification reasonably satisfactory to it against all liabilities, losses and expenses caused by taking or not taking such action.

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Section 6.06Limitation on Suits

.  A Holder may pursue any remedy with respect to this Indenture or the Securities only if:

(a)    such Holder shall have previously given to the Trustee written notice of a continuing Event of Default;

(b)    the Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding make a written request;

(c)    such Holder shall have offered indemnity satisfactory to the Trustee to pursue such proceeding as trustee; and

(d)    the Trustee has failed to institute such proceeding within 60 days after such notice and offer of indemnity and, during such 60-day period, has not received from the Holders of at least a majority in aggregate principal amount of the Securities outstanding at the time a direction inconsistent with such request.

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 6.07     Rights of Holders to Receive Payment

.  Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal, accrued and unpaid Special Interest, if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium on or after the due dates expressed in such Holder’s Securities, and to convert the Securities in accordance with Article 10, or to bring suit for the enforcement of any such payment or delivery on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

Section 6.08     Collection Suit by Trustee

.  If an Event of Default specified in Section 6.01(a) or (c) 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 then due and owing (together with interest on any unpaid Special Interest to the extent lawful) and the amounts provided for in Section 7.07.

Section 6.09     Trustee May File Proofs of Claim

.  The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.07.

Section 6.10     Priorities

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

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

SECOND: to Holders for amounts due and unpaid on the Securities for principal, accrued and unpaid Special Interest, if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium ratably, without preference or priority of any kind, according to such amounts due and payable on the Securities; and

THIRD: the balance, if any, to the Company.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.  At least 15 days before such record date, the Company shall mail to each Holder and the Trustee a notice that states the record date, the payment date and the amount to be paid.

Section 6.11     Undertaking for Costs

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

Section 6.12     Waiver of Stay, Extension or Usury Laws

.  The Company (to the extent it may lawfully do so) shall 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 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 shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

Article 7
TRUSTEE

Section 7.01     Duties of Trustee

. 

(a)If an Event of Default has occurred and is continuing, the Trustee will be required to exercise such of the rights and powers vested in it by this Indenture and use the 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.

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

(i)the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).

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

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

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

(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 6.05.

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

(e)The Trustee shall not be liable for interest on any money received by it.

(f)Money or Common Stock held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(g)No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers.

(h)Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article 7 and to the provisions of the TIA, and the provisions of this Article 7 shall apply to the Trustee and each Agent.

(i)The Trustee shall not be deemed to have notice of a Default or an Event of Default unless (i) a Trust Officer of the Trustee has received written notice thereof from the Company or from Holders of at least 25% of the aggregate principal amount of the Securities sent to the Trustee in accordance with Section 13.02, and such notice references the Securities and this Indenture or (ii) a Trust Officer shall have actual knowledge thereof.

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(j)The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder. 

(k)In no event shall the Trustee be responsible or liable for any special, indirect, punitive 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.

(l)Neither the Trustee nor any Agent shall have any responsibility with respect to the conversion terms of the Securities, and whether any adjustments thereto are required.

(m)Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.

Section 7.02     Rights of Trustee

. 

(a)    The Trustee may conclusively rely on any document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper person.  The Trustee need not investigate any fact or matter stated in the document or inquire as to the performance by the Company of any of its covenants in this Indenture.  The Trustee may, however, in its discretion make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation.

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

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

(d)    The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.

(e)    The Trustee may consult with counsel of its own selection, and the advice or opinion of such counsel with respect to legal matters relating to this Indenture and the Securities or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel or Opinion of Counsel.

(f)    The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein.

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

(h)    The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated, reimbursed and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder, including, without limitation, the DTC Custodian, Registrar, Paying Agents and Conversion Agent.

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

Section 7.03     Individual Rights of Trustee

.  The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or 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 Sections 7.10 and 7.11.

Section 7.04     Trustee’s Disclaimer

.  The Trustee shall not be responsible for and makes no representation as to the validity, priority or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.

Section 7.05     Notice of Defaults

.  If a Default or Event of Default occurs and is continuing, the Trustee shall send to each Holder notice of the Default or Event of Default within 30 days after it is known to a Trust Officer or written notice of it is received by the Trustee.  Except in the case of a Default described in Section 6.01(a), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of Holders.  The second sentence of this Section 7.05 shall be in lieu of the proviso to TIA Section 315(b) and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA.  The Trustee shall not be deemed to have knowledge of a Default unless a Trust Officer of the Trustee has received written notice of such Default.

Section 7.06     Reports by Trustee to Holders

.  Within 60 days after each December 31 beginning with December 31, 2015, and in any event prior to March 1 in each year thereafter, the Trustee shall mail to each Holder a brief report dated as of December 31 each year that complies with TIA Section 313(a), if and to the extent required by such subsection.  The Trustee shall also comply with TIA Section 313(b).

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A copy of each report at the time of its mailing to Holders shall be filed with the SEC and each stock exchange (if any) on which the Securities are listed.  The Company agrees to notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof.

Section 7.07     Compensation and Indemnity

.  The Company shall pay to the Trustee from time to time such compensation as shall be agreed upon from time to time in writing for its services.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket fees and expenses incurred or made by it, including costs of collection, in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, fees and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.  The Company shall fully indemnify the Trustee against any and all loss, liability, claim, damage or expense (including reasonable attorneys’ fees and expenses) incurred by it in connection with the acceptance and administration of this Indenture and the performance of its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, any Holder or any other Person) in connection with the exercise of its rights or powers.  The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Company of any claim for which it may seek indemnity of which a Trust Officer has actually received written notice shall not relieve the Company of its obligations hereunder except to the extent such failure shall have materially prejudiced the Company.  The Company shall defend the claim and the Trustee shall cooperate in the defense.  If the Trustee is advised by counsel in writing that it may have available to it defenses which are in conflict with the defenses available to the Company, then the Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct or negligence.  The Company need not pay for any settlement made by the Trustee without the Company’s consent, such consent not to be unreasonably withheld.  All indemnifications and releases from liability granted hereunder to the Trustee shall extend to its officers, directors, employees, agents, attorneys, custodians, successors and assigns.

To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay the principal, accrued and unpaid interest (including Additional Interest), if any, and any payment of the Fundamental Change Repurchase Price, Redemption Price or premium on particular Securities.

The Company’s payment obligations pursuant to this Section shall survive the resignation or removal of the Trustee and the discharge of this Indenture.  In the event that the Trustee incurs expenses after the occurrence of a Default specified in Section 6.01(i) or 6.01(j) with respect to the Company, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

“Trustee” for the purposes of this Section 7.07 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each Agent and other Person employed to act

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hereunder; provided, however, that the negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.

Section 7.08     Replacement of Trustee

.  The Trustee may resign at any time by so notifying the Company at least 30 days prior to the proposed resignation.  The Holders of a majority in aggregate principal amount of the Securities then outstanding may remove the Trustee by so notifying the Trustee and the Company.  The Company shall remove the Trustee if:

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

(o)the Trustee is adjudged bankrupt or insolvent;

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

(q)the Trustee otherwise becomes incapable of acting.

If the Trustee resigns, is removed by the Company or by the Holders of a majority in aggregate principal amount of the Securities then outstanding, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.

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

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in aggregate principal amount of the Securities then outstanding may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee fails to comply with Section 7.10, any Holder who has been a bona fide Holder of a Security for at least six months may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

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 or banking association, the resulting, surviving or transferee corporation or banking association without any further act shall be the successor Trustee.

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In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Securities shall 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 Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any such successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee.

Section 7.10     Eligibility; Disqualification

.  The Trustee shall at all times satisfy the requirements of TIA Section 310(a).  The Trustee shall have (or, in the case of a corporation included in a bank holding company system, the related bank holding company shall have) a combined capital and surplus of at least $50,000,000 as set forth in its (or its related bank holding company’s) most recent published annual report of condition.  The Trustee shall comply with TIA Section 310(b), subject to the penultimate paragraph thereof; provided, however, that there shall be excluded from the operation of TIA Section 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.

Section 7.11     Preferential Collection of Claims Against Company

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

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 shall be taken or such omission shall be effective.  The Trustee shall 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 shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have 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 shall have received written instructions in response to such application specifying the action to be taken or omitted.

Article 8
DISCHARGE OF INDENTURE

Section 8.01     Discharge of Liability on Securities

.  When (a) the Company delivers to the Registrar all outstanding Securities (other than Securities replaced pursuant to Section 2.07) for cancellation or (b) all outstanding Securities have become due and payable, and the Company irrevocably deposits with the Trustee or delivers to the Holders, as applicable, cash and shares of Common Stock (solely to satisfy outstanding conversions, if applicable) sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums payable hereunder by the

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Company, then this Indenture shall, subject to Section 7.07, cease to be of further effect; provided, however, that Sections 2.03, 2.04, 2.05, 2.08, 7.07, 7.08, 7.09 and 13.09 and this Article 8 shall survive any discharge of this Indenture until such time as all payments in respect of the Securities have been paid in full and there are no Securities outstanding.  The Trustee shall acknowledge satisfaction and discharge of this Indenture with respect to the Securities on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company.

Section 8.02     Trust Money; Repayment to the Company

.  The Trustee shall hold in trust all money deposited with it pursuant to Section 8.01 and shall apply such deposited money through the Paying Agent and in accordance with this Indenture to the payment of amounts due on the Securities. The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or securities held by them at any time.

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for payments on the Securities that remains unclaimed for two years after the date on which such payments became due, and, thereafter, Holders entitled to the money must look to the Company for payment as general creditors and all liability of the Trustee or Paying Agent with respect to such money will cease.

If any money, Common Stock or other consideration cannot be applied in accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit or delivery had occurred until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with this Article 8; provided, however, that if the Company has made any payment of amounts due with respect to any Securities because of the reinstatement of its obligations, then the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money, Common Stock or other consideration held by the Trustee or Paying Agent

Article 9
AMENDMENTS

Section 9.01     Without Consent of Holders

.  The Company, the Trustee and the Paying Agent may amend or supplement this Indenture or the Securities without the consent of any Holder:

(a)to cure any ambiguity, omission, defect or inconsistency (as evidenced by and through an Officers’ Certificate);

(b)to comply with Article 5;

(c)to make provisions with respect to the conversion rights of the Holders in accordance with Section 10.15;

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

(e)to provide any security for or guarantee of the Securities;

(f)to comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA;

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

(h)to add Events of Default with respect to the Securities;

(i)to add circumstances under which the Company will pay additional interest on the Securities; and

(j)to make any change that does not adversely affect the rights of the Holder of any outstanding Securities in any material respect.

After an amendment under this Section 9.01 becomes effective, the Company shall mail to Holders a notice briefly describing such amendment.  The failure to give such notice to all such Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.

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 Securities at the time outstanding, the Company, the Trustee and the Paying Agent may amend or supplement this Indenture or the Securities.  However, without the consent of each Holder affected, an amendment to this Indenture or the Securities may not:

(a)    reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver of any provision of this Indenture;

(b)    reduce any Special Interest rate referred to in Paragraph 1 of the Securities or change the time for payment of such Special Interest thereon;

(c)    reduce the principal amount of or change the Maturity Date of any Security;

(d)    reduce the Redemption Price or the Fundamental Change Repurchase Price of any Security or change the time at which the Securities may be repurchased or redeemed;

(e)    make any payments on the Securities payable in currency other than as stated in the Security;

(f)    impair a Holder’s right to institute suit for the enforcement of any payment on the Securities;

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(g)    make any change in the percentage of principal amount of Securities necessary to waive compliance with the provisions of Section 6.04 or this Section 9.02 or to make any change in such provision for modification;

(h)    waive a continuing default or Event of Default regarding any payment on the Securities;

(i)    except as required by this Indenture as of December [●], 2015 (without giving effect to any amendments, side agreements or supplemental indentures thereto), make any change that adversely affects a Holder’s rights under Sections 3.04 to 3.06 hereof, under Article 10 hereof, under Article 11 or under Paragraph 6 or 7 of the Securities; or

(j)    Notwithstanding the foregoing or anything to the contrary, so long as any SL Securities are outstanding, without the consent of the Holders of a 100% of the aggregate principal amount of the SL Securities, an amendment, supplement or waiver may not modify any provision contained in this Indenture specifically and uniquely applicable to the SL Securities or the SL Entities in a manner adverse to the Holders of, or the holders of a beneficial interest in, the SL Securities.

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.

After an amendment under this Section 9.02 becomes effective, the Company shall mail to each Holder a notice briefly describing the amendment.  The failure to give such notice to all such Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.

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

.  A consent to an amendment or a waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent or waiver is not made on the Security.

However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation before the date the supplemental indenture setting forth the amendment or waiver becomes effective.  After an amendment or waiver becomes effective, it shall bind every Holder.  An amendment or waiver becomes effective in accordance with the terms of the supplemental indenture, which shall become effective upon the execution thereof by the Trustee.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture.  If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give

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such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date.  No such consent shall be valid or effective for more than 120 days after such record date.

Section 9.05     Notation on or Exchange of Securities

.  Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 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 Securities so modified as to conform, in the opinion of the Trustee and 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 Securities.

Section 9.06     Trustee to Sign Supplemental Indentures

.  Upon the request of the Company, the Trustee shall sign any supplemental indenture authorized pursuant to this Article 9 if the amendment contained therein does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  If it does, the Trustee may, but need not, sign such supplemental indenture.  In signing such supplemental indenture the Trustee shall be provided with, and (subject to the provisions of Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture and an Opinion of Counsel stating that such supplement or amendment is a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms.

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 of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

Article 10
CONVERSIONS

Section 10.01     Conversion Privilege and Consideration

. 

(a)A Holder may convert such Security at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity Date.  The “Conversion Rate” shall initially be 30.3030¹ shares of Common Stock (equivalent to a Conversion Price of approximately $33.00) per $1,000 principal amount of Securities, subject to adjustment as herein set forth.  For the avoidance of doubt, if a Holder’s Securities are called for redemption by the Company pursuant to Section 11.01, such Holder shall have the right to convert such Holder’s Securities at any time prior to the Close of Business on the second Business Day immediately preceding the Redemption Date (or, if the Company defaults in the payment of the Redemption Price, such date on which such default is no longer continuing). A Holder may, during any

¹  This initial Conversion Rate shall be adjusted pursuant to Section 4.09 of the Investment Agreement, if applicable, in the executed Indenture.

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applicable time referred to herein, convert a portion of the principal amount of a Security if the portion converted is in a $1,000 principal amount or an integral multiple of $1,000.  Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion of a portion of a Security. 

Except as specifically described in this Article 10, the Conversion Rate will not be subject to adjustment in the case of the issuance of any shares of Common Stock, or any securities convertible into or exchangeable for shares of Common Stock, or the right, option or warrant to purchase shares of Common Stock, or such convertible or exchangeable securities.

(b)Subject to Section 10.01(a), upon conversion, a Holder will receive, for each $1,000 principal amount of Securities surrendered, a number of shares of Common Stock equal to the then applicable Conversion Rate on such Conversion Date.

(c)The Company shall deliver such shares of Common Stock to the Holder on the third Trading Day following the Conversion Date; provided, however, that for any conversion that occurs on or after the Special Interest Record Date for the payment of interest on the Securities on the Maturity Date and until the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity Date, the Company will deliver such shares on the Maturity Date.

Section 10.02     Conversion Procedure

.  To convert a Security, a Holder must satisfy the requirements set forth in Paragraph 7 of the Securities.  The first Business Day on which the Holder satisfies all those requirements and delivers an irrevocable conversion notice together with such Holder’s Securities for conversion is the conversion date (the “Conversion Date”).

The Person in whose name the certificate is registered shall be treated as a shareholder of record as of the Close of Business on the Conversion Date.  Upon conversion of a Security in its entirety, such Person shall no longer be a Holder of such Security.

No payment or adjustment will be made for dividends on, or other distributions with respect to, any shares of Common Stock except as provided in this Article 10.

Except as otherwise provided herein, upon conversion of a Security, that portion of accrued and unpaid interest (including Additional Interest), if any, through the Conversion Date with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather, subject to Section 12.01(b), shall be deemed to be paid in full to the Holder thereof through delivery shares of Common Stock (together with the cash payment, if any, in lieu of fractional shares) for the Security being converted pursuant to the provisions hereof.  The Company will not adjust the Conversion Rate to account for accrued interest, if any.

To the extent Securities are surrendered for conversion by a Holder after the Close of Business on any Special Interest Record Date but prior to the next Special Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Special Interest Payment Date shall be paid on such Special Interest Payment Date to the Holder of record of such Securities at the Close of Business on such  Special Interest Record Date, subject to Section 12.01(c).

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If the last day on which a Security may be converted is a Legal Holiday, the Security may be surrendered on the next succeeding day that is not a Legal Holiday.

If the Holder converts more than one Security at the same time, the number of shares of Common Stock issuable upon the conversion and the amount of any cash paid in lieu of fractional shares shall be based on the total principal amount of the Securities converted.  Upon surrender of a Security that is converted in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Security in an authorized denomination equal in principal amount to the unconverted portion of the Security surrendered, or in the case of a Global Security, the Company shall instruct the Registrar to decrease such Global Security by the principal amount of the converted portion of the Security surrendered.

Section 10.03     Fractional Shares

.  The Company will not issue fractional shares of Common Stock upon conversion of a Security.  Instead, the Company will pay cash in lieu of fractional shares by multiplying the Closing Sale Price of a full share of Common Stock on the Conversion Date (or if the Conversion Date is not a Trading Day, the next following Trading Day) by the fractional amount and rounding the product to the nearest whole cent.  Whether fractional shares are issuable upon a conversion will be determined on the basis of the total number of Securities that the Holder is then converting into Common Stock and the aggregate number of fractional shares, if any, of Common Stock issuable upon such conversion.

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

Section 10.04     Taxes on Conversion

.  If a Holder submits a Security for conversion, the Company shall pay all stamp 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, if any, of Common Stock upon the conversion.  However, the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder’s name.  The Conversion Agent may refuse to deliver the certificates representing the shares, if any, of Common Stock being issued in a name other than the Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax withholding required by law or regulations.

Section 10.05     Company to Provide Stock

.  The Company shall, prior to issuance of any Securities 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 Securities.

Any shares of Common Stock delivered upon conversion of the Securities 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.  The Company will endeavor promptly to comply with all federal and state securities laws regulating the offer and delivery of Common Stock, if any, upon conversion of Securities, if any, and will list or cause to have quoted such shares of Common Stock on each national securities

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exchange or in the over-the-counter market or such other market on which the shares of Common Stock are then listed or quoted.

