exv4w1



 





Exhibit 4.1




HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED

as Issuer




and




WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee




Indenture




dated as of October 23, 2007




$400,000,000

1.25% Convertible Senior Notes due 2012




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	11	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	12	 
	Section 1.04
	 	Rules of Construction	 	 	12	 
	Section 1.05
	 	Acts of Holders	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE 2. THE NOTES	 	 	13	 
	 
	 	 	 	 	 	 
	Section 2.01
	 	Form, Dating and Denominations; Legends	 	 	13	 
	Section 2.02
	 	Execution and Authentication	 	 	15	 
	Section 2.03
	 	Registrar, Paying Agent and Conversion Agent	 	 	15	 
	Section 2.04
	 	Paying Agent To Hold Money In Trust	 	 	16	 
	Section 2.05
	 	Noteholder Lists	 	 	16	 
	Section 2.06
	 	Transfer and Exchange	 	 	16	 
	Section 2.07
	 	Replacement Notes	 	 	17	 
	Section 2.08
	 	Outstanding Notes	 	 	18	 
	Section 2.09
	 	Treasury Notes	 	 	18	 
	Section 2.10
	 	Temporary Notes	 	 	19	 
	Section 2.11
	 	Cancellation	 	 	19	 
	Section 2.12
	 	CUSIP Numbers	 	 	19	 
	Section 2.13
	 	Book-entry Provisions For Global Notes	 	 	19	 
	Section 2.14
	 	Special Transfer Provisions	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE 3. PURCHASES	 	 	22	 
	 
	 	 	 	 	 	 
	Section 3.01
	 	Repurchase At the Option of the Holder	 	 	22	 
	Section 3.02
	 	Effect of Fundamental Change Purchase Notice	 	 	26	 
	Section 3.03
	 	Deposit of Fundamental Change Purchase Price	 	 	26	 
	Section 3.04
	 	Notes Purchased In Part	 	 	27	 
	Section 3.05
	 	Covenant To Comply With Securities Laws Upon Repurchase of Notes	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE 4. COVENANTS	 	 	27	 
	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	27	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	28	 
	Section 4.03
	 	Existence	 	 	28	 
	Section 4.04
	 	Rule 144A Information and Annual Reports	 	 	29	 
	Section 4.05
	 	Reports to Trustee	 	 	29	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	30	 
	Section 4.07
	 	Payment of Additional Interest	 	 	30	 






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TABLE OF CONTENTS

(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 4.08
	 	Incurrence of Debt	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE 5. CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS	 	 	30	 
	 
	 	 	 	 	 	 
	Section 5.01
	 	Consolidation, Merger, Sale or Lease of Assets by the Company	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE 6. DEFAULT AND REMEDIES	 	 	31	 
	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	31	 
	Section 6.02
	 	Acceleration	 	 	33	 
	Section 6.03
	 	Other Remedies	 	 	33	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	33	 
	Section 6.05
	 	Control by Majority	 	 	34	 
	Section 6.06
	 	Limitation on Suits	 	 	34	 
	Section 6.07
	 	Rights of Holders to Receive Payment	 	 	34	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	34	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	35	 
	Section 6.10
	 	Priorities	 	 	35	 
	Section 6.11
	 	Restoration of Rights and Remedies	 	 	35	 
	Section 6.12
	 	Undertaking for Costs	 	 	36	 
	Section 6.13
	 	Rights and Remedies Cumulative	 	 	36	 
	Section 6.14
	 	Delay or Omission Not Waiver	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE 7. THE TRUSTEE	 	 	36	 
	 
	 	 	 	 	 	 
	Section 7.01
	 	General	 	 	36	 
	Section 7.02
	 	Certain Rights of Trustee	 	 	37	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	38	 
	Section 7.04
	 	Trustee’s Disclaimer	 	 	38	 
	Section 7.05
	 	Notice of Default	 	 	38	 
	Section 7.06
	 	Reports by Trustee to Holders	 	 	38	 
	Section 7.07
	 	Compensation and Indemnity	 	 	38	 
	Section 7.08
	 	Replacement of Trustee	 	 	39	 
	Section 7.09
	 	Successor Trustee by Merger	 	 	40	 
	Section 7.10
	 	Eligibility	 	 	40	 
	Section 7.11
	 	Money Held in Trust	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE 8. DISCHARGE	 	 	41	 
	 
	 	 	 	 	 	 
	Section 8.01
	 	Satisfaction and Discharge of the Indenture	 	 	41	 
	Section 8.02
	 	Application of Trust Money	 	 	41	 
	Section 8.03
	 	Repayment to Company	 	 	42	 
	Section 8.04
	 	Reinstatement	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE 9. AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	42	 
	 
	 	 	 	 	 	 
	Section 9.01
	 	Amendments Without Consent of Holders	 	 	42	 






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TABLE OF CONTENTS

(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 9.02
	 	Amendments With Consent of Holders	 	 	43	 
	Section 9.03
	 	Effect of Consent	 	 	44	 
	Section 9.04
	 	Trustee’s Rights and Obligations	 	 	44	 
	Section 9.05
	 	Conformity With Trust Indenture Act	 	 	44	 
	Section 9.06
	 	Payments for Consents	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE 10. CONVERSION	 	 	45	 
	 
	 	 	 	 	 	 
	Section 10.01
	 	Conversion Privilege	 	 	45	 
	Section 10.02
	 	Conversion Procedure	 	 	46	 
	Section 10.03
	 	Fractional Shares	 	 	48	 
	Section 10.04
	 	Taxes On Conversion	 	 	48	 
	Section 10.05
	 	Company To Provide Common Stock	 	 	48	 
	Section 10.06
	 	Adjustment for Change In Capital Stock	 	 	49	 
	Section 10.07
	 	Adjustment for Rights Issue	 	 	50	 
	Section 10.08
	 	Adjustment for Other Distributions	 	 	51	 
	Section 10.09
	 	Adjustment for Cash Dividends	 	 	52	 
	Section 10.10
	 	Adjustment for Certain Tender Offers or Exchange Offers	 	 	52	 
	Section 10.11
	 	Provisions Governing Adjustment to Conversion Rate	 	 	53	 
	Section 10.12
	 	Disposition Events	 	 	54	 
	Section 10.13
	 	Adjustment to Conversion Rate Upon
Change in Control Transactions, Discretionary Adjustment	 	 	56	 
	 
	 	 	 	 	 	 
	Section 10.14
	 	When Adjustment May Be Deferred	 	 	57	 
	Section 10.15
	 	When No Adjustment Required	 	 	58	 
	Section 10.16
	 	Notice of Adjustment	 	 	58	 
	Section 10.17
	 	Notice of Certain Transactions	 	 	58	 
	Section 10.18
	 	Right of Holders to Convert	 	 	59	 
	Section 10.19
	 	Company Determination Final	 	 	59	 
	Section 10.20
	 	Trustee’s Adjustment Disclaimer	 	 	59	 
	Section 10.21
	 	Simultaneous Adjustments	 	 	59	 
	Section 10.22
	 	Successive Adjustments	 	 	60	 
	Section 10.23
	 	Rights Issued in Respect of Common Stock Issued Upon Conversion	 	 	60	 
	Section 10.24
	 	Withholding Taxes for Adjustments in Conversion Rate	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE 11. PAYMENT OF INTEREST	 	 	60	 
	 
	 	 	 	 	 	 
	Section 11.01
	 	Interest Payments.	 	 	60	 
	Section 11.02
	 	Defaulted Interest	 	 	61	 
	Section 11.03
	 	Interest Rights Preserved	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE 12. MISCELLANEOUS	 	 	62	 
	 
	 	 	 	 	 	 
	Section 12.01
	 	Trust Indenture Act of 1939	 	 	62	 
	Section 12.02
	 	Noteholder Communications; Noteholder Actions	 	 	62	 
	Section 12.03
	 	Notices	 	 	63	 






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TABLE OF CONTENTS

(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 12.04
	 	Communication by Holders with Other Holders	 	 	64	 
	Section 12.05
	 	Certificate and Opinion as to Conditions Precedent	 	 	64	 
	Section 12.06
	 	Statements Required in Certificate or Opinion	 	 	64	 
	Section 12.07
	 	Legal Holiday	 	 	64	 
	Section 12.08
	 	Rules by Trustee, Paying Agent, Conversion Agent and Registrar	 	 	64	 
	Section 12.09
	 	Governing Law	 	 	65	 
	Section 12.10
	 	No Adverse Interpretation of Other Agreements	 	 	65	 
	Section 12.11
	 	Successors	 	 	65	 
	Section 12.12
	 	Duplicate Originals	 	 	65	 
	Section 12.13
	 	Separability	 	 	65	 
	Section 12.14
	 	Table of Contents and Headings	 	 	65	 
	Section 12.15
	 	No Liability of Directors,
Officers, Employees, Incorporators, Members and Stockholders	 	 	65	 
	 
	 	 	 	 	 	 






-iv-









 





	 	 	 
	EXHIBIT A

	 	Form of Note
	 
	 	 
	EXHIBIT B

	 	Restricted Common Stock Legend and IAI Common Stock Legend







-v-











 





CROSS REFERENCE TABLE*



*Note: This Cross Reference Table shall not, for any purpose, be deemed to be part of the
Indenture.




	 	 	 
	TIA Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(b)
	 	7.08; 7.10
	(c)
	 	N.A.
	311(a)
	 	N.A.
	(b)
	 	N.A.
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	12.04
	(c)
	 	12.04
	313(a)
	 	7.06
	(b)(1)
	 	N.A.
	(b)(2)
	 	7.06
	(c)
	 	12.03
	(d)
	 	7.06
	314(a)
	 	4.04; 4.05; 12.03
	(b)
	 	N.A.
	(c)(1)
	 	12.05
	(c)(2)
	 	12.05
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	12.06
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05; 12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.08
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	12.01
	N.A. means not applicable
	 	 







-vi-











 





     INDENTURE, dated as of October 23, 2007, between Harman International Industries,
Incorporated, a Delaware corporation, as the “Company” and Wells Fargo Bank, National Association,
as Trustee.



RECITALS




     The Company has duly authorized the execution and delivery of the Indenture to provide for the
initial issuance of $400,000,000 aggregate principal amount of the Company’s 1.25% Convertible
Senior Notes Due 2012 (the “Notes”). All things necessary to make the Indenture a valid agreement
of the Company, in accordance with its terms, have been done, and the Company has done all things
necessary to make the Notes, when executed by the Company and authenticated and delivered by the
Trustee and duly issued by the Company, the valid obligations of the Company as hereinafter
provided. This Indenture is subject to, and will be governed by, the provisions of the Trust
Indenture Act that are required to be a part of and govern indentures qualified under the Trust
Indenture Act.



THIS INDENTURE WITNESSETH




     For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as
follows:



ARTICLE 1.




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



     “Additional Interest” means additional interest owed to the Holders pursuant to the
Registration Rights Agreement.



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



     “Affiliated Entity” has the meaning given such term in the Note Purchase Agreement.



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



     “Agent Member” means a member of, or a participant in, the Depositary.



 









 





     “Applicable Conversion Rate” means the Conversion Rate on any Trading Day.



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



     “Bank Purchaser Transfer Event” has the meaning given such term in the Note Purchase
Agreement.



     “Bank Purchasers” means Citibank, N.A. and HSBC USA Inc., and their Affiliates that acquire
beneficial ownership of Securities in a Permitted Transfer (each a “Bank Purchaser”).



     “Bankruptcy Default” has the meaning assigned to such term in Section 6.01.



     “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto) or any
similar federal or state law for the relief of debtors.



     “Board of Directors” means the board of directors or comparable governing body of the Company,
or any committee thereof duly authorized to act on its behalf.



     “Board Resolution” means a resolution duly adopted by the Board of Directors which is
certified by the Secretary or an Assistant Secretary of the Company and remains in full force and
effect as of the date of its certification.



     “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in New York City are authorized or obligated to close.



     “Capital Stock” means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however designated, whether
voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.



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



     “Certificated Note” means a Note in registered individual form without interest coupons.



     “Change in Control” means the occurrence of a Fundamental Change of the type described in the
clauses (i) or (ii) of the definition of “Fundamental Change” contained in Section 3.01(a), giving
effect to the last two paragraphs of Section 3.01(a).



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



     “Closing Price” of the Common Stock on any date means the closing sale price per share (or if
no closing sale price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on that date as reported in
composite



-2-









 







transactions for the principal U.S. securities exchange on which the Common Stock is
listed or
admitted for trading or, if the Common Stock is not listed or admitted for trading on a U.S.
national or regional securities exchange, as reported on the quotation system on which such
security is quoted. If the Common Stock is not listed or admitted for trading on a United States
national or regional securities exchange and not reported on a quotation system on the relevant
date, the “closing price” will be the last quoted bid price for the Common Stock in the
over-the-counter market on the relevant date as reported by the National Quotation Bureau or
similar organization. If the Common Stock is not so quoted, the last reported sale price will be
the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant
date from each of at least three nationally recognized investment banking firms selected by the
Company for this purpose.



     “Common Stock” means the common stock of the Company, $0.01 par value, as it exists on the
date of this Indenture and any shares of any class or classes of Capital Stock of the Company
resulting from any reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which are not subject to redemption by
the Company; provided, however, that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable on conversion of Notes shall be substantially
in the proportion which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes resulting from all such
reclassifications.



     “Company” means the party named as such in the first paragraph of the Indenture or any
successor obligor under the Indenture and the Notes pursuant to Section 5.01.



     “Consolidated EBITDA” means for any period, Consolidated Net Income for such period,
plus, to the extent reflected as a charge in the statement of such Consolidated Net Income
for such period, the sum of (a) taxes, (b) Fixed Charges, (c) amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (d) depreciation and amortization, (e) amortization of
intangibles (including but not limited to goodwill) and organization costs, (f) any extraordinary,
unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such period, non-cash losses on
Dispositions outside the ordinary course of business) and (g) any other non-cash charges, and
minus, to the extent included in determining Consolidated Net Income for such period, any
extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of Consolidated Net Income for such period, gains on
Dispositions outside of the ordinary course of business).



     “Consolidated Net Income” means for any period, the net income of the Company and its
Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.



     “Consolidated Total Debt” means at any date, without duplication, the aggregate principal
amount of all Indebtedness (including the current portion thereof) of the Company and its
consolidated Subsidiaries at such date (but excluding (x) any Indebtedness owing by (A) the
Company to any Subsidiary and (B) any Subsidiary to the Company or any other Subsidiary and (y)



-3-









 







Guarantee Obligations (except to such extent any amounts are due and payable at such date)),
determined on a consolidated basis in accordance with GAAP.



     “Conversion Date” means the date on which the Holder of the Note has complied with all
requirements under this Indenture to convert such Note.



     “Conversion Price” per share of Common Stock as of any day means the result obtained by
dividing $1,000 by the Conversion Rate on such day.



     “Conversion Rate” means 9.6154 shares of Common Stock per $1,000 principal amount of Notes,
subject to adjustment pursuant to Article 10.



     “Conversion Reference Period” means (a) for Notes that are converted during the period
beginning on the 23rd scheduled Trading Day prior to the Maturity Date, the twenty
consecutive Trading Days beginning on, and including, the 20th scheduled Trading Day
prior to the Maturity Date and (b) in all other instances, the twenty consecutive Trading Days
beginning on the third Trading Day following the Conversion Date.



     “Conversion Value” means, per $1,000 principal amount of Notes, the amount equal to, for each
Trading Day of the Conversion Reference Period, the product of (i) the Applicable Conversion Rate
for such day and (ii) Volume Weighted Average Price per share of the Common Stock on such day.



     “Corporate Trust Office” means the office of the Trustee at which the trust created by this
Indenture is principally administered, which at the date of the Indenture is located at Wells Fargo
Bank, N.A., Corporate Trust Services, MAC N2666-140, 45 Broadway, 14th Floor, New York,
NY, 10006.



     “Current Market Price” of Common Stock on any day means the average of the Closing Prices per
share of Common Stock for each of the five consecutive Trading Days ending on the earlier of the
day in question and the day before the Ex-Dividend Date with respect to the issuance or
distribution requiring such computation.



     “Daily Share Amount” means, for each Trading Day of the Conversion Reference Period and each
$1,000 principal amount of Notes surrendered for conversion, a number of shares of Common Stock
(but in no event less than zero) determined by the following formula:



Conversion Value for such Trading Day — $1000



 

Volume Weighted Average Price per share of Common Stock for such Trading Day x 20




     “Debt” means, with respect to any Person, without duplication, (1) all indebtedness of such
Person for borrowed money (other than non-recourse obligations); and (2) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments.



-4-









 





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



     “Depositary” means DTC or the nominee thereof, or any successor thereto.



     “Disposition” means any sale, conveyance, assignment, transfer or other disposal of any of the
Company’s or its Subsidiary’s property, business or assets.



     “DTC” means The Depository Trust Company, a New York corporation, and its successors.



     “Event of Default” has the meaning assigned to such term in Section 6.01.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder.



     “Ex-Dividend Date” means, with respect to any issuance or distribution, 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 such issuance or distribution.



     “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:



               (1) the consolidated interest expense of such Person and its Subsidiaries for such period,
whether paid or accrued, including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with capital lease obligations,
commissions, discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to
hedging obligations in respect of interests rates; plus



               (2) the consolidated interest expense of such Person and its Subsidiaries that was capitalized
during such period; plus



               (3) any interest on Indebtedness of another Person that is guaranteed by such Person or one of
its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries, whether
or not such Guarantee or Lien is called upon; plus



               (4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on
any series of preferred stock of such Person or any of its Subsidiaries, other than dividends on
capital stock payable solely in capital stock of the Company or to the Company or a Subsidiary of
the Company, times (b) a fraction, the numerator of which is one and the denominator of which is
one minus the then current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP.



-5-









 





     “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time.



     “Global Note” means a Note in registered global form without interest coupons that is
deposited with the Depositary or its custodian and registered in the name of the Depositary or its
nominee.



     “Global Note Legend” means the legend set forth in Exhibit A



     “Guarantee Obligation” means as to any Person, any obligation, contingent or otherwise of such
Person guaranteeing any Indebtedness of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including, without limitation, any obligation of
the guaranteeing Person (i) to purchase any such Indebtedness or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of
any such Indebtedness or (2) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor so as to enable such
primary obligor to pay such Indebtedness, (iii) to purchase property, securities or services for
the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to
make payment of such Indebtedness or (iv) otherwise to protect the owner of any such Indebtedness
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include (x) any liability by endorsement of instruments for deposit or
collection or similar transactions in the ordinary course of business, (y) indemnification
obligations of the Company or any of its Subsidiaries entered into in the ordinary course of
business or (z) obligations of the Company or any of its Subsidiaries under arrangements entered
into in the ordinary course of business whereby the Company or such Subsidiary sells goods or
inventory to other Persons under agreements obligating the Company or such Subsidiary to repurchase
such goods or inventory, at a price not exceeding the original sale price, upon the occurrence of
certain specified events. The amount of any Guarantee Obligation of any guaranteeing Person at any
time shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of
the Indebtedness in respect of which such Guarantee Obligation is made at such time and (b) the
maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation at such time, unless such Indebtedness and such
maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such guaranteeing Person’s maximum
reasonably anticipated liability in respect thereof as determined by the Company in good faith at
such time; provided, however, that for purposes of this definition the liability of
the guaranteeing Person with respect to any obligation as to which a third Person or Persons are
jointly or jointly and severally liable as a guarantor or otherwise as contemplated hereby and have
not defaulted on its or their portions thereof shall be only as to its pro rata portion of such
obligation.



     “Holder” or “Noteholder” means the registered holder of any Note.



     “IAI Certificated Note” means a Certificated Note that bears the IAI Note Legend.