Section 10.06     Adjustment for Change in Capital Stock

.  If, after the Issue Date of the Securities, the Company:

(a)    pays a dividend or makes a distribution payable exclusively in shares of Common Stock on all or substantially all shares of the Company’s Common Stock;

(b)    subdivides the outstanding shares of Common Stock into a greater number of shares; or

(c)    combines the outstanding shares of Common Stock into a smaller number of shares;

then the Conversion Rate will be adjusted based on the following formula:

where,

CR’ = the Conversion Rate in effect immediately after the Close of Business on the Common Stock Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination, as the case may be;

CR = the Conversion Rate in effect immediately prior to the Close of Business on the Common Stock Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination, as the case may be;

OS’ = the number of shares of Common Stock outstanding immediately after such dividend or distribution, or immediately after the effective date of such subdivision or combination, as the case may be; and

OS = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Common Stock Record Date for such dividend or distribution, or outstanding immediately prior to the Open of Business on the effective date of such subdivision or combination, as the case may be.

Any adjustment made under this Section 10.06 shall become effective immediately after the Close of Business on the Common Stock Record Date for such dividend or distribution, or the Open of Business on the effective date for such subdivision or combination, as applicable.  If any dividend or distribution of the type described in this Section 10.06 is declared but not so paid or made, or the outstanding shares of Common Stock are not so subdivided or combined, as the case may be, the applicable Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend, distribution, share subdivision or share combination had not been declared.

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Section 10.07Adjustment for Rights Issue

.  If, after the Issue Date of the Securities, the Company distributes any rights, options or warrants to all or substantially all holders of the Company’s Common Stock entitling them to purchase (for a period expiring within 45 days after the date of issuance) shares of Common Stock at a price per share less (or securities convertible into Common Stock having a conversion price per share that is less) than the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Rate shall be adjusted in accordance with the formula:

where:

CR’ = the Conversion Rate in effect immediately after the Close of Business on the Common Stock Record Date for such distribution;

CR = the Conversion Rate in effect immediately prior to the Close of Business on the Common Stock Record Date for such distribution;

O = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Common Stock Record Date for such distribution;

N = the number of additional shares of Common Stock issuable pursuant to such rights, options or warrants;

P = the per-share offering price payable to exercise such rights, options or warrants for the additional shares plus the per share consideration (if any) the Company receives for such rights, options or warrants; and

M = the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date with respect to the distribution.

Any increase made under this Section 10.07 will be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the Close of Business on the Common Stock Record Date for such distribution.  To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.  If such rights, options or warrants are not so distributed, the applicable Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not occurred.

For purposes of this Section 10.07, in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase Common Stock at less than the average of the Closing Sale Prices of Common Stock for each Trading Day in the applicable 10 consecutive

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Trading Day period, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors.

Section 10.08     Adjustment for Other Distributions

.  If, after the Issue Date of the Securities, the Company distributes to all or substantially all holders of its Common Stock any of its debt, securities, assets or any rights, warrants or options to purchase securities of the Company (including securities or cash, but excluding (a) dividends or distributions (including subdivisions) referred to in Section 10.06 and distributions of rights, warrants or options referred to in Section 10.07, (b) dividends or other distributions paid exclusively in cash (to which Section 10.09 shall apply) and (c) any Spin-off to which the provisions set forth below in this Section 10.08 shall apply) (“Distributed Property”), the Conversion Rate shall be adjusted, subject to the provisions of the last paragraph of this Section 10.08, in accordance with the formula:

where:

CR’ = the Conversion Rate in effect immediately after the Close of Business on the Common Stock Record Date for such distribution;

CR = the Conversion Rate in effect immediately prior to the Close of Business on the Common Stock Record Date for such distribution;

M = the average of the Closing Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

F = the fair market value, as determined by the Board of Directors, of the assets, securities, rights, warrants or options to be distributed in respect of each share of Common Stock immediately prior to the Close of Business on the Common Stock Record Date for such distribution.

Such adjustment shall become effective immediately after the Close of Business on the Common Stock Record Date for such distribution.  Notwithstanding the foregoing, if “F” as set forth above is equal to or greater than “M” as set forth above, in lieu of the foregoing adjustment, adequate provisions shall be made so that each Holder shall have the right to receive on conversion in respect of each $1,000 principal amount of the Securities held by such Holder, in addition to the number of shares of Common Stock equal to the Conversion Rate, the amount and kind of Distributed Property such Holder would have received had such Holder owned a number of shares of Common Stock equal to the Conversion Rate immediately prior to the record date for such distribution.  If such distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.  If the Board of Directors thereof determines “F” for purposes of this Section 10.08 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing

52

the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Ex-Dividend Date for such distribution.

With respect to an adjustment pursuant to this Section 10.08 where there has been a payment of a dividend or other distribution on the Common Stock in shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, where such capital stock or similar equity interest is listed or quoted (or will be listed or quoted upon consummation of the Spin-off) on a U.S. national securities exchange or reasonably comparable non-U.S. equivalent, which is referred to herein as a “Spin-off,” the Conversion Rate will be increased based on the following formula:

where:

CR’ = the Conversion Rate in effect immediately after the Close of Business on the Common Stock Record Date for the Spin-off;

CR = the Conversion Rate in effect immediately prior to the Close of Business on the Common Stock Record Date for the Spin-off;

F = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date for the Spin-off (such period, the “Valuation Period”); and

MP = the average of the Closing Sale Prices of the Common Stock over the Valuation Period.

The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.08 will be determined immediately after the Open of Business on the day after the last day of the Valuation Period, but will be given effect as of the Close of Business on the Common Stock Record Date for the Spin-off.  For purposes of determining the Conversion Rate in respect of any conversion during the 10 Trading Days commencing on the effective date for any Spin-off, references within the portion of this Section 10.08 related to “Spin-offs” to 10 consecutive Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date for such Spin-off to, but excluding, the relevant Conversion Date.  If a Holder converts a Security and the Conversion Date occurs during the period from, but excluding, the Common Stock Record Date of a Spin-off to, and excluding, the first Trading Day of the Valuation Period for such Spin-off, (i) the reference in the above definition of “F” to “over the first 10 consecutive Trading Day period immediately following, and including, the effective date for the Spin-off” shall be deemed replaced with a reference to “on the effective date for the Spin-off (or if such effective date is not a Trading Day, on the first Trading Day thereafter)”, (ii) the Company will deliver the consideration due to such Holder upon conversion of such Security on the third Business Day after the first Trading Day of the Valuation Period for such Spin-off, and (iii) the Person in whose name any shares of Common Stock shall be issuable upon such conversion will be deemed to become the holder of record of

53

such shares as of the Close of Business on the first Trading Day of the Valuation Period for such Spin-off.

For purposes of this Section 10.08, in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than the average of the Closing Sale Prices of the Common Stock for each Trading Day in the applicable 10 consecutive Trading Day period, 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.

If, prior to a Conversion Date, a Common Stock Record Date for a Spin-off has been set but the relevant dividend or distribution has not yet resulted in an adjustment to the Conversion Rate and a converting Holder is not entitled to participate in the dividend or distribution with respect to the shares of Common Stock such Holder receives upon conversion (whether because such Holder was not a holder of such shares of Common Stock on the effective date for such dividend or distribution or otherwise), then as promptly as practicable following the Conversion Date, the Company will deliver to such Holder a number of additional shares of Common Stock that reflects the increase to the Conversion Rate that resulted from the Spin-off.

For purposes of this Section 10.08, rights, options or warrants distributed by the Company to all holders of its Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including shares of Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”):

(a)    are deemed to be transferred with such shares of Common Stock;

(b)    are not exercisable; and

(c)    are also issued in respect of future issuances of the Common Stock,

shall be deemed not to have been distributed for purposes of this Section 10.08 (and no adjustment to the Conversion Rate under this Section 10.08 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 10.08.  If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).  In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for

54

purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.08 was made:

(i)in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase; and

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

Section 10.09     Adjustment for Cash Distributions

.  If, after the Issue Date of the Securities, the Company distributes to all or substantially all holders of its Common Stock any cash, the Conversion Rate shall be adjusted in accordance with the formula:

CR’ = the Conversion Rate in effect immediately after the Close of Business on the Common Stock Record Date for such distribution;

CR = the Conversion Rate in effect immediately prior to the Close of Business on the Common Stock Record Date for such distribution;

SP = the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution (or, if the Company declares such dividend or distribution less than 11 Trading Days prior to the Ex-Dividend Date for such dividend or distribution, the reference to 10 Trading Days shall be replaced with a smaller number of consecutive Trading Days that shall have occurred after, and not including, such declaration date and prior to, but not including the Ex-Dividend Date for such distribution); and

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

Any increase to the applicable Conversion Rate made under this Section 10.09 shall become effective immediately after the Close of Business on the Common Stock Record Date for such dividend or distribution.  If such dividend or distribution is not so paid, the applicable Conversion Rate shall be decreased, effective as of the date the Board of Directors thereof determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

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Notwithstanding the foregoing, if “C” as set forth above is equal to or greater than “SP” as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive on the date on which the relevant cash dividend or distribution is distributed to Holders of Common Stock, for each $1,000 principal amount of Securities, the amount of cash such Holder would have received had such Holder owned a number of shares equal to the Conversion Rate on the record date for such distribution.  If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

Section 10.10     Adjustment for Company Tender Offer

.  If, after the Issue Date of the Securities, the Company or any Subsidiary of the Company makes a payment to holders of the shares of Common Stock in respect of a tender or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Closing Sale Prices over the 10 consecutive Trading Day period commencing on, and including the Trading Day following 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:

CR’ = the Conversion Rate in effect immediately after the Open of Business on the Trading Day following the Expiration Date;

CR = the Conversion Rate in effect immediately prior to the Open of Business on the Trading Day following the Expiration Date;

F = the fair market value, as determined by the Board of Directors, of the aggregate consideration payable in such tender or exchange offer (up to any maximum amount specified in the terms of the tender or exchange offer) for all shares of Common Stock the Company or any Subsidiary of the Company purchases in such tender or exchange offer, such fair market value to be measured as of the expiration time of the tender or exchange offer (the “Expiration Time”);

OS = the number of shares of Common Stock outstanding immediately prior to the Expiration Time (prior to giving effect to such tender offer or exchange offer);

OS’ = the number of shares of Common Stock outstanding immediately after the Expiration Time (after giving effect to such tender offer or exchange offer); and

SP = the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day following the Expiration Date.

The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.10 will be made immediately after the Open of Business on the 11^th Trading Day

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following the Expiration Date but will be given effect at the Open of Business on the Trading Day following the Expiration Date.  For purposes of determining the Conversion Rate, in respect of any conversion during the 10 Trading Days commencing on the Trading Day following the Expiration Date, references within this Section 10.10 to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day following the Expiration Time to, but excluding, the relevant Conversion Date.

In the event that the Company or one of its Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender offer or exchange offer had not been made.

Section 10.11     When No Adjustment Required

.  No adjustment need be made as a result of:

(a)     the issuance of the rights pursuant to the Company’s adoption of a stockholders rights plan that provides that each share of Common Stock issued upon conversion of the Securities at any time prior to the distribution of separate certificates representing rights will be entitled to receive the right (a “Stockholder Rights Plan”);

(b)     the distribution of separate certificates representing the rights under a Stockholder Rights Plan;

(c)     the exercise or redemption of the rights in accordance with any rights agreement under a Stockholder Rights Plan;

(d)     the termination or invalidation of the rights under a Stockholder Rights Plan;

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

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

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

(h)     ordinary course of business stock repurchases that are not tender offers or exchange offers referred to in Section 10.10, including structured or derivative transactions pursuant to a stock repurchase program approved by the Board of Directors;

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

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(j)     any accrued and unpaid interest (including Additional Interest).

If any event described in Section 10.11(a) through (d) occurs, Holders will receive the rights upon conversion, unless, prior to any conversion, the rights have separated from the Common Stock.  If the rights have separated, the Conversion Rate will be adjusted at the time of separation as provided by this Indenture (subject to readjustment in the event of the expiration termination or redemption of such rights).

Notwithstanding the foregoing, no adjustment need be made to the Conversion Rate pursuant to Section 10.06, 10.07, 10.08, 10.09 or 10.10 (other than for a share split, subdivision or combination pursuant to Section 10.06) if Holders participate (as a result of holding Securities, and at the same time as Common Stock holders participate), subject to notice of such participation to Holders, in the transaction that would otherwise trigger the applicable adjustment, as if such Holders held a number of shares of Common Stock equal to the then applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holders, without having to convert.  

No adjustment need be made for a change in the par value or no par value of the shares of Common Stock.

Section 10.12     Notice of Adjustment

.  Whenever the Conversion Rate is adjusted, the Company shall promptly or within three Business Days mail to Holders a notice of the adjustment.  The Company shall file with the Trustee and the Conversion Agent such notice briefly stating the facts requiring the adjustment and the manner of computing it.  The notice of adjustment shall be conclusive evidence that the adjustment is correct.  Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such notice of adjustment except to exhibit the same to any Holder desiring inspection thereof.

Section 10.13     Voluntary Increase

.  From time to time, the Company may (but is not required to) increase the Conversion Rate, as permitted by law and the rules of the NASDAQ and any other securities exchange on which any of the Company’s securities are then listed, and if the Board of Directors determines that such increase would be in the Company’s best interest, by any amount at any time for at least 20 Business Days, so long as the increase is irrevocable during such period.  In addition, the Company may also (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with any dividend or distribution of shares (or rights to acquire shares) or similar event.  Whenever the Conversion Rate is increased, the Company shall mail to Holders and file with the Trustee and the Conversion Agent a notice of the increase.  The Company shall mail the notice at least 15 days before the date the increased Conversion Rate takes effect.  The notice shall state the increased Conversion Rate and the period it will be in effect.  A voluntary increase of the Conversion Rate does not change or adjust the Conversion Rate otherwise in effect for purposes of Section 10.06, 10.07, 10.08, 10.09 or 10.10.

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Section 10.14Notice of Certain Transactions

.  If:

(a)     the Company takes any action that would require an adjustment in the Conversion Rate pursuant to Section 10.06, 10.07, 10.08, 10.09 or 10.10 (unless no adjustment is to occur pursuant to Section 10.11); or

(b)     the Company takes any action that would require a supplemental indenture pursuant to Section 10.15; or

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

then the Company shall mail to Holders and file with the Trustee and the Conversion Agent a notice stating the proposed record date for a dividend, distribution, subdivision or other event that would require adjustment(s) pursuant to the provisions described under clause (a) above or the proposed effective date of a combination, reclassification, consolidation, merger, binding share exchange, transfer, liquidation or dissolution.  The Company shall file and mail the notice at least 15 Scheduled Trading Days before such date.  Failure to file or mail the notice or any defect in it shall not affect the validity of the transaction.

Section 10.15     Effect of Reclassification, Consolidation, Merger or Sale

.  Upon the occurrence of (i) any reclassification of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a split, subdivision or combination covered by Section 10.06), (ii) any transaction involving the Company subject to Section 5.01 (other than a sale of all or substantially all of the assets of the Company in a transaction in which the holders of Common Stock immediately prior to such transaction do not receive securities, cash or other assets of the Company or any other Person), (iii) a merger, consolidation or binding share exchange which reclassifies or changes the outstanding shares of Common Stock, or (iv) any sale or conveyance of all or substantially all of the property and assets of the Company to any other Person, in each case as a result of which the holders of Common Stock shall be entitled to receive cash, securities or other property or assets with respect to or in exchange for such Common Stock (any such event, a “Merger Event”), then:

(a)     the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) and which shall provide that Holders shall be entitled thereafter to convert their Securities into the type and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such Merger Event; provided that, at and after the effective time of any such transaction, any amount otherwise payable in cash for fractional shares of Common Stock upon conversion of the Securities will continue to be payable as described in Section 10.03.

(b)     In the event the Company shall execute a supplemental indenture pursuant to this Section 10.15, the Company shall promptly file with the Trustee an Officers’ Certificate briefly

59

describing the Merger Event and stating the type or amount of cash, securities, property or other assets that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent to such Merger Event under this Indenture have been complied with.  Promptly, following the effective time of any such Merger Event, the Company shall notify all Holders of the Securities and make available on its website information describing the type or amount of cash, securities, property or other assets that will comprise the Reference Property after any such Merger Event.  Any failure to deliver such Officers’ Certificate or make such information available on the Company’s website shall not affect the legality or validity of such supplemental indenture.

(c)     With respect to each $1,000 principal amount of Securities surrendered for conversion after the effective date of any such Merger Event, the Company shall deliver to the converting Holder, in lieu of shares of Common Stock otherwise provided for hereunder, a number of units of Reference Property (each such unit comprising the kind and amount of shares of stock, securities or other property or assets (including cash or any combination thereof) that a holder of one share of Common Stock immediately prior to such Merger Event would have owned or been entitled to receive based on the Weighted Average Consideration) equal to the then-applicable Conversion Rate;

(A)The Company will deliver the cash in lieu of fractional units of Reference Property as set forth pursuant to Section 10.03 (provided that the amount of such cash shall be determined as if references in such Section to “the Closing Sale Price of a full share of Common Stock” were instead a reference to “the fair market value of a unit of Reference Property” composed of the type and amount of shares of stock, securities or other property or assets (including cash or any combination thereof) that a holder of one share of Common Stock immediately prior to such Merger Event would have owned or been entitled to receive based on the Weighted Average Consideration).

(B)For purposes of this Section 10.15, the “Weighted Average Consideration” means the weighted average of the types and amounts of consideration received by the holder of the Common Stock entitled to receive cash, securities or other property or assets with respect to or in exchange for such Common Stock in any Merger Event who affirmatively make such an election.

(C)The Company shall notify the Holders and the Trustee of the Weighted Average Consideration as soon as practicable after the Weighted Average Consideration is determined.

(d)     The above provisions of this Section shall similarly apply to successive Merger Events.  In the event that Securities become convertible into Reference Property pursuant to this Section 10.15, the Company shall notify the Trustee and issue a press release containing the relevant information and make such press release available on the Company’s website.

(e)     None of the foregoing provisions shall affect the right of a Holder to convert its Securities into Common Stock (and cash in lieu of any fractional share) as set forth in Section 10.01 and Section 10.02 prior to the effective date of such Merger Event.

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Section 10.16Company Determination Final

.  Any determination and/or calculation that the Company or the Board of Directors must make pursuant to Sections 10.03, 10.06, 10.07, 10.08, 10.09, 10.10, 10.11 or 10.15 shall be made in good faith and, absent manifest error, shall be final and binding on the Holders of the Securities.

Section 10.17     Trustee’s Adjustment Disclaimer

.  The Trustee has no duty to determine when an adjustment under this Article 10 should be made, how it should be made or what it should be.  The Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities.  The Trustee shall not be responsible for the Company’s failure to comply with this Article 10.  Each Conversion Agent shall have the same protection under this Section 10.17 as the Trustee.

Section 10.18     Simultaneous Adjustments

. 