     “IAI Common Stock Legend” means the legend set forth in Exhibit B.



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     “IAI Global Note” means a Global Note that bears the IAI Note Legend representing Notes
initially issued and sold pursuant to the Note Purchase Agreement to the Initial Purchasers, all of
which are Institutional Accredited Investors.



     “IAI Note” means a Note that bears the IAI Note Legend.



     “IAI Note Legend” means the legend set forth in Exhibit A.



     “Indebtedness” means of any Person at any date, without duplication, all indebtedness of such
Person (other than current trade liabilities and indemnification obligations incurred in the
ordinary course of business), as reflected on the balance sheet of such Person prepared in
accordance with GAAP and all Guarantee Obligations of such Person, except that where such
indebtedness or Guarantee Obligation of such Person is made jointly, or jointly and severally, with
any third party or parties other than any consolidated Subsidiary of such Person, the amount
thereof for the purpose of this definition only shall be the pro rata portion thereof payable by
such Person, so long as such third party or parties have not defaulted on its or their joint and
several portions thereof.



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



     “Initial Purchasers” means the Purchasers named in Exhibit A to the Note Purchase Agreement.



     “Institutional Accredited Investor” means an institutional “accredited investor” as described
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.



     “interest,” in respect of the Notes, unless the context otherwise requires, refers to interest
and Additional Interest, if any.



     “Interest Payment Date” means each April 15 and October 15 of each year, commencing April 15,
2008.



     “Issue Date” means the date on which the Notes are originally issued under this Indenture.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction).



     “Loan” means any loans made on a revolving credit basis or any competitive advance loans made
by any lender pursuant to that Amended and Restated Multi-Currency, Multi-Option Credit Agreement,
dated as of June 22, 2006 among the Company, Harman Holding GmbH& Co. KG and the several lenders
and agents from time to time parties thereto.



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     “Market Disruption Event” means the occurrence or existence for more than one half hour period
in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the primary
exchange or trading system on which such shares are traded) in the Common Stock or in any options,
contracts or future contracts relating to the Common Stock, and such suspension or limitation
occurs or exists at any time before 1:00 p.m. (New York City time) on such day.



     “Maturity Date” means October 15, 2012.



     “NASD” means the National Association of Securities Dealers, Inc.



     “Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of October 22,
2007, among the Company, the Initial Purchasers, Sponsors solely for purposes of Article 1,
Sections 4.6, 5.5, 5.6 and 7.1 and Article 9 thereto,



     “Notes” has the meaning assigned to such term in the Recitals.



     “Officer” means the chairman of the Board of Directors, the president or chief executive
officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer,
or the secretary or any assistant secretary, of the Company.



     “Officers’ Certificate” means a certificate signed in the name of the Company (i) by the
chairman of the Board of Directors, the president or chief executive officer or a vice president
and (ii) by the chief financial officer, the chief accounting officer, the treasurer or any
assistant treasurer or the secretary or any assistant secretary.



     “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company, satisfactory to the Trustee.



     “Paying Agent” refers to a Person engaged to perform the obligations of the Trustee in respect
of payments made or funds held hereunder in respect of the Notes.



     “Permitted Transfer” has the meaning given such term in Section 7.1(a) of the Note Purchase
Agreement.



     “Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity, including a government or political subdivision or an
agency or instrumentality thereof.



     “Register” has the meaning assigned to such term in Section 2.03.



     “Registrar” means a Person engaged to maintain the Register.



     “Registration Rights Agreement” means the Registration Rights Agreement dated as of October
23, 2007, among the Company and Initial Purchasers.



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     “Regular Record Date” for the interest payable on any Interest Payment Date means the April 1
or October 1 (whether or not a Trading Day) next preceding such Interest Payment Date.



     “Resale Restriction Termination Date” means, as to any Note, the later of October 23, 2009 and
the date that is two years after the last date on which the Company or any Affiliate of the Company
was the owner of such Note.



     “Restricted Certificated Note” means a Certificated Note that bears the Restricted Note
Legend.



     “Restricted Common Stock Legend” means the legend set forth in Exhibit B.



     “Restricted Global Note” means a Global Note that bears the Restricted Note Legend
representing Notes transferred pursuant to Rule 144A and in accordance with the Note Purchase
Agreement.



     “Restricted Note” means a Note that bears the Restricted Note Legend.



     “Restricted Note Legend” means the legend set forth in Exhibit A.



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



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



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder.



     “Shelf Registration Statement” has the meaning given such term in the Registration Rights
Agreement.



     “Significant Subsidiary” means, in respect of any Person, a Subsidiary of such Person that
would constitute a “significant subsidiary” as such term is defined under Rule 1-02 of Regulation
S-X under the Securities Act and the Exchange Act.



     “Sponsors” means collectively, Kohlberg Kravis Roberts & Co. L.P. and GS Capital Partners.



     “Sponsor Purchasers” means the Initial Purchasers, other than the Bank Purchasers, and their
Affiliates that acquire beneficial ownership of Securities in a Permitted Transfer.



     “Stated Maturity” means (i) with respect to the Notes, October 15, 2012, or (ii) with respect
to any scheduled payment of interest on the Notes, the date specified as the fixed date on which
such interest payment is due and payable as set forth in this Indenture and the Notes, not
including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled
date for payment.



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     “Subsidiary” means with respect to any Person, any corporation, association or other business
entity of which more than 50% of the outstanding Voting Securities is owned, directly or
indirectly, by, or, in the case of a partnership, the sole general partner or the managing partner
or the only general partners of which are, such Person and one or more Subsidiaries of such Person
(or a combination thereof). Unless otherwise specified, “Subsidiary” means a Subsidiary of the
Company.



     A “Termination of Trading” will be deemed to have occurred if the Common Stock (or other
common stock into which the Notes are then convertible) is neither listed for trading on a U.S.
national securities exchange nor approved for trading on an established U.S. system of automated
dissemination of quotations of securities prices and no American Depositary Shares or similar
instruments for such common stock are so listed or approved for listing in the United States.



     “Trading Day” means any day on which (i) there is no Market Disruption Event and (ii) the New
York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, the
principal national securities exchange on which the Common Stock is listed, is open for trading or,
if the Common Stock is not so listed, admitted for trading or quoted, any Business Day. A Trading
Day only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time)
or the then standard closing time for regular trading on the relevant exchange or trading system.



     “Trading Price” with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Trustee for $2.0 million principal amount of
Notes at approximately 3:30 p.m., New York City time, on such determination date from three
independent nationally recognized securities dealers selected by the Company; provided that if
three such bids cannot reasonably be obtained by the Trustee, but two such bids are obtained, then
the average of the two bids shall be used, and if only one such bid can reasonably be obtained by
the Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Closing Price (as provided to the Trustee by the Company) and the Conversion Rate.
Any such determination by the Trustee will be conclusive absent manifest error.



     “Trustee” means the party named as such in the first paragraph of the Indenture or any
successor trustee under the Indenture pursuant to Article 7.



     “Trust Indenture Act” means the Trust Indenture Act of 1939.



     “Trust Officer” when used with respect to the Trustee, means and officer within the Corporate
Trust Administration of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject.



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     “Volume Weighted Average Price” on any Trading Day means the price per share of the Common
Stock as displayed on Bloomberg (or any successor service) page HAR.N <Equity> AQR in respect
of the period from 9:30 a.m. to close (New York City time), on such Trading Day; or, if such price
is not available, the market value per share of the Common Stock on such day as determined by a
nationally recognized independent investment banking firm retained for this purpose by the Company.



     “Voting Securities” means, with respect to any Person, 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 such Person.



     Section 1.02 Other Definitions.



	 	 	 
	 	 	Defined in
	Term	 	Section
	“Act”
	 	1.05
	“Aggregate Amount”
	 	10.10
	“Antitrust Laws”
	 	10.01(c)
	“Average Sale Price”
	 	10.08
	“beneficial owner”
	 	3.01(a)
	“Cash Percentage”
	 	10.01
	“Cash Percentage Notice”
	 	10.01
	“Change in Control Effective Date”
	 	10.13(b)
	“Company Order”
	 	2.02
	“Conversion Agent”
	 	2.03
	“Conversion Rate Cap”
	 	10.15
	“Conversion Trigger Price”
	 	Note -- paragraph 7
	“Defaulted Interest”
	 	11.02
	“Distributed Assets”
	 	10.08(a)
	“Dividend Threshold Amount”
	 	10.09
	“Expiration Date”
	 	10.10
	“Expiration Time”
	 	10.10
	“Fundamental Change”
	 	3.01(a)
	“Fundamental Change Purchase Date”
	 	3.01(a)
	“Fundamental Change Purchase Notice”
	 	3.01(c)
	“Fundamental Change Purchase Price”
	 	3.01(a)
	“Initial Purchasers”
	 	2.01
	“Legal Holiday”
	 	12.07
	“Make-Whole Shares”
	 	10.13(a)
	“Primary Registrar”
	 	2.03
	“Purchased Shares”
	 	10.10
	“QIB”
	 	2.01(b)
	“Reference Period”
	 	10.08(a)
	“Reference Property”
	 	10.12






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	 	 	Defined in
	Term	 	Section
	“Remaining Shares”
	 	10.01
	“Required Cash Amount”
	 	10.01
	“Restricted Securities”
	 	2.14
	“Rights”
	 	10.23
	“Shareholders Rights Plan”
	 	10.23
	“Special Record Date”
	 	11.02
	“Stock Price”
	 	10.13(b)
	“Trigger Event”
	 	10.11






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



     “Commission” means the Securities and Exchange Commission.



     “indenture securities” means the Notes.



     “indenture security holder” means a Noteholder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on the indenture securities means the Company.



     All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Securities
Exchange Commission rule have the meanings assigned to them by such definitions.



     Section 1.04 Rules of Construction. Unless the context otherwise requires or except
as otherwise expressly provided,



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




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




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




          (d) all references to Sections or Articles or Exhibits refer to Sections or Articles or
Exhibits of or to the Indenture unless otherwise indicated;




-12-









 








          (e) references to agreements or instruments, or to statutes or regulations, are to such
agreements or instruments as amended, restated or supplemented from time to time, or statutes or
regulations, as amended from time to time (or to successor statutes and regulations);




          (f) in the event that a transaction meets the criteria of more than one category of permitted
transactions or listed exceptions the Company may classify such transaction as it, in its sole
discretion, determines;




          (g) “or” is not exclusive;




          (h) “including” means including, without limitation; and




          (i) words in the singular include the plural, and words in the plural include the singular.




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



ARTICLE 2.




THE NOTES




     Section 2.01 Form, Dating and Denominations; Legends.



          (a) The Notes and the Trustee’s certificate of authentication will be substantially in the
form attached as Exhibit A. The terms and provisions contained in the form of the Note annexed as
Exhibit A constitute and are hereby expressly made a part of the Indenture. The Notes may have
notations, legends or endorsements required by law, rules of or agreements with national
securities exchanges to which the Company is subject, or usage. Each Note will be dated the date
of its authentication. The Notes will be issuable only in denominations of $1,000 in principal
amount and any integral multiple thereof.




          (b) Restricted Notes. All of the Notes are initially being offered and sold pursuant
to the Note Purchase Agreement to Initial Purchasers, all of which are Institutional




-13-









 







Accredited
Investors, and are initially being issued in the form of an IAI Global Note (which will bear the
Global Note Legend and the IAI Note Legend set forth in Exhibit A hereto), which shall be deposited
on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary’s nominee, Cede & Co., duly executed by
the Company and authenticated by the Trustee as hereinafter provided. All Notes transferred to an
Initial Purchaser or a Sponsor Purchaser shall be issued in the form of one or more IAI Global
Notes bearing the Global Note Legend and the IAI Note Legend. All Notes transferred by Initial
Purchasers or Sponsor Purchasers to qualified institutional buyers as defined in Rule 144A
(collectively, “QIBs” or individually, each a “QIB”) in reliance on Rule 144A under the Securities
Act and in accordance with the Note Purchase Agreement, other than any such Notes transferred
by Initial Purchasers to Sponsor Purchasers or any such Notes that are offered and sold to the
Initial Purchasers or any Sponsor Purchasers, shall be issued in the form of one or more Restricted
Global Notes (which will bear the Global Note Legend and the Restricted Note Legend set forth in
Exhibit A hereto), which shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, as custodian for the Depositary, and registered in the name of its
nominee, Cede & Co., duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of each of the IAI Global Notes and the Restricted Global
Notes may from time to time be increased or decreased by adjustments made on the records of the
Trustee as hereinafter provided, subject in each case to compliance with the Applicable Procedures.




          (c) Global Notes in General. Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate
amount of outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, purchases or conversions of such Notes. Any adjustment of the
aggregate principal amount of a Global Note to reflect the amount of any increase or decrease in
the amount of outstanding Notes represented thereby shall be made by the Trustee in accordance
with instructions given by the Holder thereof as required by Section 2.06 and shall be made on the
records of the Trustee and the Depositary.




     Agent Members shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary or under the Global Note, and the Depositary (including, for this
purpose, its nominee) may be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or (B) impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the rights of a Holder of
any Note.



          (d) Book Entry Provisions. The Company shall use its reasonable efforts to execute
and the Trustee shall, in accordance with this Section 2.01(d), authenticate and deliver one or
more Global Notes that (i) shall be registered in the name of the Depositary, (ii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (iii)
shall




-14-









 







bear the Global Note Legend substantially to the effect set forth in Exhibit A. This
Section 2.01(d) shall only apply to Global Notes deposited with or on behalf of the Depositary.




          (e) Restriction on Affiliate Transfers. Other than transfers of Notes from any
Initial Purchaser or any Sponsor Purchaser to another Initial Purchaser or Sponsor Purchaser, no
transfer of Notes to Affiliates of the Company will be permitted.




     Section 2.02 Execution and Authentication. An Officer shall sign the Notes for the
Company by manual or facsimile signature attested by the manual or facsimile signature of the
Secretary or an Assistant Secretary of the Company.
Typographic and other minor errors or defects in any such facsimile signature shall not affect
the validity or enforceability of any Note which has been authenticated and delivered by the
Trustee.



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



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



     The Trustee shall authenticate and make available for delivery Notes for original issue in the
aggregate principal amount of $400,000,000 upon receipt of a written order or orders of the Company
signed by an Officer of the Company (a “Company Order”). The Company Order shall specify the
amount of Notes to be authenticated, shall provide that all such Notes will be represented
initially by a Global Note and the date on which each original issue of Notes is to be
authenticated. The initial aggregate principal amount of Notes outstanding at any time may not
exceed $400,000,000 except as provided in Section 2.07 and except as provided in the next
succeeding paragraph.



     The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company or an Affiliate of the Company.



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



     Section 2.03 Registrar, Paying Agent and Conversion Agent. The Company shall maintain
one or more offices or agencies where Notes may be presented for registration of transfer or for
exchange (each, a “Registrar”), one or more offices or agencies where Notes may be presented for
payment (each, a “Paying Agent”), one or more offices or agencies where Notes may be presented for
conversion (each, a “Conversion Agent”) and one or more offices or agencies where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or



-15-









 







agency where notices and demands to or upon the Company in respect of the Notes and this Indenture
may be served in the United States. One of the Registrars (the “Primary Registrar”) shall keep a
register of the Notes and of their transfer and exchange (the “Register”). The entries in the
Register shall be conclusive, absent manifest error, and the Company shall treat each Person whose
name is recorded in the Register as the owner of such Note as the owner thereof for all purposes of
this Indenture notwithstanding any notice to the contrary.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of any Agent not a party
to this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Article 8).



     The Company hereby initially designates the Trustee as Paying Agent, Registrar, and Conversion
Agent, and the Corporate Trust Office of the Trustee as such office or agency of the Company for
each of the aforesaid purposes.



     Section 2.04 Paying Agent To Hold Money In Trust. Prior to 11:00 a.m., New York City
time, on each date on which the principal amount of or interest, if any, on any Notes is due and
payable, the Company shall deposit with a Paying Agent a sum sufficient to pay such principal
amount or interest, if any, so becoming due. A Paying Agent shall hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment of principal amount
of or interest, if any, on the Notes, and shall notify the Trustee of any default by the Company
(or any other obligor on the Notes) in making any such payment. If the Company or an Affiliate of
the Company acts as Paying Agent, it shall, before 11:00 a.m., New York City time, on each date on
which a payment of the principal amount of or interest on any Notes is due and payable, segregate
the money and hold it as a separate trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee, and the Trustee may at any time during the continuance
of any default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith
to the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent
(other than the Company) shall have no further liability for the money.



     Section 2.05 Noteholder 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
Noteholders. If the Trustee is not the Primary Registrar, the Company shall furnish to the Trustee
on or before each semiannual 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 Noteholders.



     Section 2.06 Transfer and Exchange. Subject to compliance with any applicable
additional requirements contained in Section 2.14, when a Note is presented to a Registrar with a
request to register a transfer thereof or to exchange such Note for an equal principal amount of
Notes of other authorized denominations, the Registrar shall register the transfer or make the
exchange as requested



-16-









 







if its requirements for such transactions are met; provided, however, that
every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by an assignment form in the applicable form included in Exhibit A, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly authorized
in writing. To permit registration of transfers and exchanges, upon surrender of any Note for
registration of transfer or exchange at an office or agency maintained pursuant to Section 2.03,
the Company shall execute and the Trustee shall authenticate Notes of a
like aggregate principal amount at the Registrar’s request. Any exchange or transfer shall be
without charge, except that the Company or the Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto, and provided,
that this sentence shall not apply to any exchange pursuant to Section 2.10, Section 3.04, Section
9.03(b) or Section 10.02(g) not involving any transfer. No transfer shall be effective unless
recorded in the Register.



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



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



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



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



     Section 2.07 Replacement Notes. If any mutilated Note is surrendered to the Company,
a Registrar or the Trustee, or the Company, a Registrar and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is delivered to the Company,
the applicable Registrar and the Trustee such security or indemnity as will be required by them to
save each of them harmless, then, in the absence of notice to the Company, such Registrar or the
Trustee that such Note has been acquired by a protected purchaser, the Company shall execute, and
upon its written request the Trustee shall authenticate and deliver, in exchange for any such
mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding.



-17-









 





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



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



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



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



     Section 2.08 Outstanding Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee, except for those canceled by it, those converted pursuant to Article
10, those delivered to it for cancellation or surrendered for transfer or exchange and those
described in this Section 2.08 as not outstanding.



     If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Company
receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



     If a Paying Agent holds at 11:00 a.m., New York City time, on the Maturity Date Cash
sufficient to pay the principal amount of the Notes payable on that date, then on and after the
Maturity Date, such Notes shall cease to be outstanding and the principal amount thereof shall
cease to bear interest.



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



     Section 2.09 Treasury Notes. In determining whether the Holders of the required
principal amount of Notes have concurred in any notice, direction, waiver or consent, Notes owned
by the Company or any other obligor on the Notes or by any Affiliate of the Company or of such
other obligor shall be disregarded, except that, for purposes of determining whether the Trustee
shall be protected in relying on any such notice, direction, waiver or consent, only Notes which a
Trust Officer of the Trustee actually knows are so owned shall be so disregarded; provided,
however, that this Section 2.09 shall not apply to any applicable Notes owned by an Initial
Purchaser, or a Sponsor Purchaser to which such Notes are transferred in compliance with the
applicable provisions of the Note Purchase Agreement, that is deemed to be an Affiliate of the
Company solely by virtue of a nominee of the Sponsors serving as a director on the Board of
Directors other than any such Notes



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that were transferred to a holder that is not an Initial
Purchaser or a Sponsor Purchaser after the Issue Date that were subsequently reacquired by an
Initial Purchaser or a Sponsor Purchaser if and for so long as there is a Board Designee (as
defined in the Note Purchase Agreement) on the Board of Directors. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of
the Trustee the pledgee’s right so to act with respect to the Notes
and that the pledgee is not the Company or any other obligor on the Notes or any Affiliate of
the Company or of such other obligor. Any Notes or shares of Common Stock issued upon the
conversion of Notes that are purchased or owned by the Company or any Affiliate thereof may not be
resold by the Company or such Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the Securities Act in a transaction
that results in such Notes or shares of Common Stock, as the case may be, no longer being
“restricted securities” (as defined under Rule 144).



     Section 2.10 Temporary Notes. Until definitive Notes are ready for delivery, the
Company may prepare and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate for temporary Notes
and shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and, upon receipt of a Company Order, the Trustee shall authenticate and deliver definitive
Notes in exchange for temporary Notes.



     Section 2.11 Cancellation. The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Notes surrendered to them for transfer, exchange, payment or conversion.
The Trustee and no one else shall cancel, in accordance with its standard procedures, all Notes
surrendered for transfer, exchange, payment, conversion or cancellation and upon written request of
the Company shall deliver written certification of such cancellation of Notes to the Company.



     Section 2.12 CUSIP Numbers. The Company in issuing any Global Notes may use one or
more “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers
in notices of purchase as a convenience to Holders; provided, that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Notes or
as contained in any notice of a purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such purchase shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the Trustee of any change
in the “CUSIP” numbers.



     Section 2.13 Book-entry Provisions For Global Notes.



          (a) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the
Depositary, its successors or their respective nominees. In addition, Certificated Notes shall be
transferred to all beneficial owners, as identified by the Depositary, in exchange for their
beneficial interests in Global Notes only if (i) the Depositary notifies the Company that the
Depositary is unwilling or unable to continue as depositary for any Global Note (or the Depositary
ceases to be a “clearing agency” registered under Section 17A of the Exchange Act) and a




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successor
Depositary is not appointed by the Company within 90 days of such notice or cessation
or (ii) an Event of Default has occurred and is continuing and the Registrar has received a
written request from the Depositary to issue Certificated Notes.




          (b) In connection with the transfer of a Global Note in its entirety to beneficial owners
pursuant to Section 2.13(a), such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall, upon receipt of a Company
Order, authenticate and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations.




          (c) Any Certificated Note constituting a Restricted Certificated Note or an IAI Certificated
Note delivered in exchange for an interest in a Global Note pursuant to Section 2.13(a) shall,
except as otherwise provided by Section 2.14, bear the Restricted Note Legend or the IAI Note
Legend, as applicable.




          (d) The Holder of any Global Note may grant proxies and otherwise authorize any Person to
take any action that a Holder is entitled to take under this Indenture or the Notes.




     Section 2.14 Special Transfer Provisions.



          (a) The Initial Purchasers, the Sponsor Purchasers and the Bank Purchasers may only transfer
Notes in accordance with the Note Purchase Agreement, provided, such transfers also comply with
the transfer restrictions set forth in the IAI Note Legend. Unless and until the Trustee receives
written notice from the Company or a Holder that a transfer of a Note has not been made in
compliance with the Note Purchase Agreement, the Trustee may assume without inquiry that such
transfer was made in accordance with the Note Purchase Agreement.




          (b) Notwithstanding any other provisions of this Indenture, but except as provided in Section
2.14(c), a Global Note may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.




          (c) Every Note that bears or is required under this Section 2.14(c) to bear the Restricted
Note Legend or the IAI Note Legend, and any Common Stock that bears or is required under this
Section 2.14(c) to bear the Restricted Common Stock Legend or the IAI Common Stock Legend
(collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set
forth in the Restricted Note Legend, the IAI Note Legend, the Restricted Common Stock Legend or
the IAI Common Stock Legend, as the case may be, unless such restrictions on transfer shall be
waived by written consent of the Company, and the holder of each such Restricted Security, by such
Notes holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As
used in this Section 2.14(c), the term “transfer” encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security or any interest therein.




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     Any certificate evidencing such Note (and all securities issued in exchange therefor or
substitution thereof), and any stock certificate representing shares of Common Stock issued upon
conversion of any Note, shall bear a Restricted Note Legend, IAI Note Legend, Restricted Common
Stock Legend or IAI Common Stock Legend, as the case may be, unless such Note or such shares of
Common Stock have been sold pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time of such transfer) or
pursuant to Rule 144 or any similar provision then in force, or such shares of Common Stock have
been issued upon conversion of Notes that have been transferred pursuant to a registration
statement that has been declared effective under the Securities Act or pursuant to Rule 144 under
the Securities Act, or unless otherwise agreed by the Company in writing, with written notice
thereof to the Trustee.



     Any Note (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms or as to conditions for
removal of the Restricted Note Legend set forth therein have been satisfied may, upon surrender of
such Note for exchange to the Registrar in accordance with the provisions of Section 2.06, be
exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not
bear the Restricted Note Legend. If the Restricted Note surrendered for exchange is represented by
a Global Note bearing the Restricted Note Legend, the principal amount of the legended Global Note
shall be reduced by the appropriate principal amount and the principal amount of a Global Note
without the Restricted Note Legend shall be increased by an equal principal amount. If a Global
Note without the Restricted Note Legend is not then outstanding, the Company shall execute and the
Trustee, upon receipt of a Company Order, shall authenticate and deliver an unlegended Global Note
to the Depositary.



     Any such shares of Common Stock as to which such restrictions on transfer shall have expired
in accordance with their terms or as to which the conditions for removal of the Restricted Common
Stock Legend set forth therein have been satisfied may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the procedures of the
transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like
number of shares of Common Stock, which shall not bear the Restricted Common Stock Legend required
by this Section 2.14.



          (d) By its acceptance of any Note bearing the Restricted Note Legend or the IAI Note Legend,
as the case may be, each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Indenture and in the Restricted Note Legend or the IAI Note Legend, as the
case may be, and agrees that it will transfer such Note only as provided in this Indenture and as
permitted by applicable law.




          (e) The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.13 or this Section 2.14. The Company shall have the
right to inspect and make copies of all such letters, notices or other written communications at
any reasonable time during normal hours of operation of the Registrar upon the giving of
reasonable notice to the Registrar.




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ARTICLE 3.




PURCHASES




     Section 3.01 Repurchase At the Option of the Holder.



          (a) If there shall have occurred a Fundamental Change, each Holder shall have the right, at
such Holder’s option, to require the Company to purchase for Cash all or any portion of such
Holder’s Notes in integral multiples of $1,000 principal amount on a date selected by the Company
(the “Fundamental Change Purchase Date”), which Fundamental Change Purchase Date shall be no later
than 35 Trading Days after the occurrence of such Fundamental Change, unless such 35 Trading Days
would not provide Holders with at least 20 Trading Days’ notice, in which event the Fundamental
Change Purchase Date shall be the day that provides the shortest period necessary to provide 20
Trading Days’ notice, at a purchase price equal to 100% of the principal amount of the Notes to be
purchased, plus accrued and unpaid interest to, but excluding, the Fundamental Change Purchase
Date (the “Fundamental Change Purchase Price”), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 3.01(c); provided that if the Fundamental Change
Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which
it relates, interest accrued to the Interest Payment Date will be paid to Holders of the Notes as
of the preceding Regular Record Date.




     A “Fundamental Change” shall be deemed to have occurred at such time as either of the
following events shall occur:



               (i) any “person” or “group”, other than the Company, its Subsidiaries or any employee benefits
plan of the Company or its Subsidiaries, files, or is required to file, a Schedule 13D or Schedule
TO (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such
person has become the beneficial owner of shares with a majority of the total voting power of the
Company’s outstanding Voting Securities; unless such beneficial ownership arises solely as a result
of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the
applicable rules and regulations under the Exchange Act;



               (ii) the Company consolidates with or merges with or into another person (other than a
Subsidiary of the Company), or sells, conveys, transfers, leases or otherwise disposes of all or
substantially all of its properties and assets to any Person (other than a Subsidiary of the
Company) or any person (other than a Subsidiary of the Company) consolidates with or merges with or
into the Company, and the outstanding Voting Securities of the Company are reclassified into,
converted for or converted into the right to receive any other property or security, provided that
none of these circumstances will be a Fundamental Change if Persons that beneficially own the
Voting Securities of the Company immediately prior to the transaction own, directly or indirectly,
shares with a majority of the total voting power of all outstanding Voting Securities of the
surviving or transferee person immediately after the transaction in substantially the same
proportion as their ownership of the Company’s Voting Securities immediately prior to the
transaction;



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               (iii) the Company’s stockholders or Board of Directors adopts a plan for the liquidation or
dissolution of the Company; or



               (iv) upon the occurrence of a Termination of Trading.




	 	For purposes of defining a Fundamental Change:






	 	(x)	 	the term “person” and the term “group” have the meanings given by Section 13(d)
and 14(d) of the Exchange Act or any successor provisions;
	 
	 	(y)	 	the term “group” includes any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act or any successor provision; and
	 
	 	(z)	 	the term “beneficial owner” is determined in accordance with Rules 13d-3 and
13d-5 under the Exchange Act or any successor provisions, except that a person will be
deemed to have beneficial ownership of all shares that person has the right to acquire
irrespective of whether that right is exercisable immediately or only after the passage
of time.





     Notwithstanding the foregoing, it will not constitute a Fundamental Change if both (x) at
least 90% of the consideration for the Common Stock (excluding Cash payments for fractional shares
and Cash payments made in respect of dissenter’s appraisal rights and Cash payments of the Required
Cash Amounts, if any) in the transaction or transactions otherwise constituting the Fundamental
Change consists of common stock traded on a U.S. national securities exchange or approved for
trading on an established U.S. system of automated dissemination of quotations of securities
prices, or which will be so traded or quoted when issued or exchanged in connection with such
Fundamental Change, and (y) as a result of such transaction or transactions the Notes become
convertible solely into such common stock (subject to settlement upon conversion in the manner
contemplated by Section 10.01, using the value of such common stock for reference).



          (b) As promptly as practicable following the date the Company publicly announces the
Fundamental Change transaction, but in no event less than 20 Trading Days prior to the anticipated
effective date of a Fundamental Change in the case of a Fundamental Change within the control of
the Company or of which the Company has at least 30 Trading Days prior notice, the Company shall
mail a written notice of Fundamental Change by first-class mail to the Trustee and to each Holder
at their addresses shown in the register of the Registrar (and to beneficial owners as required by
applicable law). The notice shall include a form of Fundamental Change Purchase Notice to be
completed by the Noteholder and shall state:




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



               (ii) the anticipated effective date of such Fundamental Change;



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               (iii) the date by which the Fundamental Change Purchase Notice pursuant to this Section 3.01
must be given;



               (iv) the Fundamental Change Purchase Price;



               (v) the Fundamental Change Purchase Date;



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



               (vii) the then-current Conversion Rate and any adjustments thereto;



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



               (ix) briefly, the procedures a Holder must follow to exercise rights under this Section 3.01;



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



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



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



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



               (xiv) that, unless the Company defaults in making payment of such Fundamental Change Purchase
Price and interest due, if any, interest on Notes surrendered for purchase will cease to accrue on
and after the Fundamental Change Purchase Date; and



               (xv) the CUSIP number of the Notes.



          (c) A Holder may exercise its rights specified in Section 3.01(a) by delivery of a written
notice of purchase (a “Fundamental Change Purchase Notice”) to the Paying Agent at any time prior
to the Close of Business on the Fundamental Change Purchase Date, stating:




               (i) the certificate number of the Note which the Holder will deliver to be purchased, if
Certificated Notes have been issued, or notice compliant with the relevant DTC procedures if the
Notes are not certificated;



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



               (iii) that such Note shall be purchased pursuant to the terms and conditions specified in this
Article 3.



     The delivery of such Note to the Paying Agent prior to, on or after the Fundamental Change
Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall
be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor;
provided, however, that such Fundamental Change Purchase Price shall be so paid pursuant to this
Section 3.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the
description thereof set forth in the related Fundamental Change Purchase Notice.



     The Company shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.



     Any purchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall
be consummated by the delivery of the consideration to be received by the Holder (together with
accrued and unpaid interest) on or prior to the third Business Day following the later of the
Fundamental Change Purchase Date and the time of delivery of the Note to the Paying Agent in
accordance with this Section 3.01.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.01(c) shall have the right to
withdraw such Fundamental Change Purchase Notice at any time prior to the Close of Business on the
Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.02.



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



     There shall be no purchase of any Notes pursuant to this Section 3.01 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such Notes, of the
required Fundamental Change Purchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Fundamental Change Purchase Price). The Paying Agent will promptly
return to the respective Holders thereof any Notes (x) with respect to which a Fundamental Change
Purchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the Fundamental Change
Purchase Price) in which case, upon such return, the Fundamental Change Purchase Notice with
respect thereto shall be deemed to have been withdrawn.



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     Section 3.02 Effect of Fundamental Change Purchase Notice.



          (a) Upon receipt by the Paying Agent of the Fundamental Change Purchase Notice specified in
Section 3.01(c), the Holder of the Note in respect of which such Fundamental Change Purchase
Notice was given shall (unless such Fundamental Change Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled to receive
solely the Fundamental Change Purchase Price and any accrued and unpaid interest, with respect to
such Note. Such Fundamental Change Purchase Price and interest shall be paid to such Holder,
subject to receipt of funds by the Paying Agent, on or prior to the third Business Day following
the later of (x) the Fundamental Change Purchase Date, with respect to such Note (provided the
conditions in Section 3.01(c) have been satisfied) and (y) the time of delivery of such Note to
the Paying Agent by the Holder thereof in the manner required by Section 3.01(c). Notes in
respect of which a Fundamental Change Purchase 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 Purchase Notice unless such Fundamental Change Purchase Notice has first been
validly withdrawn as specified in the following two paragraphs.




          (b) A Fundamental Change Purchase 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
Purchase Notice at any time prior to the Close of Business on the Fundamental Change Purchase Date
specifying:




               (i) the certificate number of the Note which the Holder will deliver to be purchased, if
Certificated Notes have been issued, or notice compliant with the relevant DTC procedures, if the
Notes are not certificated,



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



               (iii) the principal amount, if any, of such Note which remains subject to the original
Fundamental Change Purchase Notice and which has been or will be delivered for purchase by the
Company.



     A written notice of withdrawal of a Fundamental Change Purchase Notice may be in the form set
forth in the preceding paragraph.



     Section 3.03 Deposit of Fundamental Change Purchase Price. Prior to 10:00 a.m. (New
York City time) on or prior to the third Business Day following the Fundamental Change Purchase
Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided in Section 2.04) an amount of money (in immediately available funds if
deposited on such Trading Day) sufficient to pay the aggregate Fundamental Change Purchase Price of
all the Notes or portions thereof which are to be purchased as of the Fundamental Change Purchase
Date.



-26-









 





     If the Trustee or the Paying Agent holds money sufficient to pay the Fundamental Change
Purchase Price of a Note on the third Business Day following the Fundamental Change Purchase Date
in accordance with the terms hereof, then, immediately after the Fundamental Change Purchase Date,
interest on such Note will cease to accrue, whether or not the Note is delivered to the Trustee
or the Paying Agent, and all other rights of the holder shall terminate, other than the right
to receive the Fundamental Change Purchase Price upon delivery of the Note.



     Section 3.04 Notes Purchased In Part. Any Note which is to be purchased only in part
shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Note, without service charge, a new Note or Note, 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 Note so surrendered that is not purchased.



     Section 3.05 Covenant To Comply With Securities Laws Upon Repurchase of Notes. When
complying with the provisions of Section 3.01 (provided, that such offer or purchase constitutes an
“issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or purchase), and
subject to any exemptions available under applicable law, the Company shall:



          (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the Exchange
Act, as applicable;




          (b) file the related Schedule TO (or any successor schedule, form or report) if required
under the Exchange Act, as applicable;




          (c) otherwise comply with all federal and state securities laws so as to permit the rights
and obligations under Section 3.01 to be exercised in the time and in the manner specified
therein.




     To the extent that the provisions of any securities laws or regulations conflict with the
provisions of Section 3.01, the Company’s compliance with such laws and regulations shall not in
and of itself cause a breach of its obligations under Section 3.01.



ARTICLE 4.




COVENANTS      




     Section 4.01 Payment of Notes.



          (a) The Company agrees to pay the principal of and interest on the Notes on the dates and in
the manner provided in the Notes and the Indenture. Not later than 11:00 a.m. (New York City
time) on the due date of any principal of or interest on any Notes, or any purchase price




-27-









 







of the
Notes, the Company will deposit with the Trustee (or Paying Agent) money in immediately
available funds sufficient to pay such amounts, provided that if the Company or any Affiliate
of the Company is acting as Paying Agent, it will, on or before each due date, segregate and hold
in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such
amounts until paid to such Holders or otherwise disposed of as provided in the Indenture. In each
case the Company will promptly notify the Trustee of its compliance with this paragraph.




          (b) An installment of principal or interest will be considered paid on the date due if the
Trustee (or Paying Agent, other than the Company or any Affiliate of the Company) holds on that
date money designated for and sufficient to pay the installment. If the Company or any Affiliate
of the Company acts as Paying Agent, an installment of principal or interest will be considered
paid on the due date only if paid to the Holders.




          (c) The Company agrees to pay interest on overdue principal, and, to the extent lawful,
overdue installments of interest at the rate per annum specified in the Notes plus 2%.




          (d) Payments in respect of the Notes represented by the Global Notes are to be made by wire
transfer of immediately available funds to the accounts specified by the Holders of the Global
Notes. With respect to Certificated Notes, the Company will make all payments by wire transfer of
immediately available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each Holder’s registered address.




     Section 4.02 Maintenance of Office or Agency. The Company will maintain in the United
States, an office or agency where Notes may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the Company in respect of
the Notes and the Indenture may be served. The Company hereby initially designates the Corporate
Trust Office of the Trustee as such office of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company fails to maintain any such required office or agency or fails to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served to the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be surrendered or presented for any of such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



     Section 4.03 Existence. The Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and the material rights and franchises
of the Company, except in the case of such rights and franchises, where the failure to do so would
not have a material adverse effect on the business of the Company and its subsidiaries, taken as a
whole, or the Company has otherwise determined that it is not in the best interest of the Company
to do so; and provided further that this Section does not prohibit any transaction otherwise
permitted by Section 5.01.




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     Section 4.04 Rule 144A Information and Annual Reports. 



          (a) At any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion
thereof shall, at such time, constitute “restricted securities” within the meaning of
Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and shall, upon written
request, provide to any Noteholder, beneficial owner or prospective
purchaser of Notes or any shares of Common Stock issued upon conversion of any Notes, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such
Notes or shares of Common Stock pursuant to Rule 144A under the Securities Act.




          (b) The Company shall deliver to the Trustee, such annual, quarterly and current reports or
other information and documents that are required to be filed with the Commission, copies of the
Company’s annual reports (which shall contain audited financial statements of the Company), and
quarterly and current reports and of the other information and documents (or copies of such
portions of any of the foregoing as the Commission may by rules and regulations prescribe) that
the Company is required to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act at the time the Company is required to file such annual, quarterly and current
reports and other information and documents; provided that any such annual, quarterly and current
reports, other information or documents required to be filed with the Commission shall be deemed
delivered to the Trustee at the same time the same is filed with the Commission. The Company
shall be deemed to have complied with the previous sentence to the extent that the Company shall
have filed or furnished such annual, quarterly and current reports or other information and
documents to the SEC via EDGAR (or any successor electronic delivery procedure). In the event the
Company is at any time no longer subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act, the Company shall continue to provide the Trustee and, upon
written request, to each Noteholder, annual, quarterly and current reports or other information
and documents containing substantially the same information as would have been required to be
filed with the SEC had the Company continued to have been subject to such reporting requirements.
In such event, such annual, quarterly and current reports shall be provided at the times the
Company would have been required to provide the applicable report had it continued to have been
subject to such reporting requirements.