(a)     For purposes of Section 10.06, Section 10.07 and Section 10.08, any dividend or distribution to which Section 10.08 is applicable that also includes one or both of:

(i)      a dividend or distribution of Common Stock to which Section 10.06 is applicable (the “10.06 Distribution”); or

(ii)     a dividend or distribution of rights, options or warrants to which Section 10.07 is applicable (the “10.07 Distribution”),

then (1) such dividend or distribution, other than the 10.06 Distribution and 10.07 Distribution, shall be deemed to be a dividend or distribution to which Section 10.08 is applicable (the “10.08 Distribution”) and any Conversion Rate adjustment required by Section 10.08 with respect to such 10.08 Distribution shall be made and (2) the 10.06 Distribution and 10.07 Distribution shall be deemed to immediately follow the 10.08 Distribution and any Conversion Rate adjustment required by Section 10.06 and Section 10.07 with respect thereto shall then be made, except that, if determined by the Board of Directors, the Common Stock Record Date of the 10.06 Distribution and the 10.07 Distribution shall be deemed to be the Common Stock Record Date of the 10.08 Distribution and any Common Stock included in the 10.06 Distribution or 10.07 Distribution shall be deemed not to be “outstanding immediately prior to the Close of Business on the Common Stock Record Date for such dividend or distribution”, “outstanding immediately prior the Open of Business on the effective date of such subdivision or combination,” as the case may be within the meaning of Section 10.06 or “outstanding immediately prior to the Close of Business on the Common Stock Record Date for such distribution” within the meaning of Section 10.07; or

(b)     Subject to Section 10.18(a), in the event that this Article 10 requires adjustments to the Conversion Rate under more than one of Sections 10.06, 10.07, 10.08, 10.09 or 10.10, and the Ex-Dividend Dates (or, in the case of a Spin-off, the effective date of such a Spin-off) for the distributions giving rise to such adjustments shall occur on the same date, then such adjustments shall be made by the Board of Directors in good faith manner.

Section 10.19     Successive Adjustments

.  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.

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Section 10.20Limitation on Adjustments

.  The Company shall not take any action that would result in an adjustment pursuant to the foregoing provisions in this Article 10 if that adjustment would reduce the Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Securities.  In no event will the Conversion Rate be decreased other than as a result of a transaction described in Section 10.06(c).

Section 10.21     Adjustment to Conversion Rate Upon Certain Transactions

.  If, after the Issue Date, a Fundamental Change pursuant to Paragraphs (i), (ii) or (iv) of the definition of Fundamental Change set forth in Section 3.04, which, after giving effect to any exceptions or exclusions from such definition set forth in Section 3.04(a) but with respect to any event described in Paragraph (ii) of the definition of Fundamental Change, shall be determined without regard to the exception provided by Section 3.04(a)(ii)(A) (any such event, a “Make Whole Adjustment Event”) occurs, and if a Holder elects to convert its Securities in connection with such Make Whole Adjustment Event (any conversion during the period beginning with, and including, the Make Whole Adjustment Event Effective Date to, and including, the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date or, if there is no Fundamental Change Repurchase Date, the 35^th Scheduled Trading Day immediately following the Make Whole Adjustment Event Effective Date, as the same may be, will be deemed to be “in connection with” such Make Whole Adjustment Event), the Company will increase the applicable Conversion Rate for the Securities surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described in this Section 10.21.

The Company shall send Holders and the Trustee, not later than the Make Whole Adjustment Event Effective Date (as defined below) of such Make Whole Adjustment Event, a notice describing the Make Whole Adjustment Event and the Holders’ rights to Additional Shares.  The Company shall provide notice to Holders and the Trustee, and make such information available on its website as soon as practicable after it first determines the anticipated Make Whole Adjustment Event Effective Date.

The number of Additional Shares will be determined by reference to the table below and is based on the date on which such Make Whole Adjustment Event transaction occurs or becomes effective (the “Make Whole Adjustment Event Effective Date”) and the price paid per share of Common Stock in such Make Whole Adjustment Event (the “Share Price”).  If the holders of Common Stock receive only cash in the Make Whole Adjustment Event described herein, the Share Price shall be the cash amount paid per share of Common Stock.  Otherwise, the Share Price shall be the average of the Closing Sale Prices of the Common Stock on the ten consecutive Trading Days up to but excluding the Make Whole Adjustment Event Effective Date, which average shall be appropriately adjusted by the Board of Directors, in its good faith determination, to account for any adjustment, pursuant hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant hereto, an adjustment to the Conversion Rate where the Common Stock Record Date for such an event occurs at any time during such ten consecutive Trading Days.

The table below sets forth the Share Price paid per share for Common Stock in the Make Whole Adjustment Event and the number of Additional Shares per $1,000 principal amount of the Securities by which the Conversion Rate will be increased.  The Share Prices set forth in the

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Share Price column of the table will be adjusted as of any date on which the Conversion Rate is adjusted.  The adjusted Share Prices will equal the Share Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate immediately prior to the adjustment giving rise to the Share Price adjustment and the denominator of which is the applicable Conversion Rate as so adjusted. Each of the Additional Shares amount set forth in the table below shall be adjusted in the same manner, for the same events and at the same time as the Conversion Rate is required to be adjusted.

Share Price
Effective Date	$[●]	$[●]	$[●]	$[●]	$[●]	$[●]	$[●]	$[●]	$[●]	$[●]
December [_], 2015	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]
December 1, 2016	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]
December 1, 2017	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]
December 1, 2018	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]
December 1, 2019	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]
December 1, 2020	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]	[●]

If the exact Share Prices and Make Whole Adjustment Event Effective Dates are not set forth in the table, then: (i) if the Share Price is between two Share Price amounts in the table or the Make Whole Adjustment Event Effective Date is between two dates in the table, the Additional Shares issued upon conversion of the Securities will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Share Price amounts and the two Make Whole Adjustment Event Effective Dates in the table, based on a 365-day year; (ii) if the Share Price exceeds $[●] per share, subject to adjustment as set forth herein, no Additional Shares will be issued upon conversion of the Securities; and (iii) if the Share Price is less than $[●] per share, subject to adjustment as set forth herein, no Additional Shares will be issued upon conversion of the Securities.

Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed [●] shares for each $1,000 principal amount of Securities, subject to adjustments in the same manner as the Conversion Rate pursuant to this Article 10.

The Company will settle conversions of Securities converted in connection with a Make Whole Adjustment Event as provided in Section 10.01; provided, however that in connection with a Make Whole Adjustment Event in which holders of Common Stock receive only cash consideration for their shares of Common Stock (in a single per-share amount, other than with respect to appraisal and similar rights), the Company shall settle conversions by delivering, on the tenth Business Day after the Conversion Date, for each $1,000 principal amount of Securities, an amount of cash equal to (i) the applicable Conversion Rate on the Conversion Date, increased by Additional Shares, if any, calculated as set forth in this Section 10.21, multiplied by (ii) the per-share amount of cash consideration paid in such Make Whole Adjustment Event.

For the avoidance of doubt, nothing in this Section 10.21 shall prevent an adjustment to the Conversion Rate pursuant to this Article 10.

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Section 10.22Exchange-Related Limitations

.  Notwithstanding anything to the contrary in the Securities or in this Indenture, in connection with limitations imposed by the continued listing standards of the NASDAQ, in the event of an increase in the Conversion Rate that would result in the Securities, in the aggregate, becoming convertible into shares of Common Stock in excess of the share issuance limitations of the listing rules, the Company, at its election (but without delaying delivery of consideration upon any conversion), shall either (i) obtain shareholder approval of such issuances, in accordance with the shareholder approval rules contained in such listing standards, or (ii) pay cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversion in excess of such limitations based on the Closing Sale Price of the Common Stock on the Conversion Date (or, if the Conversion Date is not a Trading Day, the next following Trading Day) in respect of which, in lieu of delivering shares of Common Stock, the Company is paying cash pursuant to this Section 10.22.  If the Company pays cash in lieu of delivering shares of Common Stock pursuant to this Section 10.22, it will notify the Trustee, the Conversion Agent and the Holders of the maximum number of shares it will deliver per $1,000 principal amount of converted Security in respect of the relevant conversion.

Section 10.23     Exchange in Lieu of Conversion

.  When a Holder surrenders Securities for conversion, the Company may, at its election, direct the Conversion Agent to surrender, on or prior to the second Business Day immediately following the Conversion Date, such Securities to a financial institution designated by the Company for exchange in lieu of conversion.  In order to accept any Securities surrendered for conversion, the designated financial institution must agree to timely deliver, in exchange for such Securities, the shares of Common Stock and cash in lieu of fractional shares that the Company would be obligated to deliver upon the conversion of such Securities (the “Conversion Consideration”) at the time the Company would otherwise be required to deliver such consideration.  The Conversion Consideration must comply with Section 10.05. Election by the Company under this Section 10.23 does not relieve the Company of its obligation to deliver the Conversion Consideration upon conversion unless and until the financial institution delivers such Conversion Consideration to the converting Holder or its designee. By the Close of Business on the second Business Day immediately following the Conversion Date, the Company will notify the Holder surrendering Security for conversion, the Trustee and the Conversion Agent that it has made an exchange election, and the Company will notify the designated financial institution of the relevant deadline for delivery of the Conversion Consideration.  A copy of such notice shall include wire instructions and delivery instructions and shall be delivered to the Conversion Agent and to the designated institution.

(a)     Notwithstanding the foregoing, the Company may not make an exchange election unless the Company concludes, based on a advice of counsel, that any Securities exchanged by the designated institution, and any Common Stock issuable upon conversion thereof, shall: (1) if such exchange takes place prior to the date that is one year after the Issue Date, be eligible for resale under Rule 144 at the same time as the Securities exchanged by the designated institution or any Common Stock issuable upon conversion thereof would have been eligible for resale had such conversion and exchange not occurred, and (2) if such exchange takes place after the date that is one year after the Issue Date, be Freely Tradable, without restrictions, by Holders other than the Company’s Affiliates.  If the Company reaches such a conclusion, the Company agrees not to impose any additional restrictions on such Securities or Common Stock.

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(b)     Securities exchanged by the designated institution will remain outstanding.  If the designated institution agrees to accept any Securities for exchange in lieu of conversion but does not timely deliver the related Conversion Consideration, or if such designated institution does not accept the Securities for exchange, the Company will deliver the relevant consideration to the Holder on the applicable settlement date therefor as if the Company had not made an exchange in lieu of conversion election.

(c)     The Company’s designation of a financial institution to which the Securities may be submitted for exchange does not require the financial institution to accept any Securities.  The Company will not pay any consideration to, and the Company may, but will not be obligated to, otherwise enter into any agreement with, the designated institution for or with respect to such designation.

Article 11
REDEMPTION

Section 11.01     Right to Redeem; Notices to Trustee.

(a)The Securities are not redeemable by the Company prior to June 30, 2017.  On or after June 30, 2017, the Securities may be redeemed for Cash in whole or in part at the option of the Company subject to the conditions set forth in Section 11.01(b).

(b)On or after June 30, 2017, the Securities will be redeemable by the Company in the event the Closing Sale Price of the Common Stock exceeds 200% of the Conversion Price for 45 consecutive Trading Days ending within three Trading Days of the date the Redemption Notice (as defined below) is delivered pursuant to Section 11.03 at a price (the “Redemption Price”) equal to the sum of 100% of the principal amount of the Securities to be redeemed, plus accrued and unpaid Special Interest, if any, to, but excluding, the Redemption Date; provided, however, that if the Redemption Date is after a Special Interest Record Date and prior to the Special Interest Payment Date to which it relates, then the accrued and unpaid Special Interest, if any, to, but excluding, the Redemption Date, shall be paid on such Special Interest Payment Date to the holders of record of such Securities on the applicable Special Interest Record Date instead of the holders surrendering such Securities for redemption on the Redemption Date.

(c)The Company may not redeem any Securities unless all accrued and unpaid Special Interest thereon has been or is simultaneously paid for all semi-annual period or portions thereof terminating prior to the Redemption Date.  In addition, the Company shall not redeem any Securities or deliver to any Holder a notice of redemption pursuant to Section 11.03 at any time when there exists any accrued and unpaid Defaulted Interest or any other Default or Event of Default.

Section 11.02     Selection of Securities to be Redeemed

.  If less than all the Securities are to be redeemed, the Trustee shall select the Securities to be redeemed pro rata or by lot or by any other method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of The NASDAQ Global Select Market or any other stock exchange on which the Securities are then listed, as applicable) or, with respect to Global Securities, in accordance with

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the Applicable Procedures.  The Trustee shall make the selection within seven days from its receipt of the notice from the Company delivered pursuant to Section 11.03 from outstanding Securities not previously called for redemption.

Securities and portions of them the Trustee selects shall be in principal amounts of $1,000 or integral multiples of $1,000.  Provisions of this Indenture that apply to Securities called for redemption in whole also apply to Securities called for redemption in part.  The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed.

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

Section 11.03     Notice of Redemption

.  At least 30 days but not more than 60 days before a Redemption Date, the Company shall delivery a notice of redemption to the Trustee, the Paying Agent and each Holder of Securities to be redeemed (the “Redemption Notice”); provided, however, that the Company shall not deliver any such notice to any Holder at any time when there exists any accrued and unpaid Defaulted Interest or any other Default or Event of Default.

The Redemption Notice shall specify the Securities to be redeemed and shall state:

(i)the Redemption Date;

(ii)the Redemption Price;

(iii)the Conversion Rate and any adjustments thereto;

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

(v)that Securities called for redemption may be converted at any time before the Close of Business on the Business Day immediately preceding the Redemption Date, or if the Company fails to pay the Redemption Price, until it is so paid; and

(vi)the procedures a Holder must follow to exercise rights under Section 3.01.

At the Company’s written request delivered at least 15 days prior to the date such notice is to be given to the Holders (unless a shorter time period shall be acceptable to the Trustee), the Trustee shall give the Redemption Notice to each Holder of Securities to be redeemed in the Company’s name and at the Company’s expense.

Section 11.04     Effect of Notice of Redemption

.  Once the Redemption Notice is given, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice except for Securities that are converted in accordance with

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the terms of this Indenture.  Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption Price stated in the notice.

Section 11.05     Deposit of Redemption Price

.  Prior to 10:00 p.m., New York City time, on or prior to the Redemption Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary of the Company or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of money (in immediately available funds if deposited on such Trading Day) sufficient to pay the aggregate Redemption Price of all the Securities or portions thereof which are to be redeemed as of the Redemption Date.

If the Paying Agent holds money sufficient to pay the Redemption Price with respect to the Securities to be redeemed on the Redemption Date in accordance with the terms of this Indenture, then, immediately on and after the Redemption Date, interest on such Securities shall cease to accrue, whether or not the Securities are delivered to the Paying Agent, and all other rights of the Holders of such Securities shall terminate, other than the right to receive the Redemption Price upon delivery of such Securities.

Section 11.06     Securities Redeemed in Part

.  Any Security which is to be redeemed 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 Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered that is not redeemed; provided that the Company shall not be required to (i) issue, register the transfer of or exchange any Securities during a period beginning immediately prior to the opening of business 15 days before any selection for redemption of Securities and ending at the Close of Business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities to be redeemed or (ii) register the transfer of or exchange any Securities so selected for redemption, in whole or in part, except the unredeemed portion of any Securities being redeemed in part.

Article 12
PAYMENT OF INTEREST

Section 12.01     Payment of Interest

. 

(a)The Securities shall not bear regular interest, and the principal amount of the Securities will not accrete.  Any Special Interest due on the Securities shall be payable by the Company semi-annually in arrears on June 1 and December 1 of each year (each, a “Special Interest Payment Date”) or, if any such day is not a Business Day, the immediately following Business Day, commencing June 1, 2016.  Special Interest on a Security shall be paid to the Holder of such Security at the Close of Business on May 15 or November 15 (each, a “Special Interest Record Date”), as the case may be, next preceding the related Special Interest Payment Date, and shall be computed on the basis of a 360-day year comprised of twelve 30-day months.  

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In the event of the maturity, conversion, or purchase of a Security by the Company at the option of the Holder, interest shall cease to accrue on such Security. 

(b)Upon conversion of a Security, (i) a Holder shall not receive any cash payment of Special Interest (unless such conversion occurs between a Special Interest Record Date and the Special Interest Payment Date to which it relates, in which case a Holder on the Special Interest Record Date will receive on the Special Interest Payment Date accrued and unpaid Special Interest) and the Conversion Rate shall not be adjusted to account for accrued and unpaid Special Interest and (ii) except as set forth in clause (c) below, the Company’s delivery to a holder of shares of Common Stock into which the Security is convertible shall be deemed to satisfy its obligation with respect to such Security, and any accrued but unpaid Special Interest shall be deemed to be paid in full upon conversion, rather than cancelled, extinguished or forfeited.

(c)Securities surrendered for conversion by a Holder after the Close of Business on any Special Interest Record Date but prior to the next Special Interest Payment Date, must be accompanied by payment of an amount equal to the Special Interest, if any, that the Holder is to receive on the next Special Interest Payment Date for the Securities; provided, however, that no such payment need be made (1) if the Company has specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to the next Special Interest Payment Date; (2) if the Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the next Special Interest Payment Date; (3) to the extent of overdue Special Interest, if any overdue Special Interest exists at the time of conversion with respect to such Securities; or (4) if the Securities are surrendered for conversion after the Close of Business on the Special Interest Record Date for the payment of Special Interest on the Securities at the Maturity Date.

Section 12.02     Defaulted Interest

.  Any installment of interest that is payable, but is not punctually paid or duly provided for on any Special Interest Payment Date, shall forthwith cease to be payable to the Holders in whose names the Securities were registered on the Special Interest Record Date applicable to such installment of Special Interest.  Any overdue installments of interest, and interest on any Defaulted Amounts (together, the “Defaulted Interest”) (including any interest on such Defaulted Interest), may be paid by the Company, at its election, as provided below in this Section 12.02.

(a)     The Company may elect to make payment of any Defaulted Interest (including any interest on such Defaulted Interest) to the Holders in whose names the Securities are registered at the Close of Business on a special record date for the payment of such Defaulted Interest (a “Special Record Date”), 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 and the date of the proposed payment, 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 prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this Section 12.02(a).  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than 15 calendar days and not less than ten calendar days prior to the date of the proposed payment and not less than ten calendar days after the receipt by the Trustee of the

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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 sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the registration books of the Registrar, not less than ten calendar days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been sent as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Securities are registered at the Close of Business on such Special Record Date and shall no longer be payable pursuant to Section 12.02(b).

(b)     Alternatively, the Company may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities 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 Section 12.02(b), such manner of payment shall be deemed practicable by the Trustee.

Section 12.03     Interest Rights Preserved

.  Subject to the foregoing provisions of this Article 12 and Section 2.08, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to Special Interest accrued and unpaid, if any, and to accrue, which were carried by such other Security.

Section 12.04     Overdue Principal and Interest

.  The Company shall (A) pay interest on overdue principal on any Securities (including, without limitation, the Fundamental Change Repurchase Price or the Redemption Price, if applicable) and (B) to the extent lawful, pay interest on overdue installments of interest (without regard to any applicable grace periods) (any such overdue principal and interest, “Defaulted Amounts”).  Interest shall accrue on any Defaulted Amounts at the rate of interest borne by the Securities (which, for the avoidance of doubt, is zero percent as of the date of this Indenture), plus one percent from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company.  Such interest on Defaulted Amounts shall be computed on the basis of a 360-day year comprised of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed.