     Section 4.05 Reports to Trustee. 



          (a) The Company will deliver to the Trustee within 120 days after the end of each fiscal year
a certificate from the principal executive, financial or accounting officer of the Company stating
that the officer has conducted or supervised a review of the activities of the Company and its
Subsidiaries and their performance under the Indenture and that, based upon such review, the
Company has fulfilled its obligations hereunder or, if there has been a Default, specifying the
Default and its nature and status.




          (b) The Company will deliver to the Trustee, as soon as possible and in any event within 30
days after the Company becomes aware or should reasonably become aware of the



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occurrence of a Default, an Officers’ Certificate setting forth the details of the Default,
and the action which the Company proposes to take with respect thereto.




     Section 4.06 Stay, Extension and Usury Laws.  The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (in each case, to the extent that it may lawfully do so) hereby
covenants that it will not, by resort to any such law to the extent it would hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.



     Section 4.07 Payment of Additional Interest.  If Additional Interest is payable by the
Company pursuant to the Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Additional Interest that is payable,
(ii) the reason why such Additional Interest is payable and (iii) the date on which such Additional
Interest is payable. Unless and until a Trust Officer of the Trustee receives such a certificate,
the Trustee may assume without inquiry that no such Additional Interest is payable. If the Company
has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to
the Trustee a certificate setting forth the particulars of such payment.



     Section 4.08 Incurrence of Debt.  Until the earlier to occur of third anniversary of
the Issue Date and the date on which the aggregate principal amount of Notes beneficially owned by
the Sponsor Purchasers and Bank Purchasers is less than $200 million, the Company will not and will
not permit any of its Subsidiaries to incur, create, assume, guarantee or otherwise become liable
for any Indebtedness (an “incurrence”) unless after giving effect to such incurrence the ratio of
Consolidated Total Debt to Consolidated EBITDA for the most recently ended four quarter period
would not be greater than 3.25 to 1.0, determined on a pro forma basis in accordance with
Regulation S-X under the Securities Act.



ARTICLE 5.




CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS




     Section 5.01 Consolidation, Merger, Sale or Lease of Assets by the Company. 



          (a) The Company, without the consent of the Holders of any of the outstanding Notes, may




               (i) consolidate with or merge with or into any Person, or



               (ii) sell, convey, transfer, or otherwise dispose of or lease all or substantially all of its
assets as an entirety or substantially an entirety, in one transaction or a series of related
transactions, to any Person;



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provided, that




                    (A) either (x) the Company is the continuing Person or (y) the resulting, surviving or
transferee Person is a corporation, partnership, limited liability company or trust organized and
validly existing under the laws of the United States of America, any State thereof or the District
of Columbia and expressly assumes by supplemental indenture all of the obligations of the Company
under the Indenture and the Notes and the Registration Rights Agreement;



                    (B) immediately after giving effect to the transaction, no Event of Default and no Default has
occurred and is continuing; and



                    (C) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that the consolidation, merger, transfer or lease and the supplemental indenture (if
any) comply with the Indenture;


provided, however, that in the event of a consolidation or merger of a wholly-owned subsidiary of
the Company with and into the Company, the Company shall not be required to deliver such
certificate or opinion.




          (b) Upon the consummation of any transaction effected in accordance with these provisions, if
the Company is not the continuing Person, the resulting, surviving or transferee Person will
succeed to, and be substituted for, and may exercise every right and power of, the Company under
the Indenture and the Notes with the same effect as if such successor Person had been named as the
Company in the Indenture. Upon such substitution, except in the case of a lease, unless the
successor is one or more of the Company’s Subsidiaries, the Company will be released from its
obligations under the Indenture and the Notes.




ARTICLE 6.




DEFAULT AND REMEDIES




     Section 6.01 Events of Default.  An “Event of Default” occurs with respect to the
Notes if:



          (a) the Company defaults in the payment of the principal of any Note, or any Fundamental
Change Purchase Price when the same becomes due and payable on the Maturity Date, on the
Fundamental Change Purchase Date, upon acceleration, or otherwise;




          (b) the Company fails to provide the notice required by Section 3.01(b) on a timely basis;




          (c) the Company defaults in the payment of interest (including any Additional Interest) on
any Note when the same becomes due and payable, and the default continues for a period of 30 days;





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          (d) the Company fails to deliver all cash and any shares of Common Stock when such cash and
Common Stock, if any, are required to be delivered upon conversion of a Note and the Company does
not remedy such default within 10 days;




          (e) the Company fails to comply with any other covenant or agreement of the Company in the
Indenture or the Notes and the default or breach continues for a period of 60 consecutive days
after receipt of written notice to the Company by the Trustee or to the Company and the Trustee by
the Holders of 25% or more in aggregate principal amount of the Notes then outstanding; provided,
however, that the Company shall have 365 days after receipt of such notice to remedy, or receive a
waiver for, any failure to comply with Section 4.04(b) of this Indenture so long as (i) the
Company is attempting to cure such failure as promptly as reasonably practicable and (ii) after
receipt of such notice and until day the Company remedies, receives a waiver or otherwise comes
into compliance with Section 4.04(b), the Company accrues and pays additional interest on the
Notes at an annual rate on the principal amount of the Notes equal to (i) .25% from the
120th day to but not including the 210th day of such non-compliance and (ii)
..50% thereafter, and, provided further, that the Company must promptly provide written notice to
the Trustee and the Holders after the period of such accrual of interest on the Notes has
commenced and again when such accrual period has ended. It is understood that any failure by the
Company to pay any interest under this Section 6.01(e) to the Holders when the same becomes due
and payable shall constitute a default as described in Section 6.01(c) above;




          (f) (i) the failure by the Company or any Significant Subsidiary to make any payment by the
end of any applicable grace period after maturity of any principal and/or accrued interest with
respect to Debt, where the amount of such unpaid and due principal and/or accrued interest is in
an aggregate amount in excess of $150,000,000, or (ii) there is an acceleration of any principal
and/or accrued interest with respect to Debt where the amount of such accelerated principal and
interest is in an amount in excess of $150,000,000 because of a default with respect to such Debt;
in any such case of (i) or (ii), without such Debt having been paid or discharged or such
acceleration having been cured, waived, rescinded or annulled within a period of 30 days after
written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding; provided, however,
if any such failure or acceleration referred to in (i) or (ii) above shall cease or be cured,
waived, rescinded or annulled, then the Event of Default by reason thereof shall be deemed not to
have occurred and any acceleration hereunder as a result of the related Event of Default shall be
automatically rescinded;




          (g) the failure by the Company or any Significant Subsidiary to pay any judgment in excess of
$100,000,000, which judgments are not paid, discharged or stayed for a period of 30 consecutive
days;




          (h) the Company or any Significant Subsidiary, pursuant to or under or within the meaning of
any Bankruptcy Law, (i) commences a voluntary case or proceeding; (ii) consents to the entry of an
order for relief against it in an involuntary case or proceeding or the commencement of any case
against it; (iii) consents to the appointment of any receiver, trustee, assignee, liquidator,




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custodian or similar official of it or for any substantial part of its property; (iv) makes a
general assignment for the benefit of its creditors; (v) files a petition in bankruptcy or answer
or consent seeking reorganization or relief; or (vi) consents to the filing of such petition or
the appointment of or taking possession by any receiver, trustee, assignee, liquidator, custodian
or similar official; or




          (i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(i) is for relief against the Company or any Significant Subsidiary in an involuntary case or
proceeding, or adjudicates the Company or any Significant Subsidiary insolvent or bankrupt;
(ii) appoints any receiver, trustee, assignee, liquidator, custodian or similar official of the
Company or any Significant Subsidiary or for any substantial part of its property; or (iii) orders
the winding up or liquidation of the Company or any Significant Subsidiary, and the order or
decree remains unstayed and in effect for 60 days (an event of default specified in clause (h) or
(i) a “Bankruptcy Default”).




     Section 6.02 Acceleration. 



          (a) If an Event of Default, other than a Bankruptcy Default with respect to the Company,
occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate of the outstanding principal amount of the Notes, by written notice to the Company (and
to the Trustee if the notice is given by the Holders), may, and the Trustee at the request of such
Holders shall, declare the principal of and accrued interest on the Notes to be immediately due
and payable. Upon a declaration of acceleration, such principal and interest will become
immediately due and payable. If a Bankruptcy Default occurs with respect to the Company, the
principal of and accrued interest on the Notes then outstanding will become immediately due and
payable without any declaration or other act on the part of the Trustee or any Holder.




          (b) The Holders of a majority in principal amount of the outstanding Notes by written notice
to the Company and to the Trustee may waive all past defaults and rescind and annul a declaration
of acceleration with respect to such Notes and its consequences if:




               (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if
any, and interest on the Notes that have become due solely by the declaration of acceleration, have
been cured or waived, and



               (ii) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction.



     Section 6.03 Other Remedies.  If an Event of Default occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of principal of and interest on the Notes or
to enforce the performance of any provision of the Notes or the Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Notes or does not produce any of them
in the proceeding.



     Section 6.04 Waiver of Past Defaults.  Except as otherwise provided in Sections 6.02,
6.07 and 9.02(b), the Holders of a majority in principal amount of the outstanding Notes may, by
notice to



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the Trustee, waive an existing Default and its consequences. Upon such waiver, the
Default will cease to exist, and any Event of Default arising therefrom will be deemed to have been
cured, but no such waiver will extend to any subsequent or other Default or impair any right
consequent thereon.



     Section 6.05 Control by Majority.  The Holders of a majority in aggregate principal
amount of the outstanding Notes may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture,
that may involve the Trustee in personal liability, or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such
direction, and may take any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.



     Section 6.06 Limitation on Suits.  A Holder may not institute any proceeding, judicial
or otherwise, with respect to the Indenture or the Notes, or for the appointment of a receiver or
trustee, or for any other remedy under the Indenture or the Notes, unless:



               (i) the Holder has previously given to the Trustee written notice of a continuing Event of
Default;



               (ii) Holders of at least 25% in aggregate principal amount of outstanding Notes have made
written request to the Trustee to institute proceedings in respect of the Event of Default in its
own name as Trustee under the Indenture;



               (iii) Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee
against any costs, liabilities or expenses to be incurred in compliance with such request;



               (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and



               (v) during such 60-day period, the Holders of a majority in aggregate principal amount of the
outstanding Notes have not given the Trustee a direction that is inconsistent with such written
request.



     Section 6.07 Rights of Holders to Receive Payment.  Notwithstanding anything to the
contrary, the right of a Holder of a Note to receive payment of principal of or interest on its
Note on or after the Stated Maturities thereof, or to bring suit for the enforcement of any such
payment on or after such respective dates, may not be impaired or affected without the consent of
that Holder.



     Section 6.08 Collection Suit by Trustee.  If an Event of Default in payment of
principal or interest specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust for the whole
amount of principal and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent lawful, overdue installments of interest, in each case at the rate
specified in the Notes, and



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such further amount as is sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee hereunder.



     Section 6.09 Trustee May File Proofs of Claim.  The Trustee may file proofs of claim
and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee hereunder) and the Holders
allowed in any judicial proceedings relating to the Company or its creditors or property, and is
entitled and empowered to collect, receive and distribute any money, securities or other property
payable or deliverable upon conversion or exchange of the Notes or upon any such claims. Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due the Trustee hereunder. Nothing in
the Indenture will be deemed to empower the Trustee to authorize or consent to, or accept or adopt
on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.



     Section 6.10 Priorities
  If the Trustee collects any money or property pursuant to this Article, it shall pay out
the money and property in the following order:



     First: to the Trustee for all amounts due hereunder;



     Second: to Holders for amounts then due and unpaid for principal of and interest on the Notes,
ratably, without preference or priority of any kind, according to the amounts due and payable on
the Notes for principal and interest; and



     Third: to the Company or as a court of competent jurisdiction may direct.



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



     Section 6.11 Restoration of Rights and Remedies.  If the Trustee or any Holder has
instituted a proceeding to enforce any right or remedy under the Indenture and the proceeding has
been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or
to the Holder, then, subject to any determination in the proceeding, the Company, the Trustee and
the Holders will be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, the Trustee and the Holders will continue as
though no such proceeding had been instituted.



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     Section 6.12 Undertaking for Costs.  In any suit for the enforcement of any right or
remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it
as Trustee, a court may require any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable costs, including
reasonable attorneys fees, against any party litigant (other than the Trustee) in the suit having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by a Holder to enforce payment of principal of or interest on any
Note on the respective due dates, or a suit by Holders of more than 10% in principal amount of the
outstanding Notes.



     Section 6.13 Rights and Remedies Cumulative.  No right or remedy conferred or reserved
to the Trustee or to the Holders under this Indenture is intended to be exclusive of any other
right or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative
and in addition to every other right and remedy hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise,
will not prevent the concurrent assertion or exercise of any other right or remedy.



     Section 6.14 Delay or Omission Not Waiver.  No delay or omission of the Trustee or of
any Holder to exercise any right or remedy accruing upon any Event of Default will impair any such
right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.



ARTICLE 7.




THE TRUSTEE




     Section 7.01 General. 



          (a) The duties and responsibilities of the Trustee are as provided by the Trust Indenture Act
and as set forth herein. Whether or not expressly so provided, every provision of the Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee is
subject to this Article.




          (b) Except during the continuance of an Event of Default, the Trustee need perform only those
duties that are specifically set forth in the Indenture and no others, and no implied covenants or
obligations will be read into the Indenture against the Trustee. In case an Event of Default has
occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by the
Indenture, and use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.




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




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     Section 7.02 Certain Rights of Trustee.  Subject to Trust Indenture Act
Sections 315(a) through (d):



          (a) In the absence of bad faith on its part, the Trustee may rely, and will be protected in
acting or refraining from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or matter stated in the
document, but, in the case of any document which is specifically required to be furnished to the
Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine
whether it conforms to the requirements of the Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein). The Trustee, in its
discretion, may make further inquiry or investigation into such facts or matters as it sees fit.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both conforming to Section 12.06 and the Trustee will not be liable
for any action it takes or omits to take in good faith in reliance on the certificate or opinion.




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




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




          (e) The Trustee will 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 or for any action it takes or
omits to take in accordance with the direction of the Holders in accordance with Section 6.05
relating to the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under the Indenture.




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




          (g) No provision of the Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties hereunder, or in the
exercise of its rights or powers, unless it receives indemnity satisfactory to it against any
loss, liability or expense.




          (h) The Trustee shall not be deemed to have notice or be charged with knowledge of any
Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or
shall have received from the Company or from Holders of Notes evidencing not less than



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twenty-five
percent (25%) of the then outstanding Notes, written notice thereof at its address set forth in
Section 12.03 and such notice references the Notes and this Indenture.




     Section 7.03 Individual Rights of Trustee.  The Trustee, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and
311. For purposes of Trust Indenture Act Section 311(b)(4) and (6):



          (a) “cash transaction” means any transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand; and




          (b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or obligation.




     Section 7.04 Trustee’s Disclaimer.  The Trustee (i) makes no representation as to the
validity or adequacy of the Indenture or the Notes, (ii) is not accountable for the Company’s use
or application of the proceeds from the Notes and (iii) is not responsible for any statement in the
Notes other than its certificate of authentication.



     Section 7.05 Notice of Default.  If any Default occurs and is continuing and is known
to the Trustee, the Trustee will send notice of the Default to each Holder within 90 days after it
occurs, unless the Default has been cured; provided that, except in the case of a default in the
payment of the principal of or interest on any Note, 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 interest of the Holders. Notice to Holders under this Section will be given in the manner
and to the extent provided in Trust Indenture Act Section 313(c).



     Section 7.06 Reports by Trustee to Holders.  Within 60 days after each October 15,
beginning with October 15, 2008, the Trustee will mail to each Holder, as provided in Trust
Indenture Act Section 313(c), a brief report dated as of such October 15, if required by Trust
Indenture Act Section 313(a), and file such reports with each stock exchange upon which its Notes
are listed and with the Commission as required by Trust Indenture Act Section 313(d).



     Section 7.07 Compensation and Indemnity. 



          (a) The Company will pay the Trustee compensation as agreed upon in writing for its services.
The compensation of the Trustee is not limited by any law on compensation of



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a Trustee of an
express trust. The Company will reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee, including the
reasonable compensation and expenses of the Trustee’s agents and counsel.




          (b) The Company will indemnify the Trustee for, and hold it harmless against, any loss or
liability or expense incurred by it without negligence or bad faith on its part arising out of or
in connection with the acceptance or administration of the Indenture and its duties under the
Indenture and the Notes, including the costs and expenses of enforcing this Indenture against the
Company (including this Section7.07) and of the Trustee defending itself against any claim or
liability and of complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under the Indenture and the Notes.
The Trustee will notify the Company promptly for any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company will not relieve the Company of its obligations
hereunder. The Company will defend the claim and the Trustee will cooperate in the defense. The
Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of
such counsel. The Company shall not be obligated to pay for any settlement made without its
consent, which consent will not be unreasonably withheld.




          (c) To secure the Company’s payment obligations in this Section, the Trustee will have a Lien
prior to the Notes on all money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of, and interest on particular
Notes. Such Lien will survive the satisfaction and discharge of this Indenture.




          (d) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(h) or (i) hereof occurs, the expenses and the compensation for the services
(including the reasonable fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.




     Section 7.08 Replacement of Trustee. 



        (a)    (i) The Trustee may resign at any time by written notice to the Company.





                
(ii) The Holders of a majority in principal amount of the outstanding Notes may remove the
Trustee by written notice to the Trustee.




                
(iii) If the Trustee is no longer eligible under Section 7.10 or in the circumstances described
in Trust Indenture Act Section 310(b), any Holder that satisfies the requirements of Trust
Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.




                
(iv) The Company may remove the Trustee if: (A) the Trustee is no longer eligible under
Section 7.10; (B) the Trustee is adjudged a bankrupt or an insolvent; (C) a receiver or other
public officer takes charge of the Trustee or its property; or (D) the Trustee becomes incapable of
acting.



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



          (b) If the Trustee has been removed by the Holders, Holders of a majority in principal amount
of the Notes may appoint a successor Trustee with the consent of the Company. Otherwise, if the
Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the
Company will promptly appoint a successor Trustee. If the successor Trustee does not deliver its
written acceptance within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor Trustee.




          (c) Upon delivery by the successor Trustee of a written acceptance of its appointment to the
retiring Trustee and to the Company, (i) the retiring Trustee will transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07(c),
(ii) the resignation or removal of the retiring Trustee will become effective, and (iii) the
successor Trustee will have all the rights, powers and duties of the Trustee under the Indenture.
Upon request of any successor Trustee, the Company will execute any and all reasonable instruments
for fully and vesting in and confirming to the successor Trustee all such rights, powers and
trusts. The Company will give notice of any resignation and any removal of the Trustee and each
appointment of a successor Trustee to all Holders, and include in the notice the name of the
successor Trustee and the address of its Corporate Trust Office.




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




          (e) The Trustee agrees to give the notices provided for in, and otherwise comply with, Trust
Indenture Act Section 310(b).




     Section 7.09 Successor Trustee by Merger.  If the Trustee consolidates with, merges or
converts into, or transfers or sells all or substantially all of its corporate trust business
(including the administration of this Indenture) to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national banking association
without any further act will be the successor Trustee with the same effect as if the successor
Trustee had been named as the Trustee in the Indenture.



     Section 7.10 Eligibility.  The Indenture must always have a Trustee that satisfies the
requirements of Trust Indenture Act Section 310(a) and has a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report of condition.



     Section 7.11 Money Held in Trust.  The Trustee will not be liable for interest on any
money received by it except as it may agree with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law and except for money
held in trust under Article 8.



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ARTICLE 8.




DISCHARGE




     Section 8.01 Satisfaction and Discharge of the Indenture. 



          (a) This Indenture shall cease to be of further effect if either: (i) all outstanding Notes
(other than Notes replaced pursuant to Section 2.07) have been delivered to the Trustee for
cancellation or (ii) all outstanding Notes have become due and payable on the Maturity Date or
upon repurchase pursuant to Article 3, and the Company irrevocably deposits, prior to the
applicable date on which such payment is due and payable, with the Trustee or the Paying Agent (if
the Paying Agent is not the Company or any of its Affiliates) Cash, and, if applicable as herein
provided and in accordance herewith, such other consideration, sufficient to pay all amounts due
and owing on all outstanding Notes (other than Notes replaced pursuant to Section 2.07) on the
Maturity Date or the Fundamental Change Purchase Date, as the case may be; provided that, in
either case, the Company pays to the Trustee all other sums payable hereunder by the Company.




          (b) The Company may exercise its satisfaction and discharge option with respect to the Notes
only if:




               (i) no Default or Event of Default with respect to the Notes shall exist on the date of such
deposit;



               (ii) such deposit shall not result in a breach or violation of, or constitute a Default or
Event of Default under, this Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound; and



               (iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel (which may rely upon such Officers’ Certificate as to the absence of Defaults and Events of
Default and as to any factual matters), each stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this Indenture have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.07 shall survive and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Section 2.03,
Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 2.12, Section 3.01, Article 5,
Article 10 and this Article 8, shall survive and the Company shall be required to make all payments
and deliveries required by such Sections or Articles, as the case may be, irrespective of any prior
satisfaction and discharge until the Notes have been paid in full.



     Section 8.02 Application of Trust Money
Subject to the provisions of Section 8.03, the Trustee or a Paying Agent shall hold in
trust, for the benefit of the Holders, all money deposited with it pursuant to Section 8.01 and
shall apply the deposited money in accordance with this Indenture and the Notes to the payment of
the principal amount of and interest on the Notes.



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     Section 8.03 Repayment to Company.  The Trustee and each Paying Agent shall promptly
pay to the Company upon request any excess money (x) deposited with them pursuant to Section 8.01
and (y) held by them at any time.



     The Trustee and each Paying Agent shall also pay to the Company upon request any money held by
them for the payment of the principal amount of Notes or interest thereon that remains unclaimed
for two years after a right to such money has matured (which maturity shall occur, for the
avoidance of doubt, on the Maturity Date or the Fundamental Change Purchase Date (with respect to
any Notes repurchased pursuant to Article 3)). After payment to the Company, Holders entitled to
money must look to the Company for payment as general creditors unless an applicable abandoned
property law designates another person.



     Section 8.04 Reinstatement.  If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 8.02 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until such time
as the Trustee or such Paying Agent is permitted to apply all such money in accordance with
Section 8.02; provided, however, that if the Company has made any payment of the principal amount
of or interest on any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive any such payment from the money
held by the Trustee or such Paying Agent.



ARTICLE 9.




AMENDMENTS,
SUPPLEMENTS AND WAIVERS




     Section 9.01 Amendments Without Consent of Holders.  The Company and the Trustee may
amend or supplement the Indenture or the Notes without notice to or the consent of any Noteholder:



          (a) to cure any ambiguity, omission, defect or inconsistency in the Indenture or the Notes;




          (b) to comply with Article 5 or Section 10.12;




          (c) to comply with the Trust Indenture Act or any amendment thereto, or to comply with any
requirements of the Commission in connection with the qualification of the Indenture under the
Trust Indenture Act;




          (d) to evidence and provide for the acceptance of an appointment hereunder by a successor
Trustee;




          (e) to provide for uncertificated Notes in addition to or in place of certificated Notes;





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\






          (f) to secure the Notes;




          (g) to add guarantees with respect to the Notes;




          (h) to add to the covenants of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company;




          (i) to add any additional Events of Default;




          (j) to comply with the rules of any applicable securities depositary; or




          (k) to make any other change that does not materially adversely affect the rights of any
Holder.




     Section 9.02 Amendments With Consent of Holders. 



          (a) Except as otherwise provided in Section 6.07 or paragraph (b), the Company and the
Trustee may amend the Indenture and the Notes with the written consent of the Holders of a
majority in principal amount of the outstanding Notes, and the Holders of a majority in principal
amount of the outstanding Notes by written notice to the Trustee may waive future compliance by
the Company with any provision of the Indenture or the Notes.




          (b) Notwithstanding the provisions of paragraph (a), without the consent of each Holder
affected, an amendment or waiver may not





          (i) reduce the principal amount of, Fundamental Change Purchase Price with respect to, or any
premium or interest payment on any Note,




          (ii) make any Note payable in currency or securities other than that stated in the Note,




          (iii) change the Stated Maturities of any installment of principal of any Note,




          (iv) make any change that adversely affects the Holders’ right to convert any Note,




          (v) make any change that adversely affects the Holders’ right to require the Company to
purchase the Notes in accordance with the terms thereof and this Indenture,




          (vi) impair the right to convert or receive any principal or interest payment with respect to,
a Note, or right to institute suit for the enforcement of any payment with respect to, or
conversion of, the Notes, or




          (vii) make any change in the percentage of the principal amount of the Notes required for
amendments or waivers.



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          (c) It is not necessary for Noteholders to approve the particular form of any proposed
amendment, supplement or waiver, but is sufficient if their consent approves the substance
thereof.




          (d) An amendment, supplement or waiver under this Section will become effective on receipt by
the Trustee of written consents from the Holders of the requisite percentage in principal amount
of the outstanding Notes. After an amendment, supplement or waiver under this Section becomes
effective, the Company will send to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Company will send supplemental indentures to Holders upon
request. Any failure of the Company to send such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such supplemental indenture or waiver.




     Section 9.03 Effect of Consent. 



          (a) After an amendment, supplement or waiver becomes effective, it will bind every Holder
unless it is of the type requiring the consent of each Holder affected. If the amendment,
supplement or waiver is of the type requiring the consent of each Holder affected, the amendment,
supplement or waiver shall bind each Holder that has consented to it and every subsequent Holder
of a Note that evidences the same debt as the Note of the consenting Holder.




          (b) If an amendment, supplement or waiver changes the terms of a Note, the Trustee may
require the Holder to deliver it to the Trustee so that the Trustee may place an appropriate
notation of the changed terms on the Note and return it to the Holder, or exchange it for a new
Note that reflects the changed terms. The Trustee may also place an appropriate notation on any
Note thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver
is not affected by any failure to annotate or exchange Notes in this fashion.




     Section 9.04 Trustee’s Rights and Obligations
The Trustee shall receive, and will be fully protected in relying upon, an Officer’s
Certificate and an Opinion of Counsel each stating that the execution of any amendment, supplement
or waiver authorized pursuant to this Article is authorized or permitted by the Indenture. If the
Trustee has received such an Opinion of Counsel, it shall sign the amendment, supplement or waiver
so long as the same does not adversely affect the rights of the Trustee. The Trustee may, but is
not obligated to, execute any amendment, supplement or waiver that affects the Trustee’s own
rights, duties or immunities under the Indenture.



     Section 9.05 Conformity With Trust Indenture Act.  Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.



     Section 9.06 Payments for Consents.  Neither the Company nor any of its Subsidiaries
or Affiliates may, directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of the Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all Holders of the Notes that consent, waive or agree
to



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 amend such term or provision within the time period set forth in the solicitation documents
relating to the consent, waiver or amendment.



ARTICLE 10.




CONVERSION




     Section 10.01 Conversion Privilege. 



          (a) A Holder of a Note may convert such Note at any time on or prior to the Close of Business
on the Business Day immediately preceding the Maturity Date upon the occurrence of any of the
events set forth in paragraph 7(a), paragraph 7(b), paragraph 7(c), paragraph 7(d) or paragraph
7(e) of the Notes, subject to the provisions of this Article 10. Except as set forth below under
Section 10.11 and Section 10.12, if a Holder surrenders its Notes for conversion, such Holder will
receive, in respect of each $1,000 of principal amount of Notes to be converted for each Trading
Day in the Conversion Reference Period:




               (i) Cash in an amount equal to the lesser of (A) $50 and (B) the Conversion Value for such day
divided by 20 (the “Required Cash Amount”), and



               (ii) if the Conversion Value for such day is greater than $1,000, a number of shares of Common
Stock (the “Remaining Shares”), equal to the Daily Share Amount for such day, subject to the right
of the Company to deliver Cash in lieu of all or a portion of such Remaining Shares as described
below.



          (b) By the Close of Business on the Business Day prior to the first scheduled Trading Day of
the applicable Conversion Reference Period, the Company may specify a percentage of the Daily Share
Amounts that will be settled in Cash (the “Cash Percentage”) and will notify the Noteholder of such
Cash Percentage through written notice to the Trustee (the “Cash Percentage Notice”). If the
Company elects to specify a Cash Percentage, (x) the amount of Cash that the Company will deliver
pursuant to clause (b) of this Section 10.01 in respect of each Trading Day in the applicable
Conversion Reference Period will equal the product of: (i) the Cash Percentage, (ii) the Daily
Share Amount for such Trading Day, and (iii) the Volume Weighted Average Price of the Common Stock
for such Trading Day and (y) the number of shares of Common Stock deliverable in respect of each
Business Day in the applicable Conversion Reference Period (in lieu of the full Daily Share Amount
for such Trading Day pursuant to clause (b) above) will be a percentage of the Daily Share Amount
equal to 100% minus the Cash Percentage. If the Company does not specify a Cash Percentage by the
Close of Business on the Trading Day prior to the first scheduled Trading Day of the applicable
Conversion Reference Period, the Company shall settle 100% of the Daily Share Amount for each
Trading Day in the applicable Conversion Reference Period with shares of Common Stock; provided,
however, that the Company will pay Cash in lieu of



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fractional shares otherwise issuable upon
conversion of such Note, pursuant to Section 10.03 hereof. The Company may, at its option, revoke
any Cash Percentage Notice through written notice to the Trustee by the Close of Business on the
Business Day prior to the scheduled first Trading Day of the applicable Conversion Reference
Period.




          (c) A Holder may convert a portion of the principal amount of a Note if the portion is $1,000
or an integral multiple of $1,000. Provisions of this Indenture that apply to conversion of all
of a Note also apply to conversion of a portion of a Note.




          (d) In the event of a stock split, combination, dividend or any other event resulting in an
adjustment to the Conversion Rate pursuant to Section 10.06, 10.07, 10.08, 10.09 or 10.10, during
the applicable Conversion Reference Period, appropriate adjustment to the equation for calculating
Conversion Value, Daily Share Amount and Remaining Shares shall be made, as determined in good
faith by the Board of Directors.




          (e) Notes with respect to which a Fundamental Change Purchase Notice has been given by the
Holder may be converted pursuant to this Article 10 only if the Fundamental Change Purchase Notice
has been withdrawn in accordance with Section 3.02.




          (f) Whenever any event described in paragraph 7(a), paragraph 7(b), paragraph 7(c), paragraph
7(d) or paragraph 7(e) of the Notes shall occur such that the Notes become convertible as provided
in this Article 10, the Company shall (x) issue a press release and use its reasonable efforts to
post such information on its website or otherwise publicly disclose this information or (y)
promptly deliver, in accordance with Section 12.03, written notice of the
convertibility of the Notes to the Trustee and each Noteholder and to the Conversion Agent
for the benefit of the Noteholders, which press release, website posting, public disclosure or
written notice, as the case may be, shall include:




               (i) a description of such event;



               (ii) a description of the periods during which the Notes shall be convertible as provided in
paragraph 7(a), paragraph 7(b), paragraph 7(c), paragraph 7(d) or paragraph 7(e) of the Notes as a
result of such event;



               (iii) a statement of whether an adjustment to the Conversion Rate shall take effect in respect
of such event pursuant to Section 10.13; and



               (iv) the procedures Noteholders must follow to convert their Notes in accordance with this
Article 10, including the name and address of the Conversion Agent.



     Section 10.02 Conversion Procedure. 



          (a) To convert a Note represented by a Global Note, a Noteholder must convert by book-entry
transfer to the Conversion Agent through the facilities of the DTC. To convert a Note that is
represented by a Certificated Note, a Noteholder must (1) complete and manually sign



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a Conversion
Notice, a form of which is on the back of the Note, and deliver such Conversion Notice to the
Conversion Agent, (2) surrender the Note to the Conversion Agent, (3) if required by the
Conversion Agent, furnish appropriate endorsement and transfer documents, and (4) if required, pay
all transfer or similar taxes. The Conversion Agent shall, within one (1) Business Day of any
Conversion Date, provide notice to the Company, as set forth in Section 12.03, of the occurrence
of such Conversion Date.




          (b) As promptly as practicable and in any case within three Trading Days following the end of
the Conversion Reference Period applicable to the Notes being converted, the Company shall deliver
to the Holder, through the Conversion Agent, the Required Cash Amounts and Remaining Shares, if
any (including Cash in lieu of Remaining Shares pursuant to Section 10.01 hereof and Cash in lieu
of fractional shares pursuant to Section 10.03 hereof). The person in whose name the certificate
representing any shares is registered shall be treated as a stockholder of record on and after the
last Trading Day of the Conversion Reference Period; provided, however, that no surrender of a
Note on any date when the stock transfer books of the Company shall be closed shall be effective
to constitute the person or persons entitled to receive the Remaining Shares upon such conversion
as the record holder or holders of such shares of Common Stock on such date, but such surrender
shall be effective to constitute the person or persons entitled to receive such shares of Common
Stock as the record holder or holders thereof for all purposes at the Close of Business on the
next succeeding day on which such stock transfer books are open. Upon conversion of a Note, such
person shall no longer be a Holder of such Note.




          (c) No payment or adjustment will be made for dividends on, or other distributions with
respect to, any Common Stock except as provided in this Article 10. Upon conversion of a Note, a
Noteholder will not receive, except as described below, any separate Cash payment representing
accrued interest. Instead, accrued interest will be deemed paid by the Cash and/or shares of
common stock, if any, received by the Noteholder upon conversion. Delivery to the Noteholder of
such Cash and/or shares of Common Stock will thus be deemed (1) to satisfy the Company’s
obligation to pay the principal amount of a Note, and (2) to satisfy the Company’s obligation to
pay accrued and unpaid interest on the Note. As a result, upon conversion of a Note, accrued and
unpaid interest on such Note is deemed paid in full rather than cancelled, extinguished or
forfeited.




          (d) Holders of Notes surrendered for conversion during the period from the Close of Business
on any Regular Record Date next preceding any Interest Payment Date to the opening of business of
such Interest Payment Date will receive the semiannual interest payable on such Notes on the
corresponding Interest Payment Date notwithstanding the conversion, and such Notes upon surrender
must be accompanied by funds equal to the amount of such payment; provided that no such payment
need be made (x) in connection with any conversion following the Regular Record Date immediately
preceding the Maturity Date, (y) if the Company has specified a Fundamental Change Purchase Date
that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date or
(z) to the extent of any Defaulted Interest, if any Defaulted Interest exists at the time of
conversion with respect to such Note. The Company shall not be



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required to convert any Notes that
are surrendered for conversion without payment of interest as required by this paragraph.




          (e) If the Holder converts more than one Note at the same time, the Required Cash Amounts and
the Remaining Shares, if any (together with the Cash payment, if any, in lieu of fractional
shares) shall be based on the total principal amount of the Notes converted.




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




          (g) Upon surrender of a Note that is converted in part, the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder, a new Note in an authorized denomination
equal in principal amount to the unconverted portion of the Note surrendered.




     Section 10.03 Fractional Shares.  The Company will not issue a fractional share of
Common Stock upon conversion of a Note. Instead, the Company will deliver Cash in lieu of a
fractional share based on arithmetic average of the Volume Weighted Average Price of Common Stock
for each of the twenty consecutive Trading Days of the Conversion Reference Period, rounded to the
nearest whole cent (the “Average Price”).



     Section 10.04 Taxes On Conversion
If a Holder converts a Note, the Company shall pay any documentary, stamp or similar issue
or transfer tax due on the issue of any shares 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 Company may refuse to deliver the certificates representing
the Common Stock being issued in a name other than the Holder’s name until the Company receives a
sum sufficient to pay any tax which will be due because the Common Stock is to be delivered 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 Common Stock. 



     The Company shall at all times have authorized and reserved and keep available for issuance a
sufficient number of shares of Common Stock to permit the delivery in respect of all outstanding
Notes of the number of Remaining Shares due upon conversion, including as may be adjusted for share
splits, combinations or other similar transactions (assuming, for purposes of this sentence, that
the Company elects to deliver solely shares of Common Stock in respect of its obligation to deliver
the Remaining Shares).



     All shares of Common Stock delivered upon payment of the Remaining Shares, if applicable, upon
conversion of the Notes shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive rights and free of any
lien or adverse claim.



     The Company will comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon payment of the Remaining Shares, if applicable, upon



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conversion of Notes, if any, and will list or cause to have quoted such shares of Common Stock on
each national securities exchange or in the over-the-counter market or such other market on which
the Common Stock is then listed or quoted.



     In addition, if any shares of Common Stock which would be issuable upon conversion of Notes
hereunder require registration with or approval of any governmental authority before such shares of
Common Stock may be issued upon such conversion, the Company will cause such shares of Common Stock
to be duly registered or approved, as the case may be.



     Section 10.06 Adjustment for Change In Capital Stock. 



          (a) If the Company shall, at any time and from time to time while any of the Notes are
outstanding, issue a dividend or make a distribution on its Common Stock payable in shares of its
Common Stock to all or substantially all holders of its Common Stock, then the Conversion Rate at
the opening of business on the Ex-Dividend Date for such dividend or distribution will be adjusted
by multiplying such Conversion Rate by a fraction:




               (i) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the Close of Business on the Business Day immediately preceding the Ex-Dividend Date
for such dividend or distribution, plus the total number of shares of Common Stock constituting
such dividend or other distribution; and



               (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the
close of business on the Business Day immediately preceding such Ex-Dividend Date.



     If any dividend or distribution of the type described in this Section 10.06(a) is declared but
not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would
then be in effect if such dividend or distribution had not been declared. Except as set forth in
the preceding sentence, in no event shall the Conversion Rate be decreased pursuant to this
Section 10.06(a).



          (b) If the Company shall, at any time or from time to time while any of the Notes are
outstanding, subdivide or reclassify its outstanding shares of Common Stock into a greater number
of shares of Common Stock, then the Conversion Rate in effect at the opening of business on the
day upon which such subdivision becomes effective shall be proportionately increased, and
conversely, if the Company shall, at any time or from time to time while any of the Notes are
outstanding, combine or reclassify its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then the Conversion Rate in effect at the opening of business on the day
upon which such combination or reclassification becomes effective shall be proportionately
decreased. In each such case, the Conversion Rate shall be adjusted by multiplying such
Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately after giving effect to such subdivision, combination or
reclassification and the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination. Such increase or reduction, as




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the case may be, shall become effective immediately after the opening of business on the day upon
which such subdivision, combination or reclassification becomes effective.