Article 13
MISCELLANEOUS

Section 13.01     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 13.02     Notices

.  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, transmitted by facsimile transmission or electronic transmission to the following:

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if to the Company:

SolarCity Corporation

3055 Clearview Way

San Mateo, California 94402-3709

Attention: Seth R. Weissman, Executive Vice President, Secretary & General Counsel

Email: sweissman@solarcity.com; corporatelegal@solarcity.com

if to the Trustee:

[__________________]

[__________________]

[__________________]

[__________________]

[__________________]

Email: [__________________]

Facsimile number: [__________________]

if to Registrar, Paying Agent or Conversion Agent:

[__________________]

[__________________]

[__________________]

[__________________]

[__________________]

Email: [__________________]

Facsimile number: [__________________]

with a copy to:

[__________________]

[__________________]

[__________________]

[__________________]

[__________________]

Email: [__________________]

Facsimile number: [__________________]

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.

Any notice or communication given to a Holder shall be sent to the Holder at the Holder’s address as it appears on the registration books of the Registrar and shall be deemed

70

given on the date of such transmission.  Any notices required to be given to Holders while the Securities are Global Securities will be given only to DTC pursuant to Applicable Procedures.

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 mails a notice or communication to the Holders, it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.

Section 13.03     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 Securities.  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 13.04     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 (except for application for the authentication of Securities on the date of this Indenture pursuant to Section 2.02), 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 relating to the proposed action (to the extent of legal conclusions) have been complied with.

Section 13.05     Statements Required in Certificate or Opinion

.  Each Officers’ Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture 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.

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Section 13.06Separability Clause

.  In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 13.07     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, the Conversion Agent and the Paying Agent may make reasonable rules for their functions.

Section 13.08     Legal Holidays

.  A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State of New York.  If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest (including Additional Interest) shall accrue for the intervening period.  If a Special Interest Record Date is a Legal Holiday, the Special Interest Record Date shall not be affected.

Section 13.09     Governing Law

.  THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 13.10     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 Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.  By accepting a Security, each Holder shall waive and release all such liability.  The waiver and release shall be part of the consideration for the issue of the Securities.

Section 13.11     Successors

.  All agreements of the Company, the Trustee, the Registrar, the Paying Agent and the Conversion Agent in this Indenture and the Securities shall bind their respective successors.

Section 13.12     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 13.13     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 shall not modify or restrict any of the terms or provisions hereof.

Section 13.14     USA PATRIOT Act

.  The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act the Paying Agent, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify,

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and record information that identifies each person or legal entity that establishes a relationship or opens an account with [●].  The parties to this Indenture agree that they will provide the Paying Agent with such information as it may request in order for the Paying Agent to satisfy the requirements of the USA PATRIOT Act.

Section 13.15     Force Majeure

.  The Paying Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Paying Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

Section 13.16     Submission to Jurisdiction

.  The Company (i) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Securities, as the case may be, may be instituted in any federal court sitting in The City of New York; (ii) 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 (iii) submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding.

Section 13.17     Waiver of Jury Trial

.  THE COMPANY, THE TRUSTEE, AND EACH HOLDER BY ITS ACCEPTANCE OF SECURITIES, 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 THE INDENTURE, THE SECURITIES OR ANY TRANSACTION CONTEMPLATED THEREBY.

[Remainder of page intentionally left blank; signature page follows.]

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IN WITNESS WHEREOF, the undersigned, being duly authorized, has executed this Indenture as of the date first above written.

SOLARCITY CORPORATION

By:

Name:  Brad Buss

Title:  Chief Financial Officer

[●], as Trustee

By:

Name:  

Title:  

[●], as Paying Agent, Registrar and Conversion Agent

By:

Name:  

Title:  

[Signature Page to Indenture]

EXHIBIT A
FORM OF SECURITY

[FORM OF FACE OF SECURITY]

[For all Securities, other than Affiliate Securities, include the following legend (the “Non-Affiliate Legend”):]

NO COMPANY AFFILIATE (AS DEFINED IN THE INDENTURE HEREAFTER REFERRED TO) MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.

[For Global Securities, include the following legend (the “Global Securities Legend”):]

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

[For all Securities that are Restricted Securities, include the following legend (the “Restricted Securities Legend”):]

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN OR THEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF;

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

(C) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR

(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

A-1

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE DATE: (1) THAT IS AT LEAST ONE YEAR AFTER THE DATE OF ISSUANCE OF THE ZERO COUPON CONVERTIBLE SENIOR NOTES DUE 2020 REPRESENTED BY THIS SECURITY OR SUCH OTHER PERIOD OF TIME THAT IS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO; AND (2) ON WHICH THE COMPANY HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE.

PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

[Each Affiliate Security shall include the following legend:]

THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OF THIS SECURITY ARE HELD BY A PERSON WHO MAY BE AN AFFILIATE OF THE COMPANY AND, TO THAT EXTENT, ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER UNDER RULE 144 UNDER THE SECURITIES ACT.

A-2

No. [   ]

CUSIP: [__________][; provided that, 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 [__________].]

ISIN: [__________][; provided that, at such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this ISIN number will be deemed removed and replaced with the ISIN number [__________].]

Principal Amount $[]

[as revised by the Schedule of Increases

and Decreases in the Global Security attached hereto]

SolarCity Corporation

Zero Coupon Convertible Senior Notes due 2020

SolarCity Corporation, a Delaware corporation, promises to pay to [   ] [include “Cede & Co.” for Global Security] or registered assigns, the principal amount of $[___________] on December 1, 2020 (the “Maturity Date”).

Special Interest Payment Dates (if applicable) : June 1 and December 1.

Special Interest Record Dates: May 15 and November 15.

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

[Remainder of Page Intentionally Left Blank]

A-3

In witness whereof, the Company has caused this Security to be duly executed.

Dated:

SOLARCITY CORPORATION

By:

Name:  Brad Buss

Title:  Chief Financial Officer

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

[●], as Trustee, certifies that this is one of the Securities referred to in the within-mentioned Indenture.

By

Authorized Signatory

Dated:

A-4

[FORM OF REVERSE OF SECURITY]

Zero Coupon Convertible Senior Notes due 2020

1. Interest

This Security shall bear no interest other than Special Interest and the principal amount of the Notes will not accrete. Special Interest (except for Defaulted Interest) shall be payable semiannually in arrears on June 1 and December 1 of each year, beginning on June 1, 2016, to the holder of record of Securities at the Close of Business on the May 15 or November 15 immediately preceding such Special Interest Payment Date (or repurchase or redemption or Maturity Date, as applicable). Each payment of Special Interest on this Security shall include Special Interest accrued for the period commencing on and including the immediately preceding Special Interest Payment Date (or, if none, the applicable date(s) for the commencement of such interest as prescribed by the Indenture) through the day before the applicable Special Interest Payment Date, Fundamental Change Repurchase Date, Redemption Date or Maturity Date, as applicable. Any payment required to be made on any day that is not a Business Day shall be made on the next succeeding Business Day and no interest or other amount will be paid as a result of any such postponement. Interest shall be calculated using a 360-day year composed of twelve 30-day months. Special Interest shall cease to accrue on this Security upon its Maturity Date, conversion or repurchase by the Company, including a repurchase at the option of the Holder upon a Fundamental Change in accordance with Paragraph 6 hereof.

Special Interest on Securities converted after a Special Interest Record Date, but prior to the corresponding Special Interest Payment Date, will be paid to the Holder of the Securities on the Special Interest Record Date, but upon such conversion, the Holder must pay the Company the Special Interest which has accrued and will be paid by the Company on such Special Interest Payment Date. No such payment need be made (1) if the Company has specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to the next Special Interest Payment Date; (2) if the Company has called for redemption on a Redemption Date that is after a Special Interest Record Date and on or prior to the next Special Interest Payment Date; (3) to the extent of overdue Special Interest, if any overdue interest exists at the time of conversion with respect to such Securities; or (4) if such Securities are surrendered for conversion after the Close of Business on the Special Interest Record Date for the payment of Special Interest on the Securities at the Maturity Date.

2. Method of Payment.

The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided herein and in the Indenture. The Company will pay Special Interest (except Defaulted Interest), if any, on the principal amount of the Securities on each June 1 and December 1 to the Persons who are registered Holders of Securities at the Close of Business on the May 15 and November 15 next preceding the Special Interest Payment Date even if Securities are canceled or repurchased after such Special Interest Record Date and on or before the Special Interest Payment Date. Holders must surrender Securities to a Paying Agent to collect principal payments. The Company will pay principal, accrued and unpaid Special Interest, if any, and any payment of the Fundamental Change Repurchase Price, Redemption

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Price or premium in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company will make all payments in respect of a Global Security registered in the name of the Depositary or its nominee to the Depositary or its nominee, as the case may be, by wire transfer of immediately available funds to the account specified by such Holder. The Company will make all payments in respect of a Certificated Security (including principal and interest) in U.S. dollars at the office of the Trustee. At the Company’s option, the Company may make such payments by mailing a check to the registered address of each Holder thereof as such address shall appear on the register or, if requested by a Holder of more than $1,000,000 in aggregate principal amount of Securities, by wire transfer of immediately available funds to the account specified by such Holder. If any Special Interest Payment Date is a date other than a Business Day, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period.

3. Paying Agent, Conversion Agent and Registrar.

Initially, [●], will act as Trustee, 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 that the Company will maintain at least one Paying Agent in the United States of America, which shall 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.

4. Indenture.

The Company issued the Securities under an Indenture dated as of December [●], 2015 (the “Indenture”), between the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, 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 Securities are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. In the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture shall control.

The Securities are general senior unsecured obligations of the Company. The Indenture does not limit other indebtedness of the Company, secured or unsecured.

5. Redemption at the Option of the Company.  

The Securities are not redeemable by the Company prior to June 30, 2017.  On or after June 30, 2017, the Securities may be redeemed for cash in whole or in part at the option of the Company in the event the Closing Sale Price of the Common Stock exceeds 200% of the Conversion Price for 45 consecutive Trading Days ending within three Trading Days of the date of the Redemption Notice.  The redemption price (the “Redemption Price”) for any such redemption is equal to (i) 100% of the Principal Amount of Securities to be redeemed, plus (ii) accrued and unpaid Special Interest, if any, to, but excluding, the Redemption Date.

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6. Purchase By the Company at the Option of the Holder upon a Fundamental Change.

(a) At the option of the Holder, and subject to the terms and conditions of the Indenture, if a Fundamental Change occurs, each Holder of Securities will have the right, at its option, to require the Company to repurchase for cash all of its Securities, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, at a Fundamental Change Repurchase Price equal to 100% of the principal amount of Securities to be repurchased plus accrued and unpaid Special Interest, if any, to (but excluding) the Fundamental Change Repurchase Date. To exercise the repurchase right, the Holder must deliver, on or before the Close of Business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, written notice to the Trustee of such Holder’s exercise of its repurchase right, together with the Securities with respect to which the right is being exercised. Subject to such Holder’s satisfaction of certain requirements in the Indenture, the Company is required to repurchase the Securities on the date that is no fewer than 20 Business Days and no more than 45 Business Days after the date of the Fundamental Change Notice delivered by the Company.

(b) Holders have the right to withdraw any Fundamental Change Repurchase Notice delivered pursuant to Paragraph 6(a) above by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture at any time prior to the Close of Business on the last day prior to the Fundamental Change Repurchase Date or, if there is a Default in the payment of the Fundamental Repurchase Price, until such Default is no longer continuing. If cash sufficient to pay the Fundamental Change Repurchase Price of all Securities or portions thereof to be repurchased as of the Fundamental Change Repurchase Date is deposited with the Paying Agent on the Fundamental Change Repurchase Date, interest will cease to accrue on such Securities (or portions thereof) immediately after such Fundamental Change Repurchase Date, and the Holder thereof shall have no other rights as such other than the right to receive the Fundamental Change Repurchase Price upon surrender of such Security.

7. Conversion.

(a) Holders may surrender Securities, in integral multiples of $1,000 principal amount, for conversion into shares of Common Stock until the second Scheduled Trading Day immediately preceding the Maturity Date.

(b) The initial Conversion Rate is 30.3030² shares of Common Stock per $1,000 principal amount, subject to adjustment in certain events described in the Indenture. Upon conversion, a Holder will receive, for each $1,000 principal amount of Securities surrendered, a number of shares of Common Stock equal to the then applicable Conversion Rate in effect on the relevant Conversion Date; provided, however, that for any conversion that occurs on or after the record date for the payment of interest on the Securities at maturity, the Company will deliver such shares on the Maturity Date. Notwithstanding the foregoing, the Company will not deliver any fractional shares upon conversion; instead, Holders will receive cash in lieu of fractional shares

²  To be adjusted pursuant to Section 4.09 of the Investment Agreement, if applicable, in the executed Indenture.

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based on the Closing Sale Price of the Common Stock on the Conversion Date (or, if the Conversion Date is not a Trading Day, the next following Trading Day).

(c) To surrender a Security for conversion, a Holder must (1) complete and manually sign the irrevocable conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent; (2) surrender the Security to the Conversion Agent; (3) furnish appropriate endorsements and transfer documents; and (4) pay any transfer or similar tax, if required.

(d) A Holder may convert a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the shares of Common Stock, except as provided in the Indenture. Except as provided in Paragraph 1 hereof, on conversion of a Security, the Holder will not receive any cash payment representing accrued and unpaid Special Interest with respect to the converted Securities. Instead, upon conversion the Company will deliver to the Holder shares of Common Stock and any cash payment to account for fractional shares. Accrued and unpaid Special Interest will be deemed paid in full rather than cancelled, extinguished or forfeited. The Company will not adjust the Conversion Rate to account for accrued and unpaid interest.

8. Denominations; Transfer; Exchange.

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

9. Persons Deemed Owners.

The registered Holder of this Security may be treated as the owner of this Security 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 Securities 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.

11. 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 Securities and may

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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.

12. Calculations in Respect of Securities.

The Company will be responsible for making all calculations called for under the Securities. These calculations include, but are not limited to, determinations of the market prices of the Securities and the Common Stock, any accrued Special Interest payable on the Securities, the Conversion Rate and the Conversion Price of the Securities and any adjustments thereto.

The Company will make these calculations in good faith and, absent manifest error, the calculations will be final and binding on Holders of the Securities. The Company will provide to the Trustee a schedule of its calculations, and the Trustee and each agent is entitled to rely upon the accuracy of such calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder of the Securities upon the written request of such Holder.

Neither the Trustee nor any Agent shall have responsibility with respect to the conversion terms of the Securities, and whether any adjustments thereto are required.

13. No Recourse Against Others.

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

14. Authentication.

This Security 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 Security.

15. 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).

16. GOVERNING LAW.

THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

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17. Additional Interest.

Holders of Securities shall be entitled to payments of Additional Interest to the extent set forth in the Indenture.

18. Ranking.

The Securities shall be senior unsecured obligations of the Company and will rank equal in right of payment to the Company’s 2.75% Convertible Senior Notes due 2018, 1.625% Convertible Senior Notes due 2019 and to any future senior unsubordinated indebtedness and senior in right of payment to any indebtedness that is contractually subordinated to the Securities.

The Company will furnish to any Holder, upon written request and without charge, a copy of the Indenture. Requests may be made to:

SolarCity Corporation

3055 Clearview Way

San Mateo, California 94402-3709

Attention: Seth R. Weissman, Vice President & General Counsel

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ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security

(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 Security on the books of the Company. The agent may substitute another to act for him.

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In connection with any transfer of this Security occurring prior to the Resale Restriction Termination Date, the undersigned confirms that it is making, and it has not utilized any general solicitation or general advertising in connection with, the transfer:

[Check One]

(1) ____to SolarCity, Inc. or any Subsidiary thereof; or

(2) ____pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended (the “Securities Act”);

(3) ____    to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A;

(4) ____pursuant to an exemption from registration provided by Rule 144 under the Securities Act; or

(5) ____pursuant to any other available exemption from the registration requirements of the Securities Act.

Unless one of the items (1) through (5) is checked, the Registrar will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if item (3), (4) or (5) is checked, the Company, the transfer agent or the Registrar may require, prior to registering any such transfer of the Securities, in their sole discretion, such written certifications and, in the case of item (5), such other evidence or legal opinions required by the Indenture to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended.  

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

Dated: Signed:(Sign exactly as name appears on the other side of this Security)

Signature Guarantee:

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CONVERSION NOTICE

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

To convert only part of this Security, state the principal amount to be converted

(which must be $1,000 or an integral multiple of $1,000):

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

(Insert the other Person’s soc. sec. or tax ID no.)

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

Date:  

Your Signature:  

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

Signature Guaranteed

Participant in a Recognized Signature

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Guarantee Medallion Program

By:  

Authorized Signatory

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FORM OF REPURCHASE NOTICE

Certificate No. of Security:  ___________
Principal Amount of this Security: $ ___________

If you want to elect to have this Security purchased by the Company pursuant to Section 3.01 of the Indenture, check the box:  ¨

If you want to elect to have only part of this Security purchased by the Company pursuant to Section 3.01 of the Indenture, state the principal amount to be so purchased by the Company:

$ __________________________________

(in an integral multiple of $1,000)

Date:__________________	Signature(s):   (Sign exactly as your name(s) appear(s) on the other side of this Security)
Signature(s) guaranteed by:	(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

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[Include for Global Security]

SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY

Initial Principal amount of Global Security: $[___________].

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

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EXHIBIT B

[FORM OF FREE TRANSFERABILITY CERTIFICATE]

Officers’ Certificate

[date]

[NAME OF OFFICER], the [TITLE] of SolarCity Corporation, a Delaware corporation (the “Company”) does hereby certify, in connection with the occurrence of the Free Trade Date on [date] in respect of $[add principal amount] of the Company’s Zero Coupon Convertible Senior Notes due 2020 (CUSIP: [________]) (the “Notes”) pursuant to the terms of the Indenture, dated as of December [●], 2015 (as may be amended or supplemented from time to time, the “Indenture”), by and between the Company and [●] (the “Trustee”), that:

1.The undersigned is permitted to sign this “Officer’s Certificate” on behalf of the Company, as the term “Officers’ Certificate” is defined in the Indenture.

2.The undersigned has read, and thoroughly examined, the Indenture and the definitions therein relating thereto.

3.In the opinion of the undersigned, the undersigned has made such examination as is necessary to enable the undersigned to express an informed opinion as to whether or not all conditions precedent to the removal of the Restricted Securities Legend described herein from the Notes as provided for in the Indenture have been complied with.

4.To the best knowledge of the undersigned, all conditions precedent described herein as provided for in the Indenture and, in the case of Global Securities, the Applicable Procedures have been complied with.

5.The Resale Restriction Termination Date for the Notes is the date of this Officer’s Certificate.  The Company is satisfied that the Notes are not subject to the restrictions set forth in the Restricted Securities Legend and Section 2.15 of the Indenture.

In accordance with Section 2.16 of the Indenture, the Company hereby advises you as follows:

1.The Restricted Securities Legend set forth on the Securities shall be deemed removed from the Notes in accordance with the terms and conditions of the Securities and as provided in the Indenture, without further action on the part of the Holders.

2.The restricted CUSIP number for the Notes shall be deemed removed from the Notes and replaced with an unrestricted CUSIP number, which unrestricted CUSIP number shall be [________], in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of the Holders.

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3.The Company has been advised by the Depositary that the execution and authentication of a replacement Global Note bearing the unrestricted CUSIP and ISIN pursuant to the terms of the Indenture [is or is not] required. 

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

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EXHIBIT B

IN WITNESS WHEREOF, the undersigned signed this Officer’s Certificate as of the date written above.

SolarCity Corporation

By:

Name:

Title:

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EXHIBIT C

[FORM OF RESTRICTED STOCK LEGEND (the “Restricted Stock Legend”)]

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD, OR OTHERWISE TRANSFERRED, EXCEPT:

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF;

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

(C) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE DATE: (1) THAT IS AT LEAST ONE YEAR AFTER THE DATE OF ISSUANCE OF THE COMPANY’S ZERO COUPON CONVERTIBLE SENIOR NOTES DUE 2020 REPRESENTED BY THIS SECURITY OR SUCH OTHER PERIOD OF TIME THAT IS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO; AND (2) ON WHICH THE COMPANY HAS INSTRUCTED THE TRANSFER AGENT THAT THIS LEGEND WILL NO LONGER APPLY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE FOR THE SECURITIES.

PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (C), THE COMPANY AND THE COMPANY’S TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

[Any such Restricted Stock held by a Company Affiliate shall also include the following legend:]

THIS SECURITY IS HELD BY A PERSON WHO MANY BE AN AFFILIATE OF THE COMPANY AND, TO THAT EXTENT, IS SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER UNDER RULE 144 UNDER THE SECURITIES ACT.

EX-10.1

EXHIBIT 10.1

INVESTMENT AGREEMENT

by and among

SOLARCITY CORPORATION,

SILVER LAKE KRAFTWERK FUND, L.P.,

the Elon Musk Revocable Trust dated July 22, 2003

and

LYNDON Rive

Dated as of November 17, 2015

	TABLE OF CONTENTS	Page
	ARTICLE I   DEFINITIONS
Section 1.01	Definitions	1
Section 1.02	General Interpretive Principles	6
	ARTICLE II   SALE AND PURCHASE OF THE NOTES
Section 2.01	Sale and Purchase of the Notes	7
Section 2.02	Closing	7
	ARTICLE III    REPRESENTATIONS AND WARRANTIES
Section 3.01	Representations and Warranties of the Company	9
Section 3.02	Representations and Warranties of the Purchasers	14
	ARTICLE IV    ADDITIONAL AGREEMENTS
Section 4.01	Taking of Necessary Action	16
Section 4.02	Lock-Up; Non-Conversion	17
Section 4.03	Standstill	18
Section 4.04	Securities Laws	22
Section 4.05	Lost, Stolen, Destroyed or Mutilated Securities	22
Section 4.06	Antitrust Approval	22
Section 4.07	Financing Cooperation	23
Section 4.08	Certain Tax Matters	23
Section 4.09	Conversion Price Matters	24
Section 4.10	Registration Rights Agreement	24
Section 4.11	Facilitation of Sales Pursuant to Rule 144	25
Section 4.12	VCOC Letter	25
Section 4.13	Par Value	25
Section 4.14	Participation Rights	26
	ARTICLE V    MISCELLANEOUS
Section 5.01	Survival of Representations and Warranties	27
Section 5.02	Notices	27
Section 5.03	Entire Agreement; Third Party Beneficiaries; Amendment	28
Section 5.04	Counterparts	29
Section 5.05	Public Announcements	29
Section 5.06	Expenses	29
Section 5.07	Successors and Assigns	29
Section 5.08	Governing Law; Jurisdiction; Waiver of Jury Trial	30
Section 5.09	Severability	30
Section 5.10	Specific Performance	31
Section 5.11	Headings	31
Section 5.12	Non-Recourse	31

INVESTMENT AGREEMENT

This INVESTMENT AGREEMENT (this “Agreement”), dated as of November 17, 2015, is by and among SolarCity Corporation, a Delaware corporation (together with any successor or assign pursuant to Section 5.07, the “Company”), and Silver Lake Kraftwerk Fund, L.P., a Delaware limited partnership (“Silver Lake Kraftwerk”), the Elon Musk Revocable Trust dated July 22, 2003 and Lyndon Rive (each a “Purchaser” and together and/or with their successors and any Affiliate that becomes a Purchaser party hereto in accordance with Section 4.02 and Section 5.07, the “Purchasers”).  Capitalized terms not otherwise defined where used shall have the meanings ascribed thereto in Article I;

WHEREAS, the Purchasers desire to purchase from the Company, and the Company desires to issue and sell to the Purchasers, $113,000,000.00 aggregate principal amount of the Company’s Zero Coupon Convertible Senior Notes due 2020 in the form included in Exhibit A (referred to herein as the “Note” or the “Notes”) to be issued in accordance with the terms and conditions of the indenture in the form attached hereto as Exhibit A, as amended, supplemented or otherwise modified from time to time with the consent of the Purchasers and the Company prior to the Closing and in accordance with its terms thereafter, the “Indenture”), on the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, the Company and the Purchasers desire to set forth certain agreements herein.

NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements herein contained and intending to be legally bound hereby, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01     Definitions

.  As used in this Agreement, the following terms shall have the meanings set forth below:

“2013 Credit Agreement” shall have the meaning set forth in Section 2.02(c)(iv).

“Additional Investment Agreement” shall have the meaning set forth in Section 4.14.

“Additional Investments” shall have the meaning set forth in Section 4.14.

“Affiliate” shall mean, with respect to any Person, any other Person which directly or indirectly controls or is controlled by or is under common control with such Person.  Notwithstanding the foregoing, (i) the Company and the Company’s Subsidiaries shall not be considered Affiliates of the Purchasers or any of the Purchasers’ Affiliates and (ii) for purposes of the definitions of “Beneficially Own”, “Silver Lake Group”, “Standstill Period” and “Third Party”

and Sections 3.02(d), 3.02(f), 4.02, 4.03 and 4.06, no portfolio company of the Purchasers or its Affiliates shall be deemed an Affiliate of the Purchasers and its other Affiliates so long as such portfolio company (x) has not been directed, encouraged or supported by, or coordinated with, any Purchasers or any of its Affiliates in carrying out any act prohibited by this Agreement and (y) has not received from the Purchasers or any Affiliate of the Purchasers, directly or indirectly, any Confidential Information concerning the Company or its business.  As used in this definition, “control” (including its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

“Agreement” shall have the meaning set forth in the preamble hereto.

“Beneficially Own”, “Beneficially Owned” or “Beneficial Ownership” shall have the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act.  For the avoidance of doubt, for purposes of this Agreement, the Purchasers (or any other person) shall at all times be deemed to have Beneficial Ownership of shares of Company Common Stock issuable upon conversion of the Notes directly or indirectly held by them, irrespective of this Agreement.

“Board of Directors” shall mean the board of directors of the Company.

“Business Day” shall mean any day, other than a Saturday, 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 remain closed.

“Change in Control” shall mean the occurrence of any of the following events: (i) there occurs a sale, transfer, conveyance or other disposition of all or substantially all of the consolidated assets of the Company, (ii) any Person or “group” (as such term is used in Section 13 of the Exchange Act) (in each case excluding any member of the Silver Lake Group or any of their respective Affiliates or any of their respective portfolio companies), directly or indirectly, obtains Beneficial Ownership of 50% or more of the outstanding Company Common Stock, (iii) the Company consummates any merger, consolidation or similar transaction, unless the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s Common Stock immediately prior to the transaction) more than 50% of all of voting power of the outstanding shares of Voting Stock of the surviving or resulting entity in such transaction immediately following the consummation of such transaction or (iv) a majority of the Board of Directors is no longer composed of (x) directors who were directors of the Company on the Closing Date and (y) directors who were nominated for election or elected or appointed to the Board of Directors with the approval of a majority of the directors described in subclause (x) together with any incumbent directors previously elected or appointed to the Board of Directors in accordance with this subclause (y).

“Closing” shall have the meaning set forth in Section 2.02(a).

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“Closing Date” shall have the meaning set forth in Section 2.02(a).

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Company” shall have the meaning set forth in the preamble hereto.

“Company Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

“Confidentiality Agreement” shall mean the mutual non-disclosure agreement entered into by the Company, on the one hand, and Silver Lake Management Company IV, L.L.C. and Silver Lake Kraftwerk Management Company, L.L.C., on the other hand, effective as of October 9, 2015.

“Confidential Information” has the meaning ascribed to it in the Confidentiality Agreement.

“Conversion Price” has the meaning set forth in the Indenture.

“Conversion Rate” has the meaning set forth in the Indenture.

“Company Reports” shall have the meaning set forth in Section 3.01(g)(i).

“DGCL” shall mean the Delaware General Corporation Law.

“Enforceability Exceptions” shall have the meaning set forth in Section 3.01(c).

“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Extraordinary Transaction” shall have the meaning set forth in Section 4.03(a)(v).

“GAAP” shall mean U.S. generally accepted accounting principles.

“Governmental Entity” shall mean any court, administrative agency or commission or other governmental authority or instrumentality, whether federal, state, local or foreign, and any applicable industry self-regulatory organization.

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“Indenture” shall have the meaning set forth in the preamble hereto.

“Initial Conversion Rate” shall have the meaning set forth in Section 4.09.

“Issuer Agreement” shall have the meaning set forth in Section 4.07.

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“Joinder” shall mean, with respect to any Person permitted to sign such document in accordance with the terms hereof, a joinder executed and delivered by such Person, providing such Person to have all the rights and obligations of a Purchaser under this Agreement, in the form and substance substantially as attached hereto as Exhibit B or such other form as may be agreed to by the Company and such Purchaser.

“Lock-Up Period” shall mean the period commencing on the Closing Date and ending on the earlier of (i) the one year anniversary of the Closing Date or (ii) the consummation of any Change in Control.

“Material Adverse Effect” shall mean any events, changes or developments that, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, other than any event, change or development resulting from or arising out of the following: (a) events, changes or developments generally affecting the economy, the financial or securities markets, or political, legislative or regulatory conditions, in each case in the United States or elsewhere in the world, (b) events, changes or developments in the industries in which the Company or any of its Subsidiaries conducts its business, (c) any adoption, implementation, promulgation, repeal, modification, reinterpretation or proposal of any rule, regulation, ordinance, order, protocol or any other law of or by any national, regional, state or local Governmental Entity, or market administrator, (d) any changes in GAAP or accounting standards or interpretations thereof, (e) earthquakes, any weather-related or other force majeure event or natural disasters or outbreak or escalation of hostilities or acts of war or terrorism, (f) the announcement or the existence of, compliance with or performance under, this Agreement or the transactions contemplated hereby, (g) any taking of any action at the request of Silver Lake Kraftwerk, (h) any failure by the Company to meet any financial projections or forecasts or estimates of revenues, earnings or other financial metrics for any period (provided that the exception in this clause (h) shall not prevent or otherwise affect a determination that any event, change, effect or development underlying such failure has resulted in a Material Adverse Effect so long as it is not otherwise excluded by this definition) or (i) any changes in the share price or trading volume of the Company Common Stock or in the Company’s credit rating (provided that the exception in this clause (i) shall not prevent or otherwise affect a determination that any event, change, effect or development underlying such change has resulted in a Material Adverse Effect so long as it is not otherwise excluded by this definition); except, in each case with respect to subclauses (a) through (e), to the extent that such event, change or development disproportionately affects the Company and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which the Company and its Subsidiaries operate.

“Note” or Notes” shall have the meaning set forth in the preamble hereto.

“NASDAQ” shall mean the NASDAQ Global Select Market.

“Permitted Loan” shall have the meaning set forth in Section 4.02(a).

“Permitted Transfers” has the meaning set forth in Section 4.02(a).

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“Person” or “person” shall mean an individual, corporation, limited liability or unlimited liability company, association, partnership, trust, estate, joint venture, business trust or unincorporated organization, or a government or any agency or political subdivision thereof, or other entity of any kind or nature.

“Pro Rata Portion” shall have the meaning set forth in Section 4.14.

“Prohibited Transfers” shall have the meaning set forth in Section 4.02(a).

“Purchase Price” shall have the meaning set forth in Section 2.01.

“Purchaser” or “Purchasers” shall have the meaning set forth in the preamble hereto.

“Purchaser Affiliates” shall mean, with respect to any Purchaser, the Affiliates of such Purchaser.

“Registrable Securities” shall have the meaning set forth in Section 4.10(a).

“Registration Rights Agreement” shall have the meaning set forth in Section 4.10(a).

“Rule 144” shall mean Rule 144 promulgated by the SEC pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such rule.

“SEC” shall mean the U.S. Securities and Exchange Commission.

“Securities Act” shall mean the U.S. Securities Act of 1933, as amended.

“Silver Lake Group” means Silver Lake Kraftwerk together with its Affiliates, including SLP Affiliates.

“SLP Affiliate” means any Affiliate of Silver Lake Group, L.L.C. that serves as general partner of, or manages or advises any, investment fund Affiliated with Silver Lake Group, L.L.C. that has a direct or indirect investment in the Company.

“Specified Persons” shall have the meaning set forth in Section 5.12.

“Standstill Period” shall mean the period commencing on the Closing Date and ending on the earliest of (i) June 30, 2017, (ii) the effective date of a Change in Control and (iii) 90 days after the date on which none of the members of the Silver Lake Group and their respective Affiliates Beneficially Own any Notes or any shares of Company Common Stock issued upon conversion thereof.

“Subject Securities” shall have the meaning set forth in Section 4.10(a).

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“Subsidiary” shall mean, with respect to any Person, any other Person of which 50% or more of the shares of the voting securities or other voting interests are owned or controlled, or the ability to select or elect 50% or more of the directors or similar managers is held, directly or indirectly, by such first Person or one or more of its Subsidiaries, or by such first Person, or by such first Person and one or more of its Subsidiaries.

“Tax” or “Taxes” shall mean all federal, state, local, and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, payroll, employment, severance, withholding, duties, intangibles, franchise, backup withholding, value-added, and other taxes imposed by a Governmental Entity, together with all interest, penalties and additions to tax imposed with respect thereto.

“Tax Return” shall mean a report, return or other document (including any amendments thereto) required to be supplied to a Governmental Entity with respect to Taxes.

“Third Party” shall mean a Person other than any member of the Silver Lake Group or any of their respective Affiliates.

“Third Party Tender/Exchange Offer” shall have the meaning set forth in Section 4.02(a).

“Transaction Documents” shall have the meaning set forth in Section 3.01(c).

“Transactions” shall have the meaning set forth in Section 3.01(c).

“Trustee” shall mean Wells Fargo Bank, National Association.

“U.S. Person” shall mean (a) a “U.S. person” as defined in Section 7701(a)(30) of the Code or (b) a “disregarded entity” (within the meaning of Treasury Regulations Section 301.7701-2(a)), if the person treated as the owner of such entity for U.S. federal income tax purposes is described in clause (a).

“VCOC Letter” shall have the meaning set forth in Section 4.12.

“Voting Stock” shall mean securities of any class or kind having the power to vote generally for the election of directors, managers or other voting members of the governing body of the Company or any successor thereto.

“WKSI” means a “well known seasoned issuer” as defined under Rule 405 promulgated under the Securities Act.

Section 1.02     General Interpretive Principles

.  Whenever used in this Agreement, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders.  The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not be construed to affect the meaning, construction or effect hereof.  Whenever the words

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“include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” Unless otherwise specified, the word “or” is inclusive and the terms “hereto,” “hereof,” “herein” and similar terms refer to this Agreement as a whole (including the exhibits, schedules and disclosure statements hereto), and references herein to Articles or Sections refer to Articles or Sections of this Agreement.  For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, none of the Notes will have any right to vote or any right to receive any dividends or other distributions that are made or paid to the holders of the shares of Company Common Stock.

ARTICLE II

SALE AND PURCHASE OF THE NOTES

Section 2.01     Sale and Purchase of the Notes

. Subject to the terms and conditions of this Agreement, at the Closing, the Company shall issue and sell to the Purchasers, and each Purchaser agrees, severally and not jointly, to purchase and acquire from the Company, the principal amount of the Notes set forth opposite such Purchaser’s name on Schedule A hereto for a purchase price equal to the principal amount of the Notes purchased (the “Purchase Price”), with the aggregate principal amount of the Notes sold to the Purchasers not to exceed $113,000,000.

Section 2.02     Closing

. 

(a)Subject to the satisfaction or waiver of the conditions precedent set forth in Sections 2.02(c) and (d), the closing (the “Closing”) of the purchase and sale of the Notes hereunder shall take place at the offices of Wilson Sonsini Goodrich & Rosati, P.C. located at 650 Page Mill Road, Palo Alto, California 94304 at 10:00 a.m. New York time on December 7, 2015, or at such other place, time or date as may be mutually agreed upon in writing by the Company and the Purchasers (the date on which the Closing actually occurs, the “Closing Date”).

(b)To effect the purchase and sale of Notes, upon the terms and subject to the conditions set forth in this Agreement, at the Closing:

(i)The Company shall, and shall instruct the Trustee to, execute and deliver the Indenture at the Closing. The Company shall deliver copies of the fully executed Indenture to the Purchasers at the Closing, against payment in full by or on behalf of each of the Purchasers of the Purchase Price for the Notes.

(ii)The Company shall issue and deliver to the Purchasers the Notes, registered in the name of each of the Purchasers or, with respect to Silver Lake Kraftwerk only, through the facilities of the Depository Trust Company as elected by the Silver Lake Kraftwerk, against payment in full by or on behalf of each of the Purchasers of the Purchase Price for the Notes.

(iii)Each of the Purchasers shall cause a wire transfer to be made in same day funds to an account of the Company designated in writing by the Company to the

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Purchasers in an amount equal to the Purchase Price for the Notes to be purchased by such Purchaser. 

(iv)Each of the Purchasers shall deliver to the Company a duly completed and executed IRS Form W-9.