     Section 10.07 Adjustment for Rights Issue.  If the Company shall, at any time or from
time to time while the Notes are outstanding, distribute rights or warrants to all or substantially
all holders of its Common Stock entitling them, for a period expiring within 60 days after the
record date for such distribution, to purchase shares of Common Stock at less than the average of
the Closing Prices for the five consecutive Trading Days immediately preceding the first public
announcement of the distribution, the Conversion Rate shall be adjusted so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect at the opening of business
on the Ex-Dividend Date for such distribution by a fraction:




	 	(x)	 	the numerator of which shall be the number of shares of Common Stock
outstanding at the close of business on the Business Day immediately preceding the
Ex-Dividend Date for such distribution, plus the total number of additional shares of
Common Stock so offered for purchase; and
	 
	 	(y)	 	the denominator of which shall be the number of shares of Common Stock
outstanding on the close of business on the Business Day immediately preceding the
Ex-Dividend Date for such distribution, plus the number of shares of Common Stock that
the aggregate offering price of the total number of shares of Common Stock so offered
would purchase at the Current Market Price of the Common Stock on the declaration date
for such distribution (determined by multiplying such total number of shares of Common
Stock so offered by the exercise price of such rights or warrants and dividing the
product so obtained by such Current Market Price).





     Such adjustment shall become effective immediately after the opening of business on the
Ex-Dividend Date for such distribution.



     To the extent that shares of Common Stock are not delivered pursuant to such rights or
warrants or upon the expiration or termination of such rights or warrants, the Conversion Rate
shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock actually delivered. In the event that such rights or warrants are
not so distributed, the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if the Ex-Dividend Date for such distribution had not occurred. In
determining whether any rights or warrants entitle the holders to purchase shares of Common Stock
at less than the average of the Closing Prices for the five consecutive Trading Days immediately
preceding the first public announcement of the relevant distribution, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken into account any
consideration received for such rights and the value of such consideration if other than Cash, to
be determined in good faith by the Board of Directors. Except as set forth in this paragraph, in
no event shall the Conversion Rate be decreased pursuant to this Section 10.07.



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     Section 10.08 Adjustment for Other Distributions. 



          (a) If the Company shall, at any time or from time to time while the Notes are outstanding,
distribute to all or substantially all holders of its Common Stock any of its Capital Stock,
assets, or debt securities or any rights, warrants or options to purchase securities of the
Company (excluding (x) any distributions described in Section 10.06(a) above, (y) any rights or
warrants described in Section 10.07 above and (z) any all-cash dividends or other cash
distributions referred to in Section 10.09 below and subject to Section 10.08 (b) below) (such
Capital Stock, assets, debt securities or rights to purchase securities of the Company being
distributed hereinafter in this Section 10.08 called the “Distributed Assets”), the Conversion
Rate shall be increased so that the same shall be equal to the rate determined by multiplying the
Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date
with respect to such distribution by a fraction:




               (i) the numerator of which will be the Current Market Price of the Common Stock, and



               (ii) the denominator of which will be the Current Market Price of the Common Stock minus the
fair market value, as determined by the Board of Directors, of the portion of Distributed Assets so
distributed applicable to one share of the Common Stock (determined on the basis of the number of
shares of Common Stock outstanding on such Ex-Dividend Date).



     Such increase shall become effective immediately after the opening of business on the
Ex-Dividend Date for such distribution. In the event that such distribution is not so made, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if
such distribution had not been declared. Except as set forth in the prior sentence, in no event
shall the Conversion Rate be decreased pursuant to this Section 10.08.



     If the Board of Directors determines the fair market value of any distribution for purposes of
this Section 10.08 by reference to the actual or when issued trading market for any Distributed
Assets comprising all or part of such distribution, it must in doing so consider the prices in such
market over the same period (the “Reference Period”) used in computing the Current Market Price for
purposes of clause (i) above, unless the Board of Directors determines in good faith that
determining the fair market value during the Reference Period would not be in the best interest of
the Holders.



          (b) With respect to an adjustment pursuant to this Section 10.08 where there has been a
payment of a dividend or other distribution on Common Stock of shares of Capital Stock of, or
similar equity interests in, a Subsidiary or other business unit of the Company, the Conversion
Rate will be adjusted by multiplying the Conversion Rate in effect immediately prior to the
opening of business on the Ex-Dividend Date with respect to such distribution by a fraction:




               (i) the numerator of which shall be (a) the average of the closing sale prices of the capital
stock or similar equity interest distributed to holders of Common Stock applicable to one share of
Common Stock over the five Trading Days commencing on and including



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the fifth Trading Day after the
Ex-Dividend Date for such dividend or distribution on the principal national securities exchange or
inter-dealer quotation system on which such securities are then listed or traded, plus (b) the
average of the Closing Prices over the five Trading Days commencing on and including the fifth
Trading Day after the Ex-Dividend Date for such dividend or distribution (the “Average Sale
Price”), and




               (ii) the denominator of which shall be the Average Sale Price.



     Section 10.09 Adjustment for Cash Dividends.  If the Company shall, at any time or
from time to time while any of the Notes are outstanding, by dividend or otherwise, distribute to
all or substantially all holders of its shares of Common Stock, Cash (excluding (w) any cash
dividend on the Common Stock that is the first cash dividend with an Ex-Dividend Date in any
calendar quarter to the extent that such cash dividend per share of Common Stock does not exceed
$.0125 (each such number, the “Dividend Threshold Amount”) (the Dividend Threshold Amount shall be
subject to adjustment on an inversely proportional basis whenever the Conversion Rate is adjusted,
provided that no adjustment will be
made to the Dividend Threshold Amount for any adjustment to the Conversion Rate pursuant to
this Section 10.09), (x) any distributions described in Section 10.10 below or (y) any dividend or
distribution in connection with the Company’s liquidation, dissolution or winding up), then the
Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to the opening of business of the Ex-Dividend Date
for such distribution by a fraction:




	 	(x)	 	the numerator of which shall be equal to the Current Market Price per share of
Common Stock; and
	 
	 	(y)	 	the denominator of which shall be equal to the Current Market Price per share
of Common Stock on such date, less the amount of the distribution per share of Common
Stock (subject to the immediately succeeding paragraph).





     If any adjustment is required to be made as set forth in this Section 10.09 as a result of a
distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which
such distribution exceeds the Dividend Threshold Amount. If an adjustment is required to be made
as set forth in this Section 10.09 above as a result of a distribution that is not a quarterly
dividend, such adjustment shall be based upon the full amount of the distribution.



     Such adjustment shall become effective immediately after the opening of business on the
Ex-Dividend Date for such distribution. In the event that such distribution is not so made, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if
such dividend or distribution had not been declared.



     Section 10.10 Adjustment for Certain Tender Offers or Exchange Offers.  In case the
Company or any of its Subsidiaries shall, at any time or from time to time, while any of the Notes
are outstanding, distribute Cash or other consideration in respect of a tender offer or an exchange
offer (that is treated as a “tender offer” under U.S. federal securities laws) made by the Company
or any Subsidiary for all or any portion of the Common Stock, where the sum of the aggregate amount



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of such Cash distributed and the aggregate fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution),
as of the Expiration Date (as defined below), of such other consideration distributed (such sum,
the “Aggregate Amount”) expressed as an amount per share of Common Stock validly tendered or
exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration
Time (as defined below) (such tendered or exchanged shares of Common Stock, the “Purchased Shares”)
exceeds the Closing Price per share of the Common Stock on the first Trading Day immediately
following the last date (such last date, the “Expiration Date”) on which tenders or exchanges could
have been made pursuant to such tender offer or exchange offer (as the same may be amended through
the Expiration Date), then, and in each case, immediately after the close of business on such date,
the Conversion Rate shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the close of business on the Trading
Day immediately following the Expiration Date by a fraction:





	 	(x)	 	the numerator of which is equal to the sum of (A) the Aggregate Amount and
(B) the product of (I) an amount equal to (1) the number of shares of Common Stock
outstanding as of the last time (the “Expiration Time”) at which tenders or exchanges
could have been made pursuant to such tender offer or exchange offer less (2) the
Purchased Shares and (II) the Closing Price per share of the Common Stock on the first
Trading Day immediately following the Expiration Date; and
	 
	 	(y)	 	the denominator of which shall be equal to the product of (A) the number of
            shares of Common Stock outstanding as of the Expiration Time (including all Purchased
Shares) and (B) the Closing Price per share of the Common Stock on the first Trading
Day immediately following the Expiration Date.





     An adjustment, if any, to the Conversion Rate pursuant to this Section 10.10 shall become
effective immediately prior to the opening of business on the second Trading Day immediately
following the Expiration Date. In the event that the Company or a Subsidiary 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 which would then be in effect if such tender offer or exchange offer had not
been made. Except as set forth in the preceding sentence, if the application of this Section 10.10
to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer or exchange offer under this Section 10.10.



     Section 10.11 Provisions Governing Adjustment to Conversion Rate.  Rights or warrants
distributed by the Company to all or substantially all holders of Common Stock entitling the
holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares
of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances
of Common Stock, shall be deemed not to have been distributed for purposes of Section 10.06,
Section 10.07,



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Section 10.08, Section 10.09 or Section 10.10 (and no adjustment to the Conversion
Rate under Section 10.06, Section 10.07, Section 10.08, Section 10.09 or Section 10.10 will be
required) until the occurrence of the earliest Trigger Event, whereupon such rights, options and
warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under Section 10.08, except as set forth in
Section 10.23. 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 (and a termination or expiration of the existing
rights, options or warrants without exercise by any of the holders thereof), except as set forth in
Section 10.23. In addition, except as set forth in Section 10.23, 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
preceding sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under Section 10.06,
Section 10.07, Section 10.08, Section 10.09 or Section 10.10 was made (including any adjustment
contemplated in Section 10.23), (1) in the case of any such rights, options or warrants that shall
all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate
shall be readjusted upon such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a Cash distribution, equal to the per share
redemption or repurchase price received by a holder or holders of Common Stock with respect to such
rights, options or warrants (assuming such holder had retained such rights, options or warrants),
made to all or substantially all holders of Common Stock as of the date of such redemption or
repurchase, and (2) 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 10.12 Disposition Events.  If any of the following events (any such event, a
“Disposition Event”) occurs:



          (a) any reclassification of the 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 subdivision or
combination);




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




          (c) any sale, conveyance, lease, or other disposal of all or substantially all the properties
and assets of the Company to any other Person;



in each case, as a result of which all of the holders of Common Stock shall be entitled to receive
Cash, securities or other property for their shares of Common Stock, 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) providing
that notwithstanding the provisions of Section 10.01, and subject to the provisions of paragraph 7


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of the Notes, the Conversion Value with respect to each $1,000 principal amount of Notes converted
following the effective date of any Disposition Event, shall be calculated based on the kind and
amount of Cash, securities or other property (collectively, “Reference Property”) received upon the
occurrence of such Disposition Event by a holder of Common Stock holding, immediately prior to the
transaction, a number of shares of Common Stock equal to the Conversion Rate immediately prior to
such Disposition Event; provided that if the Disposition Event provides the holders of Common Stock
with the right to receive more than a single type of consideration determined based in part upon
any form of stockholder election, the Reference Property shall be comprised of the weighted average
of the types and amounts of consideration received by the holders of the Common Stock who
affirmatively make such election.




     If the Conversion Value of the Notes shall be based on Reference Property as set forth above,
the Company’s obligation to deliver the consideration described in Section 10.01 with respect to
each $1,000 principal amount of Notes tendered for conversion after the effective date of any such
Disposition Event, shall, notwithstanding anything to the contrary set forth in Section 10.01, be
settled in Cash and units of Reference Property (if applicable) and the Company shall deliver, for
each Trading Day in the Conversion Reference Period, as promptly as practicable immediately
following the last Trading Day of the Conversion Reference Period an amount in Cash and Reference
Property, determined as set forth in Sections 10.01(a) and 10.01(b); provided that, in each
case, (x) the Conversion Value and the Daily Share Amounts, shall be determined as if the words
“Volume Weighted Average Price per share of Common Stock” in the definition of each such term were
replaced by the words “Volume Weighted Average Price per unit of Reference Property composed of the
kind and amount of Cash, securities or other property that a holder of one share of Common Stock
immediately prior to such Disposition Event would have owned or been entitled to receive,” (y) the
Volume Weighted Average Price shall be determined with respect to such a unit of Reference Property
and (z) references to “Remaining Shares” and “shares of Common Stock” were instead references to “a
unit of Reference Property composed of the kind and amount of Cash, securities or other property
that a holder of one share of Common Stock immediately prior to such Disposition Event would have
owned or been entitled to receive.”



     Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article 10. If, in the case of any
such Disposition Event, the stock or other securities and assets receivable thereupon by a holder
of Common Stock includes shares of stock or other securities and assets of a Person other than the
successor or purchasing Person, as the case may be, in such Disposition Event, then such
supplemental indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Noteholders as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.



     The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Noteholder, at the address of such Noteholder as it appears on the register of the Notes
maintained by the Registrar, within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.




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     The above provisions of this Section 10.12 shall similarly apply to successive Disposition
Events.



     If this Section 10.12 applies to any event or occurrence, none of Section 10.06, Section 10.07,
Section 10.08, Section 10.09 or Section 10.10 shall apply.



     Section 10.13 Adjustment to Conversion Rate Upon Change in Control Transactions,
Discretionary Adjustment.




          (a) If, after the Issue Date, a Change in Control occurs and a Holder elects to convert its
Notes in connection with such Change in Control, the Company will increase the
Conversion Rate for the Notes surrendered for conversion by a number of additional shares of
Common Stock (the “Make-Whole Shares”), as described in this Section 10.13. A conversion of Notes
will be deemed for the purposes of this Section 10.13 to be “in connection with” a Change in
Control transaction if the notice of conversion of the Notes is received by the Conversion Agent
from and including the effective date of the closing of the Change in Control transaction up to
and including the Trading Day prior to the related Fundamental Change Purchase Date.




          (b) The number of Make-Whole Shares will be determined by reference to the table below and is
based on the date which such Change in Control transaction becomes effective (the “Change in
Control Effective Date”) and the price paid per share of Common Stock in the Change in Control (in
the case of a Change in Control described in clause (ii) of the definition of Fundamental Change),
or in the case of all other Changes in Control, the average of the Closing Prices per share of
Common Stock over the five Trading-Day period ending on the Trading Day preceding the relevant
Change in Control Effective Date (the “Stock Price”). If holders of Common Stock receive only
cash in the case of a Change in Control described in clause (ii) of the definition of Fundamental
Change, the Stock Price shall be the Cash amount paid per share of Common Stock. Otherwise, the
Stock Price shall be the average of the Closing Prices per share of Common Stock over the five
Trading-Day period ending on the Trading Day preceding the relevant Change in Control Effective
Date.




          (c) The Stock Prices set forth in the first row of the table below will be adjusted as of any
date on which the Conversion Rate is adjusted. The adjusted Stock Prices will equal the Stock
Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Conversion Rate as so adjusted. In addition, the
number of Make-Whole Shares on the table below will be subject to adjustment in the same manner as
the Conversion Rate as set forth in Section 10.06 through Section 10.10.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	October	 	October	 	October	 	October	 	October	 	October
	Stock Price	 	20, 2007	 	20, 2008	 	20, 2009	 	20, 2010	 	20, 2011	 	15, 2012
	$86.40

	 	 	1.96	 	 	 	1.96	 	 	 	1.92	 	 	 	1.88	 	 	 	1.84	 	 	 	1.96	 
	$90.00

	 	 	1.76	 	 	 	1.74	 	 	 	1.68	 	 	 	1.62	 	 	 	1.53	 	 	 	1.50	 
	$100.00

	 	 	1.32	 	 	 	1.27	 	 	 	1.18	 	 	 	1.06	 	 	 	0.88	 	 	 	0.38	 






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	 	 	October	 	October	 	October	 	October	 	October	 	October
	Stock Price	 	20, 2007	 	20, 2008	 	20, 2009	 	20, 2010	 	20, 2011	 	15, 2012
	$104.00

	 	 	1.18	 	 	 	1.12	 	 	 	1.03	 	 	 	0.90	 	 	 	0.70	 	 	 	0.00	 
	$110.00

	 	 	1.01	 	 	 	0.94	 	 	 	0.84	 	 	 	0.71	 	 	 	0.50	 	 	 	0.00	 
	$130.00

	 	 	0.62	 	 	 	0.55	 	 	 	0.45	 	 	 	0.33	 	 	 	0.17	 	 	 	0.00	 
	$150.00

	 	 	0.41	 	 	 	0.35	 	 	 	0.27	 	 	 	0.18	 	 	 	0.07	 	 	 	0.00	 
	$175.00

	 	 	0.27	 	 	 	0.22	 	 	 	0.16	 	 	 	0.10	 	 	 	0.04	 	 	 	0.00	 
	$200.00

	 	 	0.18	 	 	 	0.15	 	 	 	0.11	 	 	 	0.07	 	 	 	0.03	 	 	 	0.00	 
	$225.00

	 	 	0.13	 	 	 	0.11	 	 	 	0.08	 	 	 	0.05	 	 	 	0.02	 	 	 	0.00	 
	$250.00

	 	 	0.09	 	 	 	0.08	 	 	 	0.06	 	 	 	0.04	 	 	 	0.02	 	 	 	0.00	 
	$350.00

	 	 	0.02	 	 	 	0.02	 	 	 	0.02	 	 	 	0.01	 	 	 	0.00	 	 	 	0.00	 






          (d) If the exact Stock Prices and Change in Control Effective Dates are not set forth in the
table, then: (i) if the Stock Price is between two Stock Prices in the table or the Change in
Control Effective Date is between two Change in Control Effective Dates in the table, the
Make-Whole Shares issued upon conversion of the Notes will be determined by a straight-line
interpolation between the number of Make-Whole Shares set forth for the higher and lower Stock
Prices and the earlier and later Change in Control Effective Dates in the table, based on a
365-day year, (ii) if the Stock Price is in excess of $350 per share, subject to adjustment as set
forth in Section 10.13(c), no Make-Whole Shares will be issued upon conversion of the Notes; and
(iii) if the Stock Price is less than $86.40 per share, subject to adjustment as set forth in
Section 10.13(c), no Make-Whole Shares will be issued upon conversion of the Notes.




          (e) The Company may make such increases in the Conversion Rate, in addition to those required
by Sections 10.06, 10.07, 10.08, 10.09 and 10.10 as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase
Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or
from any event treated as such for income tax purposes.




          (f) To the extent permitted by applicable law, the Company from time to time may increase the
Conversion Rate by any amount for any period of time if the period is at least twenty (20) days,
the increase is irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to holders of record of the Notes a notice of the
increase at least fifteen (15) days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period during which it will be
in effect.




     Section 10.14 When Adjustment May Be Deferred.  No adjustment in the Conversion Rate need be made unless the adjustment would require an
increase or decrease of at least 1% of the Conversion Rate. Any adjustments that are less than 1%
of the Conversion Rate shall be carried forward and taken into account in determining any
subsequent adjustment. In addition, the Company shall make any carry forward adjustments not
otherwise effected upon notice of a required purchase of the notes pursuant to Section 3.01, and on
July 15, 2012.



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     Section 10.15 When No Adjustment Required. 



          (a) No adjustment need be made for a transaction referred to in Section 10.06 or
Section 10.07 if Noteholders participate, without conversion, in the transaction or event that
would otherwise give rise to an adjustment pursuant to such Section at the same time as holders of
the Common Stock participate with respect to such transaction or event and on the same terms as
holders of the Common Stock participate with respect to such transaction or event as if
Noteholders, at such time, held a number of shares of Common Stock equal to the Conversion
Rate at such time.




          (b) No adjustment need be made for rights to purchase Common Stock pursuant to a Company plan
for reinvestment of dividends or interest.




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




          (d) To the extent the Notes become convertible pursuant to this Article 10 into Cash, no
adjustment need be made thereafter as to the Cash. Interest will not accrue on the Cash.




          (e) The Conversion Rate shall not exceed 11.5741 shares per $1,000 (subject to adjustments at
the same time and the same manner as adjustments set forth in Sections 10.06, 10.07, 10.08, 10.09
and 10.10 above) principal amount of the Notes on account of adjustments to the Conversion Rate
pursuant to this Article 10.




     Section 10.16 Notice of Adjustment. Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Noteholders a
notice of the adjustment. The Company shall file with the Trustee and the Conversion Agent such
notice and a certificate from the Company’s independent public accountants briefly stating the
facts requiring the adjustment and the manner of computing it. The certificate 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 certificate except to exhibit the same to
any Holder desiring inspection thereof.



     Section 10.17 Notice 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 10.14 or Section 10.15), (b) the Company takes any action that would require a
supplemental indenture pursuant to Section 10.12, or (c) there is a liquidation or dissolution of
the Company, then the Company shall mail to Noteholders and file with the Trustee and the
Conversion Agent a notice stating the proposed Ex-Dividend Date for a dividend or distribution or
the proposed effective date of a subdivision, combination, reclassification, consolidation, merger,
binding share exchange, transfer, liquidation or dissolution. The Company shall file and mail the
notice at least 15 days before such date; provided that if the Company elects to make a
distribution described in Section 10.07, Section 10.08, or Section 10.09, and in the case of
Section 10.08 or Section 10.09, that has a per share value equal to more than 10% of the Closing
Price per share of Common Stock on the day preceding the declaration date for such distribution,
the Company shall give notice to Holders at least 20 Trading Days prior to the Ex-



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dividend Date for
such distribution. Failure to file or mail the notice or any defect in it shall not affect the
validity of the transaction.




     Section 10.18 Right of Holders to Convert.  Notwithstanding any other provision in this Indenture, the Holder of any Note shall have
the right to convert its Note in accordance with this Article 10 and paragraph 7 of the Notes and
to bring an action for the enforcement of any such right to convert, and such rights shall not be
impaired or affected without the consent of such Holder.



     Section 10.19 Company Determination Final.  The Company shall be responsible for making all calculations called for hereunder and under
the Notes. These calculations include, but are not limited to, Conversion Value, the Conversion
Date, the Volume Weighted Average Price, the Conversion Reference Period, the Closing Price, the
Conversion Price, the Required Cash Amounts, the Applicable Conversion Rate and the number of
shares of Common Stock, if any, to be issued upon conversion of the Notes. The Company shall make
all these calculations in good faith and, absent manifest error, the Company’s calculations will be
final and binding on Noteholders. The Company shall provide a schedule of the Company’s
calculations to the Trustee, and the Trustee is entitled to rely upon the accuracy of the Company’s
calculations without independent verification.



     Section 10.20 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 has no duty to determine whether a
supplemental indenture under Section 10.12 need be entered into or whether any provisions of any
supplemental indenture are correct. 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
Notes. 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 10.20 as the Trustee.



     Section 10.21 Simultaneous Adjustments. 



          (a) For purposes of Section 10.08, Section 10.06(a) and Section 10.07, any dividend or
distribution to which Section 10.08 is applicable that also includes shares of Common Stock, or
rights, options or warrants to subscribe for or purchase shares of Common Stock (or both), shall
be deemed instead to be (1) a dividend or distribution of the debt securities, assets or shares of
Capital Stock other than such shares of Common Stock or rights (and any Conversion Rate adjustment
required by Section 10.08 with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares of Common Stock or such
rights (and any further Conversion Rate adjustment required by Section 10.06(a) and Section 10.07
with respect to such dividend or distribution shall then be made), except any shares of Common
Stock included in such dividend or distribution shall not be deemed “outstanding at the close of
business on the Business Day immediately preceding such Ex-Dividend Date” within the meaning of
Section 10.06(a).




          (b) The reclassification of the Common Stock into securities including securities other than
Common Stock (other than any reclassification upon an event to which Section 10.12 applies) shall
be deemed to involve (a) a distribution of such securities other than the Common





-59-









 







Stock to all
holders of Common Stock (and the effective date of such reclassification shall be deemed to be the
“Ex-Dividend Date” within the meaning of this Section 10.08), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be deemed to be “the day upon
which such subdivision becomes effective” or “the day upon which such combination becomes
effective,” as the case may be, and “the day upon which such subdivision or combination becomes
effective” within the meaning of Section 10.06(b)).




     Section 10.22 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.



     Section 10.23 Rights Issued in Respect of Common Stock Issued Upon Conversion. 



     In the event the Company adopts or implements a shareholder rights agreement (a “Shareholder
Rights Plan”) pursuant to which rights (“Rights”) are distributed to the holders of Common Stock of
the Company and such Shareholder Rights Plan provides that each share of Common Stock issued upon
conversion of the Notes at any time prior to the distribution of separate certificates representing
such Rights will be entitled to receive such Rights, then there shall not be any adjustment to the
conversion privilege or Conversion Rate at any time prior to the distribution of separate
certificates representing such Rights. If, however, prior to any conversion, the Rights have
separated from the Common Stock, the Conversion Rate shall be adjusted at the time of separation as
if the Company distributed to all holders of the Common Stock, its assets, debt securities or
rights as described in Section 10.08 above, subject to readjustment in the event of the expiration,
termination or redemption of such Rights.



     Section 10.24 Withholding Taxes for Adjustments in Conversion Rate.  The Company may, at its option, set-off withholding taxes due with respect to Notes against
payments of Cash and Common Stock on the Notes to the extent required by law. In the case of any
such set-off against Common Stock delivered upon conversion of the Notes, such Common Stock shall
be valued based on the arithmetic average of the Volume Weighted Average Price for each Trading Day
in the relevant Conversion Reference Period.



ARTICLE 11.




PAYMENT OF INTEREST




     Section 11.01 Interest Payments.
Interest on any Note that is payable, and is punctually paid or duly provided for, on any
applicable Interest Payment Date shall be paid to the person in whose name that Note is registered
at the Close of Business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose. Each installment of interest payable in Cash on any Note
shall be paid in same-day funds by transfer to an account maintained by



-60-









 




the payee located inside
the United States, if the Trustee shall have received proper wire transfer instructions from such
payee not later than the related Regular Record Date or, if no such instructions have been received
by check drawn on a bank in the United States mailed to the payee at its address set forth on the
Registrar’s books. In the case of a Global Note, interest payable on any applicable payment date
will be paid by wire transfer of same-day funds to the Depositary, with respect to that portion of
such Global Note held for its account by Cede & Co. for the purpose of permitting such party to
credit the interest received by it in respect of such Global Note to the accounts of the beneficial
owners thereof.




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



          (a) The Company may elect to make payment of any Defaulted Interest to the persons in whose
names the Notes are registered at the Close of Business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to be held in trust for the benefit of
the persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment (the “Special
Record Date”). 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 mailed, first-class postage
prepaid, to each Holder of Notes at his address as it appears on the list of Noteholders
maintained pursuant to Section 2.05 not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the persons in whose
names the Notes are registered at the Close of Business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).




          (b) The Company may make payment of any Defaulted Interest on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on which such Notes may
be listed, and upon such notice as may be required by such exchange, if,




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after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.




     Section 11.03 Interest Rights Preserved.  Subject to the foregoing provisions of this Article 11 and Section 2.06, each Note
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Notes.



ARTICLE 12.




MISCELLANEOUS




     Section 12.01
Trust Indenture Act of 1939. The Indenture shall incorporate and be governed by the provisions of the Trust Indenture
Act that are required to be part of and to govern indentures qualified under the Trust Indenture
Act.



     Section 12.02 Noteholder Communications; Noteholder Actions
        . 



          (a) The rights of Holders to communicate with other Holders with respect to the Indenture or
the Notes are as provided by the Trust Indenture Act, and the Company and the Trustee shall comply
with the requirements of Trust Indenture Act Sections 312(a) and 312(b). Neither the Company nor
the Trustee will be held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.




          (b) (i) Any request, demand, authorization, direction, notice, consent to amendment,
supplement or waiver or other action provided by this Indenture to be given or taken by a Holder
(an “act”) may be evidenced by an instrument signed by the Holder delivered to the Trustee. The
fact and date of the execution of the instrument, or the authority of the person executing it, may
be proved in any manner that the Trustee deems sufficient.




               (ii) The Trustee may make reasonable rules for action by or at a meeting of Holders, which
will be binding on all the Holders.



          (c) Any act by the Holder of any Note binds that Holder and every subsequent Holder of a Note
that evidences the same debt as the Note of the acting Holder, even if no notation thereof appears
on the Note. Subject to paragraph (d), a Holder may revoke an act as to its Notes, but only if
the Trustee receives the notice of revocation before the date the amendment or waiver or other
consequence of the act becomes effective.




          (d) The Company may, but is not obligated to, fix a record date (which need not be within the
time limits otherwise prescribed by Trust Indenture Act Section 316(c)) for the purpose of
determining the Holders entitled to act with respect to any amendment or waiver or in any other
regard, except that during the continuance of an Event of Default, only the Trustee may set a
record date as to notices of default, any declaration or acceleration or any other remedies or
other consequences of the Event of Default. If a record date is fixed, those Persons that were




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Holders at such record date and only those Persons will be entitled to act, or to revoke any
previous act, whether or not those Persons continue to be Holders after the record date. No act
will be valid or effective for more than 90 days after the record date.




     Section 12.03 Notices. 



          (a) Any notice or communication to the Company will be deemed given if in writing (i) when
delivered in person or (ii) five days after mailing when mailed by first class mail, or (iii) when
transmission is confirmed verbally or by email, if sent by facsimile transmission. Any notice to
the Trustee will be effective only upon receipt. In each case the notice or communication should
be addressed as follows:



if to the Company:

Harman International Industries, Incorporated

1101 Pennsylvania Avenue N.W.

Suite 1010, Washington D.C. 20004

Attention: Chief Executive Officer

Tel: 

Fax: (202) 393-2442



if to the Trustee:

Wells Fargo Bank, National Association

Corporate Trust Services,

45 Broadway, 14th Floor

New York, NY, 10006

Attention: Alfia Monastra

Tel: (212) 515-5267

Fax: (212) 515-1589




     The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.



          (b) Except as otherwise expressly provided with respect to published notices, any notice or
communication to a Holder will be deemed given when mailed to the Holder at its address as it
appears on the Register by first class mail or, as to any Global Note registered in the name of
the Depository or its nominee, as agreed by the Company, the Trustee and the Depository. Copies
of any notice or communication to a Holder, if given by the Company, will be mailed to the Trustee
at the same time. Any defect in mailing a notice or communication to any particular Holder will
not affect its sufficiency with respect to other Holders.




          (c) Where the Indenture provides for notice, the notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and the waiver will be
the equivalent of the notice. Waivers of notice by Holders must be filed with the Trustee, but
such filing is not a condition precedent to the validity of any action taken in reliance upon such
waivers.





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     Section 12.04 Communication by Holders with Other Holders.  Noteholders may communicate pursuant to Section 312(b) of the Trust Indenture Act with
other Noteholders with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else shall have the
protection of Section 312(c) of the Trust Indenture Act.



     Section 12.05
Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under the
Indenture, the Company will furnish to the Trustee:




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





     Section 12.06 Statements Required in Certificate or Opinion.  Each certificate or opinion with respect to compliance with a condition or covenant
provided for in the Indenture must include:




	 	(1)	 	a statement that each person signing the certificate or opinion has read the
covenant or condition and the related definitions;
	 
	 	(2)	 	a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in the certificate or
opinion is based;
	 
	 	(3)	 	a statement that, in the opinion of each such person, that person has made such
examination or investigation as is necessary to enable the person to express an
informed opinion as to whether or not such covenant or condition has been complied
with; and
	 
	 	(4)	 	a statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with, provided that an Opinion of Counsel may
rely on an Officers’ Certificate or certificates of public officials with respect to
matters of fact.





     Section 12.07 Legal Holiday.  A “Legal Holiday” is any day other than a Business Day. If any specified date (including a
date for giving notice) is a Legal Holiday, the action shall be taken on the next succeeding day
that is not a Legal Holiday, and, if the action to be taken on such date is a payment in respect of
the Notes, no interest shall accrue for the intervening period.



     Section 12.08 Rules by Trustee, Paying Agent, Conversion Agent and Registrar.  The Trustee may make reasonable rules for action by or a meeting of Noteholders. The
Registrar, Conversion Agent and the Paying Agent may make reasonable rules for their functions.



-64-









 





     Section 12.09 Governing Law.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE NOTES.



     Section 12.10 No Adverse Interpretation of Other Agreements.  The Indenture may not be used to interpret another indenture or loan or debt agreement of
the Company or any Subsidiary of the Company, and no such indenture or loan or debt agreement may
be used to interpret the Indenture.



     Section 12.11 Successors and Assigns.  All agreements of the Company in the Indenture and the Notes will bind its successors and
assigns. All agreements of the Trustee in the Indenture will bind its successor and assigns.



     Section 12.12 Duplicate Originals.  The parties may sign any number of copies of the Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.



     Section 12.13 Separability.  In case any provision in the Indenture or in the Notes is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.



     Section 12.14 Table of Contents and Headings.  The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of
the Indenture have been inserted for convenience of reference only, are not to be considered a part
of the Indenture and in no way modify or restrict any of the terms and provisions of the Indenture.



     Section 12.15 No Liability of Directors, Officers, Employees, Incorporators, Members and
Stockholders.  No director, officer, employee, incorporator, member or stockholder of the Company, as
such, will have any liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations. Each Holder of Notes
by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.



-65-









 






SIGNATURES




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



	 	 	 	 	 	 	 
	 	 	HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED

as Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 
	 	/s/ Dinesh Paliwal
 

Name:  Dinesh Paliwal
	 	 
	 

	 	 	 	Title:  President, Chief
Executive Officer and

 Vice Chairman	 	 






	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee

 	 
	 	By:  	   /s/ Timothy P. Mowdy
 	 
	 	 	Name:  	 Timothy P. Mowdy 	 
	 	 	Title:  	  Vice President 	 
	 



[Signature Page to Indenture]




 









 








EXHIBIT A




[FACE OF NOTE]




[Global Notes Legend]





     [The following legend shall appear on the face of each Global Note:



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



     [The following legend shall appear on the face of each Global Security for which The
Depository Trust Company is to be the Depositary:



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



     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED NOTES IN DEFINITIVE
REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.]



A-1




 









 








[IAI Note Legend]




     [The following legend shall appear on the face of each IAI Note:



     THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAW. IN NO
EVENT MAY THIS NOTE BE SOLD, ASSIGNED, PLEDGED, LOANED, HEDGED OR OTHERWISE DISPOSED OF OR
ENCUMBERED (COLLECTIVELY, A “TRANSFER”) BY A SPONSOR PURCHASER PRIOR TO OCTOBER 23, 2008; PROVIDED,
HOWEVER, THAT A SPONSOR PURCHASER MAY TRANSFER A NOTE PRIOR TO SUCH TIME (1) TO AN AFFILIATED
ENTITY, PROVIDED THAT SUCH TRANSFEREE AGREES TO BE BOUND BY THE TRANSFER PROVISIONS OF THE
INDENTURE, THE NOTE PURCHASE AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT AND THE TRANSFERRING
HOLDER AGREES TO CONTINUE TO BE SO BOUND OR (2) OTHERWISE PURSUANT TO THE TERMS OF SECTION 7.1(A)
OF THE NOTE PURCHASE AGREEMENT. ANY SPONSOR PURCHASER HOLDING THIS NOTE AGREES THAT IT WILL NOT
PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE EVIDENCED
HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE SECURITY RESELL OR OTHERWISE TRANSFER THIS NOTE
EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE OTHER THAN DURING THE
TIMES DESCRIBED IN THE NOTE PURCHASE AGREEMENT AND ONLY PURSUANT TO (1) A TRANSFER TO THE COMPANY,
(2) A PERMITTED TRANSFER, (3) A TRANSFER TO A TRANSFEREE THAT IS NOT A SPONSOR OR AN AFFILIATE OF A
SPONSOR (EXCLUDING GOLDMAN, SACHS & CO. OR ANY OF ITS AFFILIATES ACTING IN THEIR CAPACITY AS AN
UNDERWRITER, DEALER OR BROKER), PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, (4) TO A “QUALIFIED INSTITUTIONAL BUYER” THAT IS NOT A SPONSOR OR AN AFFILIATE OF A
SPONSOR (EXCLUDING GOLDMAN, SACHS & CO. OR ANY OF ITS AFFILIATES ACTING IN THEIR CAPACITY AS AN
UNDERWRITER, DEALER OR BROKER) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, (5) A TRANSFER TO A
TRANSFEREE THAT IS NOT A SPONSOR OR AN AFFILIATE OF A SPONSOR (EXCLUDING GOLDMAN, SACHS & CO. OR
ANY OF ITS AFFILIATES ACTING IN THEIR CAPACITY AS AN UNDERWRITER, DEALER OR BROKER) PURSUANT TO
RULE 144 UNDER THE SECURITIES ACT OR PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR (6) A
TRANSFER THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. NO BANK PURCHASER
SHALL TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT PURSUANT
TO A WRITTEN INSTRUCTION BY THE SPONSOR PURCHASERS OR PURSUANT TO A BANK PURCHASER TRANSFER EVENT
OR TO AN AFFILIATE OF SUCH BANK PURCHASER, IN EACH CASE AS PROVIDED IN THE NOTE PURCHASE AGREEMENT.
THIS LEGEND SHALL BE REMOVED, AND REPLACED BY A



A-2




 









 







NEW LEGEND, IN EACH CASE IF APPLICABLE, UPON THE TRANSFER OF THE NOTE EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE PURSUANT TO EITHER OF THE TWO IMMEDIATELY
PRECEDING SENTENCES. IF THE PROPOSED TRANSFER IS PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY CLAUSE (5) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR TRUSTEE MAY REASONABLY
REQUIRE 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. IN ANY CASE THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO
THIS NOTE OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT AS PERMITTED BY THE
SECURITIES ACT.




     THIS NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE IS ADDITIONALLY SUBJECT
TO THE TRANSFER RESTRICTIONS CONTAINED IN THE NOTE PURCHASE AGREEMENT.



     IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS NOTE, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION, INCLUDING AN “ASSIGNMENT FORM” IN THE FORM ATTACHED TO THE BACK OF THIS NOTE, AS SUCH
REGISTRAR OR TRANSFER AGENT MAY REASONABLY REQUEST TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.]



A-3




 









 








[Restricted Note Legend]




     [The following legend shall appear on the face of each Restricted Note:



     THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE EVIDENCED HEREBY AND THE LAST DATE ON WHICH
THE COMPANY OR ANY “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS
THE OWNER OF THE SECURITY (THE “RESTRICTION TERMINATION DATE”) RESELL OR OTHERWISE TRANSFER THIS
NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE OTHER THAN (1) TO
THE COMPANY, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR (6) A TRANSFER THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)
OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS NOTE OR ANY COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT AS PERMITTED BY THE SECURITIES ACT.]



A-4




 









 








Harman International Industries, Incorporated




1.25 % Convertible Senior Notes Due October 15, 2012




CUSIP No. [__________]1




$                    




     No. [                    ]



     Harman International Industries, Incorporated, a Delaware corporation (the “Company,” which
term includes any successor under the Indenture hereinafter referred to), for value received,
promises to pay to ___ , or its registered assigns, the principal sum of
___   DOLLARS ($___) on October 15, 2012[, which principal amount may from
time to time be increased or decreased to such other principal amount (which, taken together with
the principal amounts of all other outstanding Notes, shall not exceed $400,000,000) by adjustments
on the Schedule of Exchanges of Notes on the other side of this Note in accordance with the
Indenture.]1



     Initial Interest Rate: 1.250% per annum.