(c)The obligations of each of the Purchasers to purchase the Notes are subject to the satisfaction or waiver of the following conditions as of the Closing:

(i)the purchase and sale of the Notes pursuant to this Section 2.02(b) shall not be prohibited or enjoined by any court of competent jurisdiction;

(ii)the Company and the Trustee shall have executed the Indenture on the Closing Date and delivered the Indenture to the Purchasers and the Company shall have executed and delivered the Notes to the Purchasers, and the Company shall have executed and delivered the VCOC Letter contemplated by Section 4.12;

(iii)the representations and warranties of the Company set forth in Sections 3.01(a), (c) and (e) shall be true and correct in all material respects on and as of the Closing Date;

(iv)the Company shall have obtained a waiver under its credit agreement among the Company, Bank of America, N.A. and other banks and financial institutions party thereto, dated as of November 1, 2013, as amended (the “2013 Credit Agreement”) that permits the Transactions; and

(v)the Purchasers shall have received a certificate, dated the Closing Date, duly executed by an executive officer of the Company on behalf of the Company, certifying that the conditions specified in Section 2.02(c)(iii) and Section 2.02(c)(iv) have been satisfied.

(d)The obligations of the Company to sell the Notes to the Purchasers are subject to the satisfaction or waiver of the following conditions as of the Closing:

(i)the purchase and sale of the Notes pursuant to this Section 2.02(b) shall not be prohibited or enjoined by any court of competent jurisdiction; and

(ii)the Trustee shall have executed and delivered the Indenture to the Company;

(iii)the representations and warranties of the Purchasers set forth in Section 3.02 shall be true and correct in all material respects on and as of the Closing Date; and

(iv)the Company shall have received a certificate, dated the Closing Date, duly executed by the general partner or other authorized person, as applicable, of each

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of the Purchasers on behalf of such Purchaser, certifying that the condition specified in Section 2.02(d)(iii) has been satisfied. 

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.01     Representations and Warranties of the Company

.  Except as disclosed in the Company Reports filed with or furnished to the SEC and publicly available prior to the date hereof, the Company represents and warrants to the Purchasers, as of the date hereof and as of the Closing Date as follows:

(e)Existence and Power.  The Company is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as it is being conducted on the date of this Agreement, and, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business so as to require such qualification.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Subsidiary of the Company that is a “significant subsidiary” (as defined in Rule 1.02(w) of the SEC’s Regulation S-X) has been duly organized and is validly existing in good standing (to the extent that the concept of “good standing” is recognized by the applicable jurisdiction) under the laws of its jurisdiction of organization.

(f)Capitalization.  The authorized share capital of the Company consists of 1,000,000,000 shares of Company Common Stock and 100,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”), of the Company.  As of September 30, 2015, there were (i) 97,588,595 shares of Company Common Stock issued and outstanding and no shares of preferred stock of the Company issued and outstanding, (ii) equity awards to acquire an aggregate of 21,124,190 shares of Company Common Stock issued and outstanding, (iii) 4,547,622 shares of Company Common Stock reserved for issuance under the Company’s employee or director employment, compensation and/or benefit plans, programs, policies, agreements or other arrangements and (iv) contingent rights to acquire shares of Company Common Stock with an aggregate value of up to $150.0 million based upon the achievement of certain milestones, made in connection with acquisitions of businesses completed on or before September 30, 2015 and held by the former equityholders of such businesses.  Since September 30, 2015, and except for certain contingent rights to acquire shares of Company Common Stock with an aggregate value of up to $150.0 million based upon the achievement of certain milestones, made in connection with the acquisition of Silevo, Inc. and held by the former stockholders of Silevo, Inc., (i) the Company has only issued options, restricted stock units, or other rights to acquire shares of Company Common Stock in the ordinary course of business consistent with past practice and (ii) the only shares of capital stock issued by the Company were pursuant to outstanding options, restricted stock units, deferred stock unit awards and other rights to purchase shares of Company Common Stock.  All

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outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive or similar right, purchase option, call or right of first refusal or similar right.  Except as set forth above, the Company has not issued any securities, the holders of which have the right to vote with the stockholders of Company on any matter.  Except as provided in this Agreement, the Notes and the Indenture and except as set forth in or contemplated by this Section 3.01(b) and the Company’s outstanding $230,000,000 aggregate principal amount of 2.75% Convertible Senior Notes due in 2018 (the “Conversion Rate”, as defined in the applicable indenture, per $1,000 principal amount of such notes is, as of the date of this Agreement, 16.2165  shares of Company Common Stock) and the Company’s outstanding $575,000,000 principal amount of 1.625% Convertible Senior Notes due in 2019 (the “Conversion Rate”, as defined in the applicable indenture, per $1,000 principal amount of such notes is, as of the date of this Agreement, 11.9720 shares of Company Common Stock), there are no existing options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements or commitments obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any capital stock of the Company or any securities convertible into or exchangeable for such capital stock and there are no current outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any of its shares of capital stock. 

(g)Authorization.  The execution, delivery and performance of this Agreement, the Indenture, the Notes and the VCOC Letter (the “Transaction Documents”) and the consummation of the transactions contemplated herein and therein (collectively, the “Transactions”) have been duly authorized by the Board of Directors and all other necessary corporate action on the part of the Company.  Assuming this Agreement constitutes the valid and binding obligation of the Purchasers, this Agreement is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the limitation of such enforcement by (A) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to creditors’ rights generally or (B) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Enforceability Exceptions”).  On the Closing Date, the Indenture will be duly executed and delivered by the Company and, assuming the Indenture will be a valid and binding obligation of the Trustee, the Indenture will be a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.  Assuming the VCOC Letter constitutes the valid and binding obligation of the Silver Lake Kraftwerk or other Affiliate thereof party thereto, on the Closing Date the VCOC Letter will be a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

(h)General Solicitation; No Integration.  To the Company’s knowledge, neither the Company nor any other Person or entity authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Notes.  The Company has not, directly or indirectly, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect

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of, any security (as defined in the Securities Act) which, to its knowledge, is or will be integrated with the Notes sold pursuant to this Agreement. 

(i)Valid Issuance.  The Notes have been duly authorized by all necessary corporate action of the Company.  When issued and sold against receipt of the consideration therefor, the Notes will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to the limitation of such enforcement by the Enforceability Exceptions.  The Company has available for issuance the maximum number of shares (including make-whole shares) of Company Common Stock initially issuable upon conversion of the Notes if such conversion were to occur immediately following Closing.  The Company Common Stock to be issued upon conversion of the Notes in accordance with the terms of the Notes has been duly authorized, and when issued upon conversion of the Notes, all such Company Common Stock will be validly issued, fully paid and nonassessable and free of pre-emptive or similar rights.  As of the date hereof, the Company is a WKSI eligible to file a registration statement on Form S-3 under the Securities Act.

(j)Non-Contravention/No Consents.  The execution, delivery and performance of the Transaction Documents, the issuance of the shares of Company Common Stock upon conversion of the Notes in accordance with their terms and the consummation by the Company of the Transactions, does not conflict with, violate or result in a breach of any provision of, or constitute a default under, or result in the termination of or accelerate the performance required by, or result in a right of termination or acceleration under, (i) the certificate of incorporation or bylaws of the Company, (ii) (other than, as of the date of this Agreement, the 2013 Credit Agreement), any mortgage, note, indenture, deed of trust, lease, loan agreement or other agreement binding upon the Company or (iii) any permit, license, judgment, order, decree, ruling, injunction, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, other than in the cases of clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Assuming the accuracy of the representations of the Purchasers set forth herein, other than (A) any required filings or approvals under the HSR Act or any foreign antitrust or competition laws, requirements or regulations in connection with the issuance of shares of Company Common Stock upon the conversion of the Notes, (B) the filing of a Supplemental Listing Application with the NASDAQ, (C) any required filings pursuant to the Exchange Act or the rules of the SEC or the NASDAQ or (D) as have been obtained prior to the date of this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required on the part of the Company or any of its Subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions, except for any consent, approval, order, authorization, registration, declaration, filing, exemption or review the failure of which to be obtained or made, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

(k)Reports; Financial Statements.

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(i)The Company has filed or furnished, as applicable, (A) its annual report on Form 10-K for the fiscal year ended December 31, 2014, (B) its quarterly report on Form 10-Q for its fiscal quarter ended March 31, 2015, (C) its quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2015, (D) its quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2015, (E) its proxy statement relating to the annual meeting of the stockholders of the Company held on June 2, 2015 and (F) all other forms, reports, schedules and other statements required to be filed or furnished by it with the SEC under the Exchange Act or the Securities Act since December 31, 2014 (collectively, the “Company Reports”).  As of its respective date, and, if amended, as of the date of the last such amendment, each Company Report complied in all material respects as to form with the applicable requirements of the Securities Act and the Exchange Act, and any rules and regulations promulgated thereunder applicable to such Company Report.  As of its respective date, and, if amended, as of the date of the last such amendment, no Company Report contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. 

(ii)Each of the consolidated balance sheets, and the related consolidated statements of operations, consolidated statements of convertible redeemable preferred stock and equity and consolidated statements of cash flows, included in the Company Reports filed with the SEC under the Exchange Act (A) have been prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries, (B) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates shown and the results of the consolidated operations, changes in stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth, subject, in the case of any unaudited financial statements, to normal recurring year-end audit adjustments, (C) have been prepared in accordance with GAAP consistently applied during the periods involved, except as otherwise set forth therein or in the notes thereto, and in the case of unaudited financial statements except for the absence of footnote disclosure, and (D) otherwise comply with the requirements of the SEC.

(l)Absence of Certain Changes.  Since September 30, 2015 until the date hereof, (i) the Company and its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business, and (ii) no events, changes or developments have occurred that, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect.

(m)No Undisclosed Liabilities, etc.  As of the date hereof, there are no liabilities of the Company or any of its Subsidiaries that would be required by GAAP to be reflected on the face of the balance sheet, except (i) liabilities reflected or reserved against in the financial statements contained in the Company Reports, (ii) liabilities incurred since September 30, 2015 in the ordinary course of business and (iii) liabilities that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(n)Compliance with Applicable Law.  Each of the Company and its Subsidiaries has complied in all respects with, and is not in default or violation in any respect of, any law, statute, order, rule, regulation, policy or guideline of any federal, state or local governmental authority applicable to the Company or such Subsidiary, other than such non-compliance, defaults or violations that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. 

(o)Legal Proceedings.  As of the date hereof, neither the Company nor any of its Subsidiaries is a party to any, and there are no pending, or to the knowledge of the Company, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental investigations of any nature against the Company or any of its Subsidiaries (i) that, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect or (ii) that challenge the validity of the Transactions.  As of the date hereof, neither the Company nor any of its Subsidiaries is subject to any order, judgment or decree of a Governmental Entity that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.  As of the date hereof, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, there is no investigation or review pending (or, to the knowledge of the Company, threatened) by any Governmental Entity with respect to the Company or any of its Subsidiaries.

(p)Investment Company Act.  The Company is not, and immediately after receipt of payment for the Notes will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(q)Taxes and Tax Returns.  Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect:

(i)the Company and each of its Subsidiaries has timely filed (taking into account all applicable extensions) all Tax Returns required to be filed by it, and all such Tax Returns were correct and complete in all respects, and the Company and each of its Subsidiaries has paid (or has had paid on its behalf) to the appropriate Governmental Entity all Taxes that are required to be paid by it, except, in each case, with respect to matters contested in good faith or for which adequate reserves have been established in accordance with GAAP; and

(ii)there are no disputes pending, or claims asserted in writing, in respect of Taxes of the Company or any of its Subsidiaries for which reserves that are adequate under GAAP have not been established.

(r)Brokers and Finders.  The Company has not retained, utilized or been represented by, or otherwise become obligated to, any broker, placement agent, financial advisor or finder in connection with the transactions contemplated by this Agreement whose fees the Purchasers would be required to pay.

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Section 3.02     Representations and Warranties of the Purchasers

.  The Purchasers, severally and not jointly, represent and warrant with respect to itself to the Company, and agree with the Company, as of the date hereof and as of the Closing Date, as follows:

(s)Organization; Ownership.  Solely with respect to Silver Lake Kraftwerk, the Purchaser is a limited partnership, duly organized, validly existing and in good standing under the laws of Delaware and has all requisite limited partnership power and authority to own, operate and lease its properties and to carry on its business as it is being conducted on the date of this Agreement. Solely with respect to the Elon Musk Revocable Trust dated July 22, 2003, the Purchaser is duly organized, validly existing and in good standing (to the extent such concept or a comparable status is recognized) under the applicable laws of the jurisdiction of its formation and has the requisite power and authority to own, operate and lease its properties and to carry on its business as it is being conducted on the date of this Agreement.

(t)Authorization; Sufficient Funds; No Conflicts.

(i)Such Purchaser has full power and authority to execute and deliver this Agreement and to consummate the Transactions.  The execution, delivery and performance by such Purchaser of this Agreement and the consummation of the Transactions have been duly authorized by all necessary partnership or trust action on behalf of such Purchaser.  No other proceedings on the part of such Purchaser are necessary to authorize the execution, delivery and performance by such Purchaser of this Agreement and consummation of the Transaction.  This Agreement has been duly and validly executed and delivered by such Purchaser.  Assuming this Agreement constitutes the valid and binding obligation of the Company, this Agreement is a valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, subject to the limitation of such enforcement by the Enforceability Exceptions.

(ii)Such Purchaser has, and at all times at and prior to the Closing will have, cash in immediately available funds or uncalled and unrestricted capital commitments in excess of the Purchase Price.

(iii)The execution, delivery and performance of this Agreement by such Purchaser, the consummation by such Purchaser of the Transactions and the compliance by such Purchaser with any of the provisions hereof and thereof will not conflict with, violate or result in a breach of any provision of, or constitute a default under, or result in the termination of or accelerate the performance required by, or result in a right of termination or acceleration under, as applicable, (A) any provision of such Purchaser’s organizational documents, (B) any mortgage, note, indenture, deed of trust, lease, loan agreement or other agreement binding upon such Purchaser or (C) any permit, license, judgment, order, decree, ruling, injunction, statute, law, ordinance, rule or regulation applicable to such Purchaser or any of its Affiliates, other than in the cases of clauses (B) and (C) as would not reasonably be expected to materially and adversely affect or delay the consummation of the Transactions.

(u)Consents and Approvals.  No consent, approval, order or authorization of, or registration, declaration or filing with, or exemption or review by, any Governmental Entity is

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required on the part of such Purchaser in connection with the execution, delivery and performance by such Purchaser of this Agreement and the consummation by such Purchaser of the Transactions, except for any required filings or approvals under the HSR Act or any foreign antitrust or competition laws, requirements or regulations in connection with the issuance of shares of Company Common Stock upon the conversion of the Notes and any consent, approval, order, authorization, registration, declaration, filing, exemption or review the failure of which to be obtained or made, individually or in the aggregate, would not reasonably be expected to adversely affect or delay the consummation of the Transactions by such Purchaser. 

(v)Securities Act Representations.

(i)Such Purchaser is an accredited investor (as defined in Rule 501 of the Securities Act) and is aware that the sale of the Notes is being made in reliance on a private placement exemption from registration under the Securities Act.  Such Purchaser is acquiring the Notes (and any shares of Company Common Stock issuable upon conversion of the Notes) for its own account, and not with a view toward, or for sale in connection with, any distribution thereof in violation of any federal or state securities or “blue sky” law, or with any present intention of distributing or selling such Notes (or any shares of Company Common Stock issuable upon conversion of the Notes) in violation of the Securities Act.  Such Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in such Notes (and any shares of Company Common Stock issuable upon conversion of the Notes) and is capable of bearing the economic risks of such investment.  Such Purchaser has been provided a reasonable opportunity to undertake and has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement.

(ii)Such Purchaser does not have any current intent or purpose to take any action that would be a violation of this Agreement.

(iii)Such Purchaser (and any of its Affiliates) are not acting in concert, and such Purchaser (and any of its Affiliates) do not have any agreement or understanding, with any Person that is not an Affiliate of such Purchaser, and is not otherwise a member of a “group” (as such term is used in Section 13(d)(3) of the Exchange Act), with respect to the Company or its securities.

(w)Brokers and Finders.  Such Purchaser has not retained, utilized or been represented by, or otherwise become obligated to, any broker, placement agent, financial advisor or finder in connection with the transactions contemplated by this Agreement whose fees the Company would be required to pay.

(x)Ownership of Shares.  Solely with respect to Silver Lake Kraftwerk, neither such Purchaser nor its Affiliates (excluding any Affiliates who are individuals) Beneficially Own any shares of Company Common Stock (without giving effect to the issuance of the Notes hereunder).

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(y)Purchaser Status.  Such Purchaser is a U.S. Person.  

(z)No Additional Representations.

(i)Such Purchaser acknowledges that the Company does not make any representation or warranty as to any matter whatsoever except as expressly set forth in Section 3.01 and in any certificate delivered by the Company pursuant to this Agreement, and specifically (but without limiting the generality of the foregoing), that, except as expressly set forth in Section 3.01 and in any certificate delivered by the Company pursuant to this Agreement, the Company makes no representation or warranty with respect to (A) any matters relating to the Company, its business, financial condition, results of operations, prospects or otherwise, (B) any projections, estimates or budgets delivered or made available to such Purchaser (or any of its Affiliates, officers, directors, employees or other representatives) of future revenues, results of operations (or any component thereof), cash flows or financial condition (or any component thereof) of the Company and its Subsidiaries or (C) the future business and operations of the Company and its Subsidiaries, and such Purchaser has not relied on or been induced by such information or any other representations or warranties (whether express or implied or made orally or in writing) not expressly set forth in Section 3.01 and in any certificate delivered by the Company pursuant to this Agreement.

(ii)Such Purchaser has conducted its own independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Company and its Subsidiaries and acknowledges such Purchaser has been provided with sufficient access for such purposes.  Such Purchaser acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 3.01 and in any certificate delivered by the Company pursuant to this Agreement, (i) no person has been authorized by the Company to make any representation or warranty relating to itself or its business or otherwise in connection with the transactions contemplated hereby, and if made, such representation or warranty must not be relied upon by such Purchaser as having been authorized by the Company, and (ii) any estimates, projections, predictions, data, financial information, memoranda, presentations or any other materials or information provided or addressed to such Purchaser or any of its Affiliates or representatives are not and shall not be deemed to be or include representations or warranties of the Company unless any such materials or information are the subject of any express representation or warranty set forth in Section 3.01 of this Agreement and in any certificate delivered by the Company pursuant to this Agreement.

ARTICLE IV

ADDITIONAL AGREEMENTS

Section 4.01     Taking of Necessary Action

.  Each of the parties hereto agrees to use its commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do or cause to be done all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the sale and purchase of the Notes hereunder, subject to the terms

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and conditions hereof and compliance with applicable law.  In case at any time before or after the Closing any further action is necessary or desirable to carry out the purposes of the sale and purchase of the Notes, the proper officers, managers and directors of each party to this Agreement shall take all such necessary action as may be reasonably requested by, and the sole expense of, the requesting party.

Section 4.02     Lock-Up; Non-Conversion

. 

(aa)During the Lock-Up Period, the Purchasers shall not, without the Company’s prior written consent, directly or indirectly, (a) sell, offer, transfer, assign, mortgage, hypothecate, gift, pledge or dispose of, enter into or agree to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, mortgage, hypothecation, gift, assignment or similar disposition of (any of the foregoing, a “transfer”), any of the Notes or any shares of Company Common Stock issuable or issued upon conversion of any of the Notes (other than (i) any transfer to a Purchaser’s Affiliate that (1) is an entity organized or incorporated under the laws of the United States, any State thereof or the District of Columbia and is a U.S. Person and (2) executes and delivers to the Company a Joinder becoming a Purchaser party to this Agreement and the Confidentiality Agreement and a duly completed and executed IRS Form W-9, (ii) to the Company or any of its Subsidiaries, (iii) to a Third Party for cash solely to the extent that all of the net proceeds of such sale are solely used to satisfy a margin call (i.e. posted as collateral) or repay a Permitted Loan to the extent necessary to satisfy a bona fide margin call on such Permitted Loan or avoid a bona fide margin call on such Permitted Loan that is reasonably likely to occur (in each case through no fault of Silver Lake Kraftwerk or any of its Affiliates) or (iv) the tender of any Company Common Stock into any tender or exchange offer made to all of the holders of Company Common Stock by a Third Party for a number of outstanding shares of Voting Stock that, if consummated, would result in a Change in Control solely to the extent that (x) the Board of Directors has recommended such tender or exchange offer in a Schedule 14D-9 under the Exchange Act or (y) such tender or exchange offer is either (I) a tender or exchange offer for less than all of the outstanding shares of Company Common Stock or (II) part of a two-step transaction and the consideration to be received in the second step of such transaction is not identical in the amount or form of consideration (or the election of the type of consideration available to holders of Company Common Stock is not identical in the second-step of such transaction) as the first step of such transaction (a “Third Party Tender/Exchange Offer”), the transfers contemplated by clauses (i) through (iv) are referred to herein as “Permitted Transfers”) (and any related conversion of Notes to the extent required to effect such tender or exchange) and any transfer effected pursuant to any merger, consolidation or similar transaction consummated by the Company (for the avoidance of doubt, if such Third Party Tender/Exchange Offer does not close for any reason, the restrictions on transfer contained herein shall continue to apply to any Company Common Stock received pursuant to the conversion of any Notes that had previously been converted to participate in any such tender or exchange offer) or (b) enter into or engage in any hedge, swap, short sale, derivative transaction or other agreement or arrangement that transfers to any Third Party, directly or indirectly, in whole or in part, any of the economic consequences of ownership of the Notes or any shares of Company Common Stock issuable or issued upon conversion of any of the Notes (such actions in clauses (a) and (b), “Prohibited Transfers”).  Following the Lock-Up Period, each of the Purchasers shall

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not transfer any of the Notes or any shares of Company Common Stock issuable or issued upon conversion of the Notes to any of its Affiliates that (i) is not an entity organized or incorporated under the laws of the United States, any State thereof or the District of Columbia or is not a U.S. Person or (ii) did not execute and deliver to the Company a Joinder becoming a Purchaser party to this Agreement and the Confidentiality Agreement or did not deliver to the Company a duly completed and executed IRS Form W-9.  Any purported Prohibited Transfer in violation of this Section 4.02 shall be null and void ab initio.  Notwithstanding the foregoing, Silver Lake Kraftwerk (or an Affiliate of Silver Lake Kraftwerk) shall be permitted to mortgage, hypothecate, and/or pledge the Notes and/or the shares of Company Common Stock issuable or issued upon conversion of the Notes in respect of one or more bona fide purpose (margin) or bona fide non-purpose loans (each, a “Permitted Loan”).  Any Permitted Loan entered into by Silver Lake Kraftwerk or its Affiliates shall be with one or more financial institutions and nothing contained in this Agreement shall prohibit or otherwise restrict the ability of any lender (or its securities’ affiliate) or collateral agent to foreclose upon and sell, dispose of or otherwise transfer the Notes and/or shares of Company Common Stock (including shares of Company Common Stock received upon conversion of the Notes following foreclosure on a Permitted Loan) mortgaged, hypothecated and/or pledged to secure the obligations of the borrower following an event of default under a Permitted Loan. Notwithstanding the foregoing or anything to the contrary herein, in the event that any lender or other creditor under a Permitted Loan transaction (including any agent or trustee on their behalf) or any affiliate of the foregoing exercises any rights or remedies in respect of the Notes or the shares of Company Common Stock issuable or issued upon conversion of the Notes or any other collateral for any Permitted Loan, no lender, creditor, agent or trustee on their behalf or affiliate of any of the foregoing (other than, for the avoidance of doubt, a Purchaser or any of its Affiliates) shall be entitled to any rights or have any obligations or be subject to any transfer restrictions or limitations hereunder (including, without limitation, the rights or benefits provided for in Section 4.06) except and to the extent for those provided for in, Section 4.10, Section 4.11 and Section 5.03.   

(bb)Notwithstanding anything in the Notes or in the Indenture to the contrary, during the Lock-Up Period, the Purchasers (including any Party that signs a Joinder) shall not, without the Company’s prior written consent, convert (or give notice of conversion of) any of the Notes, irrespective of whether permitted pursuant to the terms of the Notes or the Indenture, except in connection with a sale of shares of Company Common Stock issuable upon conversion of such Notes that is (i) not prohibited pursuant to this Section 4.02 and (ii) not to an Affiliate of a Purchaser.  For the avoidance of doubt, notwithstanding anything in the Notes or in the Indenture to the contrary, the Company shall not be obligated to issue any shares of Company Common Stock to the Purchasers or any of their Affiliates during the Lock-Up Period except as described in the immediately preceding sentence.

Section 4.03     Standstill

. 

(cc)Silver Lake Kraftwerk agrees that, during the Standstill Period (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company’s directors), it shall not, and shall cause each of its Purchaser Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:

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(i)make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve stockholder proposals, or become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise); 

(ii)form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not Purchaser Affiliates of Silver Lake Kraftwerk with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly permitted by this Agreement;

(iii)acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in Silver Lake Kraftwerk (together with its Purchaser Affiliates), having Beneficial Ownership in more than 15% in the aggregate of the shares of the Company Common Stock outstanding at such time; provided that nothing herein will require any Notes or shares of Company Common Stock to be sold to the extent Silver Lake Kraftwerk and its Purchaser Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any other Company actions that reduces the number of outstanding shares of Company Common Stock.  For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of Silver Lake Kraftwerk or its Affiliates will be deemed to be Beneficially Owned by Silver Lake Kraftwerk  or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of Silver Lake Kraftwerk  for purposes of this Agreement, (y) Silver Lake Kraftwerk and its Purchaser Affiliates have not encouraged, instructed, directed, assisted or advised such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither Silver Lake Kraftwerk  or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company;

(iv)transfer, directly or indirectly, through swap or hedging transactions or otherwise, the Notes or Company Common Stock Beneficially Owned by Silver Lake Kraftwerk or its Affiliates or any economic or voting rights decoupled from the underlying securities held by

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Silver Lake Kraftwerk or its Affiliates to any Third Party that, to the knowledge of Silver Lake Kraftwerk at the time it enters into such transaction, would result in such Third Party, together with its Affiliates, having Beneficial Ownership in the aggregate of more than 15% of the shares of Company Common Stock outstanding at such time; provided, that (x) Silver Lake Kraftwerk or its Affiliates, as applicable shall provide written notice to the Company if it has actual knowledge at the time of such transaction that such transfer, directly or indirectly, through swap or hedging transactions or otherwise, of its Notes or Company Common Stock to any Third Party would result in such Third Party, together with its Affiliates, having Beneficial Ownership in the aggregate of more than 9.9% of the shares of Company Common Stock outstanding at such time and (y) nothing in this clause (iv) shall in any way prohibit, limit or restrict any transfer (A) pursuant to a Permitted Loan or any foreclosure thereunder, (B) pursuant to a Third Party Tender/Exchange Offer or pursuant to a merger, consolidation or similar transaction entered into by the Company, (C) in a bona fide underwritten public offering, offering under Rule 144A and/or Regulation S, or in a broker transaction pursuant to Rule 144 (provided that, in relation to such Rule 144A, Regulation S or Rule 144 offering, Silver Lake Kraftwerk has not instructed or encouraged the initial purchasers or broker to sell such Notes or Company Common Stock to a specific Third Party or class of Third Parties which would result in a violation of this clause (iv)), or (D) in a derivatives transaction entered into with, or purchased from, a bank, broker-dealer or other recognized derivatives dealer that is not a hedge fund or activist investor, or to the knowledge of Silver Lake Kraftwerk, an Affiliate of a hedge fund or activist investor; 

(v)effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement or public disclosure with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by Silver Lake Kraftwerk or any of its Purchaser Affiliates of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or the vote by Silver Lake Kraftwerk or any of its Purchaser Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction;

(vi)(A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any member of the Board of Directors, (D) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;

(vii)take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company,

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including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; 

(viii)make statements reasonably expected to disparage or cause to be disparaged the Company or its Subsidiaries or any of its current or former officers or directors in a manner reasonably expected to cause harm to such person and using a means of communication that is reasonably expected to be and results in a broad dissemination of such remarks (provided that Silver Lake Kraftwerk or its applicable Affiliates shall have an opportunity to publicly cure any such statement within two (2) Business Days after being informed by the Company that Silver Lake Kraftwerk or its Affiliates have breached this clause (viii));

(ix)make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;

(x)enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing; or

(xi)request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including this clause (xi)).

(dd)The foregoing provisions of Section 4.03(a) shall not be deemed to prohibit Silver Lake Kraftwerk or any of its Purchaser Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; provided that no such person may request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including Section 4.03(a)(xi) and this Section 4.03(b)).

(ee)Notwithstanding anything in this Section 4.03 to the contrary, if (i) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and provides for all-cash consideration to the holders of Company Common Stock and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided Silver Lake Kraftwerk with a written notice inviting it or its Purchaser

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Affiliates to make one or more proposals or offers to effect a transaction that would result in a Change in Control, then after the announcement of such transaction and prior to the earlier of any termination of such definitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 4.03 will prevent Silver Lake Kraftwerk or its Purchaser Affiliates (A) from submitting to the Board of Directors one or more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more Purchaser Affiliates of Silver Lake Kraftwerk, (B) pursuing and entering into any such alternative transaction with the Company and (C) taking any actions in furtherance of the foregoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board of Directors and (y) the Purchaser Affiliates of Silver Lake Kraftwerk do not make any public announcement or disclosure of such proposal, offer or actions other than any filings and disclosures that may be required in filings with the SEC. 

Section 4.04     Securities Laws

.  The Purchasers acknowledge and agree that, as of the Closing Date, the Notes (and the shares of Company Common Stock that are issuable upon conversion of the Notes) have not been registered under the Securities Act or the securities laws of any state and that they may be sold or otherwise disposed of only in one or more transactions registered under the Securities Act and, where applicable, such laws, or as to which an exemption from the registration requirements of the Securities Act and, where applicable, such laws, is available.  The Purchasers acknowledge that, except as provided in Section 4.10, the Purchasers have no right to require the Company or any of its Subsidiaries to register the Notes or the shares of Company Common Stock that are issuable upon conversion of the Notes.

Section 4.05     Lost, Stolen, Destroyed or Mutilated Securities

.  Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of any certificate for any security of the Company and, in the case of loss, theft or destruction, upon delivery of an undertaking by the holder thereof to indemnify the Company (and, if requested by the Company, the delivery of an indemnity bond sufficient in the judgment of the Company to protect the Company from any loss it may suffer if a certificate is replaced), or, in the case of mutilation, upon surrender and cancellation thereof, the Company will issue a new certificate or, at the Company’s option, a share ownership statement representing such securities for an equivalent number of shares or another security of like tenor, as the case may be.

Section 4.06     Antitrust Approval

.  The Company and the Purchasers acknowledge that one or more filings under the HSR Act or foreign antitrust laws may be necessary in connection with the issuance of shares of Company Common Stock upon conversion of the Notes.  The Purchasers will promptly notify the Company if any such filing is required on the part of such Purchaser.  To the extent reasonably requested, the Company, the Purchasers and any other applicable Purchaser Affiliate will use reasonable efforts to cooperate in timely making or causing to be made all applications and filings under the HSR Act or any foreign antitrust requirements in connection with the issuance of shares of Company Common Stock upon conversion of Notes held by the Purchasers or any Purchaser Affiliate in a timely manner and as required by the law of the applicable jurisdiction; provided that, notwithstanding in this Agreement to the contrary, the Company shall not

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have any responsibility or liability for failure of the Purchasers or any of its Affiliates to comply with any applicable law.  For as long as there are Notes outstanding and owned by Purchasers or their Affiliates, the Company shall as promptly as reasonably practicable provide (no more than four (4) times per calendar year) such information regarding the Company and its Subsidiaries as the Purchasers may reasonably request in order to determine what foreign antitrust requirements may exist with respect to any potential conversion of the Notes.  The Purchasers shall be responsible for the payment of the filing fees associated with any such applications or filings.

Section 4.07     Financing Cooperation

.  If requested by Silver Lake Kraftwerk, the Company will provide the following cooperation in connection with Silver Lake Kraftwerk obtaining any Permitted Loan: (i) using reasonable efforts to facilitate deposit of the Notes in book-entry-only form at The Depository Trust Company as contemplated by the Indenture and (ii) entering into an issuer agreement (an “Issuer Agreement”) with each lender in the form attached hereto as Exhibit C.  Anything in the preceding sentence to the contrary notwithstanding, the Company’s obligation to deliver an Issuer Agreement is conditioned on (i) the Purchaser delivering to the Company a final copy of the Permitted Loan to which the Issuer Agreement relates and (ii) the Purchaser certifying to the Company in writing that (A) the loan agreement with respect to which the Issuer Agreement is being delivered constitutes a Permitted Loan being entered into in accordance with this Agreement, the Purchaser has pledged the Notes and/or the underlying shares of Company Common Stock as collateral to the lenders under such Permitted Loan and that the execution of such Permitted Loan and the terms thereof do not violate the terms of this Agreement, (B) to the extent applicable, whether the rights contemplated by Section 4.10 are being assigned to the lenders under that Permitted Loan, (C) that an Event of Default (as contemplated by the Margin Loan Agreement (as defined in the Issuer Agreement)) constitutes the circumstances under which the lenders under the Permitted Loan may foreclose on the Notes and/or the underlying shares of Company Common Stock and a Coverage Event (as contemplated by the Margin Loan Agreement) constitutes circumstances under which the Purchaser may sell the Notes and/or the underlying shares of Company Common Stock in order to satisfy a margin call or repay a Permitted Loan, in each case to the extent necessary to satisfy a bona fide margin call on such Permitted Loan and that such provisions do not violate the terms of this Agreement, and (D) the Purchaser acknowledges and agrees that the Company will be relying on such certificate when entering into the Issuer Agreement and any inaccuracy in such certificate will be deemed a breach of this Agreement.  Silver Lake Kraftwerk acknowledges and agrees that the statements and agreements of the Company in an Issuer Agreement are solely for the benefit of the applicable lenders party thereto and that in any dispute between the Company and Silver Lake Kraftwerk under this Agreement Silver Lake Kraftwerk shall not be entitled to use the statements and agreements of the Company in an Issuer Agreement against the Company.

Section 4.08     Certain Tax Matters

.  Notwithstanding anything herein to the contrary, the Company shall have the right to deduct and withhold from any payment or distribution made with respect to the Notes (or the issuance of shares of Company Common Stock upon conversion of the Notes) such amounts as are required to be deducted or withheld with respect to the making of such payment or distribution (or issuance) under any applicable Tax law.  To the extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of

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this Agreement as having been paid to the person in respect of which such deduction or withholding was made.  In the event the Company previously remitted any amounts to a Governmental Entity on account of Taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) on any Notes, the Company shall be entitled to offset any such amounts against any amounts otherwise payable in respect of such Notes (or the issuance of shares of Company Common Stock upon conversion of the Notes).

Section 4.09     Conversion Price Matters

.  The Conversion Price on the Closing date will equal $33.00 and the Conversion Rate shall be 30.3030 (the “Initial Conversion Rate”); provided, that if any event shall occur between the date hereof and the Closing Date (inclusive) that would have resulted in an adjustment to the Conversion Rate pursuant to Article 10 of the Indenture if the Notes had been issued and outstanding since the date hereof, the Initial Conversion Rate and the share amounts in the table of Additional Shares set forth in Section 10.21 of the Indenture shall be adjusted in the same manner as would have been required by Article 10 of the Indenture if the Notes had been issued and outstanding since the date hereof and the Conversion Price, Initial Conversion Rate and Additional Shares table included in the Indenture shall reflect such adjustment.  In addition, prior to the Closing Date, the parties hereto shall determine in good faith and in accordance with customary practice, Share Prices and Additional Shares (each as defined in the Indenture) and other numbers to be included under Section 10.21 of the Indenture.  

Section 4.10     Registration Rights Agreement

.

(ff)If requested by a Purchaser or a Lender for any Permitted Loan, the Company shall enter into a registration rights agreement with the holders of Registrable Securities on the terms set forth in Exhibit D (the “Registration Rights Agreement”). “Registrable Securities” shall mean the Subject Securities; provided that any Subject Securities will cease to be Registrable Securities when (a) such Subject Securities have been sold or otherwise disposed of pursuant to an effective registration statement or in compliance with Rule 144, (b) such Subject Securities are held or Beneficially Owned by any Person (other than a Purchaser or any of its Affiliates) that together with its Affiliates Beneficially Own less than 2.0% of the outstanding shares of Company Common Stock as of such time, (c) such Subject Securities are held or Beneficially Owned by a Purchaser or any of its Affiliates and such Purchaser and its Affiliates collectively Beneficially Own less than 1.0% of the outstanding shares of Company Common Stock as of such time (assuming any Subject Securities Beneficially Owned by such Person and its Affiliates are converted on a fully physical settlement basis), or (d) such Subject Securities cease to be outstanding; provided, further, that any security that has ceased to be Registrable Securities in accordance with the foregoing definition shall not thereafter become Registrable Securities and any security that is issued or distributed in respect of securities that have ceased to be Registrable Securities are not Registrable Securities. “Subject Securities” shall mean (i) the Notes; (ii) the shares of Company Common Stock issuable or issued upon conversion of the Notes; and (iii) any securities issued as (or issuable upon the conversion, exercise or exchange of any warrant, right or other security that is issued as) a dividend, stock split, combination or any reclassification, recapitalization, merger, consolidation, exchange or any other distribution or reorganization with respect to, or in exchange for, or in replacement of, the securities referenced in clause (i) or (ii) (without giving effect to any election by the Company

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regarding settlement options upon conversion) above or this clause (iii) (provided, that this clause (iii) shall not be applicable if the Company consolidates or merges with or into any Person and the Company Common Stock is, in whole or in part, converted into or exchanged for securities of a different issuer (which may also include cash consideration) in a transaction that will constitute a Change in Control and the shares of Company Common Stock are delisted from NASDAQ). 