     Interest Payment Dates: April 15 and October 15, commencing April 15, 2008.



     Regular Record Dates: April 1 and October 1.



     Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which will for all purposes have the same effect as if set forth at this place.





 




			
	1	 	Include only if the Note is a Global Note





A-5




 









 








     IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.



	 	 	 	 	 	 	 
	Date:                     	 	HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Attest:




	 	 	 	 	 
	By:

	 	 
 

Name:
	 	 
	 

	 	Title:	 	 






A-6





 









 








(Form of Trustee’s Certificate of Authentication)




     This is one of the 1.25% Convertible Senior Notes Due October 15, 2012 described in the
Indenture referred to in this Note.



WELLS FARGO BANK, NATIONAL

ASSOCIATION
as Trustee




By:




	 	 	 
	 

Authorized Signatory

	 	 






A-7





 









 








[REVERSE SIDE OF NOTE]




Harman International Industries, Incorporated




1.25% Convertible Senior Notes Due October 15, 2012





	1.	 	Principal and Interest.





     The Company promises to pay the principal of this Note on October 15, 2012.



     The Company promises to pay interest on the principal amount of this Note on each Interest
Payment Date, as set forth on the face of this Note, at the rate of 1.25% per annum (subject to
adjustment as provided below).



     Interest will be payable semiannually in arrears (to the holders of record of the Notes at the
close of business on the April 15 or October 15 immediately preceding the interest payment date) on
each interest payment date, commencing April 15, 2008.



     Interest on this Note will accrue from the most recent date to which interest has been paid on
this Note or the Note surrendered in exchange for this Note (or, if there is no existing default in
the payment of interest and if this Note is authenticated between a regular record date and the
next interest payment date, from such interest payment date) or, if no interest has been paid, from
the Issue Date. Interest will be computed in the basis of a 360-day year of twelve 30-day months.



     The Company will pay interest on overdue principal, premium, if any, and, to the extent
lawful, interest at a rate per annum of 1.25%. Interest not paid when due and any interest on
principal, premium or interest not paid when due will be paid to the Persons that are Holders on a
special record date, which will established as set forth in the Indenture referred to below.



     Additional interest will accrue on the Notes at an additional rate per year equal to 0.25% per
annum of the principal amount of the Notes under the circumstances set forth in the Registration
Rights Agreement (as defined below).



     Any payment required to be made on any day that is not a Business Day will be made on the next
succeeding Business Day, without additional interest.




	2.	 	Registration Rights Agreement.





     The Holder of this Note is entitled to the benefits of the Registration Rights Agreement,
dated October 23, 2007, between the Company and the Purchasers named therein (the “Registration
Rights Agreement”). In the event of a Registration Default, as defined in the Registration Rights
Agreement, the Holder is entitled to additional interest for the period from and including the day
following the occurrence of the Registration Default to, but excluding, the earlier of the day on
which the Registration Default has been cured or the date on which there are no Registrable



A-8




 









 




Securities, as defined in the Registration Rights Agreement. Additional interest will accrue
at an additional rate per year equal to 0.25% per annum of the principal amount of the Notes.




3. Method of Payment.




     Subject to the terms and conditions of the Indenture, the Company shall pay interest on this
Note to the person who is the Holder of this Note at the close of business on the Regular Record
Date next preceding the related Interest Payment Date. The Company will pay any Cash amounts in
money of the United States that at the time of payment is legal tender for payment of public and
private debts.



4. Paying Agent, Conversion Agent and Registrar.




     Initially, the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar without
notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar. The Company may
maintain deposit accounts and conduct other banking transactions with the Trustee in the normal
course of business.



5. Indenture.




     This is one of the Notes issued under an Indenture dated as of October 23, 2007 (as amended
from time to time, the “Indenture”), between the Company and Wells Fargo Bank, National
Association, as Trustee. Capitalized terms used herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any inconsistency between
the terms of this Note and the terms of the Indenture, the terms of the Indenture will control.



     The Notes are general unsecured obligations of the Company.



6. Repurchase at the Option of the Holder upon a Fundamental Change.




     At the option of the Holder and subject to the terms and conditions of the Indenture, upon the
occurrence of a Fundamental Change, the Company shall become obligated to purchase the Notes held
by such Holder on the date, at the purchase price and as otherwise provided in the Indenture.



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



     If Cash (and/or securities if permitted under the Indenture) sufficient to pay the Fundamental
Change Purchase Price of, together with any accrued and unpaid interest with respect to, all Notes
or



A-9




 









 







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




7. Conversion.




     A Holder of a Note may convert such Note into Cash and, to the extent the Conversion Value of
such Note is greater than $1,000, Cash, shares of Common Stock or a combination thereof, at the
option of the Company, as set forth in the Indenture before the Close of Business on the Business
Day immediately preceding Maturity Date, if at least one of the following conditions is satisfied:



     (a) during any calendar quarter commencing at any time after December 31, 2007, and only
during such calendar quarter, if the Closing Price of the Common Stock for at least 20 Trading Days
in the period of 30 consecutive Trading Days ending on the last Trading Day of the preceding
calendar quarter exceeds 130% of the Conversion Price per share of Common Stock on the last day of
such preceding calendar quarter (the “Conversion Trigger Price”);



     (b) during the five Business Day period immediately after any five consecutive Trading Day
period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes
for each day of such Measurement Period was less than 98% of the product of the Closing Price of
the Common Stock on such date and the Conversion Rate on such date;



     (c) the Company elects to distribute to all or substantially all holders of Common Stock
(i) rights or warrants entitling all holders of the Common Stock to subscribe for or purchase, for
a period expiring within 60 days after the record date for such distribution, Common Stock at less
than the average of the Closing Prices of the Common Stock for the five consecutive Trading Days
ending on the date immediately preceding the first public announcement of the distribution, or
(ii) Cash, debt securities (or other evidences of Debt) or other assets (excluding dividends or
distributions described in Section 10.06 of the Indenture), which distribution, together with all
other distributions within the preceding twelve months, has a per share value exceeding 10% of the
average of the Closing Prices of the Common Stock for the five consecutive Trading Days ending on
the date immediately preceding the first public announcement of the distribution; or



     (d) if a Fundamental Change occurs or if the Company is a party to a consolidation, merger,
binding share exchange or transfer or lease of all or substantially all of the Company’s assets; or



     (e) at any time on or after June 30, 2012 until the Close of Business on the Business Day
immediately preceding the Maturity Date.



     The Company will determine at the beginning of each calendar quarter commencing after December
31, 2007 through the calendar quarter ending June 30, 2012 whether the Notes are



A-10




 









 




convertible as a result of the price of Common Stock exceeding the Conversion Trigger Price in
accordance with clause (a) above and will notify the Conversion Agent and the Trustee if the Notes
are so convertible. The Trustee shall have no obligation to determine the Trading Price of the
Notes pursuant to clause (b) above unless the Company has requested such determination; and the
Company shall have no obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than
98% of the product of the Closing Price and the Conversion Rate. At such time, the Company shall
instruct the Trustee to determine the Trading Price beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than
or equal to 98% of the product of the Closing Price and the Conversion Rate.




     If the Company makes a distribution described in subsection (c)(i) or (c)(ii), the Company
must notify Holders at least 20 Trading Days prior to the Ex-Dividend Date for such distribution.
Once the Company has given such notice, Holders may surrender their Notes for conversion at any
time until the earlier of the Close of Business on the Business Day prior to the Ex-Dividend Date
for such distribution or the Company’s announcement that such distribution will not take place,
even if the Notes are not convertible at that time.



     The Company will notify Noteholders and the Trustee as promptly as practicable following the
date on which the Company publicly announces any transaction described in clause (d) above, but in
no event less than 20 Trading Days’ prior to the anticipated effective date of such transaction in
the case of a transaction within the control of the Company or of which the Company has at least 30
Trading Days prior notice. Noteholders may surrender their Notes for conversion at any time after
the date that is 15 Trading Days prior to the anticipated effective date of such transaction until
35 Trading Days after the actual date of such transaction (or, if such transaction also constitutes
a Fundamental Change, until the Fundamental Change Purchase Date).



8. Defaults and Remedies.




     If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due
and payable, subject to certain limitations set forth in the Indenture. If a bankruptcy or
insolvency default with respect to the Company occurs and is continuing, the Notes automatically
become due and payable. Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount
of the Notes then outstanding may direct the Trustee in its exercise of remedies.



9. Amendment and Waiver.




     Subject to certain exceptions set forth in the Indenture, the Indenture and the Notes may be
amended, or default may be waived, with the consent of the Holders of a majority in principal
amount of the outstanding Notes. Without notice to or the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, omission, defect or inconsistency.



A-11




 









 





10. Registered Form; Denominations; Transfer; Exchange.




     The Notes are in registered form without coupons in denominations of $1,000 principal amount
and integral multiples of $1,000. A Holder may register the transfer or exchange of Notes in
accordance with the Indenture. The Trustee may require a Holder to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will
not be required to issue, register the transfer of or exchange any Note or certain portions of a
Note.



11. Persons Deemed Owners.




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



12. Unclaimed Money or Notes.




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



13. Trustee Dealings with the Company.




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



14. No Recourse Against Others.




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



15. Authentication.




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



16. Governing Law.




     THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS NOTE.



A-12




 









 





17. Abbreviations.




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



     The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge.



A-13





 











 





[FORM OF TRANSFER NOTICE]




     FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto



Insert Taxpayer Identification No.




 





 

 




Please print or typewrite name and address including zip code of assignee




 




the within Note and all rights thereunder, hereby irrevocably constituting and appointing




 




attorney to transfer said Note on the books of the Company with full power of substitution in the
premises.




	 	 	 	 	 	 	 	 	 
	Date:

	 	 
	 	 	 	Your Signature:	 	 
	 

	 	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	  

(Sign
exactly as your name appears on

the other side of this Note)
	 	 
	 
	 	 	 	 	 	 	 	 
	*Signature guaranteed by:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 
 

	 	 	 	 	 	 








 




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





A-14









 





CONVERSION NOTICE




     To convert this Note, check the box: o



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



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



 




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




 





 

 




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




and irrevocably appoint




 




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




	 	 	 	 	 	 	 	 	 
	Date:

	 	 
	 	 	 	Your Signature:	 	 
	 

	 	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	  

(Sign
exactly as your name appears on

the other side of this Note)
	 	 
	 
	 	 	 	 	 	 	 	 
	*Signature guaranteed by:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 
 

	 	 	 	 	 	 








 




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





A-15









 





SCHEDULE
OF EXCHANGES OF NOTES2




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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount of	 	 
	 	 	Amount of decrease	 	Amount of Increase	 	this Global Note	 	Signature or
	 	 	in Principal Amount	 	in Principal Amount	 	following such	 	authorized signatory
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	decrease or increase	 	of Trustee
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 	 







 




			
	2	 	This schedule should be included only if the Note is a
Global Note.





A-16









 





ASSIGNMENT FORM




     To assign this Note, fill in the form below:



               (I) or (we) assign and transfer this Note to



	 	 	 	 	 
	 

	 	 

(Insert assignee’s social security or tax I.D. no.)
	 	 
	 

	 	 
 

	 	 
	 

	 	 
 

	 	 
	 

	 	 
 

	 	 
	 

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





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




	 	 	 	 	 	 	 
	 

	 	Your Signature:
	 	  

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






          Date:                                                            
                     




          Medallion Signature Guarantee:                                                        
                         




     [FOR INCLUSION ONLY IF THIS NOTE BEARS AN IAI NOTE LEGEND ––] Other than pursuant to the sale
or transfer of a Note to a transferee that is not an Affiliate of the Initial Purchaser pursuant to
an effective Shelf Registration Statement filed in connection with the Registration Rights
Agreement, dated as of October 23, 2007, between the Company and the purchasers named therein, in
connection with any transfer of any of the Notes evidenced by this certificate which are
“restricted securities” (as defined in Rule 144 (or any successor thereto) under the Securities
Act), the undersigned confirms that the Notes are being transferred to a Person that is not an
Affiliate of the Company and:



     CHECK ONE BOX BELOW



	 	 	 	 	 
	 

	 	(1)  o    
	 	 To the Company.
	 

	 	(2)  o    
	 	 In connection with a Permitted Transfer.
	 
	 	 	 	 
	 

	 	(3)  o    
	 	 A transfer to a transferee that is not an Affiliate of any Sponsor
Purchaser pursuant to Rule 144 under the Securities Act.
	 
	 	 	 	 
	 

	 	(4)  o    
	 	 A transfer to a person that is not an “Affiliate” of any Sponsor
Purchaser (as described in Rule 144 under the Securities Act)
pursuant to Rule 144A under the Securities Act or pursuant to
Regulation S under the Securities Act.
	 
	 	 	 	 
	 

	 	(5)  o    
	 	 Solely if the conditions required to transfer pursuant to Rule 144
under the Securities Act, a transfer that is otherwise exempt from
registration under the Securities Act.






A-17









 





     Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes
evidenced by this certificate in the name of any Person other than the registered holder thereof;
provided, however, that if box (2) is checked, the Trustee may require, prior to registering any
such transfer of the Notes, such certifications and other information, including legal opinions, as
the Company has reasonably requested in writing, by delivery to the Trustee of a standing letter of
instruction, 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.



	 	 	 	 	 	 	 
	 

	 	Your Signature:
	 	  

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






          Date:                                                            
                     




          Medallion Signature Guarantee:                                                        
                         




     [FOR INCLUSION ONLY IF THIS NOTE BEARS A RESTRICTED NOTE LEGEND ––] Other than pursuant to the
sale or transfer of the Note to a transferee that is not an Affiliate of the Initial Purchaser
pursuant to an effective Shelf Registration Statement filed in connection with the Registration
Rights Agreement, dated as of October 23, 2007, between the Company and the purchasers named
therein, in connection with any transfer of any of the Notes evidenced by this certificate which
are “restricted securities” (as defined in Rule 144 (or any successor thereto) under the Securities
Act), the undersigned confirms that the Notes are being transferred to a Person that is not an
Affiliate of the Company and:



     CHECK ONE BOX BELOW



	 	 	 	 	 
	 

	 	(1)  o    
	 	 to the Company; or
	 
	 	 	 	 
	 

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

	 	(3)  o    
	 	 pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
	 
	 	 	 	 
	 

	 	(4)  o    
	 	 pursuant to and in compliance with Rule 144 under the Securities
Act of 1933; or
	 
	 	 	 	 
	 

	 	(5)  o    
	 	 pursuant to and in compliance with any other exemption under the
Securities Act of 1933.






     Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes
evidenced by this certificate in the name of any Person other than the registered holder thereof;
provided, however, that if box (3) or (4) is checked, the Trustee may require, prior to registering
any



A-18









 







such transfer of the Notes, such certifications and other information, and if box (4) is
checked such legal opinions, as the Company has reasonably requested in writing, by delivery to the
Trustee of a standing letter of instruction, 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; provided that this paragraph shall not be applicable to any Notes which are not
“restricted securities” (as defined in Rule 144 (or any successor thereto) under the Securities
Act).



	 	 	 	 	 	 	 
	 

	 	Your Signature:
	 	  

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






          Date:                                                            
                     




          Medallion Signature Guarantee:                                                        
                         





A-19












 





EXHIBIT B




FORM OF RESTRICTED COMMON STOCK LEGEND AND

IAI COMMON STOCK LEGEND




[IAI Common Stock Legend]




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT. IN NO EVENT MAY THIS SECURITY
BE SOLD, ASSIGNED, PLEDGED, LOANED HEDGED OR OTHERWISE DISPOSED OF OR ENCUMBERED (COLLECTIVELY, A
“TRANSFER”) BY A SPONSOR PURCHASER PRIOR TO OCTOBER 23, 2008; PROVIDED, HOWEVER, THAT A SPONSOR
PURCHASER MAY TRANSFER A NOTE PRIOR TO SUCH TIME (1) TO AN AFFILIATED ENTITY, PROVIDED THAT SUCH
TRANSFEREE AND AGREES TO BE BOUND BY THE TRANSFER PROVISIONS OF THE INDENTURE, THE NOTE PURCHASE
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT AND THE TRANSFERRING HOLDER AGREES TO CONTINUE TO
BE SO BOUND OR (2) OTHERWISE PURSUANT TO THE TERMS OF SECTION 7.1(A) OF THE NOTE PURCHASE
AGREEMENT. ANY SPONSOR PURCHASER HOLDING THIS NOTE AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT
IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE EVIDENCED HEREBY AND THE LAST
DATE ON WHICH THE COMPANY OR ANY “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF
THE COMPANY WAS THE OWNER OF THE SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EVIDENCED
HEREBY OTHER THAN DURING THE TIMES DESCRIBED IN THE NOTE PURCHASE AGREEMENT AND ONLY PURSUANT TO
(1) A TRANSFER TO THE COMPANY, (2) A PERMITTED TRANSFER, (3) A TRANSFER TO A TRANSFEREE THAT IS NOT
A SPONSOR OR AN AFFILIATE OF A SPONSOR (EXCLUDING GOLDMAN, SACHS & CO. OR ANY OF ITS AFFILIATES
ACTING IN THEIR CAPACITY AS AN UNDERWRITER, DEALER OR BROKER), PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, (4) TO A “QUALIFIED INSTITUTIONAL BUYER” THAT IS
NOT A SPONSOR OR AN AFFILIATE OF A SPONSOR (EXCLUDING GOLDMAN, SACHS & CO. OR ANY OF ITS AFFILIATES
ACTING IN THEIR CAPACITY AS AN UNDERWRITER, DEALER OR BROKER) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, (5) A TRANSFER TO A TRANSFEREE THAT IS NOT A SPONSOR OR AN AFFILIATE OF A SPONSOR
(EXCLUDING GOLDMAN, SACHS & CO. OR ANY OF ITS AFFILIATES ACTING IN THEIR CAPACITY AS AN
UNDERWRITER, DEALER OR BROKER)PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT OR (6) A TRANSFER THAT IS OTHERWISE EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT. NO BANK PURCHASER SHALL TRANSFER THIS SECURITY EXCEPT PURSUANT TO A
WRITTEN INSTRUCTION BY THE SPONSOR PURCHASER OR PURSUANT TO A BANK PURCHASER TRANSFER EVENT OR TO
AN AFFILIATE OF SUCH BANK PURCHASER, IN EACH CASE AS PROVIDED IN THE NOTE PURCHASE AGREEMENT. THIS
LEGEND SHALL BE REMOVED, AND REPLACED



B-1 









 




BY A NEW LEGEND, IN EACH CASE IF APPLICABLE, UPON THE TRANSFER OF THE SECURITY EVIDENCED
HEREBY PURSUANT TO EITHER OF THE TWO IMMEDIATELY PRECEDING SENTENCES. IF THE PROPOSED TRANSFER IS
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY CLAUSE (5) ABOVE, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THE COMPANY OR TRUSTEE MAY REASONABLY REQUIRE 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. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.




     THIS SECURITY IS ADDITIONALLY SUBJECT TO THE TRANSFER RESTRICTIONS CONTAINED IN THE NOTE
PURCHASE AGREEMENT.



     IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY, THE HOLDER WILL DELIVER TO THE TRANSFER
AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUEST TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.



[Restricted Common Stock Legend]




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY EVIDENCED HEREBY AND THE LAST DATE ON WHICH THE
COMPANY OR ANY “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE
OWNER OF THE SECURITY (THE “RESTRICTION TERMINATION DATE”) RESELL OR OTHERWISE TRANSFER THIS
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY OTHER THAN
(1) TO THE COMPANY, (2) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT, (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR (5) A TRANSFER
THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE



B-2 









 




MEANING OF RULE 144A OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR
INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY
THE SECURITIES ACT.





B-3