(gg)From and after the date of this Agreement, the Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company which would allow such holder or prospective holder to include such securities in any registration of Registrable Securities under the Registration Rights Agreement or that would prohibit the Company from complying with the terms of the Registration Rights Agreement, in each case without the consent of holders of a majority of the outstanding Registrable Securities (assuming for the purpose of calculating majority that all outstanding Notes are converted into Company Common Stock). As of the date of this Agreement, the Company is not party to any agreement described in the preceding sentence.

(hh)At any time when there are Registrable Securities outstanding, the Company will not exercise its right to redeem any Notes under Article 11 of the Indenture unless (i) the Registrable Securities are not subject to any restrictive legends and (ii) either (A) the Registration Rights Agreement is in effect and there is an effective registration statement under the Securities Act available for use covering the Registrable Securities or (B) the Registrable Securities can be sold without limitation under Rule 144.

Section 4.11     Facilitation of Sales Pursuant to Rule 144

.  For as long as Silver Lake Kraftwerk or its Affiliates or any Lender for any Permitted Loan Beneficially Owns Notes or any Company Common Stock issued or issuable upon conversion thereof, to the extent the Company shall be required to do so under the Exchange Act, the Company shall use reasonable efforts to timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and submit all required Interactive Data Files (as defined in Rule 11 of Regulation S-T of the Commission), and shall use reasonable efforts to take such further necessary action as any holder of Subject Securities may reasonably request in connection with the removal of any restrictive legend on the Subject Securities being sold, all to the extent required from time to time to enable such holder to sell the Subject Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144.

Section 4.12     VCOC Letter

. The Company shall deliver to Silver Lake Kraftwerk at the Closing and from time to time any Affiliate of Silver Lake Kraftwerk to whom its rights and obligations under this Agreement are assigned in accordance with this Agreement a letter in substantially the form attached hereto as Exhibit E (the “VCOC Letter”).

Section 4.13     Par Value

. While the Purchasers own any Notes, the Company will not, without the consent of each Purchaser who owns any Notes, increase the par value per share of the Company Common Stock to above $0.01 per share.

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Section 4.14     Participation Rights

.  Until the six-month anniversary of the Closing Date, notwithstanding Section 4.03, if the Company or any of its Subsidiaries, financing vehicles or joint ventures issues, or agrees to issue, directly or indirectly (including, through any underwriters), to any Purchaser or any of their respective Affiliates, any Additional Investments, the Company will simultaneously and on the same terms offer to issue Additional Investments to Silver Lake Kraftwerk, with the right of Silver Lake Kraftwerk and the other applicable Purchaser(s) and/or their Affiliates to participate in the purchase of Additional Investments being allocated pro rata among Silver Lake Kraftwerk and the participating Purchaser(s) and/or their Affiliates in accordance with the aggregate principal amount of the Notes issued under the Indenture and Beneficially Owned by each respective Purchaser or its predecessor in interest under this Agreement, as applicable.  The Company shall provide written notice of such offer to Silver Lake Kraftwerk (which notice shall include the applicable purchase price per security for such Additional Investment, the aggregate amount of the proposed Additional Investment, the amount of Additional Investment being offered to Silver Lake Kraftwerk and the proposed closing date) at least 20 Business Days prior to the proposed date of the purchase agreement, investment agreement or other agreement (the “Additional Investment Agreement”) to be entered into in connection with such Additional Investment transaction, which transaction in which Silver Lake Kraftwerk participates shall close at least 15 Business Days after the date of such Additional Investment Agreement; provided that, any obligation of a Purchaser to participate in any Additional Investment shall in all cases be conditioned on applicable antitrust clearance or approval under antitrust or other applicable law, and the closing date for such Additional Investment by Silver Lake Kraftwerk shall occur at least 15 Business Days after the Purchaser’s receipt of such clearance or approval or Purchaser’s waiver of such conditions, unless otherwise agreed by Silver Lake Kraftwerk and the Company. Silver Lake Kraftwerk may from time to time designate one or more of its Affiliates through which the participation right in this Section 4.14 may be exercised. The issuance of “Additional Investments” means the issuance of any debt, other than issuances of Solar Bonds by the Company (which, for the avoidance of doubt, are non-convertible bonds),  or equity security of the Company or any of its Subsidiaries, financing vehicles or joint ventures, the provision of any loan or extension of credit to, or guarantee or other credit support from, the Company or any of its Subsidiaries, financing vehicles or joint ventures, the making of any sale, lease, license, contribution or pledge of assets, or commitment to purchase, lease or license assets, by the Company or any of its Subsidiaries, financing vehicles or joint ventures, or the granting of any option, warrant, commitment or right by the Company or any of its Subsidiaries, financing vehicles or joint ventures with respect to any of the foregoing, and any direct or indirect amendment to any economic term of the Notes (whether or not set forth in the Notes or the Indenture or in a separate instrument), including with respect to redemptions or repurchases that does not apply to all outstanding Notes.

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ARTICLE VMISCELLANEOUS

Section 5.01     Survival of Representations and Warranties

.  All covenants and agreements contained herein, other than those which by their terms apply in whole or in part after the Closing (which shall survive the Closing), shall terminate as of the Closing, provided nothing herein shall relieve any party of liability for any breach of such covenant or agreement before it terminated.  Except for the warranties and representations contained in clauses (a), (b), (c), (d) and (e) of Section 3.01 and the representations and warranties contained in Section 3.02, which shall survive until the expiration of the relevant statute of limitations, the warranties and representations made herein shall survive for six (6) months following the Closing Date and shall then expire; provided that nothing herein shall relieve any party of liability for any inaccuracy or breach of such representation or warranty to the extent that any good faith allegation of such inaccuracy or breach is made in writing prior to such expiration.

Section 5.02     Notices

.  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by facsimile, electronic mail or sent by overnight courier as follows:

(ii)If to the Purchasers, to:

Silver Lake Kraftwerk

2775 Sand Hill Road, Suite 100

Menlo Park, CA 94025

Attention:  Karen King

Fax:  +1 (650) 233-8125

and:

Silver Lake Kraftwerk

9 West 57th Street, 32nd Floor

New York, NY 10019

Attention:  Andrew J. Schader

Fax:  +1 (212) 981-3535

With a copy (which shall not constitute actual or constructive notice) to:

Simpson Thacher & Bartlett LLP

2475 Hanover Street

Palo Alto, CA 94304

Attention:  Rich Capelouto

                  Daniel N. Webb

Fax:  +1 (650) 251-5002

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The Elon Musk Revocable Trust dated July 22, 2003

c/o Tesla Motors, Inc.

3500 Deer Creek Road

Palo Alto, CA 94304

Lyndon Rive

c/o SolarCity Corporation

3055 Clearview Way

San Mateo, CA 94402

Email: lrive@solarcity.com

(jj)If to the Company, to:

SolarCity Corporation

3055 Clearview Way

San Mateo, CA  94402

Attention: Seth R. Weissman, Executive Vice President, Secretary & General Counsel

Email: sweissman@solarcity.com; corporatelegal@solarcity.com

With a copy (which shall not constitute actual or constructive notice) to:

Wilson Sonsini Goodrich & Rosati, P.C.

650 Page Mill Road

Palo Alto, CA  94304

Attention: Steve Bernard

Fax: (650) 493-6811

or to such other address or addresses as shall be designated in writing.  All notices shall be deemed effective (a) when delivered personally (with written confirmation of receipt, by other than automatic means, whether electronic or otherwise), (b) when sent by facsimile or electronic mail (with written confirmation of receipt, by other than automatic means, whether electronic or otherwise) or (c) one (1) Business Day following the day sent by overnight courier.

Section 5.03     Entire Agreement; Third Party Beneficiaries; Amendment

.  This Agreement, together with the Confidentiality Agreement, the Indenture and the Notes, sets forth the entire agreement between the parties hereto with respect to the Transactions, and are not intended to and shall not confer upon any person other than the parties hereto, their successors and permitted assigns any rights or remedies hereunder, provided that (i) Section 4.10(b), Section 4.10(c) and Section 4.11 shall be for the benefit of and fully enforceable by each holder of Subject Securities and (ii) Section 5.12 shall be for the benefit of and fully enforceable by each of the Specified Persons.  Any provision of this Agreement may be amended or modified in whole or in part at any time by an agreement in writing executed in the same manner as this Agreement that is signed by the Company

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and such Purchasers who have purchased a majority of the Notes issued pursuant to this Agreement.  No failure on the part of any party to exercise, and no delay in exercising, any right shall operate as a waiver thereof nor shall any single or partial exercise by any party of any right preclude any other or future exercise thereof or the exercise of any other right.

Section 5.04     Counterparts

.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute any original, but all of which together shall constitute one and the same document.  Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document will have the same effect as physical delivery of the paper document bearing the original signature.

Section 5.05     Public Announcements

.  No press release or public announcement related to this Agreement or the transactions contemplated herein shall be issued or made by the Purchasers or their Affiliates without the prior written approval of the Company, unless required by law (based on the advice of counsel) in which case the Company shall have the right to review and reasonably comment on such press release, announcement or communication prior to issuance, distribution or publication.  Notwithstanding the foregoing (but subject to the terms of the Confidentiality Agreement), the Purchasers and their Affiliates shall not be restricted from communicating with their respective investors and potential investors in connection with marketing, informational or reporting activities; provided that the recipient of such information is subject to a customary obligation to keep such information confidential.  The Company may issue one or more press releases (which the Company shall provide to the Purchasers prior to issuance, distribution or publication and will consider the Purchasers’ reasonable comments) and may file this Agreement with the SEC and may provide information about the subject matter of this Agreement in connection with equity or debt issuances, share repurchases, or marketing, informational or reporting activities.

Section 5.06     Expenses

.  Except as otherwise expressly provided herein, each party hereto shall bear its own costs and expenses (including attorneys’ fees) incurred in connection with this Agreement and the Transactions.

Section 5.07     Successors and Assigns

.  Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the Company’s successors and assigns and the Purchasers’ successors and assigns, and no other person; provided, that neither the Company nor the Purchasers may assign its respective rights or delegate its respective obligations under this Agreement, whether by operation of law or otherwise, and any assignment by the Company or the Purchasers in contravention hereof shall be null and void; provided, that (i) prior to the Closing the Purchasers hereto may assign its rights and obligations under this Agreement and the Confidentiality Agreement in whole or in part to one or more Affiliates who are U.S. Persons and who execute and deliver to the Company a Joinder; provided that no such assignment will relieve the Purchasers of its obligations hereunder or under the Confidentiality Agreement, (ii) any Affiliate of the Purchasers who before or after the Closing Date executes and delivers a Joinder and is a permitted transferee of any Notes or shares of Company Common Stock shall be deemed a Purchaser hereunder and have all the rights and obligations of a Purchaser.

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Section 5.08     Governing Law; Jurisdiction; Waiver of Jury Trial

. 

(kk)This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.  In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, solely if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware).  Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts.  Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 5.08(a), (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by the applicable law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.  Each of the parties hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 5.02 shall be effective service of process for any suit or proceeding in connection with this Agreement or the transactions contemplated hereby.

(ll)EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 5.08.

Section 5.09     Severability

.  If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect provided that the economic and legal substance of, any of the Transactions is not affected in any manner materially adverse to any party.  In the event of any such determination, the parties agree to negotiate in good faith to modify this Agreement to fulfill as closely as possible the original

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intent and purpose hereof.  To the extent permitted by law, the parties hereby to the same extent waive any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

Section 5.10     Specific Performance

.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.  Accordingly, each party agrees that in the event of any breach or threatened breach by any other party of any covenant or obligation contained in this Agreement, the non-breaching party shall be entitled (in addition to any other remedy that may be available to it, whether in law or equity) to obtain (i) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation, and (ii) an injunction restraining such breach or threatened breach.  Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.  Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.

Section 5.11     Headings

.  The headings of Articles and Sections contained in this Agreement are for reference purposes only and are not part of this Agreement.

Section 5.12     Non-Recourse

.  This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against the entities that are expressly named as parties hereto and their respective successors and assigns (including any Person that executes and delivers a Joinder).  Except as set forth in the immediately preceding sentence, no past, present or future director, officer, employee, incorporator, member, partners, stockholder, Affiliate, agent, attorney or representative of any party hereto (collectively, the “Specified Persons”) shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.

[Remainder of page intentionally left blank.]

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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by their respective duly authorized officers, all as of the date first above written.

SOLARCITY CORPORATION
By:	/s/ Brad Buss
Name:	Brad Buss
Title:	Chief Financial Officer

[Signature Page to Investment Agreement]

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by their respective duly authorized officers, all as of the date first above written.

SILVER LAKE KRAFTWERK FUND, L.P.
By:  Silver Lake Kraftwerk Associates, L.P.
By:	/s/ Martin Fichtner
Name:	Martin Fichtner
Title:	Managing Director

[Signature Page to Investment Agreement]

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by their respective duly authorized officers, all as of the date first above written.

Elon Musk, as Trustee of the Elon Musk Revocable Trust dated July 22, 2003

/s/ Elon Musk

Elon Musk, Trustee

[Signature Page to Investment Agreement]

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by their respective duly authorized officers, all as of the date first above written.

LYNDON RIVE

/s/ Lyndon Rive

[Signature Page to Investment Agreement]

Schedule A

Purchaser	Principal Amount
Silver Lake Kraftwerk Fund, L.P.	$100,000,000
The Elon Musk Revocable Trust Dated July 22, 2003	$10,000,000
Lyndon Rive	$3,000,000

EX-99.1

EXHIBIT 99.1

SolarCity and Silver Lake Kraftwerk Announce $100 Million Strategic Investment

Chairman Elon Musk, CEO Lyndon Rive also participate in convertible debt securities offering

SAN MATEO, Calif., Nov. 18, 2015 /PRNewswire/ -- SolarCity Corporation (NASDAQ: SCTY) and Silver Lake Kraftwerk, Silver Lake’s energy and resource innovation fund, today announced that they have agreed to a strategic investment of $113 million in aggregate principal amount of SolarCity’s Zero Coupon Convertible Senior Notes (the “notes”). Silver Lake Kraftwerk has agreed to invest $100 million, SolarCity Chairman Elon Musk will invest $10 million and CEO Lyndon Rive will invest $3 million.

SolarCity is the #1 provider of rooftop solar in the U.S., and currently provides more than one out of every three new residential solar electricity systems. The company provides solar electricity directly to homeowners, businesses and government organizations for less than they spend on utility bills. SolarCity installed more residential solar than its next 36 competitors combined in Q2 2015—the most recent data available—and also installed more commercial solar than any other provider in the first half of 2015.

The investment by Silver Lake Kraftwerk is almost quadruple the size of its initial investment in SolarCity made in February 2012, which it subsequently exited in September 2013.

“We believe that SolarCity is a highly attractive long-term investment opportunity,” said Josh Raffaelli, Managing Director at Silver Lake Kraftwerk. “We think the Company’s unparalleled access to solar-specific tax equity, asset-backed security and debt clearly differentiates it from providers that are funding projects constantly via equity markets. Furthermore, we firmly believe that SolarCity’s near term focus on cost reduction and cash flow breakeven is absolutely the right strategy—the Company is already the leader in both commercial and residential solar. Its technology and brand advantage coupled with its cost structure and low cost of capital position it to continue to grow in 2017 even if the federal investment tax credit steps down. Distributed solar generation is an enormous opportunity and we believe there is no other company better positioned to take advantage of it.”

“Solar overtook natural gas and coal as the largest source of new energy in the U.S. in the first half of 2015, representing 40% of new capacity. Demand for SolarCity’s services has never been greater than it is today, and the global addressable market in front of us is massive,” said SolarCity CEO Lyndon Rive. “Silver Lake Kraftwerk knows the company and category well and we’re excited to work with them again.”

The notes will be senior, unsecured obligations of the Company, will not bear ordinary interest and the principal amount of the notes will not accrete. It is expected that the notes will be convertible into shares of SolarCity’s common stock (the “common stock”), based on an initial conversion rate of 30.303 shares of common stock per $1,000 principal amount of the notes (which is equal to an initial conversion price of $33.00 per share), subject to adjustment in certain circumstances. It is expected that the notes will mature in December 2020, subject to earlier conversion, redemption or repurchase.

This announcement is neither an offer to sell nor a solicitation of an offer to buy any of these securities and shall not constitute an offer, solicitation, or sale in any jurisdiction in which such offer, solicitation, or sale is unlawful. The notes and the shares of common stock issuable upon conversion of the notes, if any, will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and unless so registered, may not be offered or sold in the United States except pursuant to an exemption from the registration requirements of the Securities Act and applicable state laws.

There are no material contingencies required to be satisfied, and the transactions are expected to close on or about December 7, 2015, subject to customary closing conditions and a standard capital call from Silver Lake Kraftwerk investors.

About SolarCity

SolarCity® (NASDAQ: SCTY) provides clean energy. The company has disrupted the century-old energy industry by providing renewable electricity directly to homeowners, businesses and government organizations for less than they spend on utility bills. SolarCity gives customers control of their energy costs to protect them from rising rates. The company makes solar energy easy by taking care of everything from design and permitting to monitoring and maintenance. Visit the company online at www.solarcity.com and follow the company on Facebook & Twitter.

About Silver Lake Kraftwerk

Silver Lake Kraftwerk is part of Silver Lake, the global leader in technology investing with over $26 billion in combined assets under management and committed capital and a team of approximately 100 investment and value creation professionals located around the world. Silver Lake Kraftwerk focuses on providing growth capital to technology innovators with established business models in the energy and resource sectors. Silver Lake Kraftwerk targets companies globally that leverage technology and business model innovation to improve energy efficiency, reduce waste and emissions, harness renewable energy, and more efficiently use natural resources, among other applications. For more information about Silver Lake Kraftwerk and its entire portfolio, please visit www.silverlake.com.

Investor Relations Contact:

Aaron Chew
SolarCity
650-963-5920
investors@solarcity.com Julien Trosdorf
Silver Lake
415-671-7676
silverlake@brunswickgroup.com

This communication contains “forward-looking statements” that involve risks and uncertainties, including statements regarding, among other things, the investment by the purchasers, the issuance of the notes and the business prospects of the Company. Forward-looking statements should not be read as a guarantee of future performance or results, and will not necessarily be accurate indications of the times at, or by, which such performance or results will be achieved, if at all. Forward-looking statements are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. These statements involve risks and uncertainties that could cause actual results to differ materially, including, but not limited to, prevailing market conditions and the impact of general economic, and industry or political conditions in the United States or internationally. The Company cautions the reader to refer to the section entitled “Risk Factors” in its most recent Quarterly Report on Form 10-Q and subsequent Current Reports on Form 8-K, which have been filed with the Securities and Exchange Commission, which identify certain of these and additional risks and uncertainties. The Company does not undertake any obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future developments or otherwise, except as otherwise required by law